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 In the face of a strong backlash, the circular was withdrawn within a day.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).

Conclusion

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.

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