The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 38 of 1953

Decision Date: 16 April 1954

Coram: B.K. Mukherjea, Ghulam Hasan, Natwarlal H. Bhagwati, Mehar Chand Mahajan, Vivian Bose

In this matter, the Supreme Court of India delivered its judgment on 16 April 1954 in the case titled The Commissioner, Hindu Religious Endowments, Madras versus Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. The petition was filed by the Commissioner of Hindu Religious Endowments of Madras and the respondent was Sri Lakshmindra Thirtha Swamiar of the Shri Shirur Mutt. The opinion was authored by Justice B K Mukherjea and the bench comprised Justices B K Mukherjea, Ghulam Hasan, Natwarlal H Bhagwati, Mehar Chand Mahajan and Vivian Bose. The decision has been reported in several law reports, including AIR 1954 282 and the Supreme Court Reporter 1954 SCR 1005. The case also appears in a long series of citator references such as R 1954 SC 388, RF 1954 SC 400, F 1955 SC 493, RF 1956 SC 432, RF 1957 SC 645, R 1957 SC 846, R 1958 SC 255, R 1959 SC 860, F 1959 SC 942, F 1961 SC 284, R 1961 SC 459, R 1961 SC 1402, R 1962 SC 853, RF 1962 SC 1371, D 1963 SC 540, R 1963 SC 864, R 1963 SC 966, RF 1963 SC 1638, R 1965 SC 1107, R 1965 SC 1874, R 1966 SC 1603, R 1968 SC 1119, R 1968 SC 1408, R 1970 SC 181, R 1970 SC 564, R 1970 SC 1114, E 1971 SC 1182, F 1971 SC 1691, RF 1971 SC 1737, RF 1972 SC 845, R 1972 SC 1586, RF 1973 SC 724, RF 1974 SC 2098, R 1975 SC 706, R 1975 SC 846, R 1975 SC 1121, MV 1975 SC 1146, F 1975 SC 2037, R 1978 SC 1393, E 1980 SC 1, R 1980 SC 1008, RF 1981 SC 1863, D 1983 SC 1, R 1983 SC 617, R 1983 SC 1246, R 1984 SC 51, R 1985 SC 218, R 1986 SC 726, F 1986 SC 1930, RF 1986 SC 2094, R 1987 SC 748, RF 1989 SC 100, RF 1989 SC 317, RF 1992 SC 1256 and RF 1992 SC 1383. The substantive question before the Court concerned the constitutional validity of several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, specifically sections 21, 30(2), 31, 55, 56 and sections 63 through 69, as well as section 76. The Court examined whether these sections were ultra vires the Constitution of India, particularly articles 19(1)(f), 25 and 26, and also considered the meaning of the word “property” in article 19(1)(f) and the distinction between a tax and a fee. The headnote of the judgment records that the Court held sections 21, 30(2), 31, 55, 56 and sections 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951, to be beyond the competence of the legislature because they violated articles 19(1)(f), 25 and 26 of the Constitution. Moreover, the Court found section 76(1) of the Act to be void, observing that the provision dealing with the payment of an annual contribution constituted a tax rather than a fee, and therefore the Madras State Legislature lacked the authority to enact it.

In the present case the Court observed that the contribution imposed under section 76(1) of the Madras Hindu Religious and Charitable Endowments Act, although technically a tax, does not fall within the latter part of article 27 of the Constitution because its purpose is not the promotion or preservation of the Hindu faith or any of its denominations; rather, the contribution is intended to ensure the proper administration of religious trusts and institutions wherever they exist. The Court further explained that the term “property” appearing in article 19(1)(f) must be given a liberal and expansive meaning, covering all well-recognised categories of interest that possess the hallmarks of a proprietary right. It noted that the rights of a Mahant combine elements of both office and property, and that the Mahant may enjoy the associated property or beneficial interest for as long as he continues to hold his office, which therefore brings him within the protection of article 19(1)(f). The Court defined a tax as a compulsory levy of money by a public authority for public purposes, enforceable by law and not a payment for services rendered. By contrast, a fee was described as a charge for a special service provided to individuals by a governmental agency, ordinarily calculated on the basis of the expenses incurred by the government in delivering that service, although in practice such calculations may sometimes be arbitrary. The essential distinction, the Court held, lies in the fact that a tax is imposed as a common burden on the populace, whereas a fee represents a payment for a particular benefit or privilege. The Court then turned to the scope of articles 25 and 26, discussed the meaning of the expression “Mathadhipati,” and examined the concept of religion. In doing so, it referred to a number of authorities, including Vidya Varuthi v. Balusami (48 I.A. 302), Monahar v. Bhupendra (60 Cal. 452), Ganesh v. Lal Behary (63 I.A. 448), Bhabatarini v. Ashdlata (70 I.A. 57), Angurbala v. Debabrata ([1951] S.C.R. 1125), Davis v. Benson (133 U.S. 333), The State of West Bengal v. Subodh Gopal Bose (civil Appeal No. 107 of 1952 decided by the Supreme Court on 17 December 1953), Adelaide Company v. The Commonwealth (67 C.L.R. 116, 127), Minersville School District, Board of Education etc. v. Gobitis (310 U.S. 586), West Virginia State Board of Education v. Barnette (319 U.S. 624), Murdock v. Pennsylvania (319 U.S. 105), Tones v. Opelika (316 U.S. 584), Matthew’s v. Chicory Marketing Board (60 C.L.R. 263, 276), and Lower Mainland Dairy v. Crystal Dairy Ltd. ([1933] A.C. 168), as well as the treatise Findlay Shirras on Science of Public Finance, Volume I, page 203. Finally, the judgment was recorded as a civil appellate jurisdiction matter, identified as Civil Appeal No. 38 of 1953, filed under article 132(1) of the Constitution of India, and arising from the judgment and order dated 13 December 1951 of the Madras High Court in Civil Miscellaneous Petition No. 2591 of 1951.

The appellant was represented by the Advocate-General of Madras together with counsel who appeared on his behalf in the proceedings. The respondent was defended by two advocates assisted by two additional lawyers who joined them for the hearing. The Intervener, identified as the State of Travancore-Cochin, was represented by its Advocate-General together with two counsel who appeared on its behalf. The judgment for the appeal was delivered on 16 March 1954 by Justice Mukherji in the Supreme Court of India. The appeal challenged a division-bench order of the Madras High Court dated 13 December 1951 that had granted a writ of prohibition in favour of the respondent. The writ directed that the appellant could not proceed with the settlement of a scheme concerning the Shirur Math, of which the petitioner was the head. The petition had been filed when the Madras Hindu Religious Endowments Act of 1927 was operative, and it sought relief against the Hindu Religious Endowments Board established under that statute. That Board was the predecessor of the present appellant and had initiated settlement proceedings against the petitioner under section 61 of the 1927 Act. The petition was heard together with two similar petitions concerning a temple in Chidambaram, and each raised questions about the validity of the 1927 Act, hereinafter called the Earlier Act. While those petitions were pending, the Madras Hindu Religious and Charitable Endowments Act of 1951, referred to as the New Act, was enacted and came into force on 27 August 1951. Because the Earlier Act was superseded, the court permitted all petitioners to amend their filings and to challenge the constitutionality of the New Act as well. Section 103 of the New Act provided that any notifications, orders or acts issued under the Earlier Act would be deemed to have been made under the corresponding provisions of the New Act. Accordingly, the Commissioner of Hindu Religious Endowments, Madras, who succeeded the President of the former Board, was added as a party to the proceedings. For the present appeal, the material facts could be summarized as follows: the Shirur Math, over which the petitioner served as Mathadhipati, was one of eight Mathas located at Udupi in South Kanara. These eight Mathas were traditionally believed to have been founded by Shri Madhwacharya, a prominent proponent of dualistic theism within Hindu thought. Each of those Mathas was headed by a Swami, who bore responsibility for its religious and administrative functions, and the passage ends here.

In addition to the eight Shankaracharya-styled Maths of Udipi, there existed another ancient religious institution in the same town called Shri Krishna Devara Math. This Math was also said to have been founded by Madhwacharya and was believed to house an image of the deity Krishna that had originally been crafted by Arjun and subsequently miraculously recovered from a sunken vessel off the coast of Tulava. Unlike the other eight Maths, Shri Krishna Devara Math had no permanent Mathadhipati; instead its affairs were overseen in rotation by the superiors of the eight other Maths. The customary practice required that each Swami of those eight Maths assume responsibility for Shri Krishna Math for a period of two years in every sixteen-year cycle. The change of headship for Shri Krishna Math was traditionally scheduled to occur during the grand festival known as Pariyayam, a gathering that attracted a massive congregation of devotees from across Southern India. An ancient usage associated with Pariyayam imposed upon the incumbent Mathadhipati the duty of feeding every Brahmin who attended the festival.

The petitioner was installed as Mathadhipati of his own Math in the year 1919 while still a minor. He assumed full management after reaching majority in 1926, at which time the Math was burdened with heavy indebtedness. Between 1926 and 1930 the Swami succeeded in clearing a substantial portion of that debt. In 1931, the Swami’s turn to manage Shri Krishna Devara Math arrived, and he was compelled to incur additional loans to finance the extensive expenditures required for the Pariyayam celebrations. Although the financial situation improved somewhat in the subsequent years, another crisis emerged in 1946, the year of the second Pariyayam under his supervision. Owing to scarcity of essential goods and inflated prices, the Swami again needed to borrow money, and the liabilities escalated to nearly one lakh rupees.

At that juncture, the Hindu Religious Endowments Board, operating under the Earlier Act of 1927, exercised its authority pursuant to section 61-A of that Act and directed the Swami to appoint a competent manager to oversee the institution’s affairs. The petitioner alleged that the Board’s action had been instigated by Lakshminarayana Rao, a lawyer from Udipi, who sought to gain control over the Math’s administration. In compliance with the Board’s directive, an individual named Sripath Achar was appointed as an agent, and a Power of Attorney in his favor was executed on 24 December 1948. The petitioner contended that the agent subsequently acted contrary to the Mahant’s wishes, refusing to submit accounts, and deliberately disregarding the limited authority conferred upon him.

Consequently, on 26 September 1950, the Swami issued a formal notice to the agent terminating his agency and demanding the return of all account books, vouchers, and cash held by the Mathadhipati. The agent, supported by the aforementioned lawyer Lakshminarayana Rao, refused to comply, challenged the Swami’s right to cancel the agency, and threatened to seek the Board’s intervention. In response, the petitioner filed a suit in the Sub-Court of South Kanara on 4 October 1950 seeking recovery of the account books and other property belonging to the Math, an accounting of the management, and an injunction restraining the agent from interfering with the Math’s affairs under the authority of the revoked Power of Attorney.

The Swami, after serving notice on the agent to surrender all account books, vouchers and cash belonging to the institution, was met with refusal. The agent, backed by Lakshminarayana Rao, contested the Swami’s authority to terminate the agency and warned that he would refer the dispute to the Board. Consequently, on 4 October 1950 the petitioner instituted a suit in the Sub-Court of South Kanara seeking the recovery of the account books and other property of the Math, demanding that the agent render a full account of his management and requesting an injunction to restrain the agent from exercising any authority under the Power of Attorney that the petitioner had rescinded. Anticipating the suit, the agent – identified as Sripath Achar – filed an application before the Board on 3 October 1950, objecting to the cancellation of the Power of Attorney and challenging his removal from the management of the Math. The Board, on 4 October 1950, issued a notice to the Swami proposing an inquiry to be held on 24 October 1950 at 2 p.m. in Madras, and invited the Swami either to appear personally or through counsel. The Swami replied on 21 October 1950, stating that the matters raised in the proposed inquiry were already the subject of his suit and, being sub-judice, the inquiry should be stayed. He enclosed a copy of the plaint with his reply. Although the Board apparently abandoned the planned inquiry, it proceeded, without awaiting the outcome of the suit, to initiate suo-motu proceedings under section 62 of the earlier Act. On 6 November 1950 the Board served a notice upon the Swami, indicating its belief that the endowments of the Math were being mismanaged and that a scheme for the administration of its affairs should be framed. The notice was affixed on the Swami’s premises and set 8 December 1950 as the date for the inquiry. At the request of the Swami’s counsel, the inquiry was adjourned to 21 December 1950. On 8 December 1950 an application was filed on the Swami’s behalf urging the Board to order the agent to surrender the account papers and related documents, without which the Swami could not prepare his objections. Because the Swami’s counsel fell ill, the matter was further adjourned to 10 January 1951. The Swami was still unprepared to present objections on that date, as his counsel had not recovered. A telegram was sent to the Board on the preceding day requesting another adjournment, but the Board refused the request and, with no explanation filed by the Swami, closed the inquiry and reserved its orders.

The enquiry was concluded and orders were reserved after the Swami did not file any explanation, as recorded by the Board. On 13 January 1951 the Swami apparently sent a written explanation to the Board, which the Board admitted receiving on 15 January 1951. Subsequently, on 24 January 1951 the Board issued a notice stating, inter alia, that it was satisfied that, for the proper administration of the Math and its endowments, the settlement of a scheme was necessary. The notice was accompanied by a draft scheme, and it required the petitioner to forward any objections on or before 11 February 1951, because the final order concerning the scheme would be made on 15 February 1951. The petitioner filed the present petition on 12 February 1951 in the High Court of Madras, seeking a writ of prohibition to stop the Board from taking any further steps in settling a scheme for the administration of the Math. The petition alleged, inter alia, that the Board acted with bias against the petitioner and that its actions were not bona-fide. The principal contention was that, in view of the fundamental rights guaranteed by the Constitution to religious denominations, the law authorising the framing of a scheme that interfered with the management of the Math by the Mathadhipati conflicted with Articles 19(1)(f) and 26 and was therefore void under Article 13. The petition further alleged that the provisions of the Act were discriminatory and offended Article 15 of the Constitution. After the New Act came into force, the petitioner was permitted to discontinue his earlier petition, and the present attack was directed against the constitutional validity of the New Act that had replaced the earlier legislation.

The learned Judges who heard the petition examined the matter in great detail, addressing both the constitutional questions raised and the merits of the case. On the merits, they held that, in the circumstances, the Board’s action amounted to a perverse exercise of its jurisdiction and that the Board should not be allowed to proceed with the settlement of the scheme. Regarding the constitutional issues, the Judges declared numerous sections of the New Act ultra violet the Constitution because they conflicted with the petitioner’s fundamental rights under Articles 19(1)(f), 25, 26 and 27. Consequently, the rule nisi issued on the petition was made absolute, and the Commissioner of Hindu Religious Endowments, Madras, was prohibited from taking any further steps in framing a scheme with respect to the petitioner’s Math.

In this case, the Court noted that the Commissioner had approached the Court on appeal relying on a certificate issued by the High Court pursuant to article 132(1) of the Constitution. The Advocate-General for Madras, who appeared in support of the appeal, limited his submissions strictly to the constitutional questions raised by the petition. Although he had previously filed an application seeking to raise non-constitutional grounds, that application was not pursued and he did not dispute the factual findings upon which the High Court based its decision on the merits of the petition. Consequently, the Court held that the High Court’s order of prohibition against the Commissioner must remain effective regardless of the outcome of the constitutional issues that were to be considered in the present proceedings. It was not contested that a State Legislature possesses the authority to enact statutes relating to religious and charitable endowments, a power that falls within entry 28 of List III in Schedule VII of the Constitution. No challenge was raised as to the competence of the Madras Legislature to pass the legislation in question, except for the provision concerning the payment of an annual contribution found in section 76 of the impugned Act. The argument advanced on that point was that the contribution functions as a tax rather than a fee, and therefore the State Legislature would lack the authority to enact such a provision; the Court indicated that this issue would be examined separately later. All remaining questions presented before the Court concerned the constitutional validity of various provisions of the Act that the High Court of Madras had declared invalid because they conflicted with the fundamental rights guaranteed under articles 19(1)(f), 25, 26 and 27 of the Constitution. To understand the contentions raised by counsel on both sides, the Court found it useful to outline briefly the scheme and the principal provisions of the Act. The preamble of the legislation declares its purpose to amend and consolidate the law governing the administration and governance of Hindu religious and charitable institutions and endowments within the State of Madras. Compared with the earlier statute, the new Act has a broader scope and may be extended to purely charitable endowments through a notification made under section 3 of the Act. The earlier legislation provided for supervision of Hindu religious endowments by a statutory body known as the Madras Hindu Religious Endowments Board. The new Act has abolished that Board and has transferred the administration of religious and charitable institutions principally to a department of the Government, which is headed by the Commissioner. The powers of the Commissioner and of the subordinate authorities under his charge are set out in Chapter II of the Act.

In this case the Court explained that the hierarchy beneath the Commissioner consisted of Deputy Commissioners, Assistant Commissioners and Area Committees. The Commissioner, after obtaining the Government’s approval, was required to divide the State into a number of areas and to assign each area to a Deputy Commissioner, to whom the Commissioner could delegate his powers. In addition, the State was to be segmented into several divisions, with each division placed under the charge of an Assistant Commissioner. Reporting to each Assistant Commissioner, an Area Committee was established to supervise all temples situated within the division or any part of that division. Section 18 of the Act empowered the Commissioner to examine the records of any Deputy Commissioner, Assistant Commissioner, Area Committee or any trustee who was not the trustee of a Math, in connection with any proceeding under the Act, so that the Commissioner could be satisfied that any decision or order was regular, correct and proper. Chapter III of the Act contained the general provisions applicable to all religious institutions. Under section 20 the administration of religious endowments was placed under the Commissioner’s general superintendence and control, and the Commissioner was authorised to issue any orders he deemed necessary to ensure that such endowments were properly administered and that their income was duly appropriated for the purposes for which they were founded or existed. Section 21 gave the Commissioner, the Deputy Commissioners, the Assistant Commissioners and such other officers as might be authorised by the Commissioner the power to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by the Act; the sole restriction was that the officer exercising the power must be a Hindu. Section 23 made it obligatory for the trustee of a religious institution to obey all lawful orders issued under the provisions of the Act by the Government, the Commissioner, the Deputy Commissioner, the Area Committee or the Assistant Commissioner. Section 24 required that a trustee, in managing the affairs of the institution, should use as much care as a person of ordinary prudence would use in managing his own affairs. Section 25 dealt with the preparation of registers of all religious institutions, and section 26 provided for the annual verification of those registers. Section 27 imposed on the trustee a duty to furnish the Commissioner with such accounts, returns, reports and other information as the Commissioner might require. Under section 28 the Commissioner or any other officer authorised by him was given the power to inspect all movable and immovable property belonging to a religious institution. Section 29 prohibited the alienation of any immovable property belonging to the trust, except for leases not exceeding a term of five years, unless such alienation received the Commissioner’s sanction. Section 30 laid down that although a trustee might incur expenditure for making arrangements to secure the health and comfort of pilgrims, worshippers and other persons, when there is

In this case, the Court noted that when a surplus remained after making adequate provision for the purposes specified in section 79(2), the trustee had to be guided in disposing of that surplus by any general or special instructions that might be received from the Commissioner or the Area Committee. Section 31 then dealt with the application of surplus funds, allowing the trustee to apply the whole or part of such surplus to any of the purposes listed in section 59(1), provided that the trustee obtained written permission from the Deputy Commissioner. Chapter IV, which specifically concerned maths, was mentioned next. Section 52 enumerated the grounds on which a suit could be filed for the removal of a trustee. Section 54 related to the concept of “dittam” or scale of expenditure; under this section the trustee was required to submit proposals to the Commissioner for fixing the dittam and the amounts to be allotted to the various objects connected with the institution. The proposals had to be published, and any suggestions from interested persons were to be considered and scrutinised by the Commissioner. If the Commissioner thought a modification necessary, he was to refer the case to the Government, and the Government’s orders would be final. Section 55 empowered the trustee to spend, at his discretion, gifts made to him personally, known as “Pathakanikas,” for purposes connected with the math, but the trustee was required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56 the Commissioner was empowered to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution; if the trustee failed to make such an appointment, the Commissioner could appoint a manager himself. Section 58 authorised a Deputy Commissioner, on finding a reason to believe that a scheme was necessary for the proper administration of a trust, to frame such a scheme for any religious institution. Sub-section (3) of that section provided that a scheme settled for a math could, inter alia, include a provision for the appointment of a paid executive officer who professed the Hindu religion, with the officer’s salary to be paid out of the institution’s funds. Section 59 made provision for the application of the “cy pres” doctrine where the specific objects of the trust failed. Chapter VI, comprising sections 63 to 69, dealt with the notification of religious institutions; a religious institution could be notified in accordance with the provisions of this chapter, such notification remaining in force for five years and resulting in the takeover of the administration and vesting of the institution in an executive officer appointed by the Commissioner. Chapter VII addressed budgets, accounts and audit, while Chapter VIII related to finance. Section 76 of Chapter VIII made it compulsory for all religious institutions to pay annually to the Government a contribution not exceeding five per cent of their income as consideration for the services rendered by the Government and its officers under the Act. Chapter IX was held to be not material to the present purpose. Chapter X contained miscellaneous provisions; section 89 prescribed the penalty for a trustee’s refusal to comply with the Act, section 92 clarified that nothing in the Act conferred any power or imposed any duty contrary to the rights of any religious denomination under clauses (a), (b) and (c) of article 26 of the Constitution, and section 99 vested a revisional jurisdiction in the Government to call for and examine the records of the Commissioner and other subordinate authorities to ensure the regularity and propriety of any proceeding, order or decision taken by them.

The Court noted that Chapter X of the Act contains provisions of a miscellaneous nature. Section 89, which is found in Chapter X, provides a penalty for any trustee who refuses to obey the requirements set out in the Act. Section 92 declares that nothing in the Act shall be interpreted as granting any power or imposing any duty that would contravene the rights given to any religious denomination. Those rights are those enumerated in clauses (a), (b) and (c) of article 26 of the Constitution. Section 99 gives the Government revisional jurisdiction to call for and examine the records of the Commissioner and other subordinate authorities. The purpose of this power is to ensure the regularity and propriety of any proceeding, order or decision by those authorities. These provisions of the Act constitute the material framework relevant to the questions before this Court. The learned Judges of the High Court held that the respondent, in his capacity as Mathadhipati, possessed certain clearly defined rights in the institution and its endowments. Those rights were described as property rights within the meaning of article 19(1)(f) of the Constitution. The High Court concluded that any provision of the Act which removed or unduly restricted the respondent’s ability to exercise those rights did not constitute a reasonable restriction under article 19(5). Consequently, the Court held that such provisions must be declared invalid. The High Court held that, as the head and representative of a religious institution, the respondent enjoyed a right guaranteed by article 25 of the Constitution. That right was to practise and propagate freely the religion of which he and his followers profess to be adherents. The Court found that certain provisions of the Act had impaired this freedom. Further, the High Court determined that the Math under dispute belonged to the Sivalli Brahmin community, a segment of followers of Madhwacharya. Consequently, the Court held that the Math represented a religious denomination within the meaning of article 26 of the Constitution. The Court observed that such a denomination possessed a fundamental right under article 26 to manage its own affairs in matters of religion through its Mathadhipati, who acted as the spiritual head and superior. Accordingly, any provision of the Act that substantially removed the Mathadhipati’s authority in this regard was held to violate the fundamental right guaranteed by article 26. Finally, the High Court held that the contribution required by section 76 of the Act fell within the mischief contemplated by article 27 of the Constitution. The Court noted that this last issue raised a broader question which it intended to discuss separately at a later stage. Regarding the remaining three points, the Court stated that it would first examine the general contentions presented by the learned Attorney-General. The Attorney-General appeared for the Union of India as an intervener in these and related cases. The Court would then consider whether the constitutional articles cited were applicable to the respondent in the present matter and whether they afforded him any protection.

The court examined whether any constitutional protection applied to the claimant’s alleged infringement of rights and privileges. Regarding article 19 (1)(f), the court considered whether the Mathadhipati possessed a legally recognized right of property in the religious institution and its endowments that would permit him to invoke that article. The court also questioned whether article 19 (1)(f) dealt at all with concrete property rights. Concerning article 25, the court addressed the issue of whether that provision, which was described as safeguarding religious freedom solely for individuals, could be extended to benefit an institution or organization. With respect to article 26, the contention was that a Math did not fall within the meaning of “religious denomination” as used in the article, and even if it did, the article protected only the right to manage religious affairs and nothing beyond that. The argument further stated that the term “religion” in article 26 should be interpreted in a strict etymological sense, excluding any secular activity that might be linked to religion but was not an essential component of it. The court referred to clause (2)(a) of article 25 and clause (d) of article 26 in this context and indicated that each of these points would be considered in turn.

In dealing with the property rights of a Mathadhipati, the court observed that, based on the Judicial Committee’s pronouncements accepted as binding law in this country since 1921, it could not be said that a Mathadhipati held the Math’s property as a life-tenant, nor that his position corresponded to that of a Hindu widow with respect to her husband’s estate or that of an English bishop holding a benefice. The court noted that the Mathadhipati was certainly not a trustee in the strict sense. The Privy Council had described him as a manager or custodian of the institution who performed trustee duties and was answerable as such, but the court emphasized that he was not merely a manager and that Mahantship could not be characterized as a mere office. The court further explained that a superior of a Math discharged duties connected with the endowment and also possessed a personal, beneficial interest sanctioned by custom, which was considerably larger than the interest of a Shebait in debenture property. A Full Bench of the Calcutta High Court had held that Shebaitship itself constituted property, a decision later affirmed by the Judicial Committee in the cases of Ganesh v. Lal Behary and Bhabatarini v. Ashalata. The court cited these authorities, noting that they underscored the proprietary element inherent in the Shebait right and that, despite being an anomaly, it had been accepted as part of Hindu law from an early period. Consequently, the court concluded that the conception of Mahantship, like that of Shebaitship, blended elements of office and property, duties and personal interest, and that these components could not be separated from one another.

In the earlier judgments, the Privy Council highlighted that the initial two decisions stressed the proprietary nature of the Shebaiti right, describing it as an anomaly that had nevertheless been incorporated into Hindu law from an early period. The present Court fully endorsed this perspective in the case of Angurbala v. Debabrata, noting that the observations made regarding the Shebaiti right could just as appropriately be extended to the office of a Mahant. Consequently, the Court explained that the concept of Mahantship, similar to Shebaitship, combined the characteristics of an office and a property right, merging duties with a personal, beneficial interest that could not be separated. The Mahant’s personal stake in the institution’s endowments manifested through his extensive powers of disposal, administration, and the ability to create derivative tenures over endowed property; these attributes, together with other comparable rights, endowed the Mahantship with the quality of a proprietary right. Although this proprietary element was somewhat anomalous, the Court affirmed that it constituted a genuine legal right. The Court further observed that Mahantship was not hereditary in the same manner as ordinary property because the position was generally occupied by an ascetic whose ties to his natural family were completely severed, rendering the usual rules of succession inapplicable. Nevertheless, the Court argued that the term “property” as employed in article 19(1)(f) of the Constitution should be interpreted liberally and broadly, extending to well-recognised interests that possess the hallmarks of proprietary rights.

The Court continued that the Mahant’s rights embodied both the attributes of an office and of a property, and that the Mahant was entitled to enjoy this beneficial interest for as long as he legitimately held the office. To divest him of this beneficial interest while leaving him only with the performance of duties would effectively erase his identity as a Mahant. While acknowledging that the beneficial interest was incident to his official responsibilities, the Court noted that reasonable restrictions could be imposed upon his rights in the public interest, given his charge of a public institution. However, such restrictions would cease to be reasonable if they were intended to render him incapable of discharging the duties assigned to him. The Court emphasized that the Mahant’s obligations extended beyond mere management of the Math’s temporal assets; he served as the spiritual head and superior of the fraternity, entrusted with fostering spiritual training by maintaining a competent line of teachers capable of imparting religious instruction to disciples and followers, and by strengthening the doctrines of the particular school or order to which the Math belonged.

The Court observed that the aim of a Math was to teach the doctrines of the particular school or order to which its members professed allegiance, and that this aim could not be fulfilled if the restrictions imposed reduced the Mathadhipati to the status of a mere servant of a State department; consequently, the reasonableness of any restriction had to be assessed from that perspective. The learned Attorney-General had suggested that Article 19(1)(f) of the Constitution dealt only with the abstract natural right of a citizen to acquire, hold and dispose of property, without referring to any particular property, and therefore could not aid the respondent, while Article 31, which concerned deprivation of property, was deemed inapplicable. The Court referred to the decision of The State of West Bengal v. Subodh Gopal Bose(II) (Civil Appeal No. 107 of 1952, decided by this Court on the 17th December 1953), where Chief Justice Patanjali Sastri had expressed the opinion that Article 19(1)(f) concerned only the abstract right to acquire, hold and dispose of property and had no relation to concrete property rights. The Court noted that this expression of opinion was solely that of the learned Chief Justice and did not constitute the judgment of the Court, because the other four judges on the bench were divided: two did not concur with the view and the remaining two offered no opinion either way. The point had not been raised before the Court by the Advocate-General for Madras, who appeared in support of the appeal, nor by any other counsel in the case. The Attorney-General himself had openly stated that he was not prepared to support the view expressed by the late Chief Justice and had raised the issue only to obtain an authoritative pronouncement from the Court. The Court held that it would not be appropriate to give a final opinion on the matter in the present case, as no arguments on the point had been addressed to it. Accordingly, the Court preferred to continue, as it had done in similar cases, to apply the principle that Article 19(1)(f) applied equally to concrete as well as abstract rights of property. Turning to Article 25, the Court explained that its language guaranteed every person, subject to public order, health and morality, the freedom not only to entertain such religious belief as may be approved by his judgment and conscience, but also to manifest that belief in outward acts he considered proper and to propagate or disseminate his ideas for the edification of others. A question was then raised as to whether the term “persons” in Article 25 meant only individuals or also included corporate bodies. The Court noted that, for the purpose of the present proceedings, the question was irrelevant, because a Mathadhipati was certainly not a corporate body; he was the head of a spiritual fraternity and, by virtue of his office, was required to perform the duties of a religious teacher, to practise and propagate the religious tenets to which he adhered, and that any legal provision preventing him from doing so would affect the religious freedom guaranteed by Article 25.

The Court observed that the earlier question concerning the relevance of a particular opinion was wholly unrelated to the matter before it. It explained that a Mathadhipati does not constitute a corporate entity; rather, he is the head of a spiritual fraternity and, by virtue of his office, is required to discharge the functions of a religious teacher. Accordingly, the Mathadhipati is obligated to practice and to propagate the religious doctrines to which he adheres. The Court further held that any statutory provision that would prevent him from disseminating his doctrines would inevitably impinge upon the religious freedom guaranteed to every person by article 25 of the Constitution. The Court emphasized that institutions themselves lack the capacity to practice or propagate religion; such activities can be performed only by individual persons. Whether the individual propagates his own personal views or the doctrines associated with the institution he represents is irrelevant for the purpose of article 25. What the Constitution protects, the Court said, is the propagation of belief, irrespective of whether that propagation occurs in a church, a monastery, a temple, or a private meeting place.

Turning to article 26, the Court first examined the exact meaning of the term “religious denomination” and considered whether a Math could be regarded as falling within that expression. Citing the Oxford Dictionary, the Court noted that “denomination” means a collection of individuals grouped together under a common name, constituting a religious sect or body that shares a common faith, organization, and a distinctive name. The Court observed that the tradition of establishing Maths as centres of logical and spiritual teaching began with Shri Sankaracharya and was continued by numerous teachers thereafter. Following Sankaracharya, a multitude of religious teachers and philosophers founded various sects and sub-sects of Hinduism that exist today in India. Each of these sects or sub-sects can rightly be described as a religious denomination, being identified by a distinctive name—often that of the founder—and possessing a shared faith and spiritual organization. The Court gave examples such as the followers of Ramanuja, known as Shri Vaishnabas, and the followers of Madhwacharya and other religious teachers, both of which unmistakably constitute religious denominations. It further noted that tradition holds that the eight Udipi Maths were founded by Madhwacharya himself, and that the trustees and beneficiaries of those Maths profess allegiance to his teachings. The High Court had determined that the Math in question is administered by the Sivalli Brahmins, who form a subsection of Madhwacharya’s followers. Since article 26 contemplates not only a religious denomination but also any section thereof, the Court concluded that the Math or the spiritual fraternity it represents legitimately falls within the ambit of article 26. Finally, the Court considered the scope of clause (b) of article 26, which speaks of the right of a religious denomination to manage “its own affairs in matters of religion.” The Court observed that the language of the provision suggests the possibility of other affairs of a religious denomination or its sections that may not be matters of religion, and therefore would not be covered by the protection afforded under clause (b).

The Court observed that there are activities which are not matters of religion and to which the guarantee of clause (b) does not apply. It noted that, in addition to the right conferred by clause (b) to manage its own affairs in matters of religion, the subsequent two clauses of article 26 provide a religious denomination with the right to acquire and own property and to administer that property in accordance with law. By placing the administration of property on a separate footing, the Court explained that the right to manage religious affairs is a fundamental right that the legislature cannot remove, whereas the right to administer property may be regulated by valid legislative enactments. Consequently, the Court held that questions solely concerning the administration of property belonging to a religious group or institution are not matters of religion within the scope of clause (b). The Court then turned to the question of what constitutes matters of religion. It observed that the Constitution does not define the term “religion,” and the term resists any rigid definition. Referring to an American decision, the Court quoted that religion relates to an individual’s view of his relation to his Creator and the obligations of reverence and obedience that flow from that view, while noting that the definition is often confused with the cultus or worship of a particular sect and is distinct from it. The Court expressed doubt that this definition is precise or adequate for the Indian context. It further observed that articles 25 and 26 are largely derived from article 44(2) of the Constitution of Eire, and questioned whether the framers of the Indian Constitution had such a definition in mind. The Court affirmed that religion is essentially a matter of faith for individuals or communities and need not be theistic; it cited Buddhism and Jainism as examples of religions that do not posit a God or an Intelligent First Cause. While acknowledging that religion rests on a system of beliefs or doctrines deemed by adherents as conducive to spiritual well-being, the Court cautioned against reducing religion merely to a doctrine or belief. It explained that religion may also prescribe ethical rules, rituals, ceremonies, modes of worship, and even matters of food and dress, which are regarded as integral to religious practice. Finally, the Court emphasized that the constitutional guarantee protects not only freedom of religious opinion but also acts performed in pursuance of religion.

The Court noted that the phrase “practice of religion” in article 25 makes it clear that the Constitution safeguards not only religious belief but also the acts performed in accordance with that belief. In support of this view, the Court cited the observations of Latham C.J. of the High Court of Australia, who, while interpreting section 116 of the Australian Constitution— which prohibits the Commonwealth from restricting the “free exercise of any religion”—stated that it is difficult to maintain a distinction between freedom of opinion and freedom of action. He explained that the provision explicitly refers to the exercise of religion and is therefore intended to protect, from any Commonwealth law, the acts undertaken in the exercise of religion. Consequently, the section extends protection beyond mere liberty of opinion to include actions carried out in pursuance of religious belief as an integral part of religion. The Court held that this reasoning fully applies to the protection of religion guaranteed by the Indian Constitution. It further observed that the State may impose restrictions on the free exercise of religion under articles 25 and 26 when the restrictions are justified on grounds of public order, morality, or health. Clause (2)(a) of article 25 reserves to the State the power to regulate or restrict any economic, financial, political, or other secular activities that may be associated with religious practice, while sub-clause (b) allows legislation for social welfare and reform even if it interferes with religious practices, as reflected in the case cited Vide Adelaide Company v. The Commonwealth 67 C.L.R. 116, 127. The learned Attorney-General emphasized clause (2)(a) and argued that all secular activities linked to religion but not constituting its essential core fall within State regulation. The Court rejected this broad contention, stating that determining what constitutes an essential part of a religion must be based on the doctrines of that religion itself. For example, if Hindu sects prescribe specific offerings, ceremonial timings, recitations, or fire-ablutions, these are integral religious practices, and the fact that they involve monetary expenditure or the employment of priests does not render them secular or commercial; they remain protected religious practices.

The Court explained that activities falling within the meaning of article 26(b) are regarded as matters of religion. Article 25(2)(a) does not empower the State to regulate religious practices themselves, because the Constitution guarantees freedom of those practices except when they conflict with public order, health, or morality. Instead, the provision permits regulation of activities that are economic, commercial, or political in nature, even if such activities are connected with religious practice. To illustrate this principle, the Court referred to several decisions from the United States and Australia that involved persons associated with the religious group known as Jehovah’s Witnesses. This group is loosely organised in Australia, the United States and other countries, and its members consider a literal interpretation of the Bible to be essential to correct religious belief. Their belief in the supreme authority of the Bible influences many of their political ideas. For example, they refuse to take an oath of allegiance to the king or any constituted human authority, decline to show respect to the national flag, and condemn all wars between nations and any war-related activities.

In 1941 a corporation of Jehovah’s Witnesses that had been incorporated in Australia began to proclaim and teach doctrines that were hostile to war efforts and to the defence of the Commonwealth. The authorities responded by invoking the National Security Regulations. The legality of those actions was challenged by a writ petition before the High Court. The High Court held that the government’s action was justified and that section 116, which guarantees freedom of religion under the Australian Constitution, was not infringed by the National Security Regulations. The Court noted that the activities in question were clearly political, although they arose from the religious convictions of a particular community. Chief Justice Latham observed that the constitutional guarantee of protection for religion is not an absolute shield that can be applied without reference to other constitutional provisions. He stressed that the privileges afforded to religion must be balanced against the State’s sovereign authority to maintain peace, security, and orderly living, because without such balance the constitutional guarantee of civil liberty would be meaningless. The Court also cited an American controversy concerning a State regulation that compelled public-school pupils, under threat of punishment, to take part in a daily ceremony of saluting the national flag and reciting a pledge of allegiance. This issue was presented in Minersville School District, Board of Education v. Gobitis. In that case, two young children, Lillian and William Gobitis, were expelled from a Pennsylvania public school because they refused to salute the flag as part of the daily routine. The Gobitis family were members of Jehovah’s Witnesses and had been raised with a conscientious belief that such a gesture of respect for the flag was forbidden by scripture (see Adelaide Company v. The Commonwealth, 67 C.L.R., 116, 127; 310 U.S. 586).

The issue submitted to the Supreme Court concerned whether a statutory requirement that a child, who sincerely refused on religious grounds, take part in a flag-salute ceremony infringed the liberty of religion guaranteed by the First Amendment and the Fourteenth Amendment. By a majority, the Court held that such a requirement did not constitute a violation of those constitutional protections. The Court explained that it lay within the authority of the legislature and of school officials to adopt suitable measures designed to inspire and nurture a feeling of national unity among pupils in public schools.

Subsequently, the Court’s position on the identical question changed in the later case of West Virginia State Board of Education v. Barnette (1). In that decision the Court overruled the earlier view and declared that a State-made compulsory flag-salute and pledge of allegiance for public-school children amounted to a breach of the First and the Fourteenth Amendments. This shift in judicial opinion underscores the difficult task that courts face when genuine religious convictions of individuals clash with the political expectations of citizens regarding national unity and solidarity.

Turning to commercial activities motivated by religious belief, the Court cited the case of Murdock v. Pennsylvania (2). In that matter the petitioners, identified as “Jehova’s Witnesses,” went door-to-door in the city of Jeannette distributing literature and soliciting the purchase of religious books and pamphlets published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition for engaging in their activities. The petitioners were convicted and fined for violating the ordinance. The Court held that the ordinance was invalid under the Federal Constitution because it denied the freedoms of speech, press, and religion; (1) 319 U.S. 624. (2) 319 U.S. 105. The Court further observed that, based on the facts, the Jehovah’s Witnesses were not engaged in a purely commercial venture but were pursuing a religious mission.

The Court also noted that a contrary approach had been adopted a few years earlier in Jones v. Opelika (1). In that case a city ordinance requiring the procurement of a licence and the payment of taxes for the business of selling books and pamphlets from house to house was applied to a member of a religious organization who was selling printed propaganda without complying with the ordinance’s requirements.

Finally, the Court observed that both the American Constitution and the Australian Constitution declare the right to freedom of religion in unrestricted terms, without any express limitation. Nevertheless, courts in those jurisdictions have introduced limitations on that freedom on grounds of morality, public order, and social protection.

In this case the Court observed that reconciling the competing demands of governmental interests and constitutional liberties is always a delicate and difficult task, which explains why American courts have often reached divergent opinions in cases involving religious freedom. The Court noted, however, that the framers of our Constitution deliberately incorporated into articles 25 and 26 the limitations that had been developed by judicial pronouncements in the United States and Australia, and that the wording of those articles is clear enough to allow determination of what matters fall within the scope of religion without reference to foreign authorities. The Court reiterated that the guarantee of freedom of religion in our Constitution is not limited to belief alone; it also embraces religious practices, subject to the restrictions expressly laid down by the Constitution. Accordingly, under article 26(b) a religious denomination or organization enjoys full autonomy to decide which rites and ceremonies are essential according to its religious tenets, and no external authority has jurisdiction to interfere with those decisions, as affirmed in the cited American case (1) 316 U.S. 584. The Court further explained that the costs incurred in observing such rites are matters of administration of the denomination’s property and may be regulated by secular authorities under any law enacted by a competent legislature, because the Constitution does not permit a religion to destroy its own institution or endowments by wasteful spending on ceremonies. Nevertheless, the Court emphasized that article 26(d) enshrines the fundamental right of a religious denomination or its representative to manage its property in accordance with law, and that any law must leave the administration of such property to the denomination itself, subject only to reasonable restrictions or regulations that the law may impose. A statute that wholly removes the right of administration from a religious denomination and vests it in another authority would violate the right guaranteed by clause (d) of article 26. Having disposed of these general contentions, the Court turned to the specific grounds raised by the parties concerning the High Court’s declaration that several sections of the new Act were ultra vires the Constitution because they conflicted with the respondent’s fundamental rights. The Court quoted the concluding portion of the High Court’s judgment, which summed up its decision: “To sum up, we hold that the following sections are ultra vires the State Legislature in so far as they relate to this Math, and what we say will also equally apply to other Maths of a similar nature.”

In this case the Court listed the provisions of the new Act that the High Court had declared ultra vires. The list comprised section 18, section 21, section 25(4), section 26 to the extent that section 25(4) was made applicable, section 28 (which, although it appeared harmless, could be misused as already noted), section 29, clause (2) of section 30, section 31, section 39(2), section 42, section 53 (the Court observed that the courts already possessed sufficient powers to deal with the situations covered by this provision), section 54, clause (2) of section 55, section 56, clause (3) of section 58, sections to 69 in Chapter VI, clauses (2), (3) and (4) of section 70, section 76, section 89 and section 99 to the extent that it gave the Government almost total control over the Mathadhipati and the Maths. The Court then pointed out at the outset that the learned Judges had erred in including sections 18, 39(2) and 42 in the list because those sections did not apply to Maths under the Act itself. This objection was not contested by the counsel appearing for the respondent.

The Court turned to the substance of section 20, which defined the powers of the Commissioner with respect to religious endowments. Section 20 authorized the Commissioner to issue any order that he regarded as necessary to ensure proper administration of the endowments and to guarantee that the income of the endowments was appropriated for the purposes for which they were originally created. The Court noted that the Mathadhipati functioned as a trustee of the Math, which was a public institution, and therefore a degree of control or supervision over the administration and appropriation of the endowment funds was indispensable for the public interest. The Court held that the provision in section 20, by itself, did not infringe any fundamental right of the Mahant. It disagreed with the High Court’s view that the provision would demote the Mahant to the status of a servant. While acknowledging that the Commissioner possessed the authority to pass orders, the Court emphasized that such orders could be issued only for the purposes expressly mentioned in the section and not to interfere with the customary rights of the Mahant or to diminish his position as the spiritual head of the institution. The Court further referred to the saving clause in section 91, which clarified the intended scope of the provision. An apprehension that the powers under section 20 might be misused in particular cases, the Court observed, did not render the provision invalid or unlawful.

Regarding section 21, the Court agreed with the High Court’s assessment. Section 21 empowered the Commissioner, his subordinate officers, and persons authorized by them to enter any religious institution or place of worship for the purpose of exercising any power or performing any duty conferred or imposed by the Act. The Court recognized that such entry could not be an unrestricted right for outsiders to access sacred spaces without regard to the customs and rituals of the institution.

It was observed that the statute did not grant an unregulated and unrestricted right of entry into a public temple or any other religious institution for persons who have no connection with the spiritual functions of that institution. The Court noted that there exists a traditional custom, universally observed, which prohibits outsiders from accessing the especially sacred parts of a temple, for example the area in which the deity is installed. The Court also recognised that worship and the repose of the idol are confined to fixed hours, and during those periods no member of the public may cause any disturbance. The Court pointed out that section 21, while allowing entry, does not limit that right to the outer portions of the premises; it does not even exclude the inner sanctuary, often described as the “Holy of Holies,” whose sanctity is zealously preserved. Moreover, the provision does not require that entry be made after due notice to the head of the institution, nor does it prescribe that entry occur at times which would not interfere with the proper observance of the rites and ceremonies of the institution. The Court therefore concluded that, as it stands, section 21 interferes with the fundamental rights of the Mathadhipati and with the denomination of which he is head, rights that are guaranteed under Articles 25 and 26 of the Constitution. The Court’s attention was drawn to section 91 of the Act, which was said to provide an adequate safeguard against any abuse of power arising under section 21. The Court could not accept that contention. Clause (a) of section 91 excludes from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause (b) does not address the custom or usage that may exist in an institution, nor does it indicate by whom or in what manner a dispute concerning interference with the religious and spiritual functions of the Math would be resolved. In the Court’s opinion, section 21 was therefore correctly held to be invalid. Section 23 imposes a duty on the trustees to obey all lawful orders issued by the Commissioner or any subordinate authority under the provisions of the Act. The Court held that no exception could be taken to that section even if certain provisions of the Act offend the fundamental rights of the respondent, because those provisions would be treated as invalid. No person can lodge a grievance if he is directed to obey orders issued under a valid legal authority, and the same reasoning was applied to section 24. The Court observed that sections 23 and 24 were not specifically mentioned in the concluding part of the High Court’s judgment, although they had been attacked by the learned Judges during their discussion. Regarding section 25, the High Court had taken exception only to clause (4) of that section. The Court noted that the preparation of registers for religious institutions is not wrongful and does not affect the fundamental rights of the Mahant; consequently, the objection to clause (4) could not stand.

The Court could not understand how a direction to add or alter entries in the registers, as contemplated by clause (4), could be held invalid for infringing the Mahant’s fundamental rights. The Court noted that such a direction would be necessary as a result of enquiries made under clause (3). The enquiry contemplated by clauses (3) and (4) is an enquiry into the actual state of affairs at the institution. The whole object of the section is to keep an accurate record of the particulars specified in it. We are unable, therefore, to agree with the view expressed by the learned Judges. For the same reasons, section 26, which provides for annual verification of the registers, cannot be held to be bad. According to the High Court, section 28 is itself innocuous. The Court held that the mere possibility of abuse is no ground for declaring it invalid. Since all endowed properties are ordinarily inalienable, we fail to see why the restrictions placed by section 29 upon alienation of endowed properties should be considered bad. In our opinion, the provision of clause (2) of section 29, which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property, is perfectly reasonable. No exception can be taken to that provision. The provision of section 30(2) appears to us to be somewhat obscure. Clause (1) of the section enables a trustee to incur expenditure out of the funds in his charge after making adequate provision for the purposes referred to in section 70(2). It also allows expenditure for making arrangements for the health, safety and convenience of disciples, pilgrims, and others. Clause (2), however, says that in incurring expenditure under clause (1), the trustee shall be guided by such general or special instruction as the Commissioner or the Area Committee might give in that connection. If the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause. But if he is bound to carry out such instructions, we think that it constitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income. The only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his office. The purposes specified in sub-clauses (a) and (b) of section 30(1) are beneficial to the institution. Consequently, there seems to be no reason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from him. He should not be compelled to act in such matters under the instructions of Government officers. We think that this is an unreasonable restriction on the Mahant's right of property which is blended with his office. The same reason applies in our opinion to section 31 of the Act, the meaning of which also is far from clear. If after making adequate provision for

In the present matter the Court observed that after satisfying the purposes mentioned in section 70(2) and after making the arrangements prescribed in section 30(2), a surplus may still remain with the trustee. Section 31 authorises the trustee to apply that surplus to the purposes listed in section 59(1), but only if the Deputy Commissioner has previously granted sanction. One of the purposes enumerated in section 59(1) is the propagation of the religious tenets of the institution, and the Court found it difficult to understand why the Deputy Commissioner’s approval should be required for spending surplus income on this propagation, which is a principal duty of a Mahant to perform. The Court then questioned whether such sanction would also be required when the trustee wishes to use the money for purposes that are not specified in section 59(1). If the answer to that question were negative, the Court reasoned that the entire object of section 31 would become meaningless. Conversely, if the provision is interpreted to mean that the surplus may be spent only for the purposes listed in section 59(1) and that too only after obtaining the Deputy Commissioner’s permission, the Court held that this would impose an onerous restriction on the Mahant’s property rights, rights that are traditionally sanctioned by usage, and would consequently diminish his dignity and efficiency as the head of the institution. Accordingly, the Court agreed with the High Court that sections 30(2) and 31 are invalid. The Court noted that sections 39 and 42, as previously indicated, do not apply to maths and therefore can be omitted from consideration. Regarding section 53, the Court observed that the High Court had struck it down merely on the ground that the court possesses sufficient jurisdiction to address the contingencies that section 53 seeks to cover. However, the Court cautioned that such a judgment should not prevent a competent legislature from enacting appropriate legislation on the subject, provided that any such legislation does not infringe any fundamental rights guaranteed by the Constitution. The Court expressed disagreement with the High Court on this point. Turning to section 54, the Court found nothing objectionable or unreasonable in its provision for fixing a standard scale of expenditure. Under this section, the trustee must submit proposals for the expenditure scale, after which the proposals are to be published and suggestions invited from persons having an interest in the amendment. The Commissioner is required to examine the original proposals together with the suggestions received, and if, in his opinion, a modification of the scale is necessary, he must prepare a report for the Government, whose decision on the matter will be final. The Court considered this procedure to be reasonable and salutary. Section 55, the Court explained, deals with a Mahant’s power over Pathakanikas or personal gifts. Normally a Mahant enjoys absolute discretion over such gifts; however, if a Mahant dies without disposing of them, the gifts are deemed to become property of the Math and pass to the succeeding Mahant. The first clause of section 55 mandates that such Pathakanikas shall be spent only for the

In this case the Court observed that requiring the use of personal gifts for the purposes of the Math imposes an unwarranted restriction on the Mahant’s property right. The Court recognised that in some institutions, custom may treat such gifts as belonging to the institution and the Mahant receives them only as the institution’s representative, but noted that this is not the general rule. Because section 55(1) does not limit the restriction to institutions where such custom exists, the Court held that the provision, in its unrestricted form, constitutes an unreasonable encroachment upon the Mahant’s fundamental right. The Court applied the same objection to clause (2) of section 55, observing that if the Pathakanikas are the Mahant’s property, there is no justification for obliging him to keep accounts of the receipts and expenditure of those personal gifts. The Court further noted that although the gifts may become part of the Math’s assets if the Mahant dies without disposing of them, this does not justify restricting the Mahant’s powers over the gifts while he is alive. The Court then turned to section 56, which the High Court had correctly invalidated. The Court described section 56 as providing an extremely drastic character. It explained that the provision gives the Commissioner power to require the trustee to appoint a manager for the secular affairs of the institution and, in case of default, allows the Commissioner to make the appointment himself. Although the manager is formally a servant of the trustee, the Court said that, in practice, the manager must follow the directions of the Commissioner and his subordinates. The Court emphasized that this power may be exercised at the Commissioner’s sole option, without any necessary justification such as evidence of mis-management or maladministration of trust funds. While acknowledging that the section envisions appointment of a manager for secular administration, the Court observed that no clear line can be drawn between the Mahant’s spiritual duties and his personal interest in the trust property. Consequently, the Court concluded that the effect of the provision is to allow the Commissioner, at any moment of his choosing, to deprive the Mahant of his right to administer the trust property even in the absence of negligence or maladministration. The Court held that such a restriction is opposed to article 26(d) of the Constitution, as it would effectively cripple the Mahant’s authority and reduce him to the status of an ordinary priest or paid servant. Finally, the Court stated that it found nothing objectionable in section 58 of the Act, which deals with the framing of the scheme by the Deputy Commissioner. Although the power to settle the scheme is vested in a Government officer rather than a court, the Court observed that the Act incorporates sufficient safeguards to correct any error or injustice that might arise.

The Court explained that Section 61 of the Act allows a party to appeal an order of the Deputy Commissioner to the Commissioner, and that a party aggrieved by an order of the Commissioner may file a suit and also has a further right of appeal to the High Court. The Court observed that the challenge raised against clause (3)(b) of Section 58 lacked merit, because the executive officer referred to in that clause could only act as a manager of the Math’s properties and could not be empowered to perform the functions of the Mathadhipati himself. Accordingly, the Court noted that a trustee who was dissatisfied with an order of the Deputy Commissioner retained the remedy of appealing to the Commissioner and, alternatively, could institute a suit, as provided in Sections 61 and 62. Section 59, the Court said, merely describes the application of the cy pres doctrine where the original purpose of the trust fails either at its inception or later due to subsequent events. The only objection to this provision was that the Deputy Commissioner might be the authority to make such an order. The Court found this objection unsubstantial, explaining that the objects for which the trust funds may be spent are enumerated in the statute itself, and the Deputy Commissioner’s role is merely to choose among those listed objects. Moreover, an appeal from the Deputy Commissioner’s order under Section 59 is available to the Commissioner, so the Court could not agree with the High Court’s view that Sections 58 and 59 were invalid. Turning to Chapter VI, which contains Sections 63 to 69 and deals with the notification of religious institutions, the Court described the provisions as extremely stringent, noting particularly that they bar any court from setting aside a notification order. The Advocate-General for Madras expressed that he could not support the legality of those provisions, and the Court, agreeing with the High Court, held those sections to be void. Regarding Section 70, which concerns the budget of religious institutions, the objection was limited to clause (3), which empowers the Commissioner and the Area Committee to make additions or alterations to the budget as they deem appropriate. The Court held that a budget is essential for any public institution and that it is reasonable for the budget of a religious institution to be prepared under the supervision of the Commissioner or the Area Committee. It further observed that if an Area Committee makes an order under clause (3), clause (4) provides an appeal against that order to the Deputy Commissioner. Finally, the Court noted that Section 89 imposes penalties on a trustee who refuses to comply with the Act, and it concluded that if the objectionable portions of the Act are removed, the remaining provisions are perfectly valid and penalties may legitimately be imposed for violations of those valid provisions.

The Court observed that if the objectionable portions of the Act were removed, the remaining part would be wholly valid and that penalties could lawfully be imposed for breaches of those valid provisions. It noted that Section 99 confers an overall revisional authority on the Government, which the Court considered advantageous to the trustee because it gives the trustee the possibility of approaching the Government whenever an irregularity, error or omission is committed by the Commissioner or any subordinate officer. The Court then turned to the question of the constitutional validity of Section 76 of the Act, which reads as follows:

“76. (1) In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the Government annually such contribution not exceeding five per centum of its income as may be prescribed. (2) Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub-section (1), is hot less than one thousand rupees, shall pay to the Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine. (3) The annual payments referred to in sub-sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. (4) The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions.”

From this language, the Court explained, the section authorises the levy of an annual contribution from every religious institution, the amount of which may not exceed five per centum of the institution’s income. The government is required to formulate rules that fix the exact rate within this ceiling, and the provision expressly characterises the levy as being “in respect of the services rendered by the Government and its officers.” The Court noted that the validity of this provision had been challenged on two grounds. First, it was contended that the contribution is in substance a tax and therefore fell outside the legislative competence of the State Legislature. Second, it was argued that, being a tax or similar imposition whose proceeds are earmarked for the maintenance of a particular religion or denomination, the contribution contravenes Article 27 of the Constitution and is consequently void. Regarding the first ground, the Court observed that it was not disputed that the legislation falls under entries 10 and 28 of List III in Schedule VII of the Constitution. The Court then indicated that if the contribution payable under Section 76 is classified as a “fee,” it may be placed within entry 47 of the Concurrent List, which deals with fees in respect of matters enumerated therein.

In this matter, the Court explained that if the contribution falls under entry 47 of the Concurrent List, it would be classified as a fee because that entry authorises fees in respect of any matter listed there. Conversely, if the contribution is characterised as a tax, the Court noted that no specific entry in any of the three lists provides for such a tax; therefore it could be placed only under entry 97 of List I or under article 248(1) of the Constitution, and in either case only the Union Legislature would have authority to enact it. The appellant argued that the contribution in question is a fee and not a tax. The learned Attorney-General, appearing for the Union of India as an intervener in this appeal and in related appeals, vigorously supported the appellant’s position. The Court observed that this issue is not free from doubt and requires careful examination. The Attorney-General first contended that the Constitution draws a clear distinction between taxes and fees. He pointed out that several entries in List I of the Seventh Schedule relate to taxes and duties, while the last entry in that list, entry 96, refers to fees in respect of any matter dealt with in the list. A similar pattern exists in List II, where entries 46 to 62 deal with taxes and the final entry deals only with fees that may be levied in respect of the matters specified therein. The Court further noted that articles 20 and 119 of the Constitution, which govern Money Bills, expressly state that a Bill will not be deemed a Money Bill merely because it provides for the imposition of fines or the demand or payment of fees for licences or services rendered; by contrast, a Bill that deals with the imposition or regulation of a tax will always be a Money Bill. Article 277 also mentions taxes, cesses and fees as separate categories. The Court acknowledged that it is not entirely clear whether the term “tax” in article 265 is intended in a broader sense that includes cesses and fees, an interpretation suggested by clause 28 of article 366, which defines taxation as the imposition of any tax or impost, whether general, local or special. Nonetheless, the Court opined that although the levy of fees represents a particular form of the State’s taxing power, the Constitution has placed fees in a distinct legislative category. At the end of each of the three lists, the Constitution confers on the respective legislature the authority to legislate on the imposition of fees with respect to every item listed. An indicative understanding of what constitutes a fee may be drawn from the relevant constitutional clause.

The Court examined the provisions of articles one hundred ten and one hundred nineteen, which refer to fees for licences and for services rendered, in order to determine what distinctive features separate a fee from a tax proper. In doing so, counsel for the parties relied upon a number of authorities, including opinions expressed in recognised treatises on public finance. A clear definition of “tax” was cited from the judgment of Latham C. J., Chief Justice of the High Court of Australia, in Matthews v. Chicory Marketing Board. According to that learned Chief Justice, a tax is “a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.” The Court noted that this definition highlights the essential characteristics of a tax as distinguished from other forms of imposition that are, in a broad sense, included within the concept of taxation. The first characteristic, as the Court explained, is compulsion: a tax is imposed under statutory authority without the consent of the taxpayer and the payment is enforced by law (see Lower Mainland Dairy v. Crystal Dairy Ltd., 1933 A.C. 168). The second characteristic is that a tax is levied for a public purpose without reference to any special benefit to the individual who pays it. This is expressed by stating that tax revenue is intended for the general revenue of the State, and because the object of a tax is not to confer a particular benefit on any individual, there is no quid pro quo relationship between the taxpayer and the public authority. A further feature noted by the Court is that, as part of the common burden, the amount of tax generally depends on the taxpayer’s capacity to pay. Turning to fees, the Court described a fee as a charge for a special service rendered to an individual by a governmental agency. The amount of a fee is supposed to correspond to the expenses incurred by the Government in providing that service, although the Court observed that in many cases the costs are assessed arbitrarily. Typically, fees are uniform and do not take into account the varying abilities of different recipients to pay. The Court acknowledged that these are some general characteristics of fees, but also recognised that there are various kinds of fees and therefore a single definition cannot cover every situation. Regarding the distinction between a tax and a fee, counsel for the respondent argued first that a fee is essentially voluntary: a person pays it only if he wishes to obtain a particular service from the Government, and there is no obligation to seek that service. The respondent illustrated this point with the example of a licence fee, stating that a person who wants a licence does so of his own choice and therefore bears the fee, whereas a person who does not desire the licence can avoid the payment. The Court considered these submissions in its analysis of the nature of fees and taxes.

In the discussion of a licence fee, the Court observed that if a person wishes to obtain a licence, that decision is entirely voluntary and the fee is payable only in that circumstance. However, the Court reasoned that a careful analysis shows that an element of compulsion or coerciveness exists in every form of monetary imposition, although the degree of that compulsion may vary, and therefore the presence or absence of compulsion cannot serve as the sole or even a material test for distinguishing a tax from a fee. The Court added that it is difficult to imagine a tax that is not at least somewhat compulsory; even a poll tax, which is levied on every individual within a State, demonstrates this principle. The Court noted that other taxes, such as house tax, land tax and municipal rates, are payable only by persons who own houses, possess land or hold property within the relevant municipality. Persons who do not own such property are not required to pay these taxes, yet the Court emphasized that these levies remain taxes because the obligation to pay is not a matter of personal choice. The compulsory character of the obligation lies in the fact that payment can be enforced by law against a person even if he is unwilling or does not consent, and that same element of legal enforceability is present in both taxes and fees.

The Court further explained that in some situations the question of whether an individual falls within the class of a service-receiver may depend on his own choice, but that consideration alone cannot constitute a decisive test for classifying the imposition. The principal distinction, according to the Court, is that a tax is imposed as part of a common burden shared by the community, whereas a fee is payable for a specific benefit or privilege. Fees grant a special capacity; for example, registration fees for documents or marriage licences confer a particular advantage, yet that advantage is secondary to the underlying purpose of regulation in the public interest (1). While public interest underlies all impositions, a fee is characterised by the special benefit that accrues to the individual. As Seligman observes, the special benefit received by the individual is the reason for payment in the case of fees, whereas any advantage that may arise from a tax is merely incidental to the State’s action (2). Consequently, if a fee is regarded as a form of consideration for services rendered, the Court held that it is essential that the statutory provision authorising the fee be directly linked to the expenses incurred by the Government in providing those services, as indicated earlier.

Article 110 of the Constitution indicates that the Government normally imposes fees in two distinct categories of situations. In the first category the State merely grants a permission or a privilege to an individual to do something that the individual could not otherwise do, and it extracts a heavy or moderate fee from that person in return for the privilege conferred. A typical example of this type of case is the licence fee for motor vehicles. In such instances the cost incurred by the Government in maintaining the office or bureau that issues licences may be very small, yet the amount levied is not determined by those costs but rather by the benefit that the individual receives from the licence. All writers on public finance agree that in these cases the tax element predominates, and if the money collected from licence holders is applied to the upkeep of roads or other general public utilities, the licence fee must be regarded as a tax. The authorities cited for this view are Vide Findlay Shirras on “Science of Public Finance” Vol. 1, p. 202 and Vide Seligman’s Essays on Taxation, p. 408. The second category comprises situations where the Government performs a positive act for the benefit of persons and the money taken is a return for the work done or services rendered. If the amount collected is set apart and appropriated specifically for carrying out that work and is not merged with general public revenues, it can be classified as a fee rather than a tax. Seligman observes that a State’s taxing power may appear in three forms, namely special assessments, fees and taxes. The Constitution distinguishes between taxes and fees for legislative purposes; various entries in the legislative lists refer to taxes, while each of the three lists also contains a final entry allowing fees to be levied in respect of any matter included in the list. This suggests that fees are linked to governmental action concerning those matters. Section 76 of the Madras Act explicitly describes the contribution as being levied in respect of services rendered by the Government, giving it the appearance of a fee. Religious institutions may object to such services, possibly arguing that State interference does not constitute a benefit. Nonetheless, the learned Attorney-General’s view is accepted that, in the contemporary concept of a State, services cannot be said to be rendered only at the request of those who seek them; when the State deems a special service desirable for the public interest, the people must accept those services whether they desire them or not. The authorities supporting this position are Vide Seligman’s Essays on Taxation, p. 409 and lbid, p. 406.

The Court observed that a State may not limit the provision of services only to those who expressly request them. If, in the larger public interest, the State deems it desirable to render a special service to a particular group, that group must accept the service whether they are willing or not (1). It was noted that the contribution imposed under section 76 of the Act is calculated according to the payer’s capacity rather than the amount of benefit expected by any specific religious institution. Furthermore, institutions whose yearly income is below Rs 1,000 are exempt from the additional charges prescribed in clause 2 of the section. These features clearly resemble those of a tax and the levy bears a close analogy to the income-tax system. A crucial fact that defeats the characterization of the levy as a fee is that the money collected is not earmarked for the expenses incurred by the Government in performing the services. All contributions are deposited into the State’s consolidated fund and the related expenditures are met from the general revenue through the normal appropriation process, as with other governmental outlays. Consequently there is no demonstrable link between the amount raised under section 76 and the actual costs of the services, and the notion of a quid pro quo cannot be applied. Accordingly, the Court held that the High Court was correct in declaring the contribution a tax rather than a fee, and therefore beyond the legislative competence of the State Legislature. (1) Vide Findlay Shirras on “Science of Public Finance” Vol. 1, p. 202. Because the decision on this point resolves the case, the Court found it unnecessary to examine the remaining ground in detail. Nonetheless, the Court briefly addressed the second issue raised, namely the contention that article 27’s reference to ‘taxes’ includes cesses, fees and similar levies. The Court did not deem it necessary to decide that question, since, on the facts, the levy—although classified as a tax—does not fall within the latter part of article 27. Article 27 forbids the specific use of tax proceeds for promoting or maintaining any particular religion or denomination, a principle rooted in the Constitution’s secularism. The reason for this prohibition is evident from the constitutional commitment to a secular State.

In this case the Court observed that the nation was a secular State and that the Constitution guaranteed freedom of religion both to individuals and to groups. Accordingly, the Court held that it was contrary to the Constitution’s policy to spend public money on the promotion or maintenance of any particular religion or religious denomination. The Court then examined the purpose of the contribution authorized by section 76 of the Madras Act and concluded that the contribution was not intended to foster or preserve the Hindu religion or any of its denominations. Rather, the purpose was to ensure that religious trusts and institutions, wherever they existed, were properly administered. The Court described this as a secular administration of religious endowments, noting that the legislation aimed to control the institutions attached to the religious endowments so that their income would be applied to the purposes for which those institutions were originally founded. The Court found no indication of favoritism toward any specific religion or denomination in this scheme. Consequently, the Court opined that article 27 of the Constitution did not apply to the facts of the present case. The Court therefore declared that only sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Act were invalid because they conflicted with the respondent’s fundamental rights as the head of the Math in question, and it held that section 76(1) was void for being beyond the legislative competence of the Madras State Legislature. All remaining provisions of the Act were held to be valid. Accordingly, the Court modified the High Court’s decision to the extent stated, affirmed the High Court’s judgment on its merits, dismissed the appeal, and ordered costs against the respondent.