For me this document, I would say is the master template of what is wrong with all the HRCE legislations, the Hindu Religious and Charitable Endowments legislations, across the country. I will tell you the background of this document and then we will proceed.
So, there is an infamous section in the Tamil Nadu act, which is section 45 which deals with appointment of executive officers by the state to Hindu institutions, who will be the in charge of the administration of that particular place. In 1965, supreme court came out with the decision again in relation to a Tamil Nadu institution and that state has a peculiar history, how it manages temple, how it treats temples. Specifically saying that under no circumstances will the state encroach upon the administration entirely, why is this? Because article 25 2 (A) from which the state draws it’s power, specifically refers to only regulation or restriction of secular activities, not entire control, not administration. Iskamatlab ye hai that you will give a framework for a specific objective, for a specific purpose to curb mischief or mismanagement and you will let the community choose it’s own appointees who can implement that framework but you will not impose yourself into that framework nor will you let your state appointee entrench himself in that framework because that would result in complete takeover of the administration.
The supreme court in the judgment categorically strikes a distinction between supervision and takeover of administration. In 2015, the supreme court comes out with another decision, sorry, 6th of December 2014, 2014 the supreme court comes out with another decision where Mr. Subramanian Swami was actually representing the case of the Thillai Nataraja Temple , famously known as the Chidambaram Temple, where the supreme court categorically interprets section 45 and the general scheme of these legislations to say, the state if it has to respect the rights of religious denominations in the article 26 to manage their own institutions in accordance with law, should not impose itself entirely into the institutions and it says you are limited to regulation and restriction but not takeover of administration. It has categorically said so. What was this judgment passed in the context of? From 1954 to 2014 until the day of the judgment, executive officers were appointed across the state, in the state of Tamil Nadu, with respect to every temple, including those temples which have, let’s say revenue less than a lakh or ten thousand, so on and so forth, they were appointed, they were all being taken over but no reasons or no speaking order has been passed as to why the temple deserved to suffer the presence of an executive officer in the first place.
If you appoint an executive officer with respect to a certain temple, (aapkemannmeinitna to honachahiyekidaalmeinkuch kala hai) and that must reflect on paper and you must give reasons. This is the basic principle of natural justice. When a state chooses to interfere with the administration of a private institution, tell us the reason why you think it is your right to walk into this place. Not a single reason was offered. No evidence was placed before supreme court as to why so many executive officers were appointed across the state of Tamil Nadu and importantly, when an executive officer is appointed, he can stay in that place only as long as the mischief exists.
Once the mischief is rectified or corrected, he has no business sitting in the place, he has to get out. There is no other option, he has to be necked out of the place. All these orders are indefinite in so far as time is concerned. That means ( ekbaarbaithgaye to baithgaye) there is no way he will get out of the place. So, the supreme court says all your appointments under section 45, if they are in violation of two conditions meaning you have not identified the mischief nor have you set a time period, they are all violative of the constitution and article 26, that’s what supreme court says.