On 13 December 1951, a Division Bench of Hon’ble Madras High Court presided by the Learned Judges Justice Satyanarayana Rao and Justice Rajagopalan passed two landmark judgments.
•1952 I MLJ 481 – Devaraja Shenoy vs. State of Madras – quashing the Government order to take over the administration of the Shri Venkataramana Temple in Mulkipetta.
•1952 I MLJ 557 – Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt vs. State of Madras quashing the Government order to take over the administration of Shri Udupi Krishna Temple and Shri Sabhanayagar Temple in Chidambaram.
In the Shirur Mutt Case, many provisions of the new HR & CE Act of 1951 were held ultra vires of the Constitution. The Division Bench clearly defined a Religious Denomination, their rights - religious and administrative. It also explained how these rights were intermingled and could not be separated in the case of a Mathathipathi and since it was the same with the Podu Dikshitars of Chidambaram Temple, it equated them to Mathathipathis.
Equally important were the findings of the Division Bench that the attempt of the Board and the Commissioner HR & CE to take over the temples were not only unconstitutional but bad on merits.
Appeals to Supreme Court
The Government of Madras filed three appeals against these two landmark verdicts. On 9 February 1954, a five-judge Constitution Bench of the Hon’ble Supreme Court dismissed the civil appeal 39/1953 after recording the statement of the Advocate General of the Madras Government that the G.O. passed to take over the Chidambaram Shri Sabhanayagar Temple would be withdrawn. The Government sought no leave and none was granted.
Similarly the Government’s Civil Appeal no.15/1953 filed against the verdict of Hon’ble Madras Court in the Shri Venkataramana Temple Mulkipetta was also dismissed after the Government offered to withdraw the G.O. appointing the Executive Officer.
The Government of Madras contested only the Civil Appeal 38 of 1953, pertaining to the Shirur Mutt Case and even in that appeal did not contest on merits. The Advocate General argued only on constitutional grounds. This was clearly recorded in the Supreme Court judgment.
Thus, it is amply clear that the HR & CE Department and the Government never had any case right from the beginning on merits, and they simply wanted to take over the administration of large and famous temples to pave way for the takeover of all other temples in the Presidency.
The 1954 Supreme Court judgment in the Shirur Mutt Case
The judgment of the Constitution Bench of the Supreme Court in the appeal related to the Shirur Mutt (AIR 1954 SC 282) and the judgment by another Constitution Bench in the Venkataramana Devaru vs. State of Mysore (1958 SCR 895) are landmark judgments that Courts in India are expected to follow regarding Article 26 of the Indian Constitution and Denomination rights.
The Hon’ble Supreme Court agreed with the Hon’ble Madras High Court that many of the sections of the 1951 HR & CE Act were ultra vires the Constitution. It also clearly observed that while the legislature could seek to regulate the administration, it must always leave the administration to the denomination. It struck down the sections of the 1951 Act which sought to appoint Executive Officers to religious institutions as arbitrary and ultra vires the Constitution. The Advocate General of Madras agreed with the Court and said he could not defend those sections.
Major Fraud by the Madras Government in the 1959 Act
Left with no choice but to come up with an amended Act in light of the above judgments of the Madras High Court and Supreme Court of India, the Government of Madras passed a new Act known as the Hindu Religious & Charitable Endowments Act of 1959 (Act 22 of 1959).
In that amended Act, it committed serious frauds which till today continue unchallenged. To understand these frauds we need to know more about the 1954 Supreme Court judgment in the Shirur Mutt Case.
Under the 1951 Act, the HR & CE Dept. had powers under sections 56, 58(3)(b) and 63 to 68 to appoint an Executive Officer to religious institutions including Mutts. Of these, sections 56 and 63-68 were held ultra vires the Constitution of India and were struck down by the Hon’ble Supreme Court in the above-mentioned judgment. The same judgment upheld Sec. 58(3)(b) as valid (this section was earlier struck down by the Division Bench of Madras High Court) since there were adequate appeal safeguards and since the Executive Officer so appointed could only be a servant of the Trustee and could not be empowered to act as the Trustee himself.
Any honest and law-abiding person would imagine that the Madras Government, in deference to the Supreme Court of India and to meet the ends of justice, would have deleted the two sets of sections struck down and retained the section upheld by the Hon’ble Supreme Court.
What happened was exactly the opposite.
The Government of Madras introduced a new section [section 45] in the 1959 Act which was even more arbitrary and draconian than Sec. 56 of the 1951 Act. It also retained the Sections 63-68 in the new Act which now carried the numbers 71-76.
The only section relating to appointment of Executive Officer that was upheld by the Hon’ble Supreme Court was not carried in the new Act. But this would not seem strange if we understand that the intention of the Government and the Department was that no appeal safeguards should be provided to the Trustees of Hindu Institutions against the Department’s illegal and arbitrary orders. Sec. 58(3)(b) of the 1951 Act had earlier afforded such safeguards – it was therefore removed by the Government.
More intriguing is the fact that this rogue department continue to appoint Executive Officers under Sec. 64 of the 1959 Act (the equivalent of Sec. 58 in the 1951 Act) without any power to do so. For example, the Deputy Commissioner in 1963 modified the scheme for Shri Kamakshi Amman Temple of Kachipuram, which is under the ownership of the Kanchi Mutt. While proceeding to modify the scheme under Sec. 64 of the Act, the Deputy Commissioner appointed an Executive Officer and this is an illegal act.
These frauds show there were adequate number of scoundrels and scalawags in the HR & CE Department sixty years ago, and we all know the Dept. has no dearth of such people now.
Going against the dictum of the Hon’ble High Court and the Hon’ble Supreme Court did not stop here. One classic example of the arrogance of the Government is the amendment they brought out soon after the Full Bench judgment in the Rajan Kattalai Case in the Supreme Court (1965 SCR (3) 17). In this case, to get over the quashing of the Extension of the Executive Officer’s appointment, the Government amended the HR & CE Act introducing Sec. 75-A which gave such extensions retrospective effect notwithstanding any judgments by any courts including the Supreme Court. This attempt to retain control over Rajan Kattalai of Tiruvarur Thiagarajaswami Devasthanam in utter contempt to the judgment of the Highest Court of the land in that case was thwarted by the Hon’ble Madras High Court. The Hon’ble High Court of Madras, held:
“by introducing Section 75-A the Legislature has simply directed the Commissioner of Hindu Religious and Charitable Endowments and Executive Officer of Sri Thiagarajaswami Temple to disobey or disregard the decision of the highest court of the land in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167. The obvious purpose of Section 75-A extending the impugned notification is to nullify the effect of this decision of the Supreme Court.” (emphasis added).
In view of this judgment of the Madras High Court, the Government could not succeed in retaining administration of Rajan Kattalai Endowment, but this and other illegal sections 75-B and 75-C are still part of the HR & CE Act, not only in utter disregard of the dictum of the Supreme Court of India, but also in violation of Article 31A(1)(b) of the Constitution.