Appointment of Supreme Court Judges: Options Before The Constitution Makers

Article 124(2) of the Indian Constitution deals with the method of appointment of Judges to the Supreme Court. Its form, prior to the failed NJAC Constitutional Amendment Bill of 2014, was as follows:

“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted”

In the 80s and the 90s, the Supreme Court, via the three ‘Judges Cases‘ changed the meaning of this Article and took over considerable powers in the appointment of the Judges to the Supreme Court. It created the ‘collegium‘ system, which continues to be the mode of operation even today.

In this article, let us look at how the makers of our Constitution looked at this issue, the various options they considered, and the final decision they resorted to.

Opinion of the Special Committee

During the initial stages of the Constituent Assembly itself, a special committee was constituted to address the question of constitution and powers of the Supreme Court. This committee consisted of S Varadachariar, Alladi Krishnaswami Ayyar, B L Mitter, K M Munshi and B N Rau (the Constitutional Adviser).

This committee submitted its report on the 21st of May, 1947.

On the question of appointment of Judges to the Supreme Court, the committee suggested two options.

“We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted”

Its comment on the first option was as below:

“One method is that the President should, in consultation with the Chief Justice of the Supreme Court (so far as appointment of puisne judges is concerned), nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the law officers of the Union

The second option was as below:

“The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice, except, of course, that in this case there will be no consultation with the Chief Justice.

To ensure that the panel will be both independent and command confidence, the panel should not be an ad hoc body but must be one appointed for a term of 10 years”

Opinion of the Constitutional Adviser

The Constitutional Adviser, B N Rau, took up this recommendation and made some modifications of his own. He suggested that the appointment should be made by the President with the approval of at least two-thirds of the ‘Council of State‘. The Council of State was a body, conceived of at that stage, that would aid the President in making important decisions, that needed to be independent and on non-party lines.

His exact recommendation was as below:

“The ad hoc Committee on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. They have suggested two alternatives, both of which will involve the setting up of a special panel of eleven members…….

……….The relevant section in the draft clauses adopts substantially the first alternative, utilising at the same time the Council of State for this purpose. It will be noticed that the Council of State includes the Chief Justice among its members and its composition is such as to secure freedom from party bias”

The exact draft clause as suggested by him was as below:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal with the approval of not less than two-thirds of the members of the Council of State and shall hold office until he attains the age of sixty-five years”

K T Shah’s General Directives

In May 1947, a ‘Union Constitution Committee’ was constituted to provide inputs to the drafting of the Constitution. It solicited feedback from the Constituent Assembly members and others on all issues.

K T Shah submitted a detailed response to this committee and termed it as ‘General Directives’. He submitted the same in December 1947 and it included a detailed comment on the mode of appointing Supreme Court judges.

His exact suggestions were as below:

Every appointment of a judge of the Supreme Court shall be for life, unless otherwise ordained and provided for by Act of the Union Legislature.

Judges of the Supreme Court shall be appointed from among practising lawyers of prescribed standing, judges of High Courts and other judicial officers of the Union, or in any component part thereof or from among professors of law or jurisprudence by the Head of the State; provided that the Union Legislature may, by a majority of two-thirds of the members present and voting, order the removal of any judge or judicial officer on grounds of proved offence against the safety, security or tranquility of the Union, proved misconduct, incurable illness, established infirmity of mind or body, and consequent incapacity or violation of the oath of office.

The judicial organ of the State in India shall be wholly independent, and co-equal of the legislative and the executive, in power, function and authority. In no case shall any judicial function, power or authority be vested in any administrative or executive officer, body or authority”

Opinion of the Union Constitution Committee

The Union Constitution Committee met on the June 11, 1947, in which the Articles related to the Supreme Court were discussed. On the question of appointment of judges to the Supreme Court, the committee felt that the President should consult the Chief Justice and such other judges of the Supreme Court and High Courts as necessary.

The extract from the minutes of the meeting are as below:

“As regards the method of appointment it was agreed that the President should appoint the judges of the Supreme Court after consulting the Chief Justice of the Supreme Court and such other judges of the Supreme Court and of other High Courts as may be necessary for the purpose”

Note: It is this recommendation that got into the draft Constitution and pretty much the same version got accepted as the final Article.

The committee submitted a report on the 4th of July 1947, in which the following draft clause was included.

“Supreme Court: There shall be a Supreme Court with the constitution, powers and jurisdiction recommended by the ad hoc Committee on the Union Judiciary, except that a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also such judges of the High Courts as may be necessary for the purpose”

Feedback from the Provincial High Courts

The Draft Constitution was circulated amongst relevant stake holders and several of them provided feedback. The Chief Justices of the Provincial High Courts and the Federal Court (of that time) presented a joint memorandum in March 1948.

It contained the following recommendation:

“Every judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India….

……The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court, and article 103(2) may also be suitably modified”

In addition, the joint memorandum made an interesting suggestion expanding the powers of the President in this matter.

“In this connection, it is not appreciated why a constitutional obligation should be cast on the President to consult any judge or judges of the Supreme Court or of the High Courts in the States before appointing a judge of the Supreme Court. There is nothing to prevent the President from consulting them whenever he deems it necessary to do so”

Opinion of the Drafting Committee

The Drafting Committee had mooted the idea of an “Instrument of Instructions” to be issued to the President. This would be a series of guidelines/instructions to the President, in the form of a new Schedule to the Constitution – Schedule IIIA.

As part of this, an ‘Advisory Board‘ would be constituted. This board would constitute not less than 15 members of the Houses of Parliament to be elected by both Houses by the method of proportional representation by means of the single transferable vote. It would also include the leader of Opposition in either House of Parliament and would advise the President on the making of appointments such as all Ambassadors in foreign States, the Auditor-General of India, the Chairman of the UPSC and so on.

It would also advise the President on the appointment of judges to the Supreme Court and the High Courts.

The procedure for appointment of judges to the Supreme Court would be as follows:

“1. In the case of the Chief Justice of India, the President would consult the judges of the Supreme Court and the Chief Justices of all High Courts other than those in Part III States (the Indian States);

2. In the case of other judges he would consult the Chief Justice of India, the other judges of the Supreme Court and the Chief Justices of High Courts, other than those in Part III States;

3. the recommendations of the judges so consulted would be placed before the Advisory Board for its advice.”

If the advice of the Board was not accepted, it could insist that its dissent be recorded and placed before Parliament with a memorandum explaining the reasons.

During the Constituent Assembly debates, it was Dr B R Ambedkar who introduced the amendment to include the Instrument of Instructions and the creation of the Advisory Board. However, in the end, the proposal was dropped since the Assembly felt that the President should only be guided only by the advise of his council of ministers on all these matters.

Alladi Krishnaswami Ayyar strongly argued against this amendment and said that it should be the council of ministers that should be guiding the President and that this council of ministers was responsible to the House of the People on every matter connected with the administration of the country.

His arguments were accepted, and the amendment to add the Instrument of Instructions was dropped by the Constituent Assembly.


As we have seen above, a number of alternative proposals were made during the Constituent Assembly days, with respect to appointment of judges to the Supreme Court. A few of them did grant significant stake to the Legislative, while a few others sought complete independence.

Finally, the version suggested by the Union Constitution Committee made it to the actual Constitution.

One important feature that stands out in every single suggestion is the fact that the appointment process was to be driven from the President’s side, with the judges playing a advisory and consultative role.

After the ‘Three’ Judges Cases, the process has in effect been reversed with the Supreme Court collegium pushing appointments through its ‘recommendation’ process.


Constitutional Morality And Religious Practices

In the recent Sabarimala judgment, one of the ‘principles’ used by the honourable judges was that of ‘Constitutional morality’ to decide that the ancient practice of restricting women of a certain age from entering the Sri Ayyappa temple at Sabarimala was unconstitutional. The conclusion drawn was that the rights under the Constitution that were related to religion and religious practices were subject to passing the test of ‘Constitutional morality’.

Although majority of us remain incapable (yet) of understanding what the term ‘Constitutional morality’ is, the natural assumption is that the honourable Supreme Court has a firm grip on the concept and is unambiguous and consistent about it.

In this regard, let us look at the opinion of a few of the judgements with respect to the interplay between Constitutional morality and religious practices.

In the Sabarimala judgment itself – Indian Young Lawyers Association vs The State Of Kerala – delivered in September 2018 –

(I) At least 3 of the honourable judges have held that Constitutional morality reigned supreme over religious rights.

However, honourable Justice Indu Malhotra, in her dissenting judgment has touched upon this topic and held a different opinion.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. 11.7. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.

The honourable Judge then concludes as follows.

Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.

(II) The conclusion is therefore that the meaning of Constitutional morality is in fact harmonisation of fundamental rights, with none being greater or lesser.

In the Triple Talaq judgment – Shayara Bano vs Union Of India – delivered in August 2017 (just a little over a year ago) – the honourable CJI Justice J S Khehar and honourable Justice Abdul Nazeer addressed the following question posed as part of the petition (quote directly from judgment)

One of the issues canvassed on behalf of the petitioners, which was spearheaded by the learned Attorney General for India, was on the ground, that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple talaq, was in breach of constitutional morality.

After a long discussion that involved citing several previous judgements and Constitutional Assembly debates, the honourable judges arrived at the following conclusion.

172. There can be no doubt, that the ‘personal law’ has been elevated to the stature of a fundamental right in the Constitution. And as such, ‘personal law’ is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (– included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.

Readers can refer to the judgement cited and confirm that although the context was “personal law” the discussion was very much about the interplay between Article 25 (freedom of practise of religion) and Constitutional morality.

They concluded as below.

174. The prayer made to this Court by those representing the petitioners’ cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined.

The conclusion therefore was that the rights under Article 25 are fundamental rights and anything covered under the same cannot be tested against Constitutional morality.

In the same judgment, Justice Kurian Joseph observes as follows.

Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice.

The other two honourable judges have not commented on the question regarding Constitutional morality and religious practices, although the petitioners had raised this question. One conclusion to draw would be that they held no opinion on this matter, or that it was not needed given that they were able to arrive at their decision without having to address this question. The other conclusion would be that these two honourable judges also concurred (on this question) with the opinion of the CJI and other two brother judges.

(III) In any case, a majority of judges in the triple talaq judgment held that religious rights supersede Constitutional morality.

From (I), (II) and (III) above, we notice that within a matter of 13 months, three different interpretations of the question of Constitutional morality vs religious practices have been held.

a) Constitutional morality weighs greater than religious fundamental rights

b) Constitutional morality is all about harmonising all fundamental rights, including religious.

c) Constitutional morality cannot be acceded to matters concerning religious fundamental rights.

In the nation like ours, where religious issues continue to dominate public life, many more issues are likely to come up where religious rights face a test against other fundamental rights. Perhaps it would be a good idea for a larger bench of the Supreme Court to sit and arrive at a unanimous principle on the question of ‘Constitutional morality vs religious rights’. Because it is natural that there will be differences when it comes to application of any principle (whether it applies in a particular case or not, for e.g.). However, there must not be any ambiguity at all, about what the principle itself is.


Article 25 and Religious Practices

Article 25 of our Constitution is what grants us the right to freedom of religion. Its exact reading is as below.


25. Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly


While Indians have indeed been granted some rights to practice and profess religion through the above Article, we are increasingly noticing that the same is being interpreted as allowing only the ‘essential practices’ of a religion to go on unhindered. The Supreme Court has repeatedly held that anything that is not ‘essential’ to a religion can be subjected to interference from the State. It can be modified, tampered and even disallowed.

Unfortunately, the effect of such an interpretation has been felt almost exclusively by the Hindus of this nation. Very rigid standards, almost completely Abrahamic in nature, have been applied to test any practice for essentiality. Most Hindu rituals, traditions and customs fail the test for want of sanction from a doctrinal ‘book’.

The present article tries to find out if this test of ‘essentiality’ is a valid one. It looks to two sources for the answer:

  1. Did the makers of our Constitution envisage such a distinction in religious practices? Did they intend to protect only essential practices? Or was the cover meant to be available for all religious practices?
  2. Did the jurisprudence of this country in the early years of the Republic actually interpret Article 25 to classify practices as essential or otherwise?

The real intent of our Constitution makers

The source for what turned out to be Article 25 of our Constitution is the Draft Fundamental Rights document of Sri K M Munshi. In that draft, we find the right to religion encoded as follows:

All citizens are equally entitled to freedom of conscience and to the right freely to profess and practise religion in a manner compatible with public order, morality or health.

(Source: Munshi’s Note and Draft Articles on Fundamental Rights, March 17, 1947)

The above version of the Article got into the initial drafts of the Constitution and was discussed in the Fundamental Rights sub-committee of the Constituent Assembly. This sub-committee submitted an interim report to the Advisory Committee of the Constituent Assembly on April 16, 1947 which contained a slightly modified version of the right, as follows:

All persons are equally entitled to freedom of conscience, to freedom of religious worship and to freedom to profess religion subject to public order, morality or health and to the other provisions of this chapter.

(Source: Report of the Sub-Committee on Fundamental Rights, April 16, 1947)

You will notice that the two main differences between the original draft and the one passed by the sub-committee involved changing ‘citizens’ to ‘persons’ and removing the phrase ‘practise religion’ and instead introduction of ‘freedom of religious worship’.

This draft document got sent to the Minorities sub-committee of the Constituent Assembly which deliberated in detail and sent back a modified version of the right. This new version – a third modification, was as below:

All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality or health and to the other provisions of this chapter.

(Source: Interim Report of the Sub-Committee on Minorities, April 19, 1947)

One can instantly notice that the right to ‘practise’ religion was re-introduced by the Minorities sub-committee.

This version of the draft went to the Advisory Committee of the Constituent Assembly, which deliberated in detail this provision on April 21 and 22, 1947.

One of the main points of debate and discussion was on the re-inclusion of the word ‘practise’. The Chairman of the Committee, while introducing this clause (16 – in the draft) mentioned this point.

Sri Jagajivan Ram and Sri C Rajagopalachari did not notice the importance of the change and suggested retaining the original clause (without the word ‘practise’). However, Sri K M Munshi jumped in and explained the need for this word and also gave a very interesting, and useful, example.

K M Munshi: There was a discussion on this in the Minorities Committee. Many things may not be exactly worship but may be in a sense practice of that religion. You may have for instance the immersion procession of Ganapathi. It is not worship, but practice of religion. If you go to a temple, it is worship. Further than that, it will be practice of religion.

The above explanation by Sri Munshi, and the usage of the Ganapathi immersion example, clearly indicates that the word ‘practise’ in the Article was meant to cover every kind of religious practice and not just ‘essential’ ones. Clearly, Ganapathi immersion is a relatively recent phenomenon and not something that is reflected in ancient books of Hinduism.

C Rajagopalachari then reiterated whether only religious worship should be granted as a right, or even religious practice. In response, Sri K M Panikkar said that although the State should have some discretion, it does not mean interference in the practices.

K M Panikkar: ……We thought that it is essential to give a certain amount of discretion in that matter to the State. It does not mean that religious practices are to be interfered with. If the State considers that certain religious practices require modification by the will of the people, then there must be power for the State to do it….

At this point, Dr Syama Prasad Mookerjee stepped in and insisted that religious practices must be allowed:

Dr SPM: There are certain religious practices which do not come within religious worship and if you omit religious practice, it will lead to considerable hardship and difficulties. It would still be open to the government to take any step to prevent the observance of religious worship or practice on grounds of public order, morality or health. As regards social reform, I suggest we insert a proviso to cover that.

This last suggestion regarding social reform is what lead to Article 25(2)(b) in our Constitution. By contrasting religious worship with religious practices, Dr SPM clearly made the case for traditional practices of the Hindu religion.

Alladi Krishnaswami Iyer, Alban D’souza and others spoke of the need for the State to have some powers to control these practices. However, they made their real intention clear by highlighting examples such as killing of cows, music before mosques, Sati, Sarda Act, Widow remarriage and other such major issues with various religions which should not get the license through the inclusion of the word ‘practise’.

At this point, Ujjal Singh, one of the minority members spoke fervently in favour of religious practices.

Ujjal Singh:…..Sir, in my religion it is more a religious practice that matters. I therefore strongly feel that whatever provision you may make in respect of public order or morality or even in respect of social legislation, you must protect religious practice. Otherwise you will not be protecting my religion.

Again, the above clarification makes it clear that the intention of the word ‘practise’ was to allow freedom to all practices and not only to the core, or essential, ones.

The Chairman of the Advisory Committee then put the changes to vote and it was formally accepted!

Thus the word ‘practise’ was added in Article 25(1) of our Constitution specifically to guarantee protection to traditional practices and rituals of our religion. It was never intended to be applicable only for certain core practices, as is being interpreted these days.

Essential practices and judicial interpretation

With the above clarification about the intent of our Constitution makers, let us look at another important aspect. Increasingly, our court judgements make a point that only ‘essential’ practices of a religion are protected by Article 25(1) and non-essential ones can be modified by the State.

The most often stated proof in support of this is the statement of J Mukherjea in the famous Shirur Mutt vs Commissioner, Hindu Religious Endowments case.

A very good example of how our judges rely on Shirur Mutt is in the recent Sabarimala case judgement. The honourable CJI says the following:

Article 25 merely protects the freedom to practise rituals, ceremonies, etc. which are an integral part of a religion as observed by this Court in John Vallamattom and another v.
Union of India31……..

…..This Court, in Shirur Mutt (supra), for the first time, held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus:

“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

A cursory reading of the above statement would lead us to believe that Shirur Mutt actually intended to classify religious practices into essential and non-essential parts, and only the essential parts enjoyed the protection of Articles 25 and 26. However, a closer reading of the Shirur Mutt judgement reveals a different picture.

The comment from J Mukerjea was in response to a claim from the then Attorney General about when clause 2(a) of Article 25 becomes applicable. As can be seen from above, clause 2(a) allows the State to ‘regulate’ any political or economic activity happening along with religious activities. The Attorney General’s claim was:

The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation

The honourable J Mukherjea then responded in this fashion:

“The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious. practices and should be regarded as matters of religion within the meaning of article 26(b). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices”

When read in entirety, the following facts emerge

a) The honourable judge made a comment about essential parts of a religion ONLY to distinguish it from any non-religious practices such as political, economic or commercial ones. In fact, immediately the honourable judge gives the example of Jehova’s witnesses in the Australia and how purely political activity was being masked under the garb of religious activity.

b) Shirur Mutt in fact emphasises that the State shall not regulate religious practices as such, except when they run counter to public order, health and morality.

c) The division of essential vs non-essential arises ONLY if there is a decision to be made to judge whether the practice has any economic, political or commercial connotations. This classification is not a reason to decide whether the practise itself can be changed or disallowed.

Thus we see that an incorrect usage of a passing comment in Shirur Mutt case has become the basis for deciding whether religious practices can be tampered with or not, when neither the original makers of the Constitution, nor the early judicial interpretations allowed any of this.

Since the line of judicial interpretation is consistently moving on the above lines, it is time to remove the confusion explicitly and insert an amendment allowing traditional rituals, customs and practices the protection of the State. A follow-up ‘Freedom of Religion’ Act as demanded in the Hindu Charter will set right this anomaly.


  1. The Making of India’s Constitution – A Study, B Shiva Rao
  2. The Making of India’s Constitution – Select Documents 2, B Shiva Rao
  3. Indian Young Lawyers Association & Ors vs The State of Kerala & Ors, September 2018, Supreme Court Judgement
  4. The Commissioner, Hindu Religious Endowments vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, April 1954, Supreme Court Judgement

Evolution of BJP’s Policy Towards Educational Institutions

In this post, we look at how the policy of the Bharatiya Janata Party and its predecessor organization – the Bharatiya Jana Sangh – has evolved over the years with respect to the administration and management of educational institutions. These stances of the party have been sourced from the publicly available policy documents and manifestos.

Note: The excerpts posted here do not cover the party’s stance on the overall issue of education – but (to reiterate) focus only on the issue of the party’s stance with respect to running educational institutions – be it schools, colleges or universities.

A. Bharatiya Jana Sangh 

Bharatiya Jana Sangh, 3rd Plenary Session, Jodhpur, 1955

“शैक्षिक स्वायत्तता – विश्वविद्यालयों तथा शिक्षा संस्थायो में सरकार का बढता हुआ हस्तक्षेप स्थिथि को और भी बिगाड़ रहा है | यह प्रवुत्ति शिक्षा के भारतीय सिद्धांत के सर्वथा प्रतिकूल है | शिक्षा का निर्देशन तथा नियन्त्रण शिक्षा शास्त्रियों और शिक्षा के स्वायत्त संस्थायो द्वारा होना चाहिए जो राज्य के नियन्त्रण से मुक्त रहकर अपना उत्तरदायित्व का भलीभांति पालन कर सके |”

Educational Autonomy – Universities and other educational institutions coming under even more influence of the Government has led to a deterioration of the situation. This practice is absolutely against the principles of Bharatiyata. The direction and control of education must be in the hands of educationists and through autonomous institutions and they should be able to perform their duty by being completely free from the control of the Government”

Bharatiya Jana Sangh, 8th Plenary Session, Nagpur, 25th January 1960

“विश्वविद्यालयों कि स्वायत्तता बनाये रखने तथा उन्हें प्रादेशिक राजनीति के अनुचित प्रभाव से मुक्त रखने कि लिए यह प्रावधान किया जाए कि विश्वविद्यालयों तथा अन्य शैक्षणिक संस्थायो कि प्रबंध समितियों में प्रमुखतः शिक्षा शास्त्री तथा अध्यापको कि प्रतिनिधि ही रहेंगे |”

In order to maintain the autonomy of Universities and to keep them out of the unwarranted influence of local politics, provisions should be made such that only educationists and teachers are part of the management committees of Universities and other educational institutions”

Bharatiya Jana Sangh, Principles and Policies, Adopted at the 12th Plenary Session, Vijayawada, January 1965

Autonomy of Education

Even though the State must bear the expenditure on education, education must not be state-controlled. There should be autonomous bodies of teachers and educationists to run educational institutions. It is not proper to run them as a department of the State. The distinction between the State and private educational institutions must go……Education must inculcate unity and not disruption in the society. The existence of a separate system of public schools in India militates against this basic principle….

Note: It is interesting that the party mentions that a “separate system” of public schools is causing disruption in society.

Bharatiya Jana Sangh, Manifestos for the 1951 and 1954 Elections

(Note: Some of the manifestos quoted hereon were for National elections while some were for regional elections)

In the field of education, the party will strive for the reorganization of the educational system on the basis of Bharatiya culture both in spirit and content so as to make it an effective national instrument for character and body-building. 

Bharatiya Jana Sangh, Manifestos for the 1957 and 1958 Elections

Revolutionary Changes in the System of Education

Jana Sangh will make revolutionary changes in the present system of education. The aim of education is an integrated development of the individual and the promotion of moral and spiritual values of life so that education may become a powerful and effective means of the real progress of the nation and the individual. Education, like judiciary, will be free from interference of and control by the Government. Autonomy of educational institutions and Universities will be respected and protected.

Bharatiya Jana Sangh, Manifesto for the 1962 Elections

The Congress Government has failed to realise the importance of education in national reconstruction. The present educational system, gifted to us by the Britishers, who had framed it for the achievement of their imperialistic designs, cannot fulfill the needs of a free nation. The Bharatiya Jana Sangh will evolve a new educational pattern which would blend our ancient Gurukul modes with modern methods with their technical, vocational and scientific bias. 

Bharatiya Jana Sangh, Manifesto for the 1967 Elections


The Indian Constitution has recognised one citizenship and given equal rights to all the people of India. Against the spirit of the Constitution and the principle of one nationhood, some people have been from time to time putting forward separatist demands claiming special privileges and protection on the basis of province, religion, caste of language. There are allegations also of discrimination. Bharatiya Jana Sangh will put an end to all separatist demand and discriminatory practices.


Bharatiya Jana Sangh will respect the autonomy of Universities and educational institutions and free them from the interference of Government. In each district, and education board will be constituted to supervise the affairs of the institutions within the district. The board will include representatives of teachers and donors.

Bharatiya Jana Sangh, Manifesto for the 1971 Elections

Egalitarian Society

Jana Sangh is pledged to the creation of an egalitarian society in which there would be no discrimination against, or in favour of, any citizen on grounds of birth, heredity, caste or creed

Reorientation of Educational System

Jana Sangh will reform the educational system so that it can service simultaneously to strengthen national values and fulfill the needs of modern India.

Bharatiya Jana Sangh, Manifesto for the 1972 Elections

For Teachers and Taught

Ensure the autonomy of Universities and free them from governmental interference; A Board of Education will be set up in each district with which all the schools of the district will be affiliated, comprising of representatives of teachers, parents, managements and the government. This Board will supervise educational institutions and co-ordinate their working. 

B. Bharatiya Janata Party

Bharatiya Janata Party, Manifesto for the 1984 Elections


Ensure academic freedom and the autonomy of Universities

Eliminate political interference in educational institutions

Bharatiya Janata Pary, Manifesto for the 1991 Elections

Law and Constitution

Article 30 permits minorities to run their own schools. It will be rationalised and suitably amended to ensure justice & equality to all irrespective of religions.

(Note: This is the only instance when the BJP has openly talked about Article 30)


Ensure academic freedom and the autonomy of universities, raise the emoluments and status of teachers

Bharatiya Janata Pary, Manifesto for the 1996 Elections

Our Minorities

Ensure equality for all and discrimination against none on grounds of religion in matters of education by amending Article 30


Ensure autonomy to universities, encourage them to mobilise resources for research and higher education, and provide academic freedom to our scholars, especially in the social sciences

Bharatiya Janata Pary, Manifesto for the 1998 Elections

Our Commitment to Minorities: Towards Equal Opportunity and Prosperity

Amend Article 30 of the Constitution suitably to remove any scope of discrimination against any religious community in matters of education

Education For All

Ensure autonomy to universities and to colleges under them. Rid them of corruption and other baneful influences. Encourage them to mobilize resources for research and
higher education and provide academic freedom to our scholars, especially in the social sciences.

Encourage greater participation of social and charitable institutions in expanding the network of educational institutions and in improving their standards.

(Note: An explicit promise in this manifesto for aiding social and charitable institutions in setting up educational institutions – along the lines of Dharmic Education Boards and its offshoot)

Bharatiya Janata Pary (part of NDA), Manifesto for the 1999 Elections

Education for All

We shall strive to improve the quality of education at all levels — from primary schools to our universities.

(Note: This manifesto was that of the NDA, a coalition, rather than that of the BJP’s alone. The mention of autonomy and academic freedom is missing for the first time)

Genuine Secularism

We are committed to establishing a civilised, humane and just civil order; that which does not discriminate on ground — of caste, religion, class, colour, race or sex. We will truly and genuinely uphold and practise the concept of secularism consistent with the Indian tradition of ‘Sarva panth samadara’ (equal respect for all faiths) and on the basis of equality of all. We are committed to the economic, social and educational development of the minorities and will take effective steps in this regard.

Bharatiya Janata Pary (part of NDA), Manifesto for the 2004 Elections

Education for All

The entire school and college education system will be overhauled and made employment-oriented. Opportunities for skill development and vocational training will be maximized

(Note: In almost all manifestos till now, the promise of BJS/BJP was towards an education that empowers individuals and also teaches people about Bharatiya culture. In this manifesto, an explicit declaration to move towards employment orientation was made)

The focus on Indian culture, heritage, and ethical values in syllabi will be strengthened. Character-building and all-round development of the student’s personality will be emphasized….

Bharatiya Janata Party, Manifesto for the 2014 Elections

Social Security – A Caring Government, Passionate Society

Ensure effective implementation of the Right to Education, Right to Food Security Act

(Note: BJP promised to implement RTE very effectively, which is what we are noticing since 2014)

Education – Enroll and Excel

….will provide autonomy with steps to ensure accountability for institutions of higher learning

(Note: The promise is for higher education institutions only. But at the same time, the promise does not restrict itself to only a few higher education institutions – the so-called eminent institutions)

The credibility of the regulatory bodies shall be restored. The procedures to make appointments to senior positions shall be made transparent and merit and ability shall be the sole criterion. UGC will be restructured and it will be transformed into a Higher Education Commission rather than just being a grant distribution agency.

(Note: One can notice a clear departure from earlier position on this issue. There is no talk of ‘freeing‘ institutions from regulatory bodies. On the other hand, the promise is to strengthen these bodies, which in effect reduces autonomy of institutions!)

BJP will set up a National Commission on Education to report in two years on the state of education and the reforms needed. Based on the report, BJP will implement a National Education Policy…..

(Note: This promise – of getting an NEP ready in 2 years – has not been kept)


The promises made by the BJS and the BJP over the past several decades has clearly ‘evolved’ and appears to be more in line now with that of the Congress’ socialist approach.

It will be interesting to see if the party makes any promises on the educational front in its 2019 manifesto, and if it does so, whether the same will attempt a change it its current outlook and move towards the promises of its founder!


  1. Bharatiya Jana Sangh – Goshnaaye Va Prastaav – Volume 5 – 1973
  2. Bharatiya Jana Sangh – Party Documents 1951-1972 – Principles and Policies, Manifestos, Constitution – 1973
  3. Bharatiya Janata Party – Election Manifestos – 1984, 1991, 2014
  4. NDA – Election Manifestos – 1999, 2004

The Real Core Voter Won’t Be Silenced

A few days back, an article titled “Why The Core Hindu Voter is Upset With Modi” was published in the Swarajya magazine. The same writeup also appeared as the cover article in their May 2018 print edition. It analyzed the outlook of the present Modi administration towards Core Hindu issues and surmised that there has been very little progress on any major demand of the Hindu/Hindutva voters since the past 4 years. It quoted several scholars including Dr Konrad Elst and a few other writers/commentators active on social media after obtaining their inputs on the topic.

In response, an article titled “Will The Real Core Hindu Please Stand Up” was published by the same magazine subsequently. This article tried to completely dismiss the concerns raised in the original article and also the opinions of those quoted in it. In fact, the response attributed the opinion of all the interviewees to inherent malice, lust for control of administration and disappointment at being kept out of the corridors of power!

I was one of the people quoted in the original article, and the author who penned the response has *revealed* my true intentions behind the statements I made. I would consider it inappropriate to respond to some of the attributions made in that article. I will therefore skip responding to those. However, I wish to discuss a little on a few concerns raised in the response regarding the agenda of the “Core Hindu” groups.

Insinuations to Ignore

Before I venture further to discuss some of the objections raised against TeamCore, I must make it a point to highlight two of the insinuations repeatedly made against us – both in the article quoted above and also in numerous interactions over social media, especially on Twitter.

  • TeamCore is against ‘Vikas’. those asking for Core do not want the country to develop economically.
    • Of late this allegation has been furthered even more. The new version is ‘Even if they tell you they are not against Vikas, they are lying’.
  • TeamCore really wants the Congress party to come back to power.

The reason I want to mention both these insinuations are because of how ridiculous both of them are. Such meaningless attributions are sure to have one effect – that of raising the curiosity of those who hear them – and because of that precise reason I hope these allegations stay around for a while. Anyone who till date hasn’t been aware of TeamCore, when they hear someone say “Core team does not want the country to develop economically” is sure to be shocked and surprised and ask himself “Is there really someone who thinks like this? Who ARE these Core people?”

That curiosity is bound to bring them to the party and to try and understand what the demands of TeamCore are. And once anyone puts even a cursory effort to understand the ideas of this group the seriousness, and genuineness of the issues, and the ridiculous nature of the allegations – both will become clear.

It is one thing to say that the demands for Core may end up deflating progress on the economic front which in turn may bring back Congress to power. It is a totally different thing to say TeamCore actually wants both these things to happen. If the approach was the first, there could at least be a genuine discussion on why such an eventuality is actually possible. However, if the finger points at the very intention of the vanguards, then its only (albeit very useful) value is in bringing the curious crowd over to TeamCore’s side.

Thank you.

TeamCore Wants Hardcore Hindutva

The article written in response makes a connection between “Core” and “hardcore Hindutva”. I think this connection is misleading at best. Perhaps there has been very little effort at understanding at what TeamCore really wants.

The Core agenda is primarily about setting a level playing field in Indian society so that all are treated at real parity. Once such a stage is set, those seeking to lead a life of Hindutva can happily do so. Other communities that seek to lead a life based on their religious and social principles can equally do so. TeamCore’s concern is about the lack of parity and equal opportunity without which the followers of Hindutva cannot take pride in their dharti, jati and sanskriti!

Let us look at few of the concerns raised, and solutions sought, by TeamCore and understand if there is anything *hardcore* them.

(Note: I use the term hardcore here in the same sense that it was used in the response article – attaching to it a sense of disruptiveness in terms of peace and economic progress. It, of course, need not mean anything like that, in which case there is nothing wrong with the term ‘hardcore Hindutva’)

On the issue that is called out as the one with the most priority – Core1 – the ask is to ensure educational institutions run by the non-minority – Hindus in effect – are provided the exact same rights and privileges as is currently provided to minority run educational institutions. There has never been any sort of demand to take away privileges accorded to minorities or any other community. TeamCore rightly recognizes that the decontrolling of the private educational institutions is the most appropriate way to address the problems plaguing our educational institutions. It is also a no-brainer that Hindu run educational institutions suffer orders of magnitude more control and regulation by Government agencies than minority institutions. How then can asking for parity – asking for the same level of regulation (or freedom from it) – asking for equal privileges – be termed hardcore? Also, it is baffling how bringing about a change which accords privileges and rights to every community in the country can actually have adverse electoral consequences (especially keeping in mind that most of the minority communities enjoying the privileges currently are never going to become a votebank for the ruling BJP).

The demand made via Core2 is for a fair method of access and distribution of public goods based on pro-rata principles – if a religion or community based distribution is inevitable. There has never been a demand that any of the minorities currently enjoying scholarships, loans and other benefits must be devoid of the same – and that these goods must be provided only to the majority community. What is being firmly opposed is blatant sectarianism through the creation of separate channels – case in point being the minority affairs ministry – which can lead to unfair access and distribution. Here again, one fails to understand how a demand for fairness can be termed hardcore – or how the same can have adverse electoral consequences (unless of course those who envision a new structure do a terrible job at conception and execution – nothing can be attempted if such fears exist).

On the issue of Core4, the vanguards are asking for freedom for Hindus to manage their places of worship. In spite of economic hardship over decades now, the average Hindu is still a very dharmic and religious person. Matters related to the temples and mathas he visits still appeal to his heart. How then can asking for liberation of temples from the clutches of corrupt government administrators adversely affect electoral prospects? Minorities in this country already have total freedom in managing their places of worship. Demanding equal privileges for Hindus, therefore, can never be a ‘hardcore’ agenda item.

On Core3 too, the ask from the team has been to move to an open-data based implementation of affirmative action (quotas, reservations and the like) with the ultimate goal of *ending private violence* in Indian society. Can any group desiring to end all forms of private violence in a State be termed hardcore? Is shunning violence hardcore?

Overall, I feel that there is either gross lack of understanding of what TeamCore is championing or there is a deliberate attempt to paint the team with wrong intentions so they are shunned and their voices muted.

(A small note here on the issue of ‘being heard’. The article I quoted above accuses me of wanting to ensure that only the voices of a few intellectuals are heard and that the majority who voted for BJP in 2014 should not have a voice. I chuckle every time I read this accusation. I made the comment about governments needing to have accountability in the context of the repeated attempts of strong supporters of only-vikas-now-not-time-for-core-yet to convince TeamCore to ‘keep calm and trust Modi’. Every time someone raises a Core issue, he or she is told election years are not for raising concerns and that such issues must be brought forward only after ‘true consolidation of power’ occurs. These are clearly attempts to shut voices of concern. And in a strange paradox, we are being accused now of wanting to ensure only our voices are heard!)

Yet another concern raised in the original article was the issue of lack of effort towards rehabilitation of Kashmiri Pandits back to their homelands. Surely those who have been thrown away from their own homes and homelands asking that they be resettled back is not a hardcore demand? Elimination of terrorists and steps towards rehabilitation are related but distinct actions. The lack of ‘mention’ of the former has been pointed out as a failure of TeamCore. It is not the objective of TeamCore to mandatorily provide a report of the government’s achievements. Nor is it the intention of the group to sugar-coat issues. Every single day that a Kashmiri Pandit is spending time outside of his motherland is a day of injustice. Every grouse raised to highlight this injustice is therefore genuine. If the repeated raising of these issues is going to hurt electoral prospects, the right way to set right the damage is to begin actual work on rehabilitation, rather than asking displaced Pandits to make sure they highlight elimination of terrorists as a government achievement every time they ask for justice.

TeamCore and Control

Another major accusation against the members of TeamCore is that they are actually ‘conniving’ individuals who are after power and control of institutions. Since we ‘intellectuals’ have been left out of the corridors of power in the present dispensation, the demands for Core are actually an indirect attempt at restoring that control!!

On the issue of we being intellectuals – I will just let it pass J

Now coming to the issue of ‘control’, let us again revisit some of the Core issues to see if implementing any of them will actually lead to a scenario as is being feared.

On Core1, as the astute @realitycheckind has rightly observed, minority educational institutions have a “regulatability” of 1 out of 10. In other words, the amount of control that a government agency can exercise over a minority institution is close to 0. On the other hand, a non-minority aided institution has a regulatability of nearly 9 and an unaided non-minority institution stands at 8. In summary, Hindu institutions are under extreme government control while non-Hindu ones are almost completely free.

If the vision of Core1 is implemented, Hindu educational institutions too will enjoy almost complete freedom from control and management. If one implements such a policy, where exactly is the scope for the policy makers to exercise control or assert influence over institutions? The field of education lays the foundation for the future of any society. The students we churn out from our schools and colleges go out and shape society a few decades down the line. Any ‘intellectual’ worth his salt wanting to control policy or society would find it but inevitable that he exercise control over educational institutions. By asking for complete freedom for educational institutions TeamCore has shown how much control it really wants to exercise!

A similar argument lies in the area of Core4. The proponents of ‘free Hindu temples’ are actually asking that none, except those with ‘skin in the game’, be allowed to manage temples. This is orthogonal to asking for control over these institutions.

The claim that TeamCore is unsettled because of the lack of opportunity to exercise control, enjoy power or shape future of institutions is therefore baseless.

Anti-poor TeamCore

This is once again an oft-repeated allegation that those wanting the RTE Act to be abolished are actually anti-poor. I will only make a few comments on this issue.

It is baffling that the supporters of RTE amongst the Right Wing actually think there is no substitute to the model envisaged in the RTE on providing free education to our country’s poor. TeamCore demands removal of RTE on three primary grounds

  • Illegal application on only majority run educational institutions
  • Unfair financial burden on majority run private educational institutions
  • Extreme regulation – again applicable only to majority run private educational institutions.

Since the honorable Supreme Court itself, in ‘Unaided Rajasthan Schools vs Ors’ and again in ‘Pramati’ has held that the whole RTE Act is non-severable, there is no option but to rescind the whole Act. What this does NOT mean, however, is that there must not be any new education policy or Act that replaces the RTE.

A new Act that takes away the three major anomalies highlighted above would be most welcome to TeamCore. A simple voucher based system in which the value of the voucher is decided based on fair terms would be the simplest and most effective way to implement free education for the poor.

On the other hand, the existing Act has created innumerable problems for the children of the poor and underprivileged.

  • A lottery based admission system which does NOT actually guarantee every poor child free education.
  • No process for accommodating children who lose out during the lottery!
  • A bureaucracy-ridden admission process in which RTE kids do not get to start classes even 6 months into the year, which creates a learning-gap between them and the rest of the children.
  • A no-detention policy which has led to a disastrous drop in the quality of teaching, and learning.
  • Weak implementation rules, leading to false claims from well to do parents which is denying genuine kids a chance at free education.

The list goes on and on. And note I have not highlighted any of the problems from the schools’ point of view.

Anti-core warriors must realize Education is also an infrastructure issue. It is a ‘soft-infra’ issue. It is as critical, if not more, as roads, water, lighting and cooking gas. 5 years of inaction on this critical development item, while letting the unfair and sectarian Act of the previous regime to continue is nothing short of disaster.

TeamCore and Window-of-Silence

In the run up to the recent Karnataka Assembly elections, the BJP came out with an election manifesto in which the party gave some assurances, for the first time, on the issue of temple management. It has promised to ensure there will be no interference in management of temples and also that the earnings of the temples will not be diverted for any other cause.

Such a promise is a clear outcome of sustained demands from relevant stakeholders, including TeamCore. If these issues were totally irrelevant, as is being made out to be, there was no reason for the party to include it as a significant item in its manifesto. This small, yet significant, success shows that a sustained effort at educating the electorate on Core issues is surely bound to yield results.

For similar reasons, it is imperative that TeamCore does not adhere to any “window of silence” during election years, although it in principle supports right wing parties. Election years are the ones where lack of progress on any issues, especially significant ones, is highlighted and political parties are made to take a public stance. TeamCore believes in a society based on Equality of Law. Given the lack of awareness currently amongst the majority, it is imperative these issues are highlighted continuously, awareness is raised, and people are made to realize their importance.

TeamCore will certainly ‘keep calm’. TeamCore will, however, not ‘keep quiet’.

Approaches to Affirmative Action

Apple from the Hills

Consider a hilly area near the Himalayas somewhere in North India. Owned entirely by the local Government, a special variety of Apple grew there. Every year, only a few hundred apple grew and there was always heavy demand for the same. After harvest, the Government, with all its noble intentions, gave away the apples for free – on a first come first serve basis.

Over few years, a section of the citizens started complaining that they never get to have the special apples. It turned out that those who lived near the foot of the hills always managed to get to the Government distribution center on top of the hill before those who lived further down in the plains. Hence the folks from the plains never got to taste the delicious apples.

Medicinal Lake

In another part of the country, there existed a beautiful lake whose waters had special medicinal properties. It never dried throughout the year and always had crystal clear mineral water. A bath in the lake cured people of various types of skin diseases. The success rate was 100% and therefore the citizens of nearby places sought to have bath in this lake to cure their diseases.

Over time, it so happened that the villagers surrounding the lake turned to bullying visitors from far off. They started threatening visitors and prevented many from taking bath. The villagers felt only they should use the lake. The visitors from far off started complaining to the Government that they did not get the opportunity to take bath due to the fear of the villagers and rid themselves of their diseases.

Library for the blind

In yet another region in the country, there existed a library for the blind. Many books, written in Braille, were available in the library and many visually challenged people from around the region made good use of the collection.

Some anti-social elements from the nearby villages turned ruffians and started damaging the library. They started barging into the place and tore up many of the books. Patrons used to be threatened by these rowdies and it became a nightmare for people to sit peacefully and enjoy the books.

Different forms of Social Justice

In each of the three cases, the Government had to come up with some solution to ensure that there was ‘social justice’ or ‘affirmative action’ so that all interested groups, in each case, were dealt with fairly.

What would be the correct/ideal way to provide social justice in each of these cases?

In the first case of the special apples, the resource in question – the apples – were finite. What was at stake was exhaustible. The problem in this case was that of scarcity. The way to ensure that the folks from the plains also get to enjoy this resource was to ensure a fair distributionAn ideal way would be to come up with a list of all interested groups – the plains-folks and the hill-folks – and ensure a pro-rata distribution between them.

In the second case of the medicinal lake, the resource in question – the lake itself – is inexhaustible. The problem in this case was that of access. Therefore the right way to ensure justice in this case was to ensure fair opportunityThe Government could come up with regulation that ensures no citizen who wants to have a bath in the lake is ever denied the opportunity to do the same. Rules about timing of visit, sections of the lake that are open for bathing, fees to be charged can all be decided by the Government and the same can be made applicable equally to all.

In the third case of the library for the blind, the resource in question – the library – was exclusive in nature. The problem in this case was that of danger. The right way to ensure justice in this case was to offer fair protection. The Government could strengthen security around the library and make sure the interested stake holders – the blind patrons – can use the resource peacefully.

Mapping to #Core

The above examples are intended to explain three key demands of #TeamCore.

In the area of #Core2 – the situation is similar to the example of the special apples. Public goods provided by the Government – scholarships, loans, fellowships and so on – are all exhaustible resources. But they are interesting to ALL sections of society. The only fair way to handle them is to distribute them pro-rata.

If you create separate programs of distribution to specific groups, it will lead to favor. And eventually incentivise the non-favoured groups to move into the pampered group.

In the area of #Core1 – the situation is similar to the analogy of the medicinal lake. When resources are non-exhaustible, like in the case of opening and administering educational institutions, the only fair way to handle them is to create EQUAL opportunity/access. If a special favour is extended to some groups, it only means making it tougher for the other groups to access the same. In the long run, it demotivates the losing group from even accessing the resource. In other words, the favoured group takes over the resource.

In the area of #Core5 – the situation is similar to the analogy of the library for the blind. The resource in question is exclusive to a group. Within limits of public peace, health and morality, there must be complete protection for the group to consume the resource (or say practice its beliefs/rituals). Lack of support in this case, for any group, translates effectively to a punishment for the said group.

Issues with the Karnataka HR & CE Act

Recently, the Karnataka Government sent out a circular seeking feedback from the public over the issue of taking over of Hindu mathas and (additional) temples. In the face of a strong backlash, the circular was withdrawn within a day. Even as the entire HR&CE Act was struck down as being unconstitutional by the Karnataka High Court on multiple occasions, the Government continues to use it to gain control over, and manage, tens of thousands of temples throughout the state. This has been made possible due to the stay over the High Court judgement given by the Supreme Court till the final decision on the appeal being heard by it.

In this context, let us look at a few provisions in the Act which appear contentious and warrant a wider discussion.

The Karnataka HR & CE Act was first passed in 1997 and notified in 2001. Subsequently, it has undergone 2 amendments, the latest being in 2011. The latest version of the Act can be found here.

Let us take a look at few of the provisions in this Act, and the conflicts with Constitutional rights, as also the inconsistencies they bring in.

Section 9-1

Appointment of Archakas 1[and temple servants]1.- (1) The committee of management of a notified institution may with the approval of the Commissioner appoint one or more archakas 1[and temple servants]1 to each temple belonging to the institution

Even though the Government has claimed on various occasions that it does not interfere with the religious practices of temples, by virtue of keeping the veto power on the matter of appointment of archakas and all other temple employees, the Government has ensured it has complete control over the daily running of the temple. Without its approval, no staff can be appointed. This rule is applicable to both ‘notified institutions’ and ‘declared institutions’ – the two ‘types’ of temple takeover provisions in the Act.

It is a no-brainer that appointment of personnel in any institution is a fundamental part of ‘management’ of the same. Therefore, this clause is a direct infringement of the rights guaranteed under Articles 25(1) and 26(b) of the Constitution.

Section 17

Creation of Common Pool Fund.- It shall be lawful for the 1[Rajya Dharmika Parishat]1 to create a fund to be called the Common Pool Fund out of.-
1[(a) contributions made by the notified or declared institutions at the following rate:-
(1) ten percent of the net income in respect of institutions whose gross annual income exceeds rupees ten lakhs;
(2) five percent of the net income in respect of institutions whose gross annual income exceed rupees five lakhs but does not exceed rupees ten lakhs.]1
(b) Grants received from the State Government.

Through this section, the Act takes away up to 10% of the net income of a temple for other ‘charitable’ purposes. Though the subsequent sections of this Act, specifically Section 19, lists a number of noble causes for which this money can be used, the fact remains that this measure amounts to forcibly taking away a portion of the income even if it can be put to good use in the same temple itself. This is a tax on contributions to the temple – without directly saying so.

Section 19-1-a

Section 19-1 lists a number of causes for which the money under the Common Pool Fund can be utilized. Section 19-1-a specifically says the following

(a) the grant of aid to any other religious institution which is poor or in needy circumstances;

In the original Act of 1997 (2001), the phrase “religious institution” was undefined. However, in the subsequent amendment Act of 2007, the definition of this term was introduced as below.

“Religious Institution” means a temple or an endowment and includes a brindavana, samadhi, peetha, paduka or any other institution established or maintained for a religious purpose

Notice the last part of the definition which goes as

or any other institution established or maintained for a religious purpose

It does NOT explicitly state that this “other institution” has to be Hindu. This leaves a potential opening for the funds to be used for non-Hindu institutions.

Section 23-a-i

Section 23-a deals with the conditions under which a temple can come under the control of the Government via the “notified institution” route.

Sub-clause (i) says this specifically

(a) all Charitable Institutions and Hindu Religious Institutions which on the date of commencement of this Act are in the sole charge of the State Government 1[under the provisions of Mysore Religious and Charitable Institutions Act, 1927]1 or for the benefit of which.
(i) any monthly or annual grant in perpetuity is made from public revenues: or

This means any temple which receives a monthly or annual grant from the Government automatically comes under the control of the Government. There does not have to be a reason of mismanagement, or abandonment, or any other cause for the control to be taken over.

Now under Section 19 where details of the use of the Common Pool Fund is listed, the following is mentioned under sub-section (a)

19-(a) the grant of aid to any other religious institution which is poor or in needy circumstances;

The combination of these 2 powers leads to a very dangerous situation. The Government could use the money from a rich temple, setup a grant to another poor(er) temple, and take over the latter temple simply because it received a grant. The money from one temple can lead to the takeover of another temple.

Theoretical – but fully plausible scenario!

Section 25-3-ii

In the beginning of the Act, under Section 11-1, the following is stated

(1) The Archaka of the temple, and if there are more Archakas than one, the Pradhana Archaka shall be an ex-officio member on the committee of management of the temple

Subsequently, under Section 25-3-ii, the Act says

(3) No person shall be qualified for being appointed as member of the Committee of Management of a notified institution unless,-
(ii) he has attained the age of twenty five years;

If both these sections are read together, then it imposes a condition that a person less than 25 years cannot be appointed as the archaka of a temple. This is an unreasonable restriction (although it may not have been intended to be this way).

Section 43-8

Under this Act, if the Government discovers “mismanagement” of a temple, it can declare the temple as a “declared institution” and takeover complete control of the temple. Any existing management committee shall be dissolved.

The duration for which the Government shall hold reigns is defined under Section 43-8 as follows

(8) Every Notification issued under sub-section (5) or (7) shall remain in force for such period as may be specified therein and which may be extended further, so however that the total period shall not exceed five years from the date of the first notification, or till a new Committee of Management is formed to the satisfaction of the State Government whichever is earlier

The Government can therefore take over control for up to 5 years.

However, if the temple is a “notified institution” instead of a “declared institution” then when “mismanagement” is identified, Section 29 applies

29. The 1[the Rajya Dharmika Parishat or the Zilla Dharmika Parishat]1 shall appoint an officer of the State Government as Administrator in place of the Committee of management dissolved or suspended under sub-section (1) or (3) of section 28 or after the expiry of the term of office of the Committee under section 26 3[or for any other reasons]3 and till a new Committee of Management is constituted or for a period of six months whichever is earlier.

If a temple is a “notified institution” the takeover limit is only up to 6 months while for a “declared institution” it is up to 5 years. This is inconsistent logic.

Section 44

44. Effect of Declaration.- Where any Hindu Religious Institution is declared under section 42, the Committee of Management of the Institution by whatever name called shall from the date of such declaration stand dissolved and its administration shall vest in the State Government to be regulated in the manner hereinafter provided.

Under this section, the complete “administration” of a “declared institution” is taken over by the Government – a blatant violation of Article 25(1) and 26(b).


The Karnataka HR&CE Act is laden with numerous inconsistencies and violations of religious rights of Hindus. Hopefully, the Supreme Court will hear the appeals at the earliest and quash this Act and uphold the judgement of the Karnataka High Court – thereby returning control of Hindu temples back to its devotees.