Karnataka High Court
Sri Jagadguru Murugharajendra vs The Chief Secretary on 22 May, 2023
Bench: Krishna S.Dixit
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WP No. 25316/2022
C/W WP No. 25318/2022,
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WP No. 25316/2022 (GM-R/C)
C/W
WP No.25318/2022 (GM-R/C),
IN W.P.NO.25316/2022:
BETWEEN:
1. SRI JAGADGURU MURUGHARAJENDRA
VIDHYA PEETHA.,
M.K. HATTI, CHITRADURGA,
KARNATAKA 575 502.
REP BY ITS PRESIDENT.
2. SRI. JAGADGURU MURUGHARAJENDRA
BRUHAN MATH,
REP BY ITS PONTIFF AND CHIEF
DR SHIVAMURTHY MURUGHASHARANARU
Digitally signed REP BY THE GPA HOLDER
by SHARADA
VANI B SRI. BASAVAPRABHUSWAMIGALU
VIRATKTHA MATH, DAVANAGERE,
Location: HIGH
COURT OF KARNATAKA 577 002.
KARNATAKA ...PETITIONERS
(BY SRI.JAYAKUMAR S PATIL., SENIOR COUNSEL A/W
SRI. VISHWANATH H M., ADVOCATE)
AND:
1. THE CHIEF SECRETARY,
GOVT OF KARNATAKA,
VIDHANA SOUDHA,
B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
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WP No. 25316/2022
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2. THE DEPUTY SECRETARY,
REVENUE DEPARTMENT,
(LAND, UPOR AND RELIGIOUS ENDOWMENT)
VIKAS SOUDHA, B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
3. THE SECRETARY,
MUZRAI DEPT,
VIKAS SOUDHA, B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
4. THE COMMISSIONER,
HINDU RELIGIOUS INSTITUTIONS,
AND CHARITABLE ENDOWMENTS DEPARTMENT,
VARTHA BHAVANA, CHAMARAJPETE,
BANGALORE 560 018.
5. THE DEPUTY COMMISSIONER,
CHITRADURGA DISTRICT,
KARNATAKA 577 501.
6. SRI. P.S. VASTRAD (I.A.S RETD)
NO. 301, CASA GRANDE AAPRTMENT,
BEHIND MARTIAL MOTORS VOLVO SHOWROOM,
POORPA PRASAD ROAD, RACE COURSE,
BANGALORE 560 001.
7. THE REGISTRAR OF SOCIETIES,
CHAMARAJPET, BENGALURU 560 018.
...RESPONDENTS
(BY SRI. PRABHULING K NAVADGI., ADVOCATE GENERAL A/W
SRI. R SRINIVASA GOWDA., AGA FOR R1 TO R5 & R7;
SRI. GANGADHAR GURUMATH., SENIOR COUNSEL A/W
SRI. H SUNIL KUMAR., ADVOCATE FOR R6;
SRI. B A CHANDRASHEKAR., ADVOCATE INTERVENAR)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER BEARING KAM.E 112 MU.SA.VI 2022 DATED
13.12.2022 PASSED BY THE R2, PRODUCED AS ANNEXURE-A,
AS ILLEGAL.
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WP No. 25316/2022
C/W WP No. 25318/2022,
IN W.P.NO.25318/2022:
BETWEEN:
1. SRI. D. S. MALLIKARJUN,
S/O D B SHIVASHALAPPA,
AGED ABOUT 50 YEARS,
R/AT BELADINGALU, 2ND MAIN,
6TH CROSS, VIDYANAGARA,
CHITRADURGA - 577 501.
2. SRI. THIPPESWAMY H N,
S/O H N NINGAPPA,
AGED ABOUT 60 YEARS,
R/AT NO.504, BHARAMASAGARA,
CHITRADURGA - 577 519.
3. SRI. JITENDRA N,
S/O LATE NIJALINGAPPA B T,
AGED ABOUT 39 YEARS,
R/AT AMMANA KANASU,
2ND CROSS KSRTC BADAVANE,
JOGIMATTI ROAD,
CHITRADURGA - 577 501.
...PETITIONERS
(BY SRI.JAYAKUMAR S PATIL., SENIOR COUNSEL A/W
SRI. S KALYAN BASAVARAJ., ADVOCATE AND
SRI. DR.PRAJAWAL K ARADHYA., ADVOCATE)
AND:
1. THE CHIEF SECRETARY,
GOVT OF KARNATAKA,
VIDHANA SOUDHA,
B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
2. THE DEPUTY SECRETARY,
REVENUE DEPARTMENT,
(LAND, UPOR AND RELIGIOUS ENDOWMENT)
VIKAS SOUDHA, B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
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WP No. 25316/2022
C/W WP No. 25318/2022,
3. THE SECRETARY,
MUZRAI DEPT, VIKASA SOUDHA,
B.R. AMBEDKAR ROAD,
BANGALORE 560 001.
4. THE COMMISSIONER,
HINDU RELIGIOUS INSTITUTIONS,
AND CHARITABLE ENDOWMENTS DEPARTMENT ,
VARTHA BHAVANA, CHAMARAJPETE,
BANGALORE 560 018.
5. THE DEPUTY COMMISSIONER,
CHITRADURGA DISTRICT,
KARNATAKA 577 501.
6. SRI. P.S. VASTRAD (I.A.S RETD)
NO. 301, CASA GRANDE APARTMENT
BEHIND MARTIAL MOTORS VOLVO SHOWROOM,
POORPA PRASAD ROAD, RACE COURSE,
BANGALORE 560 001.
7. THE REGISTRAR OF SOCIETIES.,
CHAMARAJPET, BENGALURU 560 018.
8. SRI JAGADGURU MURUGHARAJENDRA VIDYA PEETHA
M K HATTI CHITRADURGA,
KARNATAKA - 577 502.
REP BY ITS PRESIDENT.
9. SRI JAGADGURU MURUGHARAJENDRA BRUHAN MATH
BY ITS PLAINTIFF AND CHIEF
DR SHIVAMURTHY MURUGHA SHARANARU
REP BY ITS GPA HOLDER,
SRI BASAVAPRABHUSWAMIGALU
VIRAKTHA MATH, DAVANAGERE,
KARNATAKA - 577 002.
...RESPONDENTS
(BY SRI. PRABHULING K NAVADGI., ADVOCATE GENERAL A/W
SRI. R SUBRAMANYA., AAG AND
SRI. R SRINIVASA GOWDA., AGA FOR R1 TO R5 & R7;
SRI. GANGADHAR GURUMATH., SENIOR COUNSEL A/W
SRI. H SUNIL KUMAR., ADVOCATE FOR R6)
-5-
WP No. 25316/2022
C/W WP No. 25318/2022,
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
IMPUGNED ORDER BEARING KAM.E.112 MU.SA.VI 2022 DATED
13.12.2022 PASSED BY THE R2 PRODUCED AT ANNEXURE-A
AS ILLEGAL.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
These two petitions seek to lay a challenge to the
Government Order dated 13.12.2022 whereby, the
Respondent-Mr.P.S.Vastrad, a retired IAS officer, has been
appointed as the Administrator for the Mutt & the institutions
run by it. W.P.No.25316/2022 is filed by the Vidya Peetha,
represented by its President, and the Mutt is represented by its
Pontiff Dr.Shivamurthy Murugha Sharanaru through the GPA
holder Sri.Basavaprabhuswamigalu. W.P.No.25318/2022
is filed by three individuals who claim to be the devotees
of Mutt.
2. The operative portion of the order reads as under:
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WP No. 25316/2022
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¢£ÁAPÀ:01.09.2022 jAzÀ £ÁåAiÀiÁAUÀ §AzsÀ£ÀzÀ°è EgÀĪÀÅzÀjAzÀ
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C£ÀÄZÉÒÃzÀ 162,3(J)gÀ£ÀéAiÀÄ ²æà ¦.J¸ï.ªÀ¸ÀÛçzï L.J.J¸ï (¤ªÀÈvÀÛgÀÄ),
casa Grande Apts No.301, Behind Martial Motors Volvo
Showroom, poorpa Prasad Road off, Race Course Road,
Bangalore- 560 001. EªÀgÀ£ÀÄß F PÀÆqÀ¯Éà eÉÃjUÉ §gÀĪÀAvÉ
ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀªÀgÉUÉ ¸ÀzÀj læ¸ïÖ ªÀÄvÀÄÛ ²PÀët ¸ÀA¸ÉÜUÉ
"DqÀ½vÁ¢üPÁj"AiÀÄ£ÁßV £ÉëĹ DzÉò¹zÉ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀĸÁgÀ
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The Government specifically mentions that this Order has
been made in exercise of the power availing under Articles
162 & 31A of the Constitution of India inter alia for
safeguarding the movable & immovable properties of the
Mutt and to prevent misappropriation of funds of the
institution and further, to conduct the overall management
effectively inasmuch as the Pontiff has been facing
criminal cases is in judicial custody since 1.9.2022.
3. After service of notice, the State & its officials
have entered appearance through the learned AGA and
their case is argued by the learned Advocate General. The
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Administrator being arrayed as Respondent eo nomine, is
represented by an advocate on record and his case is
argued by a learned Senior Advocate. With the leave of
court, amended Petitions have also been filed from the
side of Petitioners. The Respondents have filed their
Written Versions/Statement of Objections resisting the
Writ Petitions. Since these cases have a cognate fact
matrix, with the consent of the Bar, they are clubbed &
heard together.
4. There is another case in W.P.No.2331/2023
filed by the Pontiff alone laying a challenge to the order
dated 15.12.2022 passed by the learned II Addl. District &
Session Judge, Chitradurga, whereby he has been
'restrained from exercising the Powers or discharging the
duties of SJM Mutt and other institutions running under the
said Mutt as a Pontiff and head of the institution pending
conclusion of trial.' This order is made under section 8(2)
of the Religious Institutions (Prevention of Misuse) Act,
1988, (hereafter '1988 Act'). This case too was heard
along with these two Writ Petitions. However, the
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contentions canvassed being essentially in the domain of
Criminal Jurisprudence, a separate judgment is being
handed, keeping in view the avenue availing for its
challenge and such other relevant factors.
5. FACTS IN BRIEF:
(a) Petitioner-Mutt originally established by
Allamaprabhu, a 12th-century mystic saint and a poet who
prolifically composed Vachanaas in Kannada. This saint
and his order propagated the unitary consciousness of Self
and Shiva, being the prominent patrons of the Lingayat
movement that reshaped medieval Karnataka. Later, this
Mutt was rejuvenated in the 16th century by another saint
of great repute Sriman Niranjan Jagadguru Mahaswami
and since then, it has been conducting anna daasoha &
akshara daasoha to all sections of the society regardless of
religion, region, race, caste, gender, place of birth or the
like. By a long & committed yeoman service, it has carved
out a niche for itself. Several educational institutions
having been founded are being run successfully under the
aegis of Mutt since decades.
(b) It is pertinent to state that, in Karnataka,
several such Veerashaiva/Lingayat Mutts have been
relentlessly providing education, professional, vocational &
traditional to lakhs of people on affordable costs and that
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thousands of students prosecute their studies with free
boarding & lodging facilities, sans discrimination on any
grounds whatsoever. Nobody can justifiably dispute this. It
is incongruous not to acknowledge the enormous
contribution made by the Veerashaivas/Lingayats in
general and their Mutts in particular, inter alia to the field
of education. Siddhaganga Mutt, Suttur Mutt & Murugha
Mutt have been in the forefront. It is no exaggeration to
state that without that, the constitutional aspiration of
eradicating illiteracy and its associated evils, would have
remained merely as lofty ideals.
(c) Website version of Mutt: It is relevant to
reproduce the website version of the Mutt with a caveat that
the adjudication of these cases did not much warrant
verification of its authenticity:
"Gurusiddha Swamiji popularly known as
Murige Swamiji II succeeded him and remained as
the head of Math upto 1729.A.D. He was honoured
as the Raja-guru by the rulers Baramanna Nayaka
and his son Hire Madakari Nayaka(1721-48.A.D). He
was a profound scholar in both Kannada and Sanskrit
and had poetic talent. He has so many works in both
the languages to his credit. The Next succeessors
Swadi Channabasava Swamiji, Sirahatti Siddalinga
Swamiji, Nayakanahatti(Dodda) Gurupada Swamiji,
Murusavirada(Sanna) Gurupada Swamiji, were
treated with respect as Raja-gurus by Hire Madakari
Nayaka, (Kasturi Rangappa Nayaka II (1748-54 AD)
and the last Madakari Nayaka (1754-79AD) the
rulers of Chitradurga in the year 1779 A.D.,the
heritage of the Math continued. Within two or three
decades after the establishment of the Math,
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hundreds of branch maths were established in
various parts of South India, due to the religious
influence on the people. The local public began to
call the branch maths as "Virakta Maths" and "Murige
Maths", to show their devotion.
For these branch maths, the rulers like those of
Keladi, Kodagu(Coorg), Sode(Swadi), Harapanahalli,
Mattodu, Tarikere, Hagalawadi, Savanur, Sirasangi,
Lakshmeswara, Mysore, Ummattur, Punganur,
Kolhapur, etc., including Muslim Nawabs and the
subjects of all communities showed respect and
released so many grants. This clearly indicates the
secularism and greatness of the Math. Remarks of
two western scholars of the past century and the
beginning of the present century are also the clear
evidences for the prominence and the high position
of the Math. Edward P. Rice author of " A History
of Canarese Literature" states that "Lingayatism
was the state religion of the early Wodeyars of
Mysore and of Ummatur from 1399-1610 and of the
Nayaks of Keladi (Ikkeri or Bednur) from 1550-1763.
Their Principal Matha in the Mysore country is at
Chitradurga". Edgar Thurston who made a survey of
"Tribes and castes of South India"., writing on the
Lingayat Maths has pointed out that "Each Virakta
Math is directly subject to teh Murige Math at
Chitaldurga(Chitradurga), which has absolutely
jurisdiction over all the Viraktas" Starting from Sri
Murige Swamiji-I to the present Sri Shivamurthy
Murugha Sharanaru, twenty Pontiffs have adorned
the religious seat of the Math."
(d) Petitioner-Mutt which practises & professes
Basava Tatva, mainly founded on humanitarian principles,
has mediately established 105 educational institutions,
professional & other, and that they are managed &
administered by the Petitioner-Vidya Peetha. It is not in
dispute that the Pontiff has the decisive role in all that.
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These institutions have produced thousands of meritorious
candidates, many of whom serve in public & private
employment. Mutt has a registered Trust Deed dated
26.11.2010. Petitioner-Dr.Shivamurthy Murugha
Sharanaru came to be installed as Pontiff of the Mutt on
31.1.1991 by his predecessor Sri Mallikarjuna Swamaji,
again a tall saint of Basava Tatva Darshanaas. The
Petitioner-Vidhya Peetha has been registered as a society
under the provisions of the Karnataka Societies
Registration Act, 1960 vide Certificate of Registration
dated 21.6.1966. The Pontiff happens to be the President
of the Trust, ex officio and he is described as the 'supreme
authority'.
(e) On 13.10.2022, Nazarbad Police, Mysore,
registered against the Petitioner-Pontiff Crime
No.155/2022 for the offences punishable under sections
376(2)(i), 376(3), read with section 149 of Indian Penal
Code, 1860 and under sections 17, 5(1) & (6) of the
Protection of Children from Sexual Offences Act, 2012
(hereafter 'POCSO Act'). The Fast Track Court at Mysore
transferred the investigation to the Rural Police,
Chitradurga, on the ground of territoriality of offences.
Accordingly, the said Police have registered Crime
No.387/2022 for the same offences. The Pontiff & others
having been arrested are continuing in judicial custody.
The investigation having been completed, the Police have
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filed the two charge sheets as 'A' & 'B' in Crime
No.387/2022. The Spl. Court at Chitradurga, having taken
cognizance of alleged offences, has registered
Spl.C.(P).No.181/2022 & Spl.C.(P).No.182/2022.
(f) The Petitioner-Pontiff had filed application on
6.9.2022 seeking a direction from the Jail Authorities to
permit him to affix his signatures on cheques & other
instruments inter alia for the purpose of organizing
disbursements of salaries and other expenses to the staff
of Mutt and of the educational institutions run by it.
Learned Spl. II Addl. District & Sessions Judge,
Chitradurga, vide order dated 20.9.2022 dismissed the
said application. This having been challenged in
Crl.P.No.9654/2022, a Coordinate Bench of this court vide
order dated 30.9.2022 granted the prayer in the subject
application. Accordingly, Petitioner has executed two
registered GPAs in favour of one Sri Basavaprabhu
Swamiji. When the above was the position, the
government vide order dated 13.12.2022 has appointed
the Administrator as mentioned above.
6. I have heard at length the learned counsel
appearing for the parties and perused the Petition Papers;
I have adverted to relevant of the Rulings prolifically cited
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at the Bar. The following questions are broadly framed for
my consideration:
Whether the impugned order dated
13.12.2022 whereby, the government in
1. exercise of its executive power under
Article 162, has appointed the
Administrator to the Mutt & to Vidya
Peetha, is liable to be voided for want of
competence...?
Whether Petitioner-Pontiff facing criminal
cases and presently continuing in judicial
2. custody, can exercise managerial
functions of his office/position or as the
President of the Trust in question by way
of delegation...?
Whether the impugned order appointing
the Administrator to the Mutt & the
3. institutions, is violative of the
Fundamental Rights guaranteed under
Article 26 of the Constitution and
therefore, is liable to be quashed...?
7. CONTENTIONS OF PETITIONERS:
Learned Sr. Advocate Mr.Jayakumar S Patil
appearing for the Petitioners vehemently argued that:
(a) The Petitioner-Mutt is a religious denomination
and other Petitioners being devotees of the Mutt, belong to
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that denomination; there are internal squabbles in a
section managing the affairs of Mutt & its educational
institutions, and that has resulted into false implication of
the Pontiff in the subject criminal cases; till after the trial
& conviction, an accused is presumed to be innocent;
merely because charge sheet has been filed, the trial court
has taken cognizance of the alleged offences and the
Pontiff is in judicial custody, his Pontiffhood is not put in
suspended animation. He also draws attention of the court
to a Coordinate Judge's order in Crl.P.No.9654/2022
granting some reprieve to the Pontiff in the matter of
management;
(b) Law does not prohibit a Pontiff in detention
from exercising administration through his delegates;
accordingly, he is continuing to do administration &
management through one Sri Basavaprabhu Swamiji; a
retired District Judge one Mr.Vastramath is also appointed
to look after affairs of management. That being the
position, the government has neither competence nor
justification to appoint the Administrator of its choice sans
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an opportunity of hearing. Since the field is already
occupied by 'law', no executive power avails to the
Government under Article 162; even otherwise, Petitioners
have religious freedoms guaranteed under Articles 25 & 26
of the Constitution; several other rights are attached to
Pontiffhood and they could not have been cut short in the
absence of statutory authorization. In support of his
submission, he banks upon certain decisions.
8. CONTENTIONS OF STATE AND
ADMINISTRATOR:
Learned AG appearing for the State & its officials and
learned Sr. Advocate appearing for the Administrator per
contra contended that:
(a) The plea of 'occupied field' which Petitioners
have put forth no longer avails after the Karnataka Hindu
Religious Institutions and Charitable Endowments Act,
1997, came to be made repealing inter alia the Bombay
Public Trusts Act, 1950, the Madras Hindu Religious and
Charitable Endowments Act, 1951, the Mysore Religious
and Charitable Institutions Act, 1927, etc., which were the
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law that had earlier occupied the field vide Entry 28 of List
III of the Constitution; thus, the executive power having
revived, avails to the State under Article 162; the
government has issued the impugned order in exercise of
such power to prevent abuse of administration and to
safeguard huge properties of the Mutt & its institutions, in
the public interest; the Pontiff admittedly facing serious
criminal charges and being in judicial custody, all his
pontific and temporal powers & capacities, are in
suspended animation.
(b) There is no violation of any Fundamental Rights
of Petitioners as alleged in the petitions. That the
government has parens patriae jurisdiction; Mutt & its
institutions own properties worth more than a thousand
crore rupees; government too has granted land and funds
to the Mutt; there are hundred of staff members and
thousands of students; the impugned order is made in the
best interest of all these; after all, it is not that the
Administrator will there be permanently; government will
review its decision once the Pontiff comes out from the
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confinement. Therefore, no exception can be taken to the
same. Having so contended, both they highlight arguably
undesirable consequences of removing the administrator
and handing the reigns to the Pontiff who is facing serious
criminal charges and confine to gaol. So contending, they
seek dismissal of the Petitions.
9. This court is inclined to grant indulgence in the
matter for the following reasons:
(A) CONSTITUTIONAL SECULARISM AND STATE
INTERFERENCE IN RELIGIOUS INSTITUTIONS OF
ANY FAITH:
In India, the history of control of Religious Institutions
of any faith by the State is traceable to the Colonial Era &
its mindset. The interference of Colonial regime in religious
matters of any faith noticeably started becoming
progressive since 1800 C.E. or so. From 1860s, Hindu
Religious Institutions as a class had been subjected to
government control in a great measure. Even after
independence and enactment of the Constitution, this
mindset continues in one or the other forms of inheritance.
Even to this day, there has been a continued tendency in
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'powers that be' to exclusively control (not merely
regulate) Hindu Religious Institutions, without authority of
law and at times, absolutely sans justification. Indian
secularism as a constitutional value, oscillates between
sarva dharma samabhaava and dharmanirapekshata in
varying degrees. Secularism has been recognized as a
Basic Feature of the Constitution in KESAVANANDA
BHARATI vs. STATE OF KERALA1 much before the word
'secular' secured a place in the Preamble vide 42nd
Amendment in 1976. The Apex Court in INDIRA NEHRU
GANDHI vs. RAJ NARAIN2 explained secularism inter alia
to mean that the State shall have no religion of its own
and all persons shall be equally entitled to freely profess,
practise & propagate religion. The interference of the State
in Religious Institutions, goes against its professed secular
credentials. In secularism, State neutrality qua religion is
inherent and this requires the governance to maintain a
distance from the affairs of religious institutions of all
faiths, equally and further to respect their autonomy. The
AIR 1973 SC 1461
AIR 1975 SC 2299
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Division Bench of Telangana High Court whilst examining
similar aspects in SRI AHOBILA MUTT PARAMPARA VS THE
STATE OF ANDHRA PRADESH, observed as under:
"...The Mathadhipati is a trustee according to
the provisions of the Act and if the court is
competent to appoint the Charity Commissioner
as a superior of a math, the result would be
disastrous and it would amount to a flagrant
violation of the constitutional guarantee which
religions institutions have under the
Constitution in regard to the management of its
religious affairs. This is not a secular affair at all
relating to the administration of the trust
property. The very object of a math is to
maintain a competent line of religious teachers
for propagating and strengthening the religious
doctrines of a particular order or sect and as
there could be no math without a Mathadhipati
as its spiritual head, the substitution of the
Charity Commissioner for the superior would
mean a destruction of the institution
altogether...Thus, it is clear legally the taking
over of complete charge is a violation of the
constitutional guarantee under Article 26..."
The challenge to this decision in SLP Nos.1538-1540/2023
is negatived by the Apex Court vide order dated
27.01.2023.
(B) AS TO PETITIONER-MUTT BEING A
RELIGIOUS DENOMINATION UNDER ARTICLE 26 OF
THE CONSTITUTION:
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(i) While Article 25 guarantees freedom of
conscience and the right to profess, practice & propagate
religion, the provisions of Article 26 complimentarily
protect such right of every religious denomination. Under
clause (a) of Article 26, every such denomination can
establish & maintain institutions for religious & charitable
purposes; the registered Trust Deed is an enabling
instrument in this regard and that several educational
institutions have been established under the aegis of Mutt,
is not in dispute. Clause (b) gives the right to manage
religious affairs of the denomination, on its own; clause (c)
enables the denomination to own & acquire property and
clause (d) empowers it to administer such property. A
religious denomination or organization enjoys almost a
complete autonomy in the matter of deciding as to what
rites & ceremonies constitute essential religious practice
according to the tenets of religion concerned and that the
State has no authority to meddle with such decisions vide
COMMISSIONER OF POLICE vs. ACHARYA
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JAGADISHWARANANDA AVADHUTA3. Added, what is
observed in THE COMMISSIONER, HINDU RELIGIOUS
ENDOWMENTS, MADRAS vs. SRI LAKSHMINDRA THIRTHA
SWAMIAR OF SRI SHIRUR MUTT4 at paragraph 15
becomes instructive:
"As regards article 26, the first question is,
what is the precise meaning or connotation of
the expression "religious denomination" and
whether a Math could come within this
expression. The word "denomination" has been
defined in the Oxford Dictionary to mean
collection of individuals classed together under
the same name: a religious sect or body having
a common faith and Organisation and designated
by a distinctive name. It is well known that the
practice of setting up Maths as centres of the
logical teaching was started by Shri
Sankaracharya and was followed by various
teachers since then. After Sankara, came a
galaxy of religious teachers and philosophers
who founded the different sects and sub-sects of
the Hindu religion... Each one of such sects or
sub-sects can certainly be called a religious
denomination, as it is designated by a distinctive
name,-in many cases it is the name of the
founder,-and has a common faith and common
spiritual organization. The followers of
Ramanuja, who are known by the name of Shri
Vaishnabas, undoubtedly constitute a religious
denomination... and so do the followers of
Madhwacharya and other religious teachers... The
(2004) 12 SCC 770
1954 SCR 1005
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High Court has found that the Math in question is
in charge of the Sivalli Brahmins who constitute
a section of the followers of Madhwacharya.
As article 26 contemplates not merely a religious
denomination but also a section thereof, the
Math or the spiritual fraternity represented by it
can legitimately come within the purview of this
article..."
(ii) An Irish anthropological historian of yester
century William McCormack5 explains 'Lingayats as a Sect',
in the following words:
"...The Lingayats, or Virasaivas, are a large sect,
and are to be found today residing in the towns
and villages of the Kannada-speaking region of
south India...The prominent attributes of
Lingayats are the wearing of the linga, a symbol
of Siva, on the body, the practice of strict
vegetarianism, and the substitution of Jangamas
for Brahmans in the performance of life cycle
and calendar festivals. Recognition of the
religious leadership of Basava the prophet-saint
who founded, or perhaps only gave additional
impetus to, the Lingayat movement that arose in
the twelfth century A.D. is not, on the other
hand, limited to members of the sect. Basava's
teachings were laid down in vachanas, short
prose sayings in Kannada, and these have a
secure place in the popular tradition of bhakti
(devotion to a personified deity) religion in the
Kannada region.' It is the personality of Basava,
moreover, which provides the principal point of
contact between Lingayatism and modern
William McCormack, 'Lingayats as a Sect', The Journal of The
Royal Anthropological Institute of Great Britain and Ireland,
Vol. 93, 59-71, (1963)
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Hinduism, with its universalistic orientation
aimed at overcoming caste exclusiveness and its
message of social reform.
...Bhandarkar (1928) was among the first to use
the word 'sect' to describe adherents of the
Lingayat, or Virasaiva, philosophy, and his usage
was followed by Nandimath (1942), Basham
(1954), and Dasgupta (1955). Basham, for
example, has considered Lingayats to constitute
a sect which is 'noteworthy rather for its cult and
social doctrines than for its theology, which is a
"qualified monism" with few striking features'
(Basham 1954, P. 335). The anthropologist J. H.
Hutton and the sociologist Max Weber, on the
other hand, consider Lingayats to be the
example par excellence of a religious group
becoming a caste. Thus they fall in with the
usage which describes Lingayats by the
hyphenated term 'caste-sect' (Hutton 1946, p.
103)...
It is not impertinent to refer to what the Apex Court in
SHAKUNTALABAI AND ANR. VS L.V. KULKARNI6 said:
"...In Encylopaedia of Religion and Ethics edited by James
Hustings... we find that the Lingayats are a religious
community in India..."
(iii) The submission of Petitioners' counsel Mr.Patil
that the "Lingayat community in the State by itself
constitutes a separate religion like Jainism, Buddhism,
AIR 1989 SC 1359
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Sikhism, etc" is hotly contested; it is told at the Bar that a
similar question is being debated in a pending Public
Interest Litigation. Added, both the Mutt & its Pontiff being
the Petitioners, even otherwise, have denominational
rights of the kind. Therefore, this question does not merit
consideration in these cases. That being said, it cannot be
controverted that Veerashaiva/Lingayat Mutt itself being a
religious denomination, in the light of law declared in
SHIRUR MUTT, supra, enjoys the constitutional guarantees
inter alia enacted in Article 26; the mathaadhipati being
the religious & temporal head of the Mutt can exercise
these rights, of course subject to regulation/restriction by
'law'.
(C) AS TO SOME ASPECTS OF MUTTS AND
MATHAADHIPATIS:
(i) A matha (मठ), is a Samskrut word that means
institute, college, cloister.7 In some contexts, it refers to
'hut of an ascetic, monk or renunciate' or 'temple for
studies'. Etymologically, the word 'math' means 'inhabit' or
M. Williams, 'A Sanskrit-English Dictionary', Oxford University
Press, 172 - 73, (1923)
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'to grind'. The oldest meaning of 'matha' is 'hut' or 'hovel,'
'the hut of a nomadic arya.' In time, it came to mean 'the
residence of various ascetics or religious scholars,
sometimes attached to a grand temple.' The earliest
epigraphical evidence for mutts related to Hindu-temples
during 7th to 10th century.8 Mathas, as simple huts for
wandering ascetics, are mentioned in chapter 12.139 of
the Mahabharat and section 3.1 of Baudhayana
Dharmasutras.9 The mathas and attached temples
routinely hosted debating, Vedic recital and student
competitions, and these were part of community festivals
in the history of South Asia. These mathas were also the
centers where many new texts were composed as well as
the libraries and repository of ancient and medieval
manuscripts, where the old texts were preserved and
decaying copies replaced over the centuries. Some Hindu
H. Scharfe, 'From Temples Schools To Universities, in
Education in Ancient India', Handbook of Oriental Studies, Brill
Academic, 173 - 74, (2002)
T. I. Sears, 'Worldly Gurus and Spiritual Kings: Architecture
and Ascetisicm in Medieval India', Yale University Press, 4 - 9,
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monasteries offered hospice care for pilgrims and various
forms of assistance to their local communities.10
Hindu mathas and temples like Buddhist monasteries had
by the 10thcentury attached medical care along with their
religious and educational roles. An inscription dated to
about 930 CE states the provision of a physician to
two matha to care for the sick and destitute. Similarly, a
stone inscription in Andhra Pradesh dated to about 1262
CE mentions the provision of a prasutishala (maternity
house), vaidya (physician), an arogyashala (health house)
and a kitchen with the religious center where people from
all social background could be fed and cared for. The
historical role of mathas as knowledge and services
repository is attested in early Sanskrit texts, as well as
many historical inscriptions found along the ruins of Indian
temples and monasteries.11
K.G. Zysk, 'Asceticism and Healing in Ancient India', 45 - 49,
F. Simini, M. Friedrich, H. Isaacson, J. Quenzer, 'Of Gods and
Books, Ritual and Knowledge Transmission in the Manuscript
Cultures of Premodern India ', studies in Manuscript Cultures,
Vol. 8, 166 - 188, (2016)
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(ii) Amongst Veerashaivas/Lingayats, the Mutt
parampara has been obtaining since the emergence of
Lingayat movement around the 12th century. The
Veerashaiva Mutts have enjoyed community support, and
have served as the center inter alia for Shaiva studies.
They have enormously contributed to educational, cultural
and philanthropic activities.12 The purpose of Mutt is to
encourage & foster spiritual training by maintenance of a
complete line of teachers who could impart religious
instructions to disciples and followers of the Mutt and try
to strengthen the doctrines of the particular school or
order which they profess to be adherents (here Virakta).
Mathaadhipati is the head and superior of spiritual
fraternity. Invariably, Mutts are headed by Pontiffs with
variable nomenclatures like mathaadhipati,
mathaadheesha, peethaadhipati, mahanta, etc. Amongst
Hindus, a Mutt is an institutional sanctum presided over by
a superior who combines in himself the dual offices of
being the religious or spiritual head of the particular cult or
D. A. Chekki, 'Religion and Social System of the Virasaiva
Community' Greenwood, 55 - 57, (1997)
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religious fraternity and of the manager of the secular
properties of the institution or Mutt. It hardly needs to be
stated that Mutts are juridical persons capable of owning
property. Mathaadhipati being the head of the institution
does not simply manage the temporalities of a Mutt but
also functions as the premier of spiritual fraternity. It is he
who manages the properties of Mutt and administers its
affairs. The Privy Council in VIDYA VARUTHI vs.
BALUSAMI13 said that, a mathaadhipati does not hold the
property of Mutt as a life tenant; his position is similar to
that of a Hindu widow in respect of husband's property; he
is not a trustee in the strict sense; however, he is not a
mere manager, either; Pontiffhood in Hindu Law is not a
mere office. In SHIRUR MUTT, at paragraph 11, it is
observed:
"...A superior of a Math has not only duties to
discharge in connection with the endowment but
he has a personal interest of a beneficial
character which is sanctioned by custom...Thus in
the conception of Mahantship, as in Shebaitship,
both the elements of office and property, of
duties and personal interest are blended
AIR 1921 PC 123
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together and neither can be detached from the
other. The personal or beneficial interest of the
Mahant in the endowments attached to an
institution is manifested in his large powers of
disposal and administration and his right to
create derivative tenures in respect to endowed
properties; and these and other rights of a
similar character invest the office of the Mahant
with the character of proprietary right which,
though anomalous to some extent, is still a
genuine legal right..."
At paragraph 12, it has been observed that:
"...It is true that the beneficial interest which he
enjoys is appurtenant to his duties and as he is
in charge of a public institution, reasonable
restrictions can always be placed upon his rights
in the interest of the public. But the restrictions
would cease to be reasonable if they are
calculated to make him unfit to discharge the
duties which he is called upon to discharge...This
purpose cannot be served if the restrictions are
such as would bring the Mathadhipati down to
the level of a servant under a State department.
It is from this standpoint that the
reasonableness of the restrictions should be
judged..."
(iii) As head of the institution, a Pontiff holds the
Mutt under his charge and its endowment in trust for the
maintenance of the Mutt, for his own support, and that of
his disciples and for the performance of religious & other
charities according to usage. There is a fiduciary character
of the head of the Mutt and his obligations in respect of
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proper carrying out of the objects of the institution; even
though he may have wide discretionary powers regarding
the application of the income, he is always subject to
certain obligations & duties equally prescribed by custom
& usage. In view of these obligations & duties, he is
answerable as a trustee in the general sense for proper
administration. Justice B.K.MUKHERJEA of 'Marshall to
Mukherjea'14 fame writes: "...A Mohunt is now held to be a
mere manager of the endowed property like the Shebait of
a Debutter estate, but there is no reason why Mohuntship
should not be regarded as property in the same sense as
the rights of a Shebait are so regarded..."15 It is pertinent
to mention that in VIDYAPURNA vs. VIDYANIDHI16, it was
observed by the Madras High Court that the head of a
Mutt did not suffer forfeiture of his rights by reason of his
having become a lunatic. However, this view has been
William O. Douglas, 'From Marshall to Mukherjea: Studies in
American and Indian Constitutional Law', Eastern Law House,
B.K. Mukherjea, 'The Hindu Law Of Religious And Charitable
Trusts', Eastern Law House, 344, (1979)
ILR 27 MAD 435
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overruled by the Full Bench in MUTHUSAMIER vs. SREE
SREE METHANTITHI17. No decision nor opinio juris is cited
at the Bar as to what happens to the status & power of an
undertrial 'Pontiff in custody'. What happens to a Pontiff
convicted for an offence involving moral turpitude
obviously is not the issue here.
(D) AS TO STATUS & RIGHTS OF A PONTIFF IN
CUSTODY:
(i) Mr.Patil assisted by the advocates on record for
the Petitioners submitted that the doctrine of innocence of
accused comes to the rescue of the status of an accused
as mathaadhipati. This was repelled by the other side. It
was an English Barrister Sir William Garrow (1760-1840),
who coined the 'presumption of innocence' in Criminal
Jurisprudence, having been inspired by a French Cannon
lawyer Jean Lemoine (1250-1313) from whom this idea
originated. The House of Lords in WOOLMINGTON vs.
DPP18 described this presumption 'as being the golden
thread running through the web of English Criminal Law'.
ILR 38 MAD 356
(1935) UKHL 1
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An accused is presumed to be innocent till proven guilty,
has been firmly established even in Indian Jurisprudence
subject to all just exceptions. It is a matter of common
knowledge that not only accused persons in detention but
even convicts serving the sentence exercise proprietary
rights of ownership. In D. BHUVAN MOHAN PATNAIK vs.
STATE OF ANDHRA PRADESH19, it is observed:
"Convicts are not, by mere reason of the
conviction, denuded of all the fundamental rights
which they otherwise possess. A compulsion
under the authority of law, following upon a
conviction, to live in a prison-house entails to by
its own force the deprivation of fundamental
freedoms like the right to move freely
throughout the territory of India or the right to
"practice" a profession. A man of profession
would thus stand stripped of his right to hold
consultations while serving out his sentence. But
the Constitution guarantees other freedoms like
the right to acquire, hold and dispose of property
for the exercise of which incarceration can be no
impediment. Likewise, even a convict is entitled
to the precious right guaranteed by Article 21 of
the Constitution that he shall not be deprived of
his life or personal liberty except according to
procedure established by law..."
The Electoral Jurisprudence as obtaining in the country
does not bar a person in detention from contesting as
1975 SCR (2) 24
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candidates inter alia in the elections to the Parliament &
State Legislatures, subject to all just exceptions. Similarly,
the Service Rules promulgated for regulating the conduct
of the persons in public employment such as civil servants
normally provide for automatic suspension, if they are
arrested & detained for a specified period. Illustratively,
Rule 10(2)(a) of the Karnataka Civil Services
(Classification, Control and Appeal) Rules, 1957 reads as
under:
"...A Government servant shall be deemed
to have been placed under suspension by an
order of appointing authority-
(a) with effect from the date of his
detention, if he is detained in custody, whether
on a criminal charge or otherwise, for a period
exceeding forty-eight hours."
No law of the kind as applicable to the Pontiffs of Mutts, is
brought to notice of the court, nor any supportive
provision in the Trust Deed in question is demonstrated.
The very fact that the Petitioner-Pontiff is in confinement
physically renders him incapable of discharging certain
rites/rituals of his office, cannot be gainfully disputed.
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(ii) Mr.Jayakumar S Patil is more than justified in
contending that ordinarily detention per se does not strip
off the status of Pontiff of a Mutt nor keeps all his rights in
suspended animation. To put it metaphorically, prisons are
not the 'concentration camps' of all legal rights; in their
precincts lie no funeral pyres that burn such rights to
ashes. Petitioners are still persons entitled to all
constitutional rights otherwise not curtailed by law,
although their rights & liberties stand diminished by the
very confinement. A great Judge, John Marshall of U.S.
Supreme Court had aptly said: "...a prisoner does not shed
his basic constitutional rights at the prison gate..."
Referring to him and such others, our Apex Court in
FRANCIS CORALIE MULLIN vs. THE ADMINISTRATOR,
UNION TERRITORY OF DELHI20 observed: "What is stated
by these learned Judges in regard to the rights of a
prisoner under the Constitution of the United States
applies equally in regard to the rights of a prisoner or
detenu under our constitutional system..."
1981 SCR (2) 516
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(iii) It is not in dispute that the present Pontiff
having been throned to the gaddige way back in 1991,
was discharging the functions attached to his office.
Presently, he has been facing serious criminal charges in
the subject prosecution and that he has been in judicial
custody since 1.9.2022, his bail petitions having been
negatived. The Criminal Court at Chitradurga, it is
admitted by the Petitioners, has taken cognizance of the
offences on the basis of charge sheet filed by the Police
after investigation. Be that as it may. It need not be
repeated that no law or ruling nor opinio juris is cited from
the side of opponents to support the contention that the
Pontiffhood stands suspended on arrest & detention, per
se. Trust Deed is also silent about the same. Therefore,
this court is left with no option than to say that the
Petitioner-Pontiff despite confinement, continues to be
Peethaadhipati of Mutt in question. Whether such a Pontiff
in custody can perform religious rites & ceremonies of the
Mutt in question, is rightly not much debated, the
challenge being confined to the appointment of
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Administrator who would obviously discharge secular acts
of management & administration of the Mutt and of
educational institutions. The tenure of Administrator is not
specified; despite asking during the course of learning, no
assurance is furnished by the learned AG that the
impugned order shall be promptly recalled once the Pontiff
is enlarged on bail. Added, no explanation is offered as to
why an opportunity of hearing to the stakeholders was not
afforded. Thus, there are some unjust elements with which
the impugned order is infected.
(iv) Mr.Patil appearing for the Petitioners
passionately draws attention of the court to what a
learned Coordinate Judge in the very Pontiff's
Crl.P.No.9654/2022 observed vide order dated 13.9.2022:
"...This petition was disposed of by the order
dated 30.09.2022. After its disposal, the
petitioner is again before this Court seeking for
clarification of the said order. Learned counsel
appearing for the petitioner submits that the
order needs to be clarified insofar as execution
of power of attorney by the Pontiff, to perform
all functions that he was undertaking when he
was Pontiff, prior to being housed in prison.
Learned SPP appearing for the State would
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submit that he be permitted to execute power of
attorney in accordance with law. Learned counsel
appearing for the petitioner submits that he has
also on the earlier occasion submitted before this
Court that he has to execute the power of
attorney in terms of Rule 166 of the Karnataka
Prisons Rules, 1974 (For short "said Rules").
Rule 166 of the said Rules reads as follows;
166. Prisoners allowed to sign a power of
attorney (1) Every newly convicted prisoner
may be permitted at the discretion of the
Superintendent to sign and attest a power of
attorney or other statements concerning his
properties. (2) Prisoners other than newly
admitted prisoners may be granted similar
privilege at the discretion of the Superintendent
but in their case each such transation shall be
treated as one interview with reference to the
foregoing rules.
The Karnataka Prisons Rules, 1974 empowers a
prisoner to be permitted to sign and attest a
power of attorney or other statements
concerning his properties and the prisoners other
than newly admitted prisoners may be granted
similar privilege at the discretion of the Jail
Superintendent.In terms of the said Rules, the
petitioner shall make an appropriate application
before the Jail Superintendent, who would
consider the same and permit the petitioner to
execute the said power of attorney in terms of
the said Rules.The power of attorney is sought to
be executed for the functions that the petitioner
was performing prior to him getting into prison
i.e., (1) Chairman of Vidhyapeeta and (2) the
Trustee of the Mutt..."
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The above observations lend credence to the contention
that the Petitioner-Pontiff can cause the administration of
Mutt & its educational institutions by delegation of his
powers in favour of appropriate persons. He has already
appointed Sri Basavaprabhu Swamigalu and assigned
certain functions to a retired Judicial Officer. It is not the
case of Respondents that these persons are not suitable or
that there is any complaint whatsoever against them.
Whether these persons could have been delegated certain
powers, does not pertain to the domain of public law and
therefore, a Writ Court ordinarily does not examine such
questions vide LIFE INSURANCE CORPORATION OF INDIA
vs ESCORTS LTD21 .
(E) AS TO EXECUTIVE POWER OF THE STATE
AND THE MEANING OF 'LAW':
(i) Learned Sr. Advocate Mr.Patil appearing for the
Petitioners submitted that the State Government lacked
competence to make appointment of an Administrator, in
the absence of a statute law empowering it; if Pontiff's
rights whether ordinary or fundamental, are recognized,
1985 SCR Supl. (3) 909
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their curtailment cannot happen except with the
authorization of legislation validly made. Learned AG
appearing for the State per contra contended that after
the repeal of enactments enlisted in Section 78 of the
1997 Act, there is no law occupying the field and
therefore, the State having exercised the executive power
availing under Article 162 of the Constitution, has
competently appointed the Administrator so that the
interest of Mutt & its institutions is safeguarded, at least
till the Pontiff is enlarged from the gaol. He vividly
highlighted the consequences of voiding the impugned
order. He also disputes the invocability of Article 26 in the
absence of complete divestation of Mutts ownership in the
subject property on permanent basis. He hastens to add
that the impugned order is itself a law within the generic
definition of 'law' given in Article 13. Both they invoke
certain rulings in support of their respective submissions.
(ii) As already discussed above, the Mutt is a
religious denomination and Petitioner-Pontiff is the serving
mathaadhipati. Justice B.K.MUKHERJEA writes:
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"A Math, like an idol, is a juridical person
and is capable of acquiring, holding and
assuring legal rights through the medium of
some human agency which is ordinarily the
agency of the Mohunt. The position, indeed,
would be different if a formal trust deed is
executed. In such circumstances, the legal
ownership would vest in the trustees, and the
superior or Mohunt might be one of the trustees
of even the sole trustee if the donor so
chooses...There cannot be a Math in the legal
sense without a Mohunt or superior, no matter
in whichever way he might come to occupy the
office. All matters relating to the administration
of a Math are also intimately connected with the
rights and duties of a Mohunt..."
Their Fundamental Rights both religious & proprietary are
guaranteed under Article 26 as expansively construed by
the Apex Court in a catena of decisions, supra. Further,
the very Pontiffhood has some proprietary character that
enjoys protection under Article 300A of the Constitution.
True it is, these rights as any other, are not absolute and
therefore, can be regulated by law on specific grounds.
The appointment of Administrator amounts to substantial
interference of the State with the administration &
management of the affairs of both the Mutt & the
institutions run under its aegis, cannot be gainfully
disputed. If that be so, the intruder has the onus on his
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shoulders to discharge by pointing out the existence of
power and the justification for its exercise.
(iii) It hardly needs to be stated that existence of
power is one thing and its exercise is another. There is
force in the submission of Mr.Patil that the regulation and
control of the constitutional rights like Article 300A in
general and the Fundamental Rights guaranteed under
Articles 25 & 26 in particular has to be by statute law. This
cannot be done in exercise of executive power of State,
assuming the availability of such power on the repeal of
the enactments vide section 78 of the 1997 Act. This view
gains support from RAI SAHIB RAM JAWAYA KAPUR vs.
STATE OF PUNJAB22 wherein, paragraph 17 reads as
under:
"Specific legislation may indeed be necessary if
the Government require certain powers in
addition to what they possess under ordinary
law in order to carry on the particular trade or
business. Thus when it is necessary to encroach
upon private rights in order to enable the
Government to carry on their business, a
specific legislation sanctioning such course
would have to be passed..."
AIR 1955 SC 549
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In BIJOE EMMANUEL vs. STATE OF KERALA23, the State
authorities had issued two Circulars whereby, two students
were rusticated from the class for not singing the National
Anthem; these Circulars were pressed into service as the
'law' empowering & justifying the punitive action. The
source of power from which the subject Circulars could
have emanated was not demonstrated. The Apex Court at
paragraph 16 observed: "The two circulars on which the
department has placed reliance in the present case have
no statutory basis and are mere departmental instructions.
They cannot, therefore, form the foundation of any action
aimed at denying to citizen's Fundamental Right under Art.
19(1)(a)..."
(iv) The vehement contention of learned AG that
Article 13(3)(a) of the Constitution defines 'law' very
widely and the impugned order appointing the
Administrator answers this description, is a misconception,
to say the least. True it is, that the definition of 'law'
chosen by the Makers of the Constitution in this Article is
1986 SCR (3) 518
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generic in nature. It is pervasively inclusive and
Mr.H.M.Seervai, a jurist of yester decades aptly reasoned
out, why it is so, as under:
"Art.13(3)(a) defines "law" very widely by
an inclusive definition. It does not expressly
include a law enacted by the legislature, for such
an enactment is obviously law. The definition of
law includes: (i) an Ordinance, because it is
made in the exercise of the legislative powers of
the executive; (ii) an order, bye-law, rule,
regulation and notification having the force of
law because ordinarily they fall in the category of
subordinate delegated legislation and are not
enacted by the legislature; law at all. This
extended definition appears to have been given
to "law" in order to forestall a possible
contention that law can only mean law enacted
by the legislature. In view of this, the omission
of an amendment of the Constitution from Art.
13(3)(a) is significant."
(v) Similarly, D.D.Basu24, having surveyed the
decisions, succinctly states the following:
"...Law, in this Article, means the law made by
the Legislature and includes intra vires
statutory orders and orders made in exercise of
power conferred by statutory rules. So is a
custom having the force of law. But
administrative orders having no statutory
sanction or the Flag Code containing the
executive instructions of the Central Govt is not
law. A statutory scheme is a 'law', but not the
D.D.Basu 'Shorter Constitution Of India' 15th Edition, Lexis
Nexis, 62-63, (2019)
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bye-laws made by a co-operative society, which
are in the nature of articles of association,
unless such bye-laws have bee nmade in
exercise of statutory power of the society acts
as an agency of the Government. Government
circulars are not "law" within the meaning of
Art. 13 of the Constitution. The Legal
Remembrancer's Manual is merely a
compilation of executive orders and is not a
"law" within the meaning of Art. 13 of the
Constitution. This does not, however, mean
than an administrative order which offends
against a fundamental right will, nevertheless,
be valid because it is not a 'law' within the
meaning of Art. 13(3). It can be struck down if
it violates any other article under part III. "
Mr.Patil rightly points out an apt observation of the Apex
Court in A.K.GOPALAN vs. STATE OF MADRAS25:
"The inclusion of article 13(1) and (2) in the
Constitution appears to be a matter of abundant
caution. Even in their absence, if any of the
fundamental rights was infringed by any
legislative enactment, the Court has always the
power to declare the enactment, to the extent it
transgresses the limits, invalid. The existence
of article 13 (1) and (2) in the Constitution
therefore is not material for the decision of the
question what fundamental right is given and to
what extent it is permitted to be abridged by the
Constitution itself..."
Enacting a wide definition is not intended to empower the
State but to curtail its power in exercise of which it could
otherwise limit the worth of Fundamental Rights &
AIR 1950 SC 27
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freedoms guaranteed in Part III. While construing the
definition given in the 'dictionary clause' of a statute, one
has to keep in mind the intent & content of said provision
or the Chapter in which the such provision occurs. This
applies more, when one is construing the definition clause
given in Part III of the Constitution enacted to curtail the
power of Caesar qua citizens. That being the position, the
inclusive definition of 'law' being wider as indicated above
would not come to the rescue of the State. An argument
to the contrary would imperil the fundamental freedoms
that are constitutionally enshrined in Part III.
(vi) The vehement submission of learned AG that in
more or less a same fact matrix, a Coordinate Bench of
this Court having heard the same counsel namely Mr.Patil
himself, repelled his similar contention. Let me examine
the same. In W.P.Nos.17370 & 17391/2012 between SRI
VIDYA MANOHARA TEERTHA SWAMIGALU vs. STATE &
OTHERS, disposed off on 2.1.2013, what was principally in
challenge was a Government Order whereby, the
Administrator was appointed to Sri Vyasaraja Mutt
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(Sosale). A learned Coordinate Judge repelled the
challenge inter alia with following observations that occur
at paragraph 39:
"The Administrator in the present case is
not appointed permanently. He is appointed only
for a period of two years. In any case, the
Administrator is not a substitute for
matadhipathi and his management is only to
facilitate better administration of the Mutt. None
of the religious rights of the matadhipathi are
either touched or taken away by the impugned
order. The Act of appointing the Administrator
does not in any way impair the right of the
matadhipathi or the rights guaranteed under
Article 26... On the contrary, it seeks to protect
and promote that right..."
In the fact matrix of the said case, a finding was recorded
as to no curtailment of rights of mathaadhipati having
happened. In other words, the case turns out to be more
fact-specific and it is apparently in variance of facts of the
case at hands, wherein there is a rank interference of the
State to the substantial exclusion of Petitioner-Pontiff, as if
his status and powers as such have been kept under
suspended animation on account of detention per se. It is
this distinct question which constitutes the jugular vein of
the case and therefore, keeps distance from the ruling
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cited at the Bar. Therefore, it cannot be construed as
laying down any concrete ratio supportive of the case of
Respondent-authorities, mainly because the Bench did not
choose to invalidate the appointment of Administrator.
Added, no discernible ratio arises even by applying the
popular tests like Wambaugh's Test26 or Dr.Upendra Baxi
Test. It hardly needs to be stated that a case is an
authority for the proposition that it actually lays down in a
given fact matrix and not for all that which logically follows
from what has been so laid down vide QUINN vs.
LEATHEM27.
(F) AS TO EXECUTIVE POWER OF THE STATE
UNDER ARTICLE 162 OF THE CONSTITUTION, ITS
NATURE, SCOPE & AVAILABILITY:
(i) Article 162 of the Constitution has the following
text:
"Extent of executive power of State.- Subject to
the provisions of this Constitution, the
executive power of a State shall extend to the
matters with respect to which the Legislature of
the State has power to make laws:
P.J. Fitzgerald, 'Salmond on Jurisprudence', Sweet &
Maxwell, Twelfth Edition, 141 - 145, (1966)
(1901) A.C. 495
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Provided that in any matter with respect to
which the Legislature of a State and Parliament
have power to make laws, the executive power
of the State shall be subject to, and limited by,
the executive power expressly conferred by the
Constitution or by any law made by Parliament
upon the Union or authorities thereof."
This provision speaks of the extent of executive power of
the State to the matters with respect to which the State
Legislature has power to make laws. It, by no stretch of
imagination, is attracted as a source of power of the State
to pass an appropriate order and such power should be
traced only in the provisions of relevant statutes. In RAM
JAWAYA KAPUR, supra, the Apex Court having discussed
the nature & scope of this power, stated that the executive
power of the State is co-extensive with the legislative
power and it avails for exercise as long as there is no
statute occupying the field. It is the specific case of the
State that the impugned order appointing the
Administrator is made in exercise of such power availing
under Articles 162 & 31A of the Constitution. There is no
dispute as to the impugned order being a product of
exercise of executive power, which according to learned
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AG, avails after the repeal of enactments enlisted in
section 78 of the 1997 Act. Mr.Patil appearing for the
Petitioners countered the same by contending that such a
repeal does not render the field unoccupied, there being
other legislations like Code of Civil Procedure, 1908.
(ii) True, it is that section 78 of the 1997 Act
repealed as many as seven enactments of which, the
Bombay Public Trusts Act, 1950 Madras Hindu Religious
and Charitable Endowments Act, 1951, the Mysore
Religious and Charitable Institutions Act, 1927, the Coorg
Temple Funds Management Regulation, 1892 & Coorg
Temple Funds Management Act, 1956, are relevant, others
not being applicable. It is also true that the 1997 Act is not
applicable inter alia to Mutts, as such; section 1 of
Karnataka Amending Act No.27 of 2011 reads: "The maths
and temples attached to the maths are kept out of the
purview of the Act, as the maths are headed and managed
by mathadipathis." This provision unmistakably evinces
the legislative intent to immune Mutts as a distinct class of
religious institutions from State control & regulation.
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Therefore, the repeal of the subject statutes does not
create legislative vacuum in the field so that it is re-
occupied with executive power. In other words, despite
such repeal, the field continues to be occupied by law
namely the 2011 Act.
(iii) Added to the above, the affairs of Mutt being
inter alia governed by the registered Trust Deed, section
92 of CPC, becomes invocable, the Mutt in question
admittedly answering description of the Trust of the kind
in the said provision. It is the specific case of Petitioners in
general and Mutt & its Pontiff in particular that the fact
matrix which eventually resulted into the appointment of
Administrator, would indisputably take the matter to the
precincts of this provision and therefore, a representative
suit is maintainable. Mr.Patil repeatedly said that if
anybody has grievance arising out of an extraordinary
situation like the one at hands because of Pontiff being in
judicial custody, suit remedy with leave of the court can be
resorted to. This section in so many words enables even
the office of AG to maintain such a suit sans sanction. The
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Apex Court in SYED MOHD. SALIE LABBAI VS MOHD.
HANIFS28, observed that when there is allegation of breach
of any express or constructive trust created for a public
charitable or religious purpose like the Petitioner-Mutt or
where the directions of the Court are necessary for the
administration of such a trust, suit of the kind is
maintainable. What is enacted by the Parliament in section
92 of CPC thus occupies the field and as a consequence,
the executive power otherwise availing to the State under
Article 162, is denuded. Therefore the impugned order is
without jurisdiction.
(iv) It hardly needs to be stated that even though
the executive power may, ordinarily be exercised in the
absence of any legislation to support an action, it cannot
be so exercised as to contravene any law relating to the
matter or Rules having the force of law. In BISHAMBHAR
DAYAL CHANDRA MOHAN vs. STATE OF UTTAR
PRADESH29, it is observed:
(1976) 4 SCC 780
AIR 1982 SC 33
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"...The quintessence of our Constitution is the
rule of law. The State or its executive officers
cannot interfere with the rights of others unless
they can point to some specific rule of law which
authorises their acts. In State of Madhya
Pradesh v. Thakur Bharat Singh, the Court
repelled the contention that by virtue of Art.
162, the State or its officers may, in the exercise
of executive authority, without any legislation in
support thereof, infringe the rights of citizens
merely because the legislature of the State has
power to legislate in regard to the subject on
which the executive order is issued. It was
observed: 'Every act done by the Government or
by its officers must, if it is to operate to the
prejudice of any person, be supported by some
legislative authority.'..."
(G) AS TO ARGUMENT OF GRAVE
CONSEQUENCES OF QUASHING THE APPOINTMENT
OF ADMINISTRATOR:
(i) Learned AG appearing for the State and the
learned Sr. Advocate appearing for the Administrator eo
nomine, contended that when Pontiff of a Mutt is in
custody, he will not be in a position to discharge his
temporal duties relating to administration & management
of the Mutt and the educational institutions run under its
aegis; the Mutt having wealth of more than a thousand
crore rupees, as of prudence & necessity, requires a full
time Administrator; the government having given the land
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and huge public funds for the benefit of Mutt, has a
legitimate say in the matter of administration &
management of at least non-secular activities of the Mutt
and of the institutions. Both they vividly highlight the
consequences of absence of Pontiff owing to detention.
Learned Sr. Advocate appearing for the Petitioners does
not agree with the proposition of having an Administrator
appointed by the government, that too in gross violation of
principles of natural justice. He submitted that when the
Legislature intends no interference in the affairs of Mutt,
be it religious or temporal, the argument of 'undesirable
consequences' does not avail to the State. He hastens to
add that law should be obeyed even if heavens do fall.
(ii) The following observations in SHIRUR MUTT,
assume significance while treating contention of the kind:
"...It should be noticed, however, that
under article 26(d), it is the fundamental right
of a religious denomination or its representative
to administer its properties in accordance with
law; and the law, therefore, must leave the
right of administration to the religious
denomination itself subject to such restrictions
and regulations as it might choose to impose. A
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law which takes away the right of
administration from the hands of a religious
denomination altogether and vests it in any
other authority would amount to a violation of
the right guaranteed under clause (d) of article
26..."
It is pertinent to refer to what the Australian High Court
said in ADELAIDE COMPANY OF JEHOVAH'S WITNESSES
vs. THE COMMON WEALTH30:
"...The Constitution protects religion within a
community organized under a Constitution, so
that the continuance of such protection
necessarily assumes the continuance of the
community so organized. This view makes it
possible to reconcile religious freedom with
ordered government..."
A welfare State constitutionally ordained cannot assume
that civil society lacks virtues and that its members, such
as devotees of Mutts and temples will be invariably
incapable of addressing exigencies of the kind, on their
own and therefore, the government should rush in to set
the things right. Mutts and temples are not of nascent
origin; they have been there since a millennia & more.
Inevitable are highs & lows as is with the turning of the
wheel of time. From this, no institution be it governmental
1943 CLR 116
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or religious is immune. With the benefit of experience,
precedents and practices have been evolved through the
ages so as to provide the modes and method of dissolving
the difficulties in the matter of administration, as is the
case with Mutt in question. If civil society fails in its
endeavours, let it fail; however that cannot justify
interference of the Government in the affairs of Mutt in the
absence of legislative authorization. The doctrine of
parents partirae, is not invocable in cases like this. It is
apt to recall the following words of philosopher Thomas
Paine31 (1737-1809):
"...Society is produced by our wants, and
government by our wickedness; the former
promotes our happiness positively by uniting
our affections, the latter negatively by
restraining our vices. The one encourages
intercourse, the other creates distinctions. The
first is a patron, the last a punisher. Society in
every state is a blessing, but Government, even
in its best state, is but a necessary evil
Government, like dress, is the badge of lost
innocence; the palaces of kings are built upon
the ruins of the bowers of paradise. For were
the impulses of conscience clear, uniform and
Thomas Paine, 'Common Sense: Of The Origin and Design of
Government in General, With Concise Remarks on the Enligh
Constitution', 1 - 3 , (1776)
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irresistibly obeyed, man would need no other
lawgiver; but that not being the case, he finds it
necessary to surrender up a part of his property
to furnish means for the protection of the rest;
and this he is induced to do by the same
prudence which in every other case advises him,
out of two evils to choose the least..."
(iii) It hardly needs to be stated that Mutts & temples
are central to 'Hindu Dharma in its generic sense' and to
its offshoot religions, as well. They play a pivotal role in
the lives of people in several ways. Mutts and their
parampara contribute in a great measure to the
preservation of civilizational values, too. As already
mentioned above, they also undertake activities that
would benefit the public at large. Normally, how a
mathaadhipati is to be appointed is a matter governed by
the customs & traditions obtaining in the Mutt. In the
absence of Pontiff because of death, disease or detention,
what should happen is ordinarily be left to the devotees or
the prominent members of the community concerned,
should statute or some instrument of law does not provide
for the solution. There is no such statute, and the Trust
Deed is silent about the matter. It is nobody's case that
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the devotees or the prominent members of the community
will not be able to take a call in the matter. No explanation
is offered from the side of State as to why the office of AG
was not asked to institute a representative suit under
section 92 of CPC, either. It is true that it is open to the
devotees or the members of Veeraishaiva/Lingayat
community to avail the remedy of representative suit.
(iv) The 1997 Act as amended in 2011 which aspect
is discussed in detail supra, the Legislature intends to
insulate the Mutts from State interference, be it
administrative functions, religious rites or other temporal
activities. If that be so, it is un-understandable to say the
least as to how an Administrator can be appointed by
government of the day. An argument to the contrary
cannot be sustained without imperilling the constitutional
guarantees availing to religious denominations & Pontiffs;
such an arguments and it also runs counter to a seventy
year jurisprudence, as developed by the Apex Court since
SHIRUR MUTT. The State and its functionaries should
realise that by their very nature they can not be a can not
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be panacea to all the evils in society. As of necessity, it
should leave religious institutions to solve their problems
on their own by appropriate measure, such as community
mediation/conciliation or judicial process, of course subject
to all just exceptions. The fact that the government has
allotted some land to the Mutt and handed some funds,
per se would not justify its interference, especially when
the terms & conditions subject to which that has been
done, do not authorizing action of the kind. Had the
government indicated its intent to condition the grant of
such a bounty, the Mutt would have had an opportunity to
decline the offer.
In the above circumstances, I make the following:
(i) The question Nos.1, 2 & 3, as framed at
paragraph 6, having been answered in the
negative, these Petitions succeed and a Writ
of Certiorari, therefore, issues quashing the
impugned order whereby the Government
had appointed the Administrator;
(ii) In the peculiar circumstances of the case,
the Administrator shall continue for a short
period of six weeks only with no power to
take any major decision that would have
repercussions beyond the said period and,
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that he shall manage only the day to day
affairs;
(iii) The above interim arrangement has been
made so that the devotees of the Mutt and
the prominent members of the community
concerned would pool their wisdom & virtue
to devise an appropriate plan of action for
the due administration & management of
the affairs of Mutt and the educational
institutions run under its aegis, on a war
footing;
(iv) The option of the devotees and community
members to seek relief/redressal in terms of
Section 92 of CPC is not foreclosed,
arguably, their being a case for that end,
and that all contentions in that regard are
kept open; Nothing observed in this order
shall cast its shadow on such proceedings,
particularly when the rights of Mutt & its
Pontiff have been adjudged in the light of
constitutional guarantees vis-à-vis
government, and, none else.
(v) This Court places on record that, it is
conscious of the practical difficulties the
Mutt and its institutions have been put to
because of the Pontiff's continuance in
judicial custody and that his meditate
administration through delegates/agencies,
is a poor solace & substitute for the
effective administration and management,
to say the least.
(vi) Costs made easy.
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This Court places on record its deep appreciation for
the research and assistance rendered by its official Law
Clerk Cum Research Assistant, Mr. Faiz Afsar Sait.
Sd/-
JUDGE
cbc/snb
