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Mahant Sri Jagannath Ramanuj Das and another vs. The State of Orissa and another (1954)

September 25, 2024

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This article has been written by Prity. This article, in the beginning, goes through the Mahant Sri Jagannath Ramanuj Das vs. The State of Orissa and another (1954) case and deals with the facts of the case, issues raised/framed, arguments by the petitioners and respondents, and the rationale behind the judgement. Moreover, this article further dives into a detailed analysis of this landmark decision.

Table of Contents

Introduction

Even though the Ram Mandir has not yet been completed in Ayodhya, the queue of devotees is long, and 4 months after the opening of the Ram Mandir, lakhs of devotees have visited the Lord Ram temple and offered their offerings to Lord Ram in cash and kind.

There are lakhs of maths and temples in India where many offerings are made daily and which have a lot of property. For example, Char Dhams, Char Maths, 12 Jyotirling of Lord Shiva, 51 Shakti Peeth of Maa Durga, and so on and so forth.

Have you ever thought about what happened to those offerings where the offering goes, who is the owner of the offerings and properties, and who has rights over those offerings? Who regulates those offerings? Does the maths or temple’s authority, or mahant in the case of maths and main pujari in the case of temples, have only the right under the Constitution of India to administer, manage, and regulate? If yes, then to what extent? Does the government have any control or regulatory power over all these issues? If yes, then to what extent?

This article, by analysing the Mahant Sri Jagannath Ramanuj Das case (1954), will answer all the above-mentioned questions raised in detail.

The case at hand deals with the two very old and famous religious institutions or maths of Orissa. In 1940, in the case of Mahant Sri Jagannath Ramanuj Das vs. The State of Orissa and another (1954), (hereinafter referred to as the Mahant Sri Jagannath Ramanuj Das case, 1954), a dispute arose between the mahant or superior of the two maths and the concerned government over the constitutionality of certain sections of the Orissa Hindu Religious Endowments Act, 1939 (shortly referred to as the OHRE Act, 1939) that violate the fundamental rights embodied under the Constitution of India for the religious denominations and ultra vires of the Orissa State Legislature.

Further, this article also talks about the Orissa Ordinance No. 11 of 1953 and the Orissa Act XVIII of 1953, which amended a few sections of the OHRE Act, 1939.

This article also discussed Commissioner Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar, 1954 (shortly referred to as a Shirur Math case), and some sections of the Madras Hindu Religious and Charitable Endowments Act 1951 (shortly referred to as Madras Act or MHRCE Act, 1951).

Details of the case

Name of the case: Mahant Sri Jagannath Ramanuj Das and another vs. The State of Orissa and another
Citation: 1954 AIR 400, 1954 SCR 1046
Case type: Petition No. 405 of 1953
Bench: B.K. Mukherjea (J), Ghulam Hasan (J), Mehar Chand Mahajan (CJ), Sudhi Ranjan Das (J), Vivian Bose (J).
Name of the appellants: Mahant Sri Jagannath Ramanuj Das
Name of the respondents: The State of Orissa and another
Date of judgement: 16/03/1954
Name of the court: The Supreme Court of India
Laws involved: Article 19(1)(f), Article 25, Article 26, Article 27 of the Constitution of India, Section 11, Section 28, Section 38, Section 39, Section 40, and proviso to Section 46, Section 47, Section 49, and Section 50 of the Orissa Hindu Religious Endowments Act, 1939, amended sections 38 and 39 of the Orissa Hindu Religious Endowments (Amendment) Act, 1953, the Madras Hindu Religious and Charitable Endowments Act, 1951.

Facts of the case

In the year 1939, the Orissa Hindu Religious Endowments Act 1939 (amended by Amending Act II of 1952), was passed by the Orissa Legislative Assembly under the Government of India Act, 1935, with an objective “to provide for the better administration and governance of certain Hindu religious endowments”.

Under this Act, a statutory authority designated as the commissioner of Hindu religious endowments was appointed to supervise and control public temples and maths. For this, the commissioner was vested with certain powers that enabled him to exercise effective control over the trustees of the maths and the temples. He was required to be a member of the judicial or executive service of the province, and his actions were subject to the control of the provincial government.

According to Section 49 of the OHRE Act, 1939, every maths and temple whose annual income was more than Rs. 250 had to pay an annual contribution at a certain percentage of the annual income. This was to meet whatever expenses the commissioner and his staff had, which increased progressively with the increase in the income. In accordance with Section 50 of the OHRE Act, 1939, for the contribution made under Section 49 as well as grants and loans made by the government to the maths and temples, a special fund was to be constituted, and the expenses of the commissioner in administering the religious endowments were met out of that fund.

In July 1940, a lawsuit was instituted before the District Court in Cuttack by a number of plaintiffs, including the two mahants or superiors of two ancient and well-known religious institutions of Orissa. Both of the petitioners had endowments of considerable value situated within and outside the Orissa state. The suit sought a declaration that the OHRE Act, 1939, was ultra vires (beyond the powers of) the Orissa Legislature, along with other consequential reliefs. The main three grounds on which the validity of the OHRE Act, 1939, was challenged were as follows:

that the subject matter of legislation was not covered by Entry 34 of List II in Schedule VII of the Government of India Act, 1935;
that the annual contribution imposed under Section 49 was, in substance, a tax and could not have been imposed by the Provincial Legislature; and
that the provisions of the Act affected the endowments situated outside the territorial limits of the province, and therefore, the Act was extra-territorial in its operation and inoperative.

All these contentions raised by the plaintiffs were overruled, and the suit was dismissed by the District Court dated 11th September 1945. Against this, an appeal, as First Appeal No. 39 of 1949, was filed by the plaintiffs/appellants to the High Court of Orissa before the Division Bench consisting of two judges. The learned judges, by separate but concurring judgments, affirmed the decision of the District Court and dismissed the appeal dated 13th September 1949.

Against this judgement and decree of the High Court dated 13th September, 1949, plaintiffs/appellants filed an appeal before the Supreme Court as an Appeal No.1 of 1950 under Section 205 of the Government of India Act, 1935.

While this appeal was pending before the Supreme Court, the Constitution of India came into effect on 26th January 1950. Besides this, the OHRE Act, 1939, had also been amended by Amendment Act II of 1952 and is now known as the Orissa Hindu Religious Endowments Act, 1951 (OHRE Act, 1951). The OHRE Act, 1951, came with an objective to amend and consolidate the law related to the administration and management of Hindu religious institutions and their endowments. The President gave assent to this OHRE Act, 1951, on 16th February 1954, and it became a law.

The date of the pronouncement of the judgement in the present case was 16th March 1954. However, this Act had a provision that provided that this Act would be enforced on such date as the State Government notified in the gazette. The State Government of Orissa, through notification in the official gazette, enforced this Act from 1st January 1955.

At the same time, two other independent statutory laws were passed and came into effect by the State Legislature of Orissa to amend the OHRE Act, 1939. In this respect, an ordinance was promulgated by the Governor of Orissa as Orissa Ordinance No. 11 of 1953 on 16th May 1953. Further, on 28th October 1953, the Orissa Act XVIII of 1953 (shortly known as the OHRE Act, 1953) came into force and preceded and substituted the above-mentioned ordinance. By these two statutory laws, certain provisions of the OHRE Act 1939 were amended, which were effective from May 1953 to March 1954.

Due to all these changes, an application/petition was made as Petition No. 405 of 1953 under Article 32 of the Constitution of India before the Supreme Court by the two mahant, who were the plaintiffs in the declaratory suits instituted in 1940. The application was framed on the validity of the Act then in force (the OHRE Act, 1953) in such a way that it comprehensively covered all the grounds that could be made on the basis of the articles of the Constitution against the validity of the OHRE Act, 1939.

The Supreme Court clubbed the two connected appeals/petitions, i.e., Appeal No. 1 of 1950, which arose due to a declaratory suit filed in the district court cuttack in July 1940, and Petition No. 405 of 1953, filed under Article 32 of the Constitution together as Petition No. 405 of 1953, for the sake of convenience to be disposed of by one and the same judgement.

Henceforth, these were the facts of this case that show how this case came before the Supreme Court.

Note: After going through a few of the judgements of the Supreme Court corresponding to the Orissa Hindu Religious Endowments Act around the years 1950 to 1956, it has been clear that the court in the Mahant Sri Jagannath Ramanuj Das (1954) mentioned the Orissa Hindu Religious Endowments Act, 1951, or Orissa Act II of 1952, as substituted Act in place of the OHRE Act, 1939, but in reality, it was not the OHRE Act, 1951, but the OHRE Act, 1953, for discussion before the Supreme Court. The OHRE Act, 1953, was effective from May 1953 to March 1954, as mentioned in the heading Facts of the Case of this article.

It was the OHRE Act, 1953, that superseded and substituted the Ordinance, objected by the parties before the Supreme Court. In Sri Sadasib Prakash Brahmachari vs. The State of Orissa, (1956), the Supreme Court clearly mentioned this and said that this was a slip that was accepted or admitted before the Supreme Court. However, this slip was not going to affect in any way the reasoning and binding character of the judgement delivered in the Mahant Sri Jagannath Ramanuj Das case (1954).

Therefore, in reality, a few sections of the Act, 1953, were challenged before this court, along with a few other sections of the OHRE Act, 1939. The present Act, i.e., the Orissa Hindu Religious Endowments Act, 1951, that was mentioned in the present case by the Supreme Court, was not enforced at the time of the decision of this case.

Issues framed by the court

B.K. Mukherjea J. in the present case stated that the OHRE Act, 1939, as amended by Amending Act II of 1952, was similar to the Madras Hindu Religious Endowments Act of 1927, which was replaced by the State Legislature of Madras in 1951 as the Madras Hindu Religious and Charitable Endowments Act, 1951 (shortly referred to as the MHRCE Act, 1951).

He further said that the grounds upon which the OHRE Act, 1939, was challenged before this court were substantially similar to the grounds upon which the MHRCE Act, 1951, was urged to be declared unconstitutional in the Commissioner Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar, 1954 (shortly referred to as the Shirur Math, 1954 case) through Civil Appeal No. 38 of 1953. Therefore, the Supreme Court broadly framed the following issues related to the violation of constitutional Articles in the Shirur Math, 1954 case, which were substantially similar to the Sri Mahant Jagannath Ramanuj Das, 1954 (present case), to be dealt with:

Whether the mahants or superiors of the maths have a right to property in the religious institution and its endowments under Article 19(1)(f) of the Constitution?
Whether Article 19(1)(f) deals with concrete rights of property at all or abstract rights?
Whether Article 25 of the Constitution protects the religious freedom of an individual only or does it also protect the religious freedom of an institution or organisation?
What connotes religious denominations, and does math or its followers come within the delineation of a religious denomination or any section thereof as per Article 26 of the Constitution?
Can any matters of religion be prohibited by the government if the mahant possesses the right to manage their own affairs under Article 26 of the Constitution?
Whether the OHRE Act, 1939, which takes away the right of the mahant or superior under Article 26, is invalid?

Below were the questions related to the validity of certain sections of the OHRE Act, 1939, and the OHRE Act, 1953, that had been dealt with before the Supreme Court in the present case:

Does the power conferred on the commissioner under Section 11 of the OHRE Act, 1939, be uncontrolled and arbitrary?
Is the provision of Section 28 of the OHRE Act, 1939, which says that the trustee of a maths shall be bound to obey all orders issued under the provisions of the Act by the commissioner valid?
Are schemes framed, under sections 38 and 39, for the administration of the endowed property by the commissioner, who is a mere administrative or executive officer, and not by the Civil Court or under its supervision valid?
Are the further restrictions imposed by the commissioner on the mahant’s powers of disposal over the surplus income under an exception to Section 46 valid?
Whether the rule for application of Cyprus doctrine provided under Section 47 of the OHRE Act, 1939, was valid or not?
Whether the annual contribution levied under Section 49 of the OHRE Act, 1939, on religious institutions infringed the rights granted under Article 27 of the Constitution?
Whether the annual contribution imposed upon the maths and temple under Section 49 of the OHRE Act, 1939, is a tax or fee?
If the annual contribution levied under Section 49 of the OHRE Act, 1939, is a tax, would the State Legislature be competent to enact such a provision?

Laws involved in this case

Below mentioned sections of the Hindu Religious Act of Orissa and Madras and a few of the Articles of the Constitution of India are directly questioned, challenged, or cited in the Mahant Sri Jagannath Ramanuj Das case (1954). Hence, for a better understanding of this case, it is mandated to discuss the nuances of all the below mentioned provisions. To discuss the nuances of all these provisions, this heading is further classified into subheadings as below:

Constitution of India

Article 19(1)(f) and Article 19(5) of the Constitution of India

Article 19(1)(f), with reasonable restrictions provided in Article 19(5), provided the freedom to every citizen of India to acquire, hold, and dispose of the property within the territory of India. It was omitted from the Constitution through the Constitution (Forty-fourth Amendment) Act, 1978, as fundamental rights to property became a legal right under Article 300A of the Constitution.

Article 25 of the Constitution of India

This Article assures all ‘persons’ freedom of religion. It says that all individuals are equally entitled to freedom of conscience, and they also have the right to freely profess, practice, and propagate religion, subject to public order, morality, and health, and to the other provisions of Chapter III of the Constitution of India. Clause 2 of Article 25 is one such provision, and therefore, the right of a person or individual guaranteed under Article 25(1) is subject to Article 25(2).

Article 26: Freedom to manage religious affairs

Article 26 protects the rights conferred upon every religious denomination or any section thereof from unnecessary invasion of the state subject to public order, morality, and health. This Article conferred protection to the following rights of the religious denominations or sections thereof:

Article 26(a): The right to establish and maintain institutions for religious and charitable purposes;
Article 26(b): The right to manage its own affairs in matters of religion;
Article 26(c): The right to own and acquire movable and immovable property; and
Article 26(d): The right to administer such property in accordance with law.

Article 27: Freedom as to payment of taxes for promotion of any particular religion

Article 27 ensures that the state does not favour or promote any specific religion and remains neutral and treats all religions and religious denominations equally. This Article upholds the principle of religious freedom or secularism and protects individuals or persons from having to pay any taxes towards the promotion or maintenance of any particular religion or religious denomination. Thereby, Article 27 ensures that the state promotes religious harmony and equality among its citizens.

Exceptions to Article 27 of the Constitution of India

Even though this Article protects the individual from forcefully paying the tax that is used as proceeds for the promotion or maintenance of any particular religion or religious denomination or prohibits the use of tax funds for the promotion of any particular religion or religious denomination, it does have certain exceptions.

The state can allocate funds for the maintenance of any religious places or institutions, irrespective of the religion they belong to. However, states must allocate such funds without any biases towards any particular religion or religious denomination. For example, subsidies are provided by the state for the Haj pilgrimage and for the Amarnath Yatra.

Orissa Hindu Religious Endowments Act, 1939

Some of the provisions which were challenged in the case are as follows:

Section 11: It conferred general power upon the commissioner. It corresponds to Section 20 of the Madras Act, 1951.
Section 28: It states that all orders issued by the commissioner shall bind the trustees of the religious denominations to obey.
Sections 38 and 39: These sections empower the authorities to enquire into any allegations made against mismanagement of endowments and frame or regulate schemes for the due administration of the endowments of religious denominations or any section thereof. Aggrieved trustees or interested parties could file a suit in Civil Court to modify or set aside these schemes.
Section 40: It provides that if a scheme framed by the commissioner under sections 38 or 39 objected before the Civil Court under Section 39(4) could be final only after the final decision of the Civil Court in this regard. Schemes settled under the above sections by the commissioner can be modified or set aside by properly instituting the suit before the Civil Court and not otherwise.
Section 41: It speaks of an order settling a scheme being set aside or modified by the court.
Section 46: It dealt with wide powers of the mahant in regard to disposal over the surplus income. All purposes for which the income can be used are for the benefit of the institution, and Mahant is strictly prohibited from spending the income of maths for his own personal benefit unconnected with the dignity of his office. Restrictions imposed upon Mahant under this Section were challenged in the case in hand.
Section 47(1): It dealt with the application of the Rule of Cyprus. Section 47(4) says that aggrieved parties can file a suit in a Civil Court against the order of the commissioner passed under Section 47(1), and the court has the power to modify or set aside such order of the commissioner passed under Section 47(1).
Section 49: It states that every math and temple whose annual income was more than Rs. 250 had to dub up an annual contribution at a certain percentage of the annual income to meet whatever expenses the commissioner and his staff had, which increased progressively with the increase in the income.
Section 50: It states that with the contribution made under Section 49 as well as grants and loans made by the government to the maths and temples, a special fund was to be constituted, and the expenses of the commissioner in administering the religious endowments were to be met out of that fund.

An Amendment made in a few provisions of the OHRE Act, 1939, that was known as the OHRE Act, 1953. These Amendments were also challenged in the case, which is discussed in the below heading.

Orissa Hindu Religious Endowments (Amendment) Act, 1953

The Orissa Hindu Religious Endowments (OHRE) Act, 1939, was amended in 1953 to modify several provisions. Some of the important provisions challenged in the case are as follows;

Section 38: An explanation was inserted that states that the expression ‘mismanaging the endowments of such maths or temple’ shall include failure to discharge duties and obligations conveyed upon the trustee by the various provisions of this Act within a period that may be specified on this behalf by the commissioner. It was challenged in the present case.
Section 39(4): It was substituted by a new sub-section (4) that stated that every order passed by the commissioner under this sub-section shall be final and binding on the trustee and all persons having interest.

Madras Hindu Religious and Charitable Endowments Act, 1951

For a clear understanding of the Mahant Sri Jagannath Ramanuj Das case (1954), a few sections of the above-mentioned Act must be discussed. Following are the few sections:

Section 20: This Section states that the due administration and management of religious endowments is allocated under the general superintendence and control of the commissioner, and he is entitled to pass any orders that may be reckoned necessary to ensure that such endowments of religious institutions are properly administered and their income is duly appropriated for the aims and objectives for which they were founded or are in existence.
Section 23: This Section states that the trustee shall be bound by the lawful order issued under the provisions of this Act. It is similar to Section 28 of the OHRE Act 1939.
Section 24: This Section is similar to Section 14 of the OHRE Act, 1939. It provides that duties and care should be applied by the trustee in the affairs related to the due administration and management of endowments of the religious institutions. A trustee should use as much care as a man of ordinary prudence would use in the management of his own funds and properties.
Section 30: This Section deals with the wide powers of the trustee to deal with surplus income.
Section 61: This Section states that if an order passed by the deputy commissioner under is objected by the parties aggrieved by such order, he may, within one month from the date of the publication of such order or of the receipt thereof by the party concerned, as the case may be, appeal to the commissioner.
Section 62: This Section deals with the suits and appeals filed before the courts against the orders or any scheme settled or framed under the provisions of the Act. It states that any party aggrieved by the order of the commissioner may, within 90 days from the date of the receipt of such order, institute a suit in court against such order. The court may modify or cancel such an order, but it shall not have the power to stay the commissioner’s order pending the disposal of such a suit. This Section further states that any party can file an appeal to the High Court if aggrieved by the decree of the court issued under Section 76(1) of this Act.

Arguments of the parties

Contentions raised by petitioners

Learned counsel for the petitioners objected to the few sections of the OHRE Act, arguing that they violate the fundamental rights guaranteed under Articles 19(1)(f), 25, 26, and 27 of the Constitution of India.
With respect to Section 11 of the OHRE Act, 1939, the counsel of the petitioners contended that it has given an uncontrolled and arbitrary power to the commissioner in matters of due administration and appropriation of funds of all religious institutions and endowments in the State of Orissa.
Learned counsel for the petitioner with respect to Section 14 of the Act stated that the Section deals with the duties and care taken by the trustee in the due administration and management of the affairs of religious institutions is invalid and contravenes the fundamental rights of the trustee granted under the Constitution of India.
Counsels of the petitioners objected that sections 38 and 39 of the 1953 Act related to settling of the schemes provided that schemes are to be framed by the commissioner, who is merely an administrative or executive officer and not under the supervision of or by the Civil Court.
Counsel for petitioners contended that there is no provision to file an appeal to the court against the order of the commissioner made under sections 38 and 39.
Counsel’s contention was that sub-section 4 of Section 39 of the OHRE Act, 1939, allowed the trustee or any person having an interest in the institution to file a suit in a Civil Court to modify or set aside an order settling a scheme, and Section 40 says the order made under Section 39 could be final only subject to the result of such a suit.

However, sub-section (4) of Section 39 was omitted by the Amendment Act of 1953, and a new sub-section (4) was inserted, which states that the order passed by the commissioner has been made final and conclusive.

However, Section 41 of the Act has still been kept in its original shape, and that speaks of an order settling a scheme being set aside or modified by the court. The presence of the two apparently contradictory provisions in an Act shows the careless behaviour of the Legislature while drafting. Therefore, counsel contended that these contradictory provisions of the OHRE Act must be redrafted, and sections 38 and 39 must be declared invalid.

Counsel of the petitioners raised an objection against the proviso of Section 46 of the OHRE Act, 1939, that it unnecessarily imposed restrictions on the power of the trustee related to making use of surplus income. The aims and objectives for which the trustee can utilise the surplus income under Section 46 are all benevolent to the institutions. Hence, putting further restrictions on such power of a trustee to follow the instructions of the commissioner is invalid.
An objection was also raised against Section 47 of the OHRE Act, 1939, which deals with the application of the doctrine of Cyprus.
Another contention of the learned counsel for the petitioners was that the annual contribution deposited under Section 49 of the OHRE Act, 1939, is a tax and not a fee, and hence the Provincial Legislature is not authorised to enact such provision. Therefore, it is invalid. Learned counsel appearing for petitioners further said that the proceeds of the contribution made under Section 49 are specifically used for the maintenance of a particular religion or religious denomination or any section thereof that is prohibited under Article 27 of the Constitution and is hence void.

Contentions raised by respondent

The learned Attorney General with respect to Article 25 contended that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to state regulation.
Learned counsel contended that since math does not come within the description of a religious denomination and section thereof as provided in Article 26 of the Constitution of India this Act does not violate Article 26.
The learned Attorney General contended that the annual contribution made under Section 49 of the OHRE Act, 1939, is a fee and not a tax. Therefore, it is beyond the scope of Article 27 of the Constitution of India.
The arguments of the learned counsel of the petitioners regarding sections 38, 39, 40, and 41 were conceded by the learned Attorney General, and he agreed with the opposition that these sections require redrafting.

Judgement of the case

The learned justice B.K. Mukherjea delivered the judgement and held that sections 38, 39, and proviso to Section 46 of the OHRE Act 1939 are invalid because these sections ultra vires Articles 19(1)(f), 25, and 26 of the Constitution of India.

Annual contributions made under Section 49 of the OHRE Act, 1939, will have to be reckoned as a fee and not as a tax. Hence, it is within the authority of the Provincial Legislature to enact such a provision. Article 27 forbids the usage of the revenue of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Whereas the objective of the annual contribution made under Section 49 of the OHRE Act, 1939, was not for the promotion or maintenance of the Hindu religion or of any denomination within it but for the due administration and management of religious trusts and institutions wherever they exist. Therefore, Section 49 will not ultra vires Article 27 of the Constitution of India.

Finally, the court held that application is permitted within Article 32 and a writ in the nature of mandamus would be issued. It prohibits the commissioner and the State Government from enforcing the provisions of sections 38, 39, and proviso to Section 46 of the impugned Act 1939 as amended in 1953 by the OHRE Act, 1953, against the petitioners.

Rationale behind this judgement

The judgement delivered in this case on the issue of violation of fundamental rights by certain provisions of the OHRE Act, 1939, and OHRE Act, 1953, under Articles 19(1)(f), 25, 26, and 27, is based on the following reasons:

Article 19(1)(f)

The office of the mahant has a character of proprietary rights due to his vast powers of disposal and administration and his right to create derivative tenures with respect to endowed properties and other rights of similar characters. Hence, he has a legal right to the property of the religious endowments along with beneficial interests so long as he is entitled to hold his office under Article 19(1)(f) of the Constitution. The court recognised the interest of the mahant in maths endowments as property falling within the scope of Article 19(1)(f).

Since mahantship is a public post, there must be reasonable restrictions upon his powers under Article 19(5), but such restrictions must not debar him from performing his duties and using his beneficial interests in endowments of the maths unreasonably.

Article 25

It was observed that the wording of Article 25 itself makes it clear that this Article is applicable to everyone by guaranteeing the right to freedom of religion subject to public order, health, and morality and the restriction provided in Article 25(2)(a) and (b). An institution cannot propagate or practise religion itself, but it is done only by the individual persons forming the institutions, and a mahant is the representative of the Math or such institutions. Therefore, it is his duty or right to practise and propagate the religious principles or beliefs of the religious institutions of which he is a head and follower. If any provisions of law debar the mahant from practising and propagating his religious tenets amount to a violation of his freedom of religion guaranteed to every person under Article 25 of the Constitution.

Article 26

The court held that math also comes under the connotation of religious denominations because Article 26 not only applies to the religious denominations but also to the section thereof. Therefore, maths are eligible for the right to manage their own affairs in matters of religion under clause (b) of Article 26. On a question of what could be a matter of religion, the court said that the wording of clause (b) of Article 26 clearly manifested that there could also be other affairs of religious denominations or sections thereof that differ from the affairs of matters of religion.

Clauses (c) and (d) of Article 26 speak about the rights of religious denominations to acquire and own movable and immovable property and the administration of such properties in accordance with law. From the wordings of these clauses, it is manifested that what constitutes the affairs related to matters of the religion of the religion’s denominations and sections thereof will be decided by the religious denomination itself. The State can’t interfere with this right. But rights to acquire and own properties and administration of such properties will be in accordance with the law validly enacted by the Legislature.

On the question of what constitutes matters of religion, the court opined that religion is certainly a matter of faith and belief with individuals or communities that are respected by the followers for their spiritual well-being, but it is also not only limited to faith and belief, and in fact it extends to the Acts done in pursuance of religion. Hence, rituals and observances, modes of worship, ceremonies, and offerings of prasad are integral or essential parts of religion, and hence it is the religious denominations who have full autonomy to determine what will constitute an integral part of any religion. But expenses incurred upon matters of religious affairs amount to the administration of religious endowments, and therefore, it will be governed in accordance with law.

Similarly, in clause (d) of Article 26, though, the religious denominations administer such properties themselves, but such administration is regulated by the law imposed by the state. If any law is enacted by the legislature that interferes with the rights of the religious denominations under Article 26(b) and fully takes away the power of administration of such properties under clause (d), it amounts to infringement of the rights of religious denominations and sections thereof.

Article 27

The court on Article 27 has applied the principle propounded in the Shirur Mutt case (1954) in determining whether the contribution is a tax or a fee and whether Section 49 of the OHRE Act, 1939, is hit by Article 27 or not.

The Supreme Court held that two essential elements that make the payments a tax are as follows:

Imposition made in tax is for public purposes to meet the general expenses of the state without reference to any special benefit to be conferred upon the payers of the tax; and
Payment collected as a tax is a general revenue of the state and used for general public purposes.

Whereas in the case of payment levied to be a fee, the two essential elements required are:

It must be imposed in regard to certain services that the individuals accepted either willingly or unwillingly, and there must be an element of quid pro quo; and
The amount accumulated must be allocated to meet the expenses of rendering these services and must not go as a general revenue of the state to be spent for general public purposes.

On these principles or essential elements propounded in the Shirur Mutt case (1954), in the present case also the Supreme Court held that the annual contribution levied under Section 49 of the OHRE Act, 1939, is a fee and not a tax and hence not hit by Article 27 of the Constitution.

Issue-wise judgement by the Supreme Court

As already mentioned, the grounds upon which the OHRE Act, 1939, was challenged before the Supreme Court were substantially similar to the grounds upon which the MHRCE Act, 1951, was urged to be declared unconstitutional. Therefore, the Supreme Court broadly discusses the following issues related to the violation of Articles of the Constitution in the Shirur Math, 1954, which were substantially similar in the Mahant Sri Jagannath Ramanuj Das, 1954 (present case):

Whether the mahants have a right to property in the religious institution and its endowments under Article 19(1)(f) of the Constitution

Five Judges bench denied the application of the law evolved by the Judicial Committee in various pronouncements ever since 1921 related to the property rights of a mahant, which states that a mahanti possesses the property of maths as a life tenant or his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice. The court relied on various pronouncements of the Privy Council and the Judicial Committee, and the Calcutta High Court held that the mahant is not a mere manager nor mahantship is a mere office; the interest of the mahant in maths property is much larger than that of the Shebait in the debutter property.

The mahant has not only duties to discharge in connection with the endowment, but he has a personal interest in a beneficial character, which is sanctioned by custom to him. The concept of shebaitship is discussed deliberately in Angurbala Mullick vs. Debabrata Mullick (1951). On the basis of this judgement, the present court in this case agreed that the elements of office and property, of duties and personal interest are blended together in the rights of a mahant and neither can be detached from the other. Further, the mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office.

The personal or beneficial interest of the mahant in maths’s property includes his large powers of disposal and administration and his right to create derivative tenures in respect of endowed properties. Other rights of a similar character are also included in it. All these rights invest the office of the mahant with the character of proprietary rights.

This court further held that as the mahant is in charge of a public institution, the imposition of reasonable restrictions upon his personal interest in the interest of the public is genuine and obvious, but the restrictions cease to be reasonable if such restrictions make the mahant unfit to discharge his duties.

This court further held that the reasonableness of the restrictions should be tested/ judged on the standpoint that the restrictions are such as would bring the mathadhipati down to the level of a servant under a state department, then such restrictions are not reasonable.

Therefore, the court on this issue held that the mahants of the maths have a legal right to the property of the religious endowments along with beneficial interests so long as he is entitled to hold his office, and debarring him from performing his duties and using his beneficial interests in endowments of the maths unreasonably amounts to a violation of his fundamental rights guaranteed under Article 19(1)(f) of the Constitution of India.

Whether Article 19(1)(f) deals with concrete rights of property at all or abstract rights

With regard to this issue, the learned Attorney General cited The State of West Bengal vs. Subodh Gopal Bose (II),(1952) case in which an opinion was expressed by Patanjali Sastri, C.J., that the rights guaranteed under Article 19(1)(f) are an abstract right and have no relation to concrete property rights. This court held that the above-mentioned statements are the opinion expressed by Patanjali Sastri C. J. and not the decision of this court in that case. The present court on this issue held that since no arguments were presented before us by parties, it would not be proper to express any final opinion upon this point in the present case. Therefore, this court will proceed in this case as it has proceeded in similar cases in the past on the similar basis that Article 19(1)(f) applies equally to concrete as well as abstract rights of property.

Whether Article 25 of the Constitution protects the religious freedom of an individual only or does it also protect the religious freedom of an institutions

The court held that it would not be possible to decide how the provisions of the OHRE Act, 1939, transgressed the rights guaranteed under Articles 25 and 26, without discussing the scope and ambit of the fundamental rights embodied in these two Articles of the Constitution. Article 25 of the Constitution, subject to the restrictions imposed by Article 25 itself, guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess, practice, and propagate religion. Restrictions imposed upon this Article are subject to the public order, morality, and health and sub-clauses (a) and (b) of clause (2) of Article 25.

On the question of whether Article 25 applies to a person or institution, this court opined that this question is irrelevant for present purposes. A mahant is not a corporate entity. He enjoys spiritual superiority among his spiritual fraternity, and by virtue of his office, he has to perform the duties of a religious teacher. It is his duty to practise and propagate the religious principles or beliefs of the religious institutions of which he is a head and follower. If any provisions of law debar the mahant from practising and propagating his religious tenets, it amounts to a violation of his freedom of religion guaranteed to every person under Article 25 of the Constitution.

The court further observed that institutions could not propagate or practise religion themselves, but it is done only by the individual persons forming the institutions. Therefore, it is immaterial for the purpose of Article 25, whether these persons propagate their personal views or the tenets for which the institution stands, and it is only the prorogation of the belief that is protected under Article 25 no matter where it takes place.

What connote religious denominations, and do maths or its followers come within the delineation of a religious denomination or any section thereof as per Article 26 of the Constitution

Religious denomination

The court took up the meaning of denomination from the Oxford dictionary, which states that ‘a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name’. The court gave insight into the historical aspect of the establishment of maths in India and stated that it was started by Shankaracharya as a centre for religious teaching. Since then, various religious teachers have founded different sects and sub-sects in different places of India. The court held that all these sects and sub-sects to be known as religious denominations because, as per the Oxford dictionary, all have distinctive names; many have their names on their founders, a common faith; and an organisation. This court gave an example to the followers of Ramanuja, known by the name of Sri Vaishnabas, who undoubtedly constitute a religious denomination.

Is maths a religious denomination

The court in the Shirur Math case (1954) cited the opinion of the High Court in the same case, which stated that the maths in question is in charge of the Shivalli Brahmins, who constitute a section of the followers of Madhwacharya, and Madhwacharya is a religious denomination. The maths also comes under the preview of Article 26 and is entitled to the rights provided under this Article because this Article not only includes religious denominations but also the section thereof. Hence, in the present case, the Supreme Court followed the same principle for the determination of religious denominations and held that maths is also a religious denomination.

Can any matters of religion be prohibited by the government if the mahant possesses the right to manage their own affairs under Article 26 of the Constitution

The court held that since math comes under the definition of religious denominations under Article 26, they are also entitled to the right to manage their own affairs in matters of religion under clause (b) of Article 26. The Supreme Court analysed the scope of clause (b) and also discussed what are matters of religion as mentioned below.

What is the scope of clause (b) of the Article that speaks of management ‘of its own affairs in matters of religion’

Article 26 subject to public order, health, and morality guarantees a religious denomination, or any section thereof, under clause (a) the right to establish and maintain institutions for religious and charitable purposes; under clause (b) the right to manage their own affairs in matters of religion. Under clauses (c) and (d), the right to acquire and own movable and immovable properties and to administer such properties in accordance with law, respectively, provided to the religious denominations or any section thereof.

After determining the question of whether maths comes under Article 26 or not, this court came up to determine the scope of clause (b) of Article 26, which says about the management of its own affairs in matters of religion. The court observed that the wording of clause (b) of Article 26 has clearly manifested that there could also be other affairs of religious denominations or any sections thereof that differ from the affairs of matters of religion. The Supreme Court further observed that besides the right to manage its own affairs in matters of religion in clause (b), this Article guaranteed the religious denominations or sections thereof the right to acquire and own movable and immovable properties and administer such properties in accordance with law under clauses (c) and (d).

The wording of these clauses itself marks a distinction that the fundamental rights guaranteed under clause (b) will not be taken away by the Legislature, whereas fundamental rights embodied under clauses (c) and (d) are regulated by laws made by the Legislature. Hence, it is clear that the mere administration of properties does not come in the purview of managing one’s affairs in matters of religion.

What are the matters of religion

Before discussing what the matters are, the court went to discuss deeply what religion is.

On this issue, the court said that religion is not defined in the Indian constitution and went through worldwide legal precedents on what religion is. The court opined that religion is certainly a matter of faith and belief of individuals or communities, which are respected by the followers for their spiritual well-being, and it is not necessarily theistic. For example, Buddhism and Jainism are religions in India.

But it is also not true to say that religion is just a belief or doctrine because it not only provides ethical codes to be followed by the followers, it also prescribes rituals and observances, ceremonies, and modes of worship as an integral part of religion. This court gave insight into the constitutional provisions of Australia and America on religion and took the observations from various cases of Australian and American courts and said that in the Constitution of both countries, the right to freedom of religion has been declared in unrestricted terms without any limitation whatsoever.

Therefore, limitations have been imposed by courts of law on grounds of morality, order, and social protection. Furthermore, the court said that our Constitution makers have already included the limitations evolved through judicial pronouncements of these countries in the Constitution itself, and wordings of Articles 25 and 26 enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what does not.

Hence, the Indian Constitution is not only confined to the freedom of religious belief or faith, but it also extends to religious practices subject to the restrictions imposed by the Constitution itself, and therefore, religious denominations or sections thereof have full autonomy to determine which rites or ceremonies constitute essential or integral parts of any tenets of religion that they follow, and no other authority has rights or powers to interfere with their decision in such matters. However, this court said that the scales of expenses incurred on the affairs of matters of religion would be a matter of administration of properties of religious denominations or sections thereof and can be controlled by secular authorities in accordance with any law laid down by a competent legislature.

Under Article 26(d), the religious denominations or sections thereof have rights to administer, acquire, and own properties, but only in accordance with law enacted by the Legislature. It means that here, the religious denominations or sections thereof itself administer their properties, and the state regulates the administration of trust properties by embodying such restrictions or regulations as it thinks proper or valid. Therefore, a law that altogether takes away the right of administration of properties from religious denominations or sections thereof and vests it in any secular authority would amount to a violation of rights guaranteed under Article 26(d).

Whether the OHRE Act, which takes away the right of the mahant or superior under Article 26, is invalid

On this issue, the court said that only those provisions of the impugned Act that interfere with the right of the mahant guaranteed under Articles 26(b) and 26(d) are invalid. However, the mahant of the maths cannot misuse the property of the religious denominations or sections thereof for his own personal use.

Does the power conferred on the commissioner under Section 11 of the OHRE Act, 1939, be uncontrolled and arbitrary

Section 11 of the OHRE Act, 1939, deals with the powers of the commissioner to issue any order in relation to due administration and due appropriation of religious endowments. This court opined that math is a public institution and that mahant is the trustee over there. Therefore, some amount of control and supervision is required with respect to the due administration of the endowments and the due appropriation of their funds in the interest of the public.

Hence, the result of this provision would not be to reduce or lower the position of mahant as a servant from the spiritual head. This court further held that we do not think that the authority vested in the commissioner is arbitrary or uncontrolled, and it violates any fundamental rights of the mahants. Furthermore, the court said that mere apprehension that the power conferred under this Section can be used arbitrarily does not make the Section invalid in law.

Does the provision of Section 14 of the OHRE Act, 1939, violate the fundamental rights of the mahant

Section 14 of the OHRE Act, 1939, describes the duties and care required to be taken by the mahant in the management of the affairs of the religious institutions. This Section requires that the mahant of the religious institutions discharge his duties as trustee in a manner as every trustee of the trust estate discharges his duties and standards should be that of a man of ordinary prudence dealing with his own funds or properties. Five judges bench further held that this is a matter of administration and does not violate any fundamental rights of the trustee. Therefore, this section of the Act is not invalid.

Is the provision of Section 28 of the OHRE Act, 1939, which says that the trustee of a math shall be bound to obey all orders issued under the provisions of the Act by the commissioner valid

On a similar note to the decision on Section 11, the court declared Section 28 valid. Section 28 of the OHRE Act, 1939, is identical to Section 23 of the Madras Act 1951. The court held that this Section imposes duties upon the trustee of the religious institutions to comply with all lawful orders passed by the commissioner under the clauses of the Act, and if the orders are lawful and made by a valid legal authority, no legitimate ground could be urged for not complying with the orders.

Are schemes framed, under sections 38 and 39, for the administration of the endowed property by the commissioner, who is a mere administrative or executive officer, and not by the Civil Court or under its supervision valid

sections 38 and 39 provide for the framing of the schemes for due administration of endowed property by the Commissioner. On this issue, the court said that the objection of the appellants is that there is no intervention of the Civil Court in framing the scheme, which amounts to an invalid provision. There is no provision of appeal also against the order of the commissioner, which put an unfavourable curtailment upon the proprietorship of the head of the religious institution that converged with his office. Appellants took the plea of Section 58 of the Madras Act 1951 that provides the provision for the first appeal to the commissioner against the order of the deputy commissioner, and if there is any objection to the order of the commissioner, then there is provision to file a suit in Civil Court and thereafter appeal against the order of the court.

The court pointed to Section 39(4) of the OHRE Act, 1939, as it was initially found, which provided that the trustee or any person having an interest in the institution can file a suit in a Civil Court to modify or set aside an order framing a scheme passed by the commissioner. The court also pointed out to Section 40 that the order passed under Section 39 could be final only subject to the result of such a suit. However, Sub-section (4) of Section 39 was omitted by Orissa Ordinance II of 1953 and then by Orissa Act XVIII of 1953, and a new Sub-section (4) was added in Section 39, which made the order passed by the commissioner final and conclusive.

The court further pointed out that Section 41 of the OHRE Act, 1939, remains unchanged, which states that an order related to framing and settling of schemes is being set aside or modified by the court. Furthermore, the court held that the inclusion of all these contradictory provisions in the impugned Act shows the heedlessness in drafting the State Legislature. The court agreed upon the contention of the petitioners in regard to these provisions and said that it is an unfavourable curtailment of the proprietary right of the mahant of the maths. Therefore, sections 38 and 39 of the impugned Act are invalid.

Are the further restrictions imposed by the commissioner on the mahant’s powers of disposal over the surplus income under an exception to Section 46 valid

The court on the validity of Section 46 held that there is no objection against the Section itself, but there is an objection against the proviso of Section 46. The court further stated that the mahant of the maths has wide powers with respect to the disposal of surplus income of the maths, and the only restriction upon the power of the mahant is that he cannot make use of the endowments of the maths for his own usage detached from the prestige of his office. The aims or objectives identified in Section 46 are all in favour of the maths. Therefore, further unnecessary imposition of restriction on the power and duty of the mahant amounts to unreasonable restriction, and it is invalid.

Whether the rule for application of Cyprus doctrine provided under Section 47 of the OHRE Act, 1939, was valid or not

With respect to this issue, the court stated that there could not be any objection against Section 47(1) of the impugned Act, but there could be a reservation against the last provision of Section 47. However, by virtue of Sub-section (4) of Section 47, an aggrieved party can institute a suit in a Civil Court against the order passed by the commissioner, and the court can modify or set aside the orders issued by the commissioner under this Section. Therefore, no objection is sustained against this Section, and it is a valid provision.

Whether the annual contribution imposed upon the maths and temple under Section 49 of the OHRE Act, 1939, is a tax or fee

On this issue, the court opined that there are constitutional differences between tax and fee. Fee has been located under a distinct class for the objectives of legislation and regulations in our Constitution. Article 246 of the Constitution mentioned the seventh schedule of the Constitution; the seventh schedule described the division of power between Central Government and State Governments. The law-making powers of the union legislature and state legislature are classified into three lists, namely; the Union List, State List, and Concurrent List, and at the end of each one of these lists, an authority to the exclusive legislature has been provided to make laws on the levy of fees with respect to every one of the heads discussed in the list itself.

The Supreme Court also went through clauses 2 of Article 110 and Article 119 of the Constitution of India to see the constitutional difference between tax and fee. The court also quoted the definition of tax given by Latham C. J. of the High Court of Australia in Matthews vs. Chicory Marketing Board (1938). A tax, according to the learned Chief Justice, “is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.” The court further cited Vide Lower Mainland Dairy Products Sales Adjustment Committee vs. Crystal Dairy Limited (1933). Furthermore, the court cited Findlay Shirras on ‘Science of Public Finance’. Vol. 1. P. 203. and culled out the features of tax and fees, which make them differ from one another.

After analysing the various sources and contentions of both parties in respect of what is tax and what is fee, the court opined that there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a state manifests itself.

The court further said that the elements of compulsion are found in all types of imposition, whether it is a tax or fees, though to different degrees. Thus, the element of compulsion could not be the sole criterion to decide whether the imposition is a tax or fee, but there are other criteria that will decide the nature of the payment, whether it is a tax or fee.

The first essential element in a tax is that the imposition is made for public purposes to meet the general expenditure of the state, irrespective of any special advantages to be bestowed on the payers of the tax. Secondly, the payment is collected as tax and deposited in the consolidated fund of the state as a general revenue of the state and used for general public purposes.

In respect of fee, the court opined that the two elements essential for the payment levied to become fee are that, firstly, it must be imposed in lieu of certain services availed by the person, either voluntary or involuntary. There must be an interrelationship between the expenditure incurred by the state on providing the service and the amount collected by the contribution levied. Hence, there must be an element of quid pro quo in fee.

Secondly, the amount accumulated must be assigned to meet the expenditure of providing these services and must not go to the consolidated fund as general revenue of the state and be used up for general public purposes.

On the above-mentioned two elements of fees or taxes enunciated in the Shirur Math case (1954), the court in the present case held that the contribution made under Section 49 of the OHRE Act, 1939, is a fee and not a tax because, firstly, the aims of the contribution are to bear the cost of the commissioner and his office, a mechanism set up for due and proper administration and management of the affairs of the religious institution. Secondly, the contribution under Section 49 goes to the special fund created under Section 50 of the OHRE Act, 1939, and specifically appropriated for the purposes of meeting the expenses in due administration and management of endowments of the maths.

If the annual contribution levied under Section 49 of the OHRE Act,1939, is a tax, would the State Legislature be competent to enact such a provision

On this issue, the Court applied the principle enunciated in the Shirur Math case and opined that the contribution made under Section 49 of the OHRE Act, 1939, is a fee; hence, it was within the authority of the Provincial Legislature to bring this provision into the impugned Act.

Whether the annual contribution levied under Section 49 of the OHRE Act, 1939, on religious denominations or sections thereof infringed the rights guaranteed under Article 27 of the Constitution

On this issue, the court opined that an imposition of fee or annual contribution, like in Section 49 of the OHRE Act, 1939, upon religious denominations or any section thereof, cannot be a breach of rights recognized under Article 27 of the Constitution. Article 27 forbids states from utilising the tax revenue collected from the public, which is general public revenue, for the promotion or maintenance of any particular religion or religious denomination or any section thereof. Whereas, the objectives of the contribution made under Section 49 of the OHRE Act, 1939, were to ensure that the religious denominations or any section thereof are duly administered and managed. The contributions are not used for promoting or cherishing the Hindu religion or of any denomination within it.

The contributions are used for the payment of the official persons appointed under the impugned Act for their work in respect of religious institutions. Their work is to see that:

endowments related to the religious institutions or any section thereof are duly administered and managed, and:
their incomes are duly apportioned for the aims and objectives for which they were established.

The purpose behind Article 27 is that India is a secular democratic country, and everyone, whether individuals or groups, has freedom of religion guaranteed under the Constitution.

It would be against the policy of the constitution to spend money from public funds for the furtherance or safeguards of any particular religious denomination or section thereof. The aim of Article 27 is to maintain secularism. Since the aim and object of the impugned Act is not to promote or cherish the Hindu religion except to watch out if religious trusts and institutions are properly and duly administered and managed, there is no violation of Article 27 that took place.

Analysis of the case

Principles propounded in the judgement of the Shirur Mutt case (1954) religiously, strongly, and immediately applied in the Mahant Sri Jagannath Ramanuj Das case (1954). These are some of the most fundamental decisions of the Supreme Court in the matters of religious denominations or sections thereof that are related to the rights and duties of mahant or trustee under religious endowments and the administration and management of endowments of religious denominations and sections thereof. The principles laid down in these cases aptly and religiously followed in various landmark decisions of this court until today.

However, a few of the decisions and principles laid down in both these cases are still cited and followed by the Supreme Court in recent cases, and some are diluted through various other recent decisions of the Supreme Court by the time.

Following are a few of the landmark cases in which the principles propounded in the Mahant Sri Jagannath Ramanuj Das case (1954) are strongly followed or somewhere diluted by the Supreme Court with time:

Durgah Committee, Ajmer, and another vs. Syed Hussain Ali and others (1961)

In this case, the Durgah Khwaja Saheb Act, 1955, was challenged before the Supreme Court for the violation of fundamental rights embodied in Articles 25 and 26. The Supreme Court, in this case, itself, watered down its own decision pronounced in the Mahant Sri Jagannath Ramanuj Das case (1954). In this case, the Supreme Court held that essential practices of religion alone are considered, and what constitutes essential religious practices will be determined by the court by holding that the court has to ‘scrutinise‘ whether religious practices are ‘sprung from merely superstitious beliefs’ or it is an ‘unessential accretions to religion’.

Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay (1962)

This case was decided by the Constitution Bench, in which three of the judges of the Dargah Committee Case were present. The Supreme Court in this case mended its decision taken in the Durgah Committee Ajmer and another vs. Syed Hussain Ali and another (1961) and followed the decisions pronounced in the Shirur Mutt case (1954) and the Mahant Sri Jagannath Ramanuj Das case (1954) in a modified way on the issue of who determines the essential element of a religious practice of any religious institutions. The Supreme Court held what constitutes an essential element of a religious practice of any religious institution that has to be determined by the courts in context to the doctrine of a particular religion and includes practices that are regarded by the community as an essential element of its religious practice or religion.

Indian Young Lawyers Association vs. The State of Kerala (2018)

In this case, the Supreme Court had to decide whether devotees of Lord Ayyappa constituted religious denominations or not. The Supreme Court strongly relied upon the decisions of the Shirur Mutt case (1954) and Mahant Sri Jagannath Ramanuj Dascase (1954) and denied the religious denominations status to the devotees of Lord Ayyappa. The Supreme Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, that barred the entrance of women of age group 10 to 50 into the Sabarimala temple and held that this rule violated the fundamental right of women guaranteed under Article 25.

Furthermore, it was also held that to prohibit women, ages 10 to 50, from entering into temples is not an essential part of religion, which is opposed by Justice Indu Malhotra by giving dissenting judgement. She held that ‘What constitutes essential religious practice is for the religious community to decide, not for the court’.

Here it is clearly visible that in the case of determining the status of religious denominations, the principles of the Shirur Mutt case were strictly followed, but while deciding what constitutes an essential element of any religious practices, the court diluted the decision held in the Shirur Mutt Case, 1954. In the Shirur Mutt case that is also relied on in the Mahant Sri Jagannath Ramanuj Das case, 1954, the Supreme Court held that what constitutes essential religious practices of a particular religious denomination or any section thereof must be left to be assured by the denomination or section thereof itself.

Hingir-Rampur Coal Co., Ltd. vs. The State of Orissa and Others (1960)

In this case, one of the most important issues to decide by the Supreme Court was whether the cess is a tax or a fee. While deciding this issue, the Supreme Court cited and took into consideration the principles laid down in the three cases decided by this court itself in 1954 for determining whether the payment or contribution is a tax or fee, namely, the Shirur Mutt case (1954), the Mahant Sri Jagannath Ramanuj Das case (1954), and the Ratilal Panachand Gandhi vs. the State of Bombay case (1954). The Supreme Court held that if the essential purpose of the imposition of levy is to supply specific services to a particular area or class, it is not necessary that the service provider, i.e., the government in this case, must ultimately or indirectly benefit from it. Therefore, the levy charged in this case under the impugned Act is a fee and not a tax. Furthermore, the court said that there is a constitutional difference between tax and fee.

Sreenivasa General Traders and others vs. State of Andhra Pradesh and others (1983)

In this case, the Supreme Court diluted the decision of the Shirur Mutt case (1954) and the Mahant Sri Jagannath Ramanuj Das (1954) and held that the long-established view of the court that quid pro quo for a fee is an essential element has gone through a profound or notable transformation in the forthcoming verdicts of the Supreme Court. It further held that the element of quid pro quo in the strict sense is not always a sine qua non for a fee.

On the co-relationship between the levy and the services rendered, the Supreme Court said it is one of general character and not of mathematical exactitude, and all that is necessary is that there should be a reasonable relationship between the levy of fee and the services rendered. Furthermore, in this case, the Supreme Court also said that the heed of the court in the Shirur Mutt case (1954) was not attracted to Article 266 of the Constitution. The Supreme Court also said that the Constitution nowhere provided that the essentiality of the fee is that payments made for services rendered by the state must be deposited to the specific fund and not to the consolidated fund to be a fee.

Jalkal Vibhag Nagar Nigam, Lucknow vs. Pradeshiya Industrial and Investment Corporation, and another (2021)

In this case, the court said that it is clear from the constitutional jurisprudence that the distinction between tax and fee has been mingled over time. In this case, the Supreme Court has eliminated the tests brought out in its old decisions to differentiate tax or fees like in the Mahant Sri Jagannath Ramanuj Das case (1954). For example, the tests of compulsory extraction, quid pro quo, specific service, credit of amount in a specific fund, or consolidated fund.

Kerala State Beverages Manufacturing & Marketing Corporation Ltd. vs. The Assistant Commissioner of Income Tax Circle 1(1) (2022)

This case was decided on 3rd January, 2022. In this case, the Supreme Court relied on the ratio of the Uttar Pradesh Water Supply and Sewerage Act, 1975, where the Supreme Court maintained the constitutional difference between tax and fee and held that fee or charge is different from tax or surcharge on tax. The court held that a surcharge on a tax is nothing but the enhancement of the tax. In this case, the Supreme Court diluted the tests laid down in the Mahant Sri Jagannath Ramanuj Das case (1954) and Shirur Mutt case (1954) to determine a payment to be tax or fee and maintain only the constitutional difference between them by citing the above-mentioned case.

Madurai District Private Bus Owner vs. Union of India (2022)

This writ petition was decided on 6th July 2022 by the Supreme Court. With this writ petition, several other writ petitions against the notifications issued by the Government of India, Ministry of Road Transport, and Highways were filed before the Supreme Court. Some of them were declared infructuous, and some of them were taken into consideration by the Supreme Court. One of them is the writ petition filed in this case. In this writ petition, both parties relied on various landmark judgments of the Supreme Court that were in their favour.

Petitioners cited the Mahant Sri Jagannath Ramanuj Das case (1954) along with other cases and relied on the tests laid down to prove their case that there is a difference between a tax and a fee. Whereas dependent relied on the above-mentioned Jalkal Kal Vibhag Nagar Nigam case (2021) and other cases to prove that there is a sea change in the concept of tax and fee as laid down in the Mahant Sri Jagannath Ramanuj Das case (1954) and two other cases of 1954 as mentioned in the Supra Hingir Rampur Coal Co. Ltd case (1960).

After hearing both parties, the Supreme Court came to the conclusion that the historical theory or principles developed in the Mahant Sri Jagannath Ramanuj Das case (1954) and two other decisions of 1954, religiously followed by the Supreme Court in several other decisions that were cited by the petitioner in this case, have changed a lot with time. The changes made in the principles or tests laid down to determine the payment to be a tax or a fee have been seen in the latest decision of the Supreme Court in the Jalkal Kal Vibhag Nagar Nigam case (2021).

The Supreme Court further said that now such constitutional jurisprudence has been developed by the Supreme Court, where the distinction between tax and fee, as laid down in the earlier decisions, has constantly and steadily evolved with the passage of time. It has happened particularly in the cases where the distinction has no practical or constitutional significance. Furthermore, in this case, the Supreme Court moved one step ahead and passed over its own judgement in the Kerala State Beverages Manufacturing and Marketing Corporation Ltd. case (2022). The Supreme Court held that from the several cases filed before this court in respect of the distinction between a tax and a fee, it seems that the practical and even the constitutional distinction or differences between tax and fee have faded away with time. The Supreme Court also observed that the element of compulsion is not the sole criterion of distinction. It is now acknowledged that the presence of a quid pro quo is not a necessity for a tax, and similarly, fees collected may be deposited into the consolidated fund.

Conclusion

Constitution makers of the Indian Constitution, while drafting provisions related to freedom of religion guaranteed under Articles 25 to 28, had clarity in their minds about the consequences of these provisions. Therefore, the freedom of religion granted under the Constitution is subject to the reasonable restrictions provided in the provisions itself.

Articles 25 and 26 of the Constitution of India provide the freedom of religion to every individual, every religious denomination, and any section thereof but subject to public order, morality, and health. The restrictions imposed against the provisions are not limited to the above-mentioned restrictions only. There are further restrictions imposed in Article 25(2)(a) and (b), where the state regulates the freedom of religion by enacting laws and rules. Similarly, under Article 26, the properties are acquired and owned by religious denominations or any sections thereof administered in accordance with the law made by the Legislature. So, it is clear that Articles 25 and 26 allow the enactment of laws relating to secular matters.

Since 1950, when the Constitution became effective, several legislatures have been enacted by Parliament or State Legislature relating to secular matters under Articles 25 and 26; cases came before the Supreme Court questioning different aspects of freedom of religion under Articles 25 to 28 through individuals or through religious denominations.

The Supreme Court dealt with all these questions judiciously and tactfully and laid down several principles and tests, some of which are still followed by the court, though somewhat modified or diluted with time. For example, Principles of Essentiality, a test for differentiating tax and fee.

However, the Supreme Court, while deciding all these cases, always remained firm with the core principle of the Constitution, i.e., the Basic Structure Doctrine, and always preferred constitutional morality over religious morality. Similarly, on Article 27, the Supreme Court diluted the tests laid down in the Shirur Mutt Case (1954) and the Mahant Sri Jagannath Ramanuj Das case (1954) to differentiate tax and fee that was religiously followed by it through several decades but with time abraded. From several landmark decisions of the Supreme Court, it has been seen that for some time the constitutional differences between tax and fee remain intact by the Supreme Court. However, with time and from the latest judgement of the Supreme Court, it emerges that the practical and even the constitutional distinction or differences between tax and fee have faded away with time.

Frequently Asked Questions (FAQs)

What do religious denominations or institutions mean?

In accordance with Section 3(XIII) of the OHRE Act 1951, religious institutions mean: a maths, a temple, and endowments connected therewith, or a particular endowment and an institution under the direct management of the state government.

What does math mean?

A math is an institution for the promotion of the Hindu religion headed by an individual whose duty is to occupy himself in spiritual acts. A math is a religious institution or an institutional sanctum presided over by the mahant or a superior of the math.

What are the differences between maths and temples?

In the case of the temple, the presiding element is a deity or idol, whereas in the case of maths, the presiding element is generally a mahant or superior of the math, who is a religious teacher. A temple cannot exist without a deity. Math can exist without idols. The primary purpose of the temple is to carry on the worship of the deity. Whereas in the case of maths, the primary objectives or aims of the maths’ establishment and maintenance are to promote and enrich religious and spiritual learning.

What does a person having interest mean in the case of math?

According to Section 7(10) of the OHRE Act 1939, as in the case of maths, a person having interest means a disciple of maths or a person of the religious certitude to which maths belongs.

According to Section 3(x) of the OHRE Act, 1951, a person having interest means:

in the case of math, a disciple of the math or a person to which the math belongs

What does endowment fund mean ?

Endowment Fund, according to Section 3(v) of the OHRE Act, 1951, means a fund constituted under Section 63 of the OHRE Act, 1951, named as the Orissa Hindu Religious Endowments Administration Fund. Section 63(2) of the Act, 1951 says about the sums to be submitted or credited into the fund established under Section 63(1). For example, fees levied under this Act, annual contributions levied on the maths, fines and penalties realised under this Act, grants or contributions made by the state, any local authority, or any individual. All contributions credited to the fund constituted under Section 50 of the OHRE Act, 1939, will also be credited to the fund constituted under the OHRE Act, 1951.

References

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