EXPLAINED: Why taking over temple gold is in direct violation of Articles 25, 26

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Updated: May 17, 2020 8:52 AM

Temple gold appropriation issue: No gold monetization scheme must include the jewels of the Deity or traditional artefacts because they are objects of worship and reverence. Nobody, including members of the community, has the right to surrender it to anyone under any scheme.

The wealth of religious trusts is the property of such trusts created by the contributions of their respective communities for specific purposes.

Temple Gold Controversy: The Congress’ proposal of the Centre appropriating gold lying in religious trusts to fight Covid-19 has triggered a massive controversy. Some have raised objections to such demand while some have argued in favour, saying Covid-19 is no ordinary situation — it’s an emergency like situation, they say, and in such time the government should use wealth lying in temples to protect people and the economy. But can the Centre really take over the gold received by temples as donation? The Financial Express-Online reached out to Supreme Court lawyer J Sai Deepak to understand the legal implications of such a move by any government, Centre or states.

Edited Excerpts:-

Congress has urged the Centre to appropriate all the gold lying with all the religious trusts in the country to collect funds to fight Covid-19. But there is a huge opposition to this idea. Could you shed some light why such wealth lying in religious trusts should not be used for greater good?

First, no gold monetization scheme must include the jewels of the Deity or traditional artefacts because they are objects of worship and reverence. Nobody, including members of the community, has the right to surrender it to anyone under any scheme. Any scheme that seeks to take over such objects of worship is in direct violation of Articles 25 and 26 of the Constitution and is bound to lead to repercussions which are completely avoidable. Religion is the lifeblood of India, to put it in the words of Swami Vivekananda and Alladi Krishnaswami Iyer, one of the framers of the Constitution.

Second, regardless of which party or entity or individual has mooted this proposal, the first question that needs to be asked is why do people assume that the wealth of religious Trusts belongs to the public or to the country or to the Government. Concepts such as property, ownership and consent continue to apply to religious trusts and they cannot be done away with in the name of “greater good” because the Constitution (Articles 26 and 31A) and specific laws protect the autonomy of religious trusts. It is indeed shocking that even legally-educated people completely ignore the fundamental requirements of autonomy and consent of religious trusts before calling for the monetization of the gold held by such trusts. In a nutshell, the wealth of religious trusts is the property of such trusts created by the contributions of their respective communities for specific purposes. Even members of the community, once they contribute, cannot force such trusts to derogate from the purposes for which the wealth was created except in accordance with their bye-laws. Such wealth is typically created to maintain institutions for a specific community and to protect their interests. This is perfectly legitimate and must be respected. Any monetization scheme must be the product of an autonomous decision of the trusts and in accordance with law without undermining the interests of the community they are affiliated to. Otherwise, it amounts to Stalinist takeover of religious institutions.

After huge uproar, Congress has clarified that it did not say only temples but all the religious trusts – but some still say that it has set its eyes on temple gold. Do you agree that the gold monetisation call by Congress leaders was to target gold in temples?

It is for the Congress to clarify as to which other institutions, other than Temples (Hindu and Jain) and Gurudwaras, predominantly receive contributions in gold. I don’t think they should insult the intelligence of the public by trying to obfuscate facts which are clear and which any person with average intelligence can perceive.

It has been argued that there is nothing new in gold monetisation as many temples have pledged their gold under Gold Monetisation Scheme. If that is the case, then why such opposition against taking over temple wealth? How would you counter these arguments?

Existing gold monetization schemes are largely the product of State control of Temples, which is something that most people either are not aware of or conveniently forget. Temples are coerced by State Governments to monetize their gold against their will. Therefore, the underlying assumptions of existing gold monetization schemes themselves must be questioned. The root cause of this issue is State control of Temples, which is fundamentally unconstitutional and discriminatory. Further, any Gold Monetization scheme which does not translate to the principal being returned in gold is a loss to the community. Gold and real estate can and must only be compensated in gold and real estate, at least in the context of religious institutions which represent the interests of a community. The interest component may be monetary, but the principal must be returned in gold and gold alone. Unless the above concerns are addressed, there will be a strong opposition to any such proposal regardless of who moots them under whichever garb or pretext.

Former Congress CM Prithviraj Chavan has shared a Lok Sabha reply on Twitter. As per document placed before the House in 2016, eight temples deposited their gold under Gold Monetisation Scheme. How gold monetisation is different from appropriation of gold, as being demanded by Congress?

Appropriation translates to change of ownership, monetization does not. Appropriation is State-sponsored loot. Monetization, if repayment is not in gold, is devaluation of the wealth held by religious trusts. The former is unlawful and the latter is unacceptable if it does not respect the autonomy and interests of religious trusts.

Temple wealth issue has also triggered debate on ‘state control of temples’. You have been talking about how government meddling in temple affairs leads to ‘monumental corruption’, you also say that state control of temples is inherently discriminatory. Why do you say so?

Because the Constitution does not envisage or permit the State to run religious institutions of any community, directly or indirectly. The role of the State is merely supervisory. The State can, in no circumstances, take over any religious institution indefinitely or without reason. The State’s limited intervention is permissible only to address mismanagement, and nothing more. What is worse is that over 15 State Governments across the country control only Hindu religious institutions, specifically Temples, right from the appointment of administrators to mandatory collection 13-18% service charge to alienation of the resources of the Temples. All of this effectively takes away the community’s right and resources to protect its interests and only the Hindu community suffers this kind of treatment, which is, on the face of it, discriminatory. It violates all canons of secularism as currently understood and practised by the Indian State.

You have pointed out that temples have suffered a lot under state control. For instance, since 1959, at least 47,000 acre of temple lands have been alienated in Tamil Nadu alone. Do you think this is time for the government to give up its control on temples? If so, how would you ensure no corruption by those who replace the government? What is your solution?

The current number is more than 47000 acres in the State of Tamil Nadu alone and it is only increasing by the day. Governments should have given up control over Temples on January 26, 1950 when the Indian Constitution came into force. Every day after that date amounts to illegal occupation of Temples. Why do people assume that corruption abounds only in Temples? Aren’t their examples of corruption and worse in religious institutions of other communities? Why are only Temples the subject of State Control under the pretext of corruption? Corruption is human, not peculiarly or uniquely Hindu. Also, has corruption vanished under State control of Temples? If people don’t trust the Government when it comes to national security deals, why do they trust the Government with the wealth of their religious institutions? Also, which canon of secularism permits this? The Supreme Court in at least 3 landmark judgements has asked State Governments to handover religious institutions to the community. However, that hasn’t happened yet. To address this, there are two petitions currently pending before the Supreme Court which are ripe for arguments.

As for tackling corruption, Hindu Religious and Charitable Endowment legislations themselves provide for audit controls and checks. This is in accordance with the spirit of Article 25(2)(a) which allows the State to pass laws only to “regulate” or “restrict” non-religious activity and this aspect has been interpreted by the Supreme Court in the landmark judgement relating to the Chidambaram Nataraja Temple to mean that the State cannot take-over the administration for eternity. Any form of intervention must be reasoned in writing and must be for a limited period of time, post which the control must revert to the community. Why should State Governments want to run Temples despite there being enough mechanisms to address corruption without taking over Temples? Since corruption has only increased under State Governments, doesn’t the community have the right to seek return of control of their own institutions? We are not a communist State and the State has no business being in Temples.

Can the centre or state governments take over temple wealth to fight Covid-19 or any emergency?

Entry 28 of the concurrent list deals with charitable trust and endowment issues and therefore centre and states both have their respective powers. However, all legislation are state legislation not Centre legislation. If either government — whether under specific legislation or notification — wants to do this, it must give sufficient justification and explain why it has to lay claim to the wealth of religious trusts. Has it been deprived of all other options? Is this the only way to go forward? Unless or until they are able to justify it, there is no question of actually touching the wealth of any of these trusts. And they will have to explain whether it has been appropriated or monetised – if monetised, what is the specific object for which it has been monetised and what is the manner.

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