A Note On Religious Endowments Act 1863 Application To Ap 4j2r6r
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Impact of the recent Chidambaram Temple Judgement and the action that the Central Government need to take under Art 256 or Art 254(2) Sec 156 of the AP Endowments 30/87 Act reads as follows: Central enactments cease to apply to charitable and religious institutions: - The enactments mentioned below shall cease to apply to Charitable and the Hindu Religious Institutions and Endowments thereof to which this Act applies; and Section 8 of the Andhra Pradesh General Clauses Act, 1891 shall apply upon such cessor as if these enactments had been repealed by an Andhra Pradesh Act; (a) The Andhra Pradesh Andhra Area Endowments and Escheats Regulations 1817; (b) The Religious Endowments Act, 1863; (c) The charitable Endowments Act, 1890; (d) The Charitable and Religious Trusts Act, 1920; (e) Sections 92 and 93 of the Code of Civil Procedure Thus, clearly there was a need for Presidential assent as per provisions of Sec 254(2) in view of the number of Central Acts whose operation in the State of Andhra Pradesh was repealed. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Sec 22 of the Religious Endowments Act, 1863 Act which reads as follows: Section 22- Government not to hold charge henceforth of property for of any mosque, temple etc. Except as provided in this Act, it shall not be lawful for the Central Government or any State Government, or for any officer of any Government in his official character, to undertake or resume the superintendence of any land or other property granted for the of, or otherwise belonging to, any mosque, temple or other religious establishment, or to take any part in the management or, appropriation of any endowment made for the maintenance of any such mosque, temple or other establishment, or to nominate or appoint any trustee, manager or superintendent thereof, or to be in any way concerned therewith. Clearly in light of the recent judgement of the Supreme Court in the now famous Chidambaram Temple Case in Civil Appeal No 10621 of 2013 ratio that takeover of Hindu Temple istration by the Government cannot be for an indefinite period. This ratio is also in tandem with Article 31-A(1)(b) by which Government can enact laws by which the istration of a property is taken over for reasons of public good or better management for a “limited period”. Even under Article 31-A(1)(b) laws can be made only disregarding rights under Articles 14 and 19. The property rights i.e. the right to ister its
properties that is guaranteed to a religious denomination cannot be disturbed and even a takeover of limited period is not permitted. “…Even if the management of a temple is taken over to remedy the 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. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and ister the temple for an indefinite period…” In view of the above ratio of the recent Supreme Court judgement the Central Government has to ensure that the provisions of Sec 22 of the Religious Endowments Act,1863 is enforced and the Temples which are being istered by State Governments in violation of the above ratio are divested from State Government control and returned to the community. The Supreme Court in Kaiser-I-Hind Pvt. Ltd. And Ors vs National Textile Corporation ... on 25 September, 2002 interpreting the assent under Art 254(2) The assent of the President or the Governor, as the case may be, is considered to be part of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill ed could not be considered to be an Act or a piece of legislation, effective and enforceable and not to extend the immunity in respect of procedural formalities to be observed inside the respective houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside the besides those formalities. The powers actually exercised by the President, at any rate under Articles 31A, 31C, 254(2) and 304(b) is a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the Fundamental Right of citizens and Federal structure of the country's policy as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or overriding effect over that Central enactment of the Parliament to which no specific reference of the President at all has been invited to
In light of the above strong guidance of the SC Constitution Bench on Art 254(2) and given the need to enforce Sec 22 of the Religious Endowments Act, 1863 there is a clear need to check if the AP State had indeed got the assent under Art 254(2) following the due procedure laid down by the SC, if not then the provisions of Sec 22 of the Religious Endowments Act, 1863 read with the ratio of the Chidambaram temple Judgement and the ratio laid down by a Constitutional Bench of the Supreme Court in the S.D.G. Pandara Sannati Case 1965 AIR 1683 needs to be enforced. If the State of AP did indeed receive assent as per the procedure laid down by the SC under Art 254(2) then the Central Govt can do amendments to the 30/87 AP Act to enforce provisions of Sec 22 of the Religious Endowments Act, 1863 to ensure fundamental religious, istrative and cultural rights guaranteed under Articles 25, 26 and 29(1) of the Constitution of India to individual citizens, religious denominations and certain sections of citizens residing in India are not rendered nugatory to them. A template Bill is attached herewith
THE ANDHRA PRADESH HINDU TEMPLES PROTECTION BILL, 2018 A BILL to further amend the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 to ensure that in the State of Andhra Pradesh Endowments are preserved, dilapidated temples are renovated, temples become pilgrim-friendly, the rich traditions and cultural heritage are preserved and all stake holders participate in a spirit of partnership with devotion and dedication to bring temples back into social life as centres of moral education, charities, human welfare, fine arts, architecture and Dharma.
Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows: 1. (1) This Act may be called the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments (Amendment) Act 2018 (2) It shall come into force on such date, as the Central Government may, by notification in the official Gazette, appoint 2. In the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as the principal Act), in section 152, in sub-section (1), (a) for item (i), the following shall be substituted: “(i) Chairman, who shall be a devout Hindu citizen who is not a Government Servant or anyone working for a Government entity or any entity which is funded by the Government and/or istered by the Government and has experience and commitment to improve the Hindu temple system to be nominated by the Government.” (b) After item (xii), the following shall be added, “(xiii) two archakas having sound knowledge of agamas, vedas and temple traditions, possess good conduct and command respect among temple devotees, one from Rayalaseema and another from coastal Andhra, from the temples specified in section 6(a) (ii) of the Act” 3. In Section 154 of the principal Act, -(i) For the words “Exemption :- The Government may by notification, exempt from the operation of any of the provisions of this Act or any of the Rules made thereunder –” The words “Exemption :- The Dharmika Parishad may by notification, exempt from the operation of any of the provisions of this Act or any of the Rules made thereunder—” Shall be substituted
STATEMENTS OF OBJECTS AND REASONS
The istration of temples in the Andhra Pradesh is governed by The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 (Act 30 of 1987). Over the last three decades there has been a substantial increase in pilgrim flow in certain temples while many of the village temples have been languishing without any traditional religious rituals being performed and many traditional archaka families have become impoverished and the temples have virtually shut down. One Archaka sacrificed his life on the bell of a temple in the year 2001 to bring to the notice of the Society the ill effects of the 30/87 AP Act triggering a grass root movement for its amendment. The movement created pressure on the national parties to include amendments to the 30/87 AP Act in their manifestos for 2004 assembly elections; subsequently the State legislature amended the Act through amendment Act 33 of 2007 but unfortunately many of the salient features of this Act are yet to be implemented by the Government of Andhra Pradesh even after a decade and over two decades since the Supreme Court orders of 1997 which had recommended such amendments. It is the nonimplementation of the amendments by the Government of Andhra Pradesh that is one of the reasons for this Bill, which delegates the important power of Exemptions to the Andhra Pradesh Dharmika Parishad as per the Committee recommendations.
The Andhra Pradesh State Government appointed Committee on Service Issues of Temple Employees in its report dated 5.1.2011 in Sec 2.2.3 has analyzed the reasons for the decay of the temple system in State of Andhra Pradesh and has strongly recommended for the Government to delegate its powers and functions to Dharmika Parishad to ensure that the amended Act can be effectively implemented to bring about a sea change in the current environment.
The State of Telangana had recently made certain important amendments to the Sec 152 on the constitution of the Dharmika Parishad which is also carried over to the same Sec 152 in the Andhra Pradesh Act.
The Supreme Court has recently in its judgement ordered that Government takeover of Hindu Temple istration has to be timebound to cure mismanagement and it cannot be perpetual. This is in line with Sec 22 of the Central Religious Endowments Act 1863 which reads as follows:-
Section 22- Government not to hold charge henceforth of property for of any mosque, temple etc. Except as provided in this Act, it shall not be lawful for the Central Government or any State Government, or for any officer of any Government in his official character,
to undertake or resume the superintendence of any land or other property granted for the of, or otherwise belonging to, any mosque, temple or other religious establishment, or to take any part in the management or, appropriation of any endowment made for the maintenance of any such mosque, temple or other establishment, or to nominate or appoint any trustee, manager or superintendent thereof, or to be in any way concerned therewith. In view of the Art 254(2) provision which reads as follows :- (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
It is now incumbent on the Parliament to ensure the implementation of the Supreme Court orders under Art 142 read with The Supreme Court (Decrees and Orders) Enforcement Order, 1954 and in view of the assent already granted to The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 (Act 30 of 1987); an amendment to the State Act is necessitated as allowed by Art 254(2). The amendment seeks to strengthen the institution of the Andhra Pradesh Dharmika Parishad which has already been recommended by the Andhra Pradesh Select Committee in its report as follows:- “A semi autonomous Apex body called Andhra Pradesh Dharmika Parishad is sought to be created to oversee the management of the entire temple system in the state. It would most likely discharge most of the functions being currently performed by the Government. It would have the authority and responsibility to institute appropriate istrative, financial and legal mechanisms to ensure that Endowments are preserved, dilapidated temples are renovated, temples become pilgrim-friendly, the rich traditions and cultural heritage are preserved and all stake holders participate in a spirit of partnership with devotion and dedication to bring temples back into social life as centers of moral education, human welfare, fine arts and architecture. It will not be merely an advisory body as envisaged earlier. It will be the policy making body with substantial autonomy to coordinate and facilitate better management of temples. The Sec 152 A(1) proposed in the amendment Bill is modified accordingly The power of Exemptions is giving to the Andhra Pradesh Dharmika Parishad with the objective that the Andhra Pradesh Dharmika Parishad will ensure compliance with the spirit of Sec 22 of the Religious Endowments Act 1863 read with the ratio of the Supreme Court judgement; further it will enable faster implementation of the provisions of the amendment Act 33 of 2007 and Supreme Court orders of 1997 for exemption of low income temples from provisions of the Act as recommended by the Government appointed Committee on Service Issues of Temple Employees in its report dated 5.1.2011
properties that is guaranteed to a religious denomination cannot be disturbed and even a takeover of limited period is not permitted. “…Even if the management of a temple is taken over to remedy the 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. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and ister the temple for an indefinite period…” In view of the above ratio of the recent Supreme Court judgement the Central Government has to ensure that the provisions of Sec 22 of the Religious Endowments Act,1863 is enforced and the Temples which are being istered by State Governments in violation of the above ratio are divested from State Government control and returned to the community. The Supreme Court in Kaiser-I-Hind Pvt. Ltd. And Ors vs National Textile Corporation ... on 25 September, 2002 interpreting the assent under Art 254(2) The assent of the President or the Governor, as the case may be, is considered to be part of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill ed could not be considered to be an Act or a piece of legislation, effective and enforceable and not to extend the immunity in respect of procedural formalities to be observed inside the respective houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside the besides those formalities. The powers actually exercised by the President, at any rate under Articles 31A, 31C, 254(2) and 304(b) is a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the Fundamental Right of citizens and Federal structure of the country's policy as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or overriding effect over that Central enactment of the Parliament to which no specific reference of the President at all has been invited to
In light of the above strong guidance of the SC Constitution Bench on Art 254(2) and given the need to enforce Sec 22 of the Religious Endowments Act, 1863 there is a clear need to check if the AP State had indeed got the assent under Art 254(2) following the due procedure laid down by the SC, if not then the provisions of Sec 22 of the Religious Endowments Act, 1863 read with the ratio of the Chidambaram temple Judgement and the ratio laid down by a Constitutional Bench of the Supreme Court in the S.D.G. Pandara Sannati Case 1965 AIR 1683 needs to be enforced. If the State of AP did indeed receive assent as per the procedure laid down by the SC under Art 254(2) then the Central Govt can do amendments to the 30/87 AP Act to enforce provisions of Sec 22 of the Religious Endowments Act, 1863 to ensure fundamental religious, istrative and cultural rights guaranteed under Articles 25, 26 and 29(1) of the Constitution of India to individual citizens, religious denominations and certain sections of citizens residing in India are not rendered nugatory to them. A template Bill is attached herewith
THE ANDHRA PRADESH HINDU TEMPLES PROTECTION BILL, 2018 A BILL to further amend the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 to ensure that in the State of Andhra Pradesh Endowments are preserved, dilapidated temples are renovated, temples become pilgrim-friendly, the rich traditions and cultural heritage are preserved and all stake holders participate in a spirit of partnership with devotion and dedication to bring temples back into social life as centres of moral education, charities, human welfare, fine arts, architecture and Dharma.
Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows: 1. (1) This Act may be called the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments (Amendment) Act 2018 (2) It shall come into force on such date, as the Central Government may, by notification in the official Gazette, appoint 2. In the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as the principal Act), in section 152, in sub-section (1), (a) for item (i), the following shall be substituted: “(i) Chairman, who shall be a devout Hindu citizen who is not a Government Servant or anyone working for a Government entity or any entity which is funded by the Government and/or istered by the Government and has experience and commitment to improve the Hindu temple system to be nominated by the Government.” (b) After item (xii), the following shall be added, “(xiii) two archakas having sound knowledge of agamas, vedas and temple traditions, possess good conduct and command respect among temple devotees, one from Rayalaseema and another from coastal Andhra, from the temples specified in section 6(a) (ii) of the Act” 3. In Section 154 of the principal Act, -(i) For the words “Exemption :- The Government may by notification, exempt from the operation of any of the provisions of this Act or any of the Rules made thereunder –” The words “Exemption :- The Dharmika Parishad may by notification, exempt from the operation of any of the provisions of this Act or any of the Rules made thereunder—” Shall be substituted
STATEMENTS OF OBJECTS AND REASONS
The istration of temples in the Andhra Pradesh is governed by The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 (Act 30 of 1987). Over the last three decades there has been a substantial increase in pilgrim flow in certain temples while many of the village temples have been languishing without any traditional religious rituals being performed and many traditional archaka families have become impoverished and the temples have virtually shut down. One Archaka sacrificed his life on the bell of a temple in the year 2001 to bring to the notice of the Society the ill effects of the 30/87 AP Act triggering a grass root movement for its amendment. The movement created pressure on the national parties to include amendments to the 30/87 AP Act in their manifestos for 2004 assembly elections; subsequently the State legislature amended the Act through amendment Act 33 of 2007 but unfortunately many of the salient features of this Act are yet to be implemented by the Government of Andhra Pradesh even after a decade and over two decades since the Supreme Court orders of 1997 which had recommended such amendments. It is the nonimplementation of the amendments by the Government of Andhra Pradesh that is one of the reasons for this Bill, which delegates the important power of Exemptions to the Andhra Pradesh Dharmika Parishad as per the Committee recommendations.
The Andhra Pradesh State Government appointed Committee on Service Issues of Temple Employees in its report dated 5.1.2011 in Sec 2.2.3 has analyzed the reasons for the decay of the temple system in State of Andhra Pradesh and has strongly recommended for the Government to delegate its powers and functions to Dharmika Parishad to ensure that the amended Act can be effectively implemented to bring about a sea change in the current environment.
The State of Telangana had recently made certain important amendments to the Sec 152 on the constitution of the Dharmika Parishad which is also carried over to the same Sec 152 in the Andhra Pradesh Act.
The Supreme Court has recently in its judgement ordered that Government takeover of Hindu Temple istration has to be timebound to cure mismanagement and it cannot be perpetual. This is in line with Sec 22 of the Central Religious Endowments Act 1863 which reads as follows:-
Section 22- Government not to hold charge henceforth of property for of any mosque, temple etc. Except as provided in this Act, it shall not be lawful for the Central Government or any State Government, or for any officer of any Government in his official character,
to undertake or resume the superintendence of any land or other property granted for the of, or otherwise belonging to, any mosque, temple or other religious establishment, or to take any part in the management or, appropriation of any endowment made for the maintenance of any such mosque, temple or other establishment, or to nominate or appoint any trustee, manager or superintendent thereof, or to be in any way concerned therewith. In view of the Art 254(2) provision which reads as follows :- (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
It is now incumbent on the Parliament to ensure the implementation of the Supreme Court orders under Art 142 read with The Supreme Court (Decrees and Orders) Enforcement Order, 1954 and in view of the assent already granted to The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 (Act 30 of 1987); an amendment to the State Act is necessitated as allowed by Art 254(2). The amendment seeks to strengthen the institution of the Andhra Pradesh Dharmika Parishad which has already been recommended by the Andhra Pradesh Select Committee in its report as follows:- “A semi autonomous Apex body called Andhra Pradesh Dharmika Parishad is sought to be created to oversee the management of the entire temple system in the state. It would most likely discharge most of the functions being currently performed by the Government. It would have the authority and responsibility to institute appropriate istrative, financial and legal mechanisms to ensure that Endowments are preserved, dilapidated temples are renovated, temples become pilgrim-friendly, the rich traditions and cultural heritage are preserved and all stake holders participate in a spirit of partnership with devotion and dedication to bring temples back into social life as centers of moral education, human welfare, fine arts and architecture. It will not be merely an advisory body as envisaged earlier. It will be the policy making body with substantial autonomy to coordinate and facilitate better management of temples. The Sec 152 A(1) proposed in the amendment Bill is modified accordingly The power of Exemptions is giving to the Andhra Pradesh Dharmika Parishad with the objective that the Andhra Pradesh Dharmika Parishad will ensure compliance with the spirit of Sec 22 of the Religious Endowments Act 1863 read with the ratio of the Supreme Court judgement; further it will enable faster implementation of the provisions of the amendment Act 33 of 2007 and Supreme Court orders of 1997 for exemption of low income temples from provisions of the Act as recommended by the Government appointed Committee on Service Issues of Temple Employees in its report dated 5.1.2011
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