On 26 November last year, what is today known as Constitution Day, home minister Rajnath Singh described the term “secular" as the “most misused word" in the country’s political discourse. Additionally, he claimed that the country’s founding fathers had found the need for inclusion of secularism as a specifically guaranteed tenet as superfluous to the sustenance of Indian democratic polity.

Singh’s intentions, in making these assertions, were quite clear. This was really an effort at obfuscating what were—and are—grave concerns about the present Indian government’s majoritarian policies, specifically its claim for an Indianness built on a supposed monolithic cultural edifice. The comments quite rightly drew the ire of the opposition.

But while Singh’s goals may have been grossly flagrant, the idea of debating what Indian secularism really means must hardly be frowned upon. After all, secularism, much like equality or liberty, is an interpretive concept.

As it happened, during the early years of independence, and indeed, during the making of India’s Constitution, secularism and its real purport and meaning was a hotly contested topic. The debates during the time centred largely on important conceptions of what religion meant, what the government’s role in religion ought to be, and whether India required a strict wall of separation between the state and religion. The answer to the final question invariably acquired a sense of reasonable consensus among the debaters.

It was clear to most that unlike western notions of the term, the Indian state, even if it adopted a commitment to secularism, simply couldn’t afford to embrace a completely non-interventionist role towards religion. This was because, in India, religion tended to pervade society in a manner that often had serious implications for one’s basic civil rights.

But to what extent must this intervention extend?

Typical debates on secularism today tend to bypass issues concerning the state’s intervention in religious matters, particularly in Hindu temples. Most discussions in popular conversation revolve around what are viewed as core political questions—such as subjects concerning the guarantee from the state of equal co-existence of different religious faiths, the ability of government to bring forth social reform and welfare, and the protection of personal and private rights of minority groups.

Indeed, the manner in which we answer questions raised on each of these issues would inform us greatly on our ability to sustain ourselves as a liberal democracy. But the question of where governmental intervention in religion ought to begin, and where it ought to end, especially in the state’s management and administration of Hindu institutions, is critical to articulating the country’s approach to the freedom of conscience and religion.

For instance, in January 2014, in ruling on the validity of a seemingly perpetual takeover of the Sri Sabanayagar Temple in the town of Chidambaram by the Tamil Nadu government, the Supreme Court said, “Even if the management of a temple is taken over to remedy (an) evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived."

This process of governmental takeover of Hindu temples is seen by some as a product of a power of supposedly secular management that has been arrogated by the Indian state.

Senior advocates Fali S. Nariman and Rajeev Dhavan once wrote that, through an exercise of this appropriated power, the government has overseen a practical nationalization of religious endowments and temples. This process, in their words, “sits uneasily with both the guarantee of religious freedom and secularism".

Although, in many ways, the present-day intervention in matters of religious administration has its roots in the British rule, the more general practice predates even the colonial regime.

Numerous historical records attest to the fact that Hindu kings exercised a very particular supervision of Hindu temples. As the P.R. Ganapathi Iyer wrote in his 1918 treatise The Law Relating to Hindu and Mohammedan Endowments, there is little doubt that Hindu kings interfered when there were disputes pertaining to temple affairs.

In fact, in 1887, justice Raymond West of the Bombay high court specifically pointed to such interventions as being a part of the prevailing norm. “Under the native system of Government, though it was looked on as a heinous offence to appropriate to secular purpose the estate that had once been dedicated to pious uses," the judge wrote, in a case titled Manohar Ganesh Tambekar vs Lakhmiram Govindaram. “The State in its secular executive and judicial capacity habitually intervened to prevent fraud and waste in dealing with religious endowments." This power of superintendence was, therefore, really seen as being an incident of sovereignty.

Under Muslim administration, too, Ganapathi Iyer points out, the governments of the time saw it as the state’s duty to ensure that all endowments for the support of mosques, Hindu temples, and so forth were “applied according to the real intent and will of the grantor".

The Mughal rulers, for example, appointed Qadis (Islamic judges) and nominated Mutawallis (trustees) for Wakfs. These Mutawallis were accountable to the Qadis, to ensure the proper management of Wakf property, which were endowments made by Muslims for religious, pious or charitable purposes.

Thus, a general, if not an overarching, power to administer and manage religious and charitable endowments was seen by both Hindu and Muslim rulers as an integral function of the sovereign. Long before 1810, when the British colonial government passed its first official notification assuming this supposed governmental role, the regime undeniably exercised supervisory functions over pious endowments.

Consider this observation by the Madras high court in an 1867 judgement: “The duties of superintendence and the proper appropriation of the endowments of Hindu and Muhammadan temples and religious establishments, of the preservation of the structures of such temples and establishments, and of the management of their affairs, through trustees or managers, were without doubt, we believe," wrote chief justice Colley Harmon Scotland and justice L.C. Innes, “exercised by the officers of the Local Government indiscriminately long before the Tanjore territory and temples were assumed by the Government."

This supposedly intrinsic power had further crystallized with the passing of the Bengal Regulation XIX [19] in 1810 and the Madras Regulation VII [7] in 1817. Through these laws, the general management of all endowments of religious establishments in these presidencies—apart from the duty to appoint properly qualified trustees and managers to these foundations—were made binding on the Board of Revenue. The Board, a 1781 creation of the East India Company, had been established to oversee the revenue and business of the institution.

Surprisingly, governmental interventions, at the time, in matters of religious administration were largely welcomed. These regulations were, according to Pran Nath Saraswati, the first Indian judge of the Calcutta high court, “instrumental in saving many of the native endowments from ruin and misappropriation".

But around the middle of the century, the application of these regulations was withdrawn amid what Saraswati described as “religious scruples". There were pressures, as it happened, from Christian missionary circles, both in India and in England, against what were perceived as express governmental support for idolatry.

Ultimately, in 1863, the Imperial Legislature enacted a comprehensive law with a view to continuing the fine work that the Board of Revenue had performed under earlier regulations.

But the new legislation proved highly ineffective. Its scope was rather more limited, and it relied not on executive powers over religious administration, but on the intervention by courts to set right any maladministration that had been brought to its attention. The result of this law was so disastrous, wrote Saraswati, that it became “practically impossible to compel the managers of endowments to perform their allotted duties with honesty and faithfulness".

Over the course of the next few decades, several attempts were made by the colonial government to provide for itself a more far-reaching role in the administration of religious endowments. However, the British were deeply conscious of their limits. They didn’t want to be seen as religious reformers, and, with Christian missionaries constantly on their heels, the government also didn’t want to be seen as favouring the Hindus.

But, after the enactment of the Government of India Act, 1919, with purported constitutional changes bringing forth a stricter demarcation between central and provincial legislatures, there was a belief that reforms could flow from the acts of Indian representatives rather than through the British colonial government.

In 1927, as a product of this division, the Madras legislature enacted a religious endowments Act. Unlike earlier regulations that applied to both Hindu and Muslim institutions, the 1927 law was sanctioned with the sole view of overseeing, through a board of commissioners, the management of Hindu institutions. This board was vested with enormous powers; not only could it frame schemes for better administration of temples, it could also, in cases of mismanagement by existing trustees, take over altogether the management of a temple.

The upshot of the law was the commencement of what Nariman and Dhavan now describe as the nationalization of the Hindu religion. Once the state assumed control over the management of a temple, it was simply loath to privatizing this power.

Just over two decades later, when the Indian Constitution was adopted, the ability of the state to intervene in any purportedly secular affair of a religion, as had been the norm for several centuries, was seen not as antithetical to secularism, but as necessary for guaranteeing a more egalitarian society.

Unlike the American constitution, which prescribes a strict wall of separation, what India’s Constitution demands is, in political theorist Rajeev Bhargava’s telling description, the maintenance of a “principled distance" between the state and religion.

Therefore, when, in 1951, the Madras government introduced a new Hindu Religious and Charitable Endowments Act, the law was predominantly viewed by the Supreme Court as being in consonance with both the Constitution’s bare text and its secular ideals.

This law, however, had accorded the state government exceedingly wide powers of interference. Unlike the earlier British-era enactments, which provided for a general supervision of Hindu endowments through a statutory board of commissioners, the new legislation virtually vested the administration of Hindu religious and charitable institutions in a governmental department.

The commissioner appointed by the government could, under the 1951 law, frame and settle a “scheme", if he or she had reason to believe that a religious institution was mismanaging the resources placed under its care, or was being run contrary to the purposes for which it was founded.

“It is no exaggeration," wrote Professor Donald E. Smith, an early chronicler of Indian secularism, “to assert that the commissioner for Hindu religious endowments, a public servant of the secular state, today exercises far greater authority over the Hindu religion in Madras state than the archbishop of Canterbury does over the Church of England."

Smith also sought to brush aside the argument that the commissioner and his appointees merely exercised control over secular functions as being “simply untenable". “When a deputy commissioner sanctions the expenditure of surplus temple funds for the establishment of orphanages rather than for the propagation of the religious tenets of the institution, he is dealing as much religion as he is with finances," he wrote. “Behind this preference lies a whole set of religious assumptions which are in effect being imposed on the temple trustees."

The imprimatur given to the Madras law by the Supreme Court saw the heralding of several new laws across India. In 1959, after the reorganization of the southern states, the Tamil Nadu government repealed the Madras law of 1951 and enacted a new law that today virtually serves as a model for the country.

At the time when the 1959 law was being debated, The Hindu newspaper claimed in an editorial that the proposed enactment “sought to tighten further the hold of government over the temples and other religious institutions in the state, under the guise of better management and regulation, so that these stood virtually nationalised, functioning as a department of government and subject to all the vicissitudes of party politics in a secular parliamentary democracy".

The newspaper’s claims, some would argue, have since proved prescient. The collective result of the various laws establishing an overarching power to manage Hindu institutions has seen a staggering takeover by the government of virtually every Hindu temple of any reasonable note.

For example, as scholar Pratap Bhanu Mehta has previously noted, the Andhra Pradesh government alone administers more than 30,000 temples, in 2003, with the scope of its endowments body extending beyond the simple governance of property rights to include the selection and appointment of priests and the proper administration of rituals.

Many see this intervention as a usurpation of Hindu endowments for the benefit of the government, and as being opposed to all tenets of what constitute a “principled separation" between the state and the Hindu religion. At the same time, others argue that the singling out of Hindu endowments neither violates the Constitution’s text nor the larger guarantee of a neutral form of secularism.

Bhargava, for example, maintains that “principled distance allows for differential treatment", so long as state intervention can be justified on the grounds that it “promotes freedom, equality, or any other value integral to secularism".

Most governments argue that, in taking over the management of a Hindu temple, their intentions are embedded precisely in these constitutional values; that their intervention is necessary to bring about social welfare and reform, to correct a history of social inequities.

Would the privatization, so to speak, of Hindu temples necessarily lead to better management? Would it ensure that these endowments are administered in a manner that conforms to the guarantee of basic civil rights of the various different followers of the Hindu religion?

The state would argue that its intervention in Hindu endowments and trusts is not aimed at reforming the religion out of existence, but rather at ensuring that the administration of the endowment stays true to both the will and the intent of the grantor and the country’s secular ideals. Should the state now leave religion alone? Has it ever?

Suhrith Parthasarathy is a lawyer and writer based in Chennai. His writings are collated at suhrith.net.

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