Venkatarama Aiyar, J. -
(1.) THESE are applications filed under Article 226 of the Constitution and they raise the question as to the validity of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951 hereinafter referred to as the Act. The petitioners in W. P. No. 71 of 1952 are the hereditary Uralans or trustees of the Karikkat temple in Malabar. On 2 -2 -1945 the Board of Hindu Religious Endowments framed a scheme for the management of the temple under Section 62 of Madras Act II of 1927 and the same was modified by the District Court, South Malabar by its decree dated 6 -1 -1950 passed in O. S. No. 5 of 1945. The scheme provides 'inter alia' that there should be a paid manager for the temple to be appointed by the Board from among three persons whose names are to be sent up by the trustees. Troubles arose when the Board rejected all the three names recommended by them. The Uralans felt that the action of the Board was an unwarranted interference with their rights as hereditary trustees. On 26 -9 -1951 there was a meeting of the Uralans in which one of them Sastrasaram Bahattadripad was elected as the managing trustee and the petitioners were constituted a managing committee.
On 18 -11 -1951 the Deputy Commissioner made a demand on the petitioners for the production of the account books of the temple and other papers; and as that was not complied with within the time given, he sent a further notice on 3 -1 -1952 calling upon the petitioners to show cause why action should not be taken against them and the "so -called manager" under Section 89(1)(b) and (c) of the Act. The reply of the petitioners is the present application, wherein they contend that the Act under which the Deputy Commissioner purported to take action is void as being an unconstitutional interference of the State in matters of religion and that in any event the provisions of the scheme which are sought to be put in operation against the petitioners are an invasion of their rights as hereditary trustees and that they have accordingly become void under Article 13 of the Constitution. The material facts in the other petitions are similar and do not require to be stated in detail. The petitioners are hereditary trustees of temples all of which are governed by schemes more or less of the same pattern as in W. P. No. 71 of 1952. In some of them, W. P. Nos. 84 of 1952, 719 of 1952 and 873 of 1952, Executive Officers have been appointed under the provisions of the Act.
In W. P. No. 676 of 1952 notice has been issued to the petitioner under Section 87(1) of the Act to hand over the records. In W. P. No. 873 of 1952 proceedings have also been taken under Section 87 of the Act, M. C. No. 44 of 1952 before the Sub -Divisional Magistrate, Tellicherri, for obtaining possession of the temple and its properties. All these petitions raise the same constitutional issues as W. P. No. 71 of 1952 and we have accordingly heard counsel in all of them on those issues, reserving consideration of the merits of each case for determination after decision of those issues.
(2.) COUNSEL for petitioners have urged two contentions in support of these petitions: (1) The impugned Act is void as it vests the administration of religious endowments in what is a department of the State. (2) The provisions of the scheme framed under the Act deprive hereditary trustees of the substance of their rights as such trustees and that they are repugnant to Article 19(1)(i) of the Constitution and therefore, void. It will be Useful, at the outset to notice in broad outline the salient features of the Act in so far as they are material for the present purpose. The object of the statute is, as stated in the short title,
"to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras."
For this purpose the Act establishes a hierarchy of officers, the Commissioner, Deputy Commissioners, Assistant Commissioners and Area Committees, and entrusts the administration of the Endowments to them. Section 20 enacts that "the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist."
Then follow provisions which confer wide powers on the authorities in the matter of general supervision of the endowments, appointments, suspension and dismissal of trustees, notification of temples and appointment of Executive Officers and the framing of schemes and appropriation of trust funds cy pres.
Section 92 of the Civil Procedure Code is repealed with reference to endowments which fall within the scope of the Act. Under Section 76(1) of the Act all religious institutions are required to pay to the Government a contribution not exceeding 5 per cent of their, income for services rendered by the Government. Section 76(4) provides that the 'Government is to pay the salaries and allowances of the Commissioners and other Officers and meet the other expenses. It may be mentioned that the present Act differs from Act II of 1927 which it repealed in a fundamental matter. That Act established a Board of Commissioners in whom was vested under Section 18 the general superintendence of all religious endowments. The Board was constituted under Section 11(2) of that Act, a corporation with a perpetual succession and common seal. It was therefore a distinct persona independent of the Government. Vide 'Vaithilinga Pandara Sannadhi v. : AIR1926Mad836 . Under the present Act, the Board as" a juristic person has disappeared and the endowments are to be administered by persons appointed by the Government.
The contributions are paid not to the Board as under Act II of 1927 but to the Government and they become merged in the general revenue of the State which is to form one consolidated fund entitled "The consolidated fund of the State". Vide Article 266(1) of the Constitution. It is with reference to this altered position that Satyanarayana Rao and Rajagopalan JJ. observed in 'Sri Shirur Mutt v. : AIR1952Mad613 as follows:
"The system of controlling and supervising the endowments through a statutory body hitherto known as the Madras Hindu Religious Endowments Board has been completely abolished and the administration of the religious and charitable institutions and endowments has been vested in a department of the Government, the Commissioner being the head thereof."
Now turning to the first contention that the impugned Act is void as being an unconstitutional interference by the, State in matters of religion, the argument of Mr. K.V. Venkatasubramania Aiyar in support of this position is this: Under our Constitution which has in this respect adopted the principle of the American Constitution, there is a wall of separation between the Church and the State. The State is wholly secular. It is not to have any association direct or indirect with religion, except where its interference is called for on grounds of public order, morality or health. Any law which involves the participation of State in religious matters would therefore be repugnant to the Constitution. The present Act is of that character and is consequently void. As this contention rests substantially on the assumption that the law on the subject under the Indian Constitution is the same as Under the American Constitution, it is necessary to examine the latter to see how far this assumption is well founded. The First Amendment to the American Constitution is as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof........."
It was held in 'Barron v. Mayor and City Council of Baltimore',, (1861) 8 Law Ed 672 (C), that this was a restriction on the powers of the Congress, but not of the State Legislatures. The 14th Amendment which came into force in 1868 enacted that no State shall deprive any person of life, liberty or property, without due process of law. Though the freedoms mentioned in the First Amendment are. not expressly included in this Amendment, the decisions of the highest authority have held that they are comprised in the liberty guaranteed by the 14th Amendment. Vide 'Near v. Minnesota',, (1930) 283 U S 697 (D); 'Murdock v. Pennsylvania',, (1942) 319 U S 105 (E) and 'Everson v. Board of Education',, (1946) 330 U S 1 (F). Thus, the prohibitions enacted in the first Amendment have become applicable also to the States through the 14th Amendment. The First Amendment consists of two clauses, which deal with distinct subjects. The first clause is directed against legislation in respect of "an establishment of religion" and the second against any law prohibiting the free exercise of religion. Under the former the State is disconnected.
from "establishment of religion"; under the latter the individual is guaranteed freedom in the profession and practice of religion. The scope of the two clauses is thus different and the questions that arise with reference to them are also different. Bearing this distinction in mind, we may now proceed to consider the decisions cited on behalf: of the petitioners. In, (1946) 330 U S 1 (F)', the facts were that, a New Jersey Statute authorised the local educational authorities to make rules for the transportation of children to schools. Acting under this law, the respondent reimbursed moneys spent by parents for sending their children to schools through public transports. One of the tax -payers filed an action challenging the validity of the payments made by the respondent on the ground that the school in question was a Catholic institution and that the statute of New Jersey was unconstitutional, in that it aided, in effect, the maintenance of a Roman Catholic institution and that the same was obnoxious to the First Amendment. The controversy centred over the question whether the impugned Act was a law in respect of "an establishment of religion".
The majority of the Court held that it was not, Black J. referred to the history behind the enactment of the First Amendment and observed :
"The 'establishment of religion' clause of the First Amendment means at least this; Neither a State nor the Federal Government can set up a Church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another......No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a State nor the Federal Government can, openly or secretly, participate in the affairs of any religious organisations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'. 'Reynolds v. United States',, (1878) 98 U S 145 (G)."
The learned Judge added that at the same time we must be careful "that we do not inadvertently prohibit Now Jersey from extending its general state law benefits to all its citizens without regard to their religious belief."
After referring by way of analogy to the support by the Stats of the Police and Fire Brigade which render service to all members of the society without regard to their religion, the learned Judge observed:
"That Amendment (the first) requires" the state to be a neutral in its relations with groups of religious believers and non -believers; it does not require the state to be their adversary. State power is no more to he used so as to handicap religions than it is to favour them."
Strong dissents from this decision were expressed by Jackson J. and Rutledge J. In Illinois v. Board of Education',, (1947) 92 Law Ed 649 (H), the question arose with reference to imparting of religious instructions to school going students under a "release time arrangement". This arrangement owes its origin to the anxiety of parents to impart religious instructions to their children.
Under the Constitution no state -maintained institution can teach religion. With, a view to impart religious instructions to students attending such institution a scheme was evolved by representatives of all religions under which different religious organisations arranged to teach religion to students through their own teachers and at their own expense, provided the parents consented to it. The procedure adopted was that some periods during the working hours of the school were set apart for that purpose; those boys whose parents objected to religious instruction being given were free to pursue their secular studies during that period and a record was made by the school authorities of the boys who attended the religious classes so as to ensure that truant boys did not give the slip to both the classes. One of the tax -payers Vashti McCollum, an atheist, contested the validity of this arrangement on the ground that the action of the school authorities amounted to giving "aid" to religion and that there had been a violation of the First Amendment.
This contention was uphold by the majority of the Court who observed:
"The foregoing facts, without reference to others that appear in the record, show the use of tax -supported property for religious instruction and the close co -operation between the school authorities and the religious council in promoting religious education........Here not only are the State's tax -supported public school buildings used for the dissemination of religious doctrines. The State also affords, sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State."
There was a powerful dissent by Reed J. He emphasised with considerable force that no law in respect of establishment of religion was involved in the case and that the First Amendment had no application.
He then discussed the meaning of the words "an establishment of religion" in the First Amendment and observed:
"The phrase 'an establishment of religion' may have been intended by Congress to be aimed only at a state church. Then the First Amendment was pending in Congress in substantially its present form. Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Passing years, however, have brought about the acceptance of a broader meaning, although never until today, I believe, has this court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion. A reading of the general statements of eminent statesmen of former days, referred to in the opinions in this case and in '(1946) 330 U S 1 (F)' will show that circumstances such as those in this case were far from the minds of the authors."
Then the learned Judge quoted one of them Mr. Jefferson as himself supporting a scheme for imparting religious instructions to students outside the school buildings or even inside. Then, discussing the question as to what would amount in aiding religion, he observed:
"I agree as there stated that none of our governmental entities 'set up a church'. I agree that they cannot' aid all or any religions or prefer one 'over another'. But 'aid' must be understood as a purposeful assistance directly to the church itself or to some religious group or organisation doing religious work of such a character that it may fairly be said to be performing ecclesiastical functions."
How the decision in '(1947) 92 Law Ed 649 '(H)' was received in America can best be stated in the words of Black J. 'Zorach v. Clauson',, (1952) 96 Law Ed 954 (I), "I am aware that 'McCollum Decision (H)' on separation of Church and State has been subjected to a most searching examination throughout the country. Probably few opinions from this court in recent years have attracted more attention or stirred wider debate. Our insistence on 'a wall between Church and State which must be kept high and impregnable' has seemed to some a correct exposition of the philosophy and a true interpretation of the language of the First Amendment to which we should strictly adhere. With equal conviction and sincerity, others have thought the 'McCollum decision (H)' fundamentally wrong and have pledged continuous warfare against it." '(1952) 96 Law Ed 954 (I) was again a case of "release time arrangement'. But this case differed from '(1947) 92 Law Ed 649 (H)', in that religious instructions were imparted not in the school premises but in buildings outside, to which the boys were transported at the expense of the religious associations - The majority hold that' this fact distinguished the case from '(1947) 92 Law Ed 649 (H)' and they upheld the validity of the arrangement.
Douglas J. speaking for the majority observed :
"The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, how -ever, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise, the State and religion would be aliens to each other hostile, suspicious, and even unfriendly ..........When the state encourages religious instruction or co -operates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not, would be to find in the Constitution a requirement that the Government show a callous indifference to religious groups. That would be preferring those who believe in not religion over those who do believe......We find no constitutional requirement which makes it necessary for Government to be hostile to religion & to throw its weight against efforts to widen the effective scope of religious influence......... We cannot I read into the Bills of Rights such a philosophy of hostility to religion."
(3.) IT will be seen that in American jurisprudence the meaning of the words "establishment of religion" has not been the same at all times and with all persons. Grammatically, "establishment" might mean either the act of establishing, in which case the meaning of the First Amendment will be that the State should not establish by law any religion; or it might mean the institution which has been established in which case the prohibition under the Amendment will extend to any legislation in respect of a religious institution. It was pointed out by Reed J. in '(1947) 92 Law Ed 649 (H)' in the passage , already quoted that it was in the first arid restricted sense that the words were understood by their framers, Mr. Madison and Mr. Jefferson.
It was in this sense that the framers of the Australian Constitution have adopted the First Amendment as would be seen from Section 116 which is based on that Amendment. It is as follows:
"The Commonwealth shall not make any laws for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."
The prohibition enacted here is against the establishment of a State religion or Church. But the second and the wide meaning has come to be generally adopted in America as the true interpretation of the First Amendment,. as was observed by Rutledge J. in - - '(1946) 330 U S 1 (F)'.;