Friday 19 February 2016

Whether legislature can overrule any decision my making cosmetic changes in law?


In so far as points Nos. (iii) and (iv) are concerned, if the law passed by a Legislature is struck down by the Courts as being invalid for one or the other reason, it would be competent for the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. (See: Rai Ramakrishna vs. State of Bihar, MANU/SC/0031/1963 : AIR 1963 SC 1667). The Legislature can pass a retrospectively validating action taken under a law which was void because it contravened fundamental rights. If the legislature can by retrospective legislation, cure the invalidity of action taken in pursuance of laws which are void for want of legislative competence and can validate such action by appropriate provisions, the same power can be effectively exercised by the Legislature for validating action taken under laws which are void for the reason that they contravened fundamental rights. (See: West Ramnad Electric Distributioon Co. Ltd. vs. State of Madras, MANU/SC/0060/1962 : AIR 1962 SC 1753). It was held that Legislature can change the basis on which a decision is given by the Court, and thus change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. (See: Indian Aluminium Company vs. State of Kerala, MANU/SC/0370/1996 : AIR 1996 SC 1431).
And it is also laid down by the Apex court in Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union vs. Srinivasa Resorts Limited and others, MANU/SC/0436/2009 : (2009) 5 SCC 342, in a situation where in circumstances that a statute is held to be unconstitutional, the offending provisions are sought to be reintroduced with cosmetic changes, as in the present case on hand, thus:
"62. Section 40(3) is clearly comparable to Section 47(3) and also Section47(4), as the last part of that section is identical with the wording in Section 47(4). The only difference which we find is that instead of the word "gratuity", the terminology of "service compensation" is substituted. In our opinion, the High Court was right in opining that a mere cosmetic amendment could not have been made by way of introduction of Sections47(3) and 47(4). It was tried to be argued before us that in the present 1988 Act, the mischief pointed out by the High Court in the earlier Section40(3) of the 1966 Act has been remedied. We are unable to agree with such an argument. We do not see as to how and in what manner, the mischief has been remedied.

64. The High Court also noted that the provisions of Sections 47(3) and47(4) were nothing, but a cosmetic amendment to the earlier Section40(3). It is, therefore, clear that no attempt has been made, whatsoever, to point out (sic remedy) the mischief found by the High Court in Section40(3) of the 1966 Act.
70. The High Court found that instead of remedying the defects point out in Suryapet Coop. Mktg. Society Ltd. v. Munsif Magistrate, (1972) 2 An LT 163 a cosmetic change was made by raising the period of six months to one year. We are, therefore, unable to accept the submission of the learned counsel for the appellant that the High Court proceeded on to decide the constitutionality on the basis of a comparison. We do not, therefore, see how the aforementioned judgment in State of M.P. v. G.C. Mandawar, MANU/SC/0135/1954 : AIR 1954 SC 493, can be of any application and help to the present case."
Thus, it can be safely said that  amendment was brought about by Act No. 13 of 2012, bad in law for the above reason.
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
Writ Petition Nos. 64805-64868, 65648-65680 of 2011 (GM-R/C), 72157 of 2012 and 80796-80822 of 2013 (GM-R/C) and 65539 of 2012 (GM-R/C)
Decided On: 17.11.2015
Appellants: Shri Maha Ganapati Shankara Devasthana and Ors.
Vs.
Respondent: State of Karnataka and Ors.
Hon'ble Judges/Coram:Anand Byrareddy and S. Sujatha, JJ.


1. These petitions are heard and disposed of by this common order.
2. The petitions in WP 65648-680/2011 and WP 64805-868/2011, which are filed challenging the constitutional validity of the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act, 2011 (Act No. 22/2011), were by an order dated 9.2.2012, directed by a learned single judge to be placed before a division bench - for disposal, with an intention that one stage of appeal be avoided and having regard to the need for an expeditious decision by this court.
3. The background to the legislation in controversy is stated to be as follows:-
The State of Mysore, which stood reorganized by the States Re-organisation Act, 1956, (Hereinafter referred to as the 'SR Act', for brevity) with effect from 1.11.1956 and which stood re-christened as the State of Karnataka, with effect from 1.11.1973, is composed of the erstwhile princely State of Mysore, the erstwhile province of Coorg and parts of the erstwhile States of Bombay, Hyderabad and Madras.
In each of the above States and province, there were separate enactments governing temples and other religious institutions situate within those regions. With the coming into force of the SR Act, it became obligatory for the State of Mysore to enact a uniform law, which would govern all the temples, religious institutions, denominations, maths etcetera. In this regard, there were said to be two abortive attempts in the year 1963 and in 1977, respectively, to remove the inequality between temples and the maths situated in South Kanara District and those situated in other parts of the State. The Apex Court had thus been prompted to observe in the case of Shri Swamiji of Admar Math v. The Commissioner, HR & C Endowment Department, MANU/SC/0509/1979 : AIR 1980 SC 1; that the State did not make any effort to bring a uniform law which would be applicable to the entire State, in the matter of governance of Hindu Religious denominational temples etc.
It was only in the year 1997 that the Karnataka Hindu Religious and Charitable Endowments Bill was said to have been introduced, which had received the assent of the President of India as on 25.10.2001. Pursuant to which, it was enacted as Karnataka Act No. 33 of 2001. It was brought into force vide notification dated 1.5.2003.
However, by a notification dated 30.4.2003, a day before the Act was brought into force, 34000 temples were declared as notified temples for purposes of Section 23 of the Act. This was promptly challenged by the Devalaganagapur Narasimhasaraswathi Math, Ganagapura, before the Gulbarga Bench of this court. A learned single judge had quashed the said notification, which was affirmed by a division bench in appeal. The matter is said to be pending before the Apex Court.
The Karnataka Act No. 33/2001 itself having been assailed in a large number of writ petitions before this court, a learned single judge had dismissed the same. In appeals before a Division bench, it was held that the enactment was ultra vires Articles 14, 25 and 26 of the Constitution of India. That verdict is the subject matter of appeals before the Apex Court. There was an interim order granted by the Apex Court dated 2.4.2007 to the following effect:-
"Issue notice.
Interim stay in the meantime.
Ms. Kiran Suri, Mr. S.N. Bhat and Mr. P.P. Singh, Advocates takes notice on behalf of the respondents."
By a further Order dated 31.7.2009, the same was modified as follows:-
"Interim Order dated 02.04.2007 is vacated in so far as Section 25 of the Act is concerned."
This was possibly on account of the complaint of the respondents therein that the State was seeking to arbitrarily exercise power under Section 25 of the Act, by virtue of the Order of stay.
Further, even during the pendency of the appeals before the Apex Court, the State Government is said to have constituted a High Level Committee, headed by Justice M. Rama Jois (Retired), to give suggestions for better administration of temples in the State and to make recommendations for amendment to the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (Hereinafter referred to as the 'KHRICE Act', for brevity). The said Committee having submitted its report, the State Government is said to have enacted Act No. 27 of 2011, (Hereinafter referred to as the '2011 Amendment Act', for brevity) purportedly making comprehensive amendments to the principal Act. The amendments were said to have been given effect to from 4.5.2011.
The State had hence filed an application seeking permission to enforce the amended Section 25 of the Act as amended by the 2011 Amendment Act. The said application was disposed of by the Apex Court, by an order dated 10.10.2011, in the following terms:
"The State has filed an application (I.A. No. 17) seeking permission to give effect to the amended Section 25 of the Act.
The interim Order granted was with reference to the then existing Section 25. Amended Section 25 is not the subject matter of the said interim order. Therefore the application is redundant. It is open to the writ petitioners who have challenged the amended Section 25 to seek interim relief before the High Court.
IA No. 17 is disposed of accordingly."
Now during the pendency of these petitions, challenging the constitutional validity of the 2011 Amendment Act, which primarily centres around Section 25 of the principal Act (Act No. 33/2001), the said section which was inserted in the Principal Act with the amendments brought about by the 2011 Amendment Act has now been "omitted" from the statute book by the Karnataka Act No. 12/2012, (Hereinafter referred to as the "2012 Amendment Act") and a new Section is "inserted" in its place.
The Apex Court having been moved for further directions in the wake of the above development. The Apex Court has made the following Order dated 24.3.2015:-
"The validity of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1977 has been struck down by the High Court by the impugned order dated 8th September, 2006 of the High Court. By interim order dated 2nd April, 2007 passed in the Civil Appeal No. 5924 of 2008 (Arising out of Special Leave Petition (Civil) No. 5398 of 2007), operation of the order of the High Court has been stayed. The effect of the interim order dated 2nd April, 2007 is that the aforesaid Act of 1997 continues to be in force. In the meantime, the aforesaid Act of 1997 has been amended and we are told that the validity of the said amendment is pending consideration in the Writ Petition (s) before the High Court.
In the circumstances, we defer the hearing of these appeals until decision of the Karnataka High Court is rendered in the Writ Petition (s) challenging the validity of the amendment to the aforesaid Act of 1997. We request the Karnataka High Court to expedite the hearing of the Writ Petition(s) and conclude the same as early as possible and let this Court have the benefit of its views in the matter. Let this order be brought to the notice of the Karnataka High Court by the respective parties."
4. At the hearing of these petitions, when it was pointed out by the learned Senior Advocate, Shri M.N. Rao appearing for the State - that Section 25 of the Principal Act as amended by the 2011 Amendment Act was no longer on the statute book, an application was filed in the petition in WP 64805 - 868 of 2011, seeking to include an additional prayer specifically challenging Act 12/2012 on the same grounds on which the 2011 Amendment Act is challenged, as follows:
"To declare and strike down Karnataka Act No. 12/2012 also which professes to further amend a still born and void Karnataka Act No. 33/2001, as void, inoperative and unenforceable."
5. The learned Senior Advocate, Shri Subramanya Jois, appearing for the learned counsel for the petitioners would contend that the Apex Court in the case of Shri Swamiji of Admar Math, supra, had indicated that Section 119 of the SR Act was intended to serve a temporary purpose. In that, it was to enable the new units to consider the special circumstances on the diverse units before launching upon a process of adaptation of laws so as to make them reasonably uniform having regard to the special needs of the various regions. And that - Acts, Rules and Regulations whose constitutional validity is upheld and could be upheld only on the ground that no violation, per se, of Article 14 is involved in the application of different laws to different components of a State, if the area to which unequal laws are applied has become a part of the State as a result of the States Reorganisation, it cannot continue to apply to such area, indefinitely. Further, that inequality was writ large on the face of the Madras Hindu Religious and Charitable Endowments Act, 1951, in its application to the District of South Kanara and "perilously near the periphery of unconstitutionality", that the Apex court had restrained itself from declaring the law as inapplicable to the said region, in the hope that the State Government would act promptly and move an appropriate legislation, possibly with in a year from the date of pronouncement of its judgment, namely, 27.8.1979.
It is contended, that lamentably the State Legislature has only embarked on further confounding the situation as is evident from the above sequence of events.
It is pointed out by Shri Jois that in the Civil Appeals before the Apex Court, by the State, challenging the judgment of a division bench of this court in the case of Shri Sahasra Lingeshwara temple v. State of Karnataka, MANU/KA/8375/2006 : 2007 (1) Kar. LJ 1, wherein there was an interim order of stay, dated 2.4.2007, it was the fervent plea of the State to the following effect:
" It is submitted that, considering the grievance urged by the respondents petitioners the State is proposing to make necessary amendment to the Act to include under the purview of the Act and Mutts, the Temples attached to Mutts, denomination temples and to include the Religious and Charitable Institutions of Jains, Buddhists and Sikhs under the purview of the Act. Hence, on this ground also the judgment of the Division Bench of the High Court of Karnataka required to be reversed by recording the submissions of the State to carry out necessary amendments to the Act."
It is contended that it has been held in Sahasra Lingeshwara's case that the legislation in its entirety was struck down. But the State was proceeding on a mistaken impression that the interim order of the Apex Court dated 2.4.2007, as having revived the Karnataka Act No. 33/2001, enabling it to "amend" the said enactment vide the 2011 Amendment Act. The same is under challenge in these petitions on grounds and contentions fully covered in their favour by the pronouncement rendered, albeit in the context of Karnataka Act No. 33/2001, in Sahasra Lingeshwara's case.
Attention is drawn to the "Statement of Objects and Reasons" preceding the 2011 Amendment Act, to contend that the same illegalities, discrimination and unconstitutionality, graphically elucidated in Sahasra Lingeshwara's case have been contumaciously reintroduced. As for instance, keeping out of the purview of the legislation maths and temples attached to maths, having been found fault with in Sahasra Lingeshwara; And further, the Report of the Committee headed by Justice Rama Jois also having concluded that such an exclusion is violative of Articles 14, 25 and 26 of the Constitution of India, the State has proceeded to literally overturn the verdict of this Court.
It is urged that the Amending Act of 2012 only seeks to reintroduce the very same unconstitutional provisions - with cosmetic changes - and is therefore a repeated affront to this Court.
It is emphasized that neither the Amending Act of 2011 nor the Amending Act of 2012 claim to be in the nature of validating legislation, but are clearly Acts amending and further amending the Principal Act, which, at best, is in suspended animation by virtue of the interim order of stay granted by the Apex Court.
Shri Jois would thus contend that Karnataka Act No. 33/2001 having been struck down as being unconstitutional, the purported amendments thereto do not constitute either a validation or a fresh enactment, particularly because far from addressing and removing the anomalies pointed out by this court in Sahasra Lingeshwara's case, the same have been reintroduced arbitrarily, contumaciously, and for the reasons mentioned in the respective Statements of Objects and Reasons, published for introducing the respective Bills. The same being impermissible in law, as laid down by the Supreme Court, inter alia in the case of Sri Prithvi Cotton Mills Limited vs. Broach Borough Municipality and others, MANU/SC/0057/1969 : AIR 1970 SC 192. While the legislature has competence under the Constitution to pass a law and also to pass a validating law. A validation must necessarily remove the defect which the courts had found in the "existing law", and adequate provisions for validating the existing law should be made. The said ruling having been followed in several later rulings of the apex court and in particular in the case of State of Tamilnadu vs. State of Kerala, MANU/SC/0425/2014 : AIR 2014 SC 2407, in which it has been laid down that "in exercising legislative power, the legislature, by mere declaration, without anything more, cannot directly overrule, revise or overwrite a judicial decision, but it can render a judicial decision by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changes or altered condition are such that the previous decision would not have been rendered by the court if those conditions had existed at the time of declaring the law as invalid..... The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it, but has power to make the decision ineffective by removing the base on which the decision was rendered; consistent with the law of the constitution, and the legislature must have the competence to do the same." In Paragraph 79 of the said decision, quoting Thomas Cooley as noticed by Scelia J, in the case of Paul Tetal vs. Spend Thrift Farm incorporated MANU/USSC/0031/1995 : (1995) 514 US 211, the Supreme Court has stated thus:
"If the legislature cannot indirectly control the action of the courts by requiring them a construction of the law according to its own views, it is very plain that it cannot do so directly by setting aside their judgments, compelling to grant new trials ordering the discharge of offenders or directing what particular steps shall be taken in the progress of a judicial inquiry.... Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy and congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the court said it was."
It is contended that Paragraphs 82,84,85,96 in particular are quite apt and relevant in the context and fully support the above contention of the petitioners.
It is emphasized that the interim order staying the judgment in Sahasra Lingeshwara's case cannot and has not revived the Karnataka Act No. 33/2001 nor can the effect of the said order be a revival or a restoration of a void legislation. Reliance, for this proposition, is placed by the petitioners, inter alia, on the following rulings:
(i) Bhram Kurshid Pesikaka vs. The State of Bombay, MANU/SC/0065/1954 : AIR 1955 SC 123,
(ii) Saghir Ahmed vs. State of U.P., MANU/SC/0110/1954 : AIR 1954 SC 728
(iii) Deepchand vs. The State of UP and others, MANU/SC/0023/1959 : AIR 1959 SC 648,
(iv) Mahendralal Jaini vs. The State of U.P. and others, MANU/SC/0083/1962 : AIR 1963 SC 1019,
(v) P.L. Mehra vs. D.R. Khanna and others, MANU/DE/0063/1971 : AIR 1971 Delhi Page 1,
(vi) M/s. Sree Chamundi Mopeds Limited vs. Church of South India Trust Association, Madras, MANU/SC/0501/1992 : AIR 1992 SC 1439
(vii) Rudragowda vs. Angadi Chikanna, 1972 (1) Mys. LJ 310.
The contention of the respondents that the impugned enactments have been made in exercise of the State Legislative power is untenable. Deepchand's case supra is a direct answer.
The further contention of the State that the stay of the judgment has given rebirth to or has brought back the still-born Karnataka Act No. 33/2001 is equally untenable, not only for the reasons stated supra but also for the reason that the stay order does not at all reflect a reasoned order, which is a necessity, according to Shri Jois. Reliance in this regard is placed on Smt. Swaranlatha Ghosh vs. Harindra Kumar Banerjee, MANU/SC/0023/1969 : AIR 1969 SC 1167, Ravi Yashwanth Boir vs. The District Collector, Raigad, MANU/SC/0186/2012 : 2012 (4) SCC 407).
The contention that the order dated 10.10.2011 holding IA No. 17 filed by the State as redundant, would lead to an inference that the amendment holds the field or that Karnataka No. 33/2001 would revive is also equally untenable for it is not the ratio decidendi nor even obiter dicta. It is not either a declaration of law or a precedent. In this regard, reliance is placed on Oriental Insurance Company Limited vs. Rajkumari, MANU/SC/4377/2007 : 2007 (12) SCC 768, Padmasunder Rao vs. State of Tamilnadu, MANU/SC/0182/2002 : 2002 (3) SCC 533, Punjab National Bank vs. R.L. Vaid, MANU/SC/0665/2004 : 2004 (7) SCC 698.
It is contended that the contentions of the respondents regarding the absence of pleadings is untenable. It is emphasized that the pleadings of the petitioners are clear and specific. It is not the length of the petition, but the substance thereof which would be relevant in the context. There is nothing wanting in the same. Rulings which support their contentions, the backdrop of the case and the chronology of events preceding the filing of the writ petitions have all been candidly and specifically pleaded in the petition. To pick holes in it, would be not only untenable, but also unreasonable for the State which has not even filed any pleading or statement of objections opposing the petitions, but has sought to raise several contentions at the hearing which are not founded on the pleadings.
As regards the formal amendments sought by the petitioners, it had been specifically stated in the application filed in that regard that the necessity to file the said application arose only in view of the hyper-technical contention raised at the bar, in the arguments of the respondents, and that on the very grounds on which Karnataka Act No. 27/2011 would commend being declared void, Karnataka Act No. 12/2012 would also meet the same fate. Further that the petitioners have relied upon a relatively recent ruling of the Supreme Court in the case of Rameshkumar Agarwal vs. Rajmala Exports Private Limited and others, MANU/SC/0252/2012 : 2012 (5) SCC 337, paragraphs 19 to 21 thereof, in particular, supporting the case of the petitioners that the formal amendment sought is bona fide, and legitimate. Particularly to avoid a multiplicity of litigation. It is stated that the respondents have not come up with any statement of objections for the last three years having contended that Karnataka Act No. 12/2012, which has been enacted later in point of time is not specifically challenged, have filed their objections to the amendment, however not attributing, any malice to the petitioners in seeking the amendment.
The impugned enactments being void, and their invalidity and unconstitutionality can conveniently be declared so for the weighty reasons contained in the well-considered ruling in Sahasra Lingeshwara's case.
6. Shri M.N. Rao, on the other hand, would point out that except the writ petitions in WP 65539/2011, the entire batch of Writ Petitions, in WP 64805-868/2011, WP 72157/2012 and WP 80796-80822/2013 and WP 64648/2011 are identical in nature and prayers made are also identical. The petitioners in all the writ petitions are Public Religious Charitable Trusts registered under the erstwhile Bombay Trusts Act, 1950, which was repealed by the Hindu Religious Institutions and Charitable Endowments Act 1997 (Hereafter referred to as 'Act No. 33 of 2001'). The prayers in the three Writ Petitions are identical.
Insofar as the writ petition is WP 65539 of 2011 is concerned, the additional prayer is for quashing of the order passed by the Commissioner, Hindu Religious Institutions and Charitable Endowments on 4.7.2012 appointing an administrator in respect of the petitioner - trust.
In so far as the additional prayer in writ petition in WP 65539/2011 is concerned, the same is governed by the orders passed on 23.9.2015 by this court in WP 70822-824/2012.
The following are the identical prayers in WP 84805-868/2011, WP 72157/2012 and WP 80796-80822/2013 and WP 65648/2011:-
a) To declare that the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act 2011 (Karnataka Act No. 27 of 2011) as discriminatory, violative of Constitutional rights, unconstitutional and strike down the same in its entirety;
b) Alternatively, to declare that Hindus as a religious denomination within the meaning of Article 26 of Constitution of India and accordingly to declare that Karnataka Hindu Religious Institutions and Charitable Endowments (amendment) Act 2011 (Karnataka Act 27 of 2011) and Rules 2002, can have no application to Hindus and their right to establish, manage and administer their own Religious and charitable Institutions;
c) To issue directions to the State Government to enact a legislation on the lines of Bombay Public Trusts Act 1950 with respect to Hindu Religious and Charitable Institutions.
(i) It is contended that as regards the prayer for declaration of Hindus as a religious denomination is concerned, it deserves to be dismissed in view of the Constitution Bench judgment of the Supreme Court in Shastri Yagnapurushasji and others v. Muldas (MANU/SC/0040/1966 : AIR 1966 SC 1119), in which it was held that Hinduism is a religion. (vide paras 26,27, 32). There are several denominations within the fold of the Hindu religion and the same is stated authoritatively by the 7 judge bench of the Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar MANU/SC/0136/1954 : AIR 1954 SC 282 (Shirur Matt case - para 15)
As Hindus are not a religious denomination the consequential prayer in B above does not arise.
(ii) The prayer C is totally misconceived. There cannot be a direction to the State Government to enact a legislation similar to the Bombay Public Trusts Act in respect of Hindu Religious and Charitable Institutions. The legal principle in this regard is well settled. In Supreme Court Employees Welfare Association v. Union of India and another MANU/SC/0582/1989 : (1989) 4 SCC 187, wherein it was held that Courts cannot direct government to make law.
(iii) The prayer A relates to challenge to the constitutionality of Karnataka Act 27/2011 (hereinafter referred to as 2011 Amendment Act). Although the 2011 Amendment Act in toto was challenged, the submissions made on behalf of the petitioners by Shri Jois, Senior Advocate centred around Section 25 of the principal Act (Act No. 33/2001). This Section 25 in the principal Act has undergone amendments twice. Section 25 as inserted in the principal Act with the amendments brought about by the 2011 amendment Act was "omitted" from the statute book by Karnataka Act No. 13/2012 by which a new section was "inserted" vide Section 12 of Act No. 13/2012. When it was pointed out to the Court that Section 25 of the principal Act as amended by the 2011 Amendment Act is no longer on the statute book, the learned counsel appearing for the petitioners had, on 13.9.2015, filed an application in W.P. No. 64805-868 praying for raising an additional prayer specifically challenging Act 12/2012 on the same grounds on which the 2011 Amendment Act is challenged in the batch of Writ Petitions. The specific prayer sought is:-
"To declare and strike down Karnataka Act No. 12/2012 also which professes to further amend a still born and void Karnataka Act No. 33/2001 as void in operative and unenforceable."
It is contended that the application does not contain any specific pleadings in regard to the prayer made. Hence, the prayer is utterly untenable. The reasons are:-
a) It proceeds on the wrong and untested assumption that Act 12/2012 "professes to amend a still born and void" principal Act i.e. Act 33/2001 and hence Act No. 12/2012 is also inoperative and unenforceable.
b) The principal Act 33/2001 is under appeal in the Supreme Court and an order of stay has been granted by the Supreme Court on 2.4.2007. The Supreme Court also held in its order dated 24.3.2015 that the Act will be in force (till the disposal of the appeal). When the premise on which the additional prayer is based itself has no foundation, the prayer becomes unsustainable.
c) There are absolutely no pleadings as to why and on what grounds the Act 12/2012 is unconstitutional. The grounds on which the 2011 amendment Act has been challenged so far as Section 25 is concerned are of no avail in deciding the validity of Act 12/2012.
d) Section 25 of the principal Act as inserted by Act No. 12/2012 in certain respects is different from what was enacted by the 2011 Amendment Act, especially addition of clause (d) in sub-Section 2 excluding office bearers of political parties from temple management committees, thus totally obliterating the basis for the allegation of politicization of Hindu religious institutions.
It is further contended that the amendment application is filed only in W.P. No. 64805-868/2011. In the other connected Writ Petitions i.e. W.P. No. 65539, W.P. Nos. 72157/12 and 80796-80822/13 and W.P. No. 65648/2011, there are no applications seeking permission to incorporate an additional prayer.
With reference to the pleading in the writ petitions that the Amendment Act of 2011 takes away the jurisdiction and quasi judicial powers of authorities such as the Charity Commissioner and other posts held be judicial officers under the Bombay Public Trusts Act, 1950, and that those powers have been conferred on Executive Officers - untrained in law to decide complicated questions of law and therefore the independence of the judiciary has been affected, Shri Rao would contend that that the Bombay Public Trusts Act was repealed by Section 78 of Act No. 33/2001. The petitioners have no semblance of a legal right to make a prayer of this nature without focussing on any legal principle on the basis of which such a pleading could be made. No facts are stated, and no instances where the authorities under the principal Act 2001 have failed to decide the alleged "complicated questions of law". How the independence of judiciary is affected, the pleadings are silent. It is submitted that this grievance is purely imaginary, unrelated to the realities.
It is pointed out that in so far as the contention that the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India have been taken away by the constitution of the Rajya and Zilla Dharmik Parishads and that their constitution amounts to politicisation of the Hindu Religious Institutions etc., that the pleadings are vague and it is not specified as to how such rights, qua the petitioners, have been violated.
In so far as the binding nature of the decision in Shri Sahasra Lingeshwara 's case is concerned, it is contended by Shri Rao that The judgment of the division bench dated 8.9.2006 is in appeal before the Supreme Court. The present question raised relating to discrimination is one of the points which will arise for adjudication or resolution before the Supreme Court. That the alleged ground of discrimination has no legal foundation as maths are distinct and different from temples. The two belong to different categories and the classification differentiating the two does not suffer from any legal infirmity. Attention is drawn to Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar MANU/SC/0136/1954 : AIR 1954 SC 282 (paras 15) and Vishwothama Thritha v. State of Mysore MANU/SC/0026/1961 : AIR 1966 SC 1882 (para 21 and 22), in this regard.
In State of Gujarat v. Ambica Mills MANU/SC/0092/1974 : (1974) 4 SCC 656, the Constitution Bench explained the concept of reasonable classification (reference is drawn to paras 54 and 60, 61)
Another Constitution Bench in Shakawat Ali v. State of Orissa, MANU/SC/0093/1954 : AIR 1955 SC 166 in para 10 held as follows:-
"The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution."
Further, the denominational temples have certain other additional rights which they enjoy in contradistinction to the rights and privileges of public temples. In this regard reference is made to Venkataramana Devaru v. State of Mysore MANU/SC/0026/1957 : AIR 1958 SC 255 (paras 24 and 32).
As regards the contention that the impugned legislation is in breach of the dictum of the Apex Court in Admar Mutt case, where the need for a uniform legislation was emphasized. Attention is drawn to the following passage therein:
"A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly Section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of Article 14. Facts in regard thereto may have to be explored, if and when occasion arises."
And it is contended that a "tentative viewpoint" which is not the outcome of any investigation from the highest court cannot be approximated to a direction or a mandamus giving rise to a valid cause of action. The only question before the Supreme Court was whether the continued application of the Madras Hindu Religious and Charitable Endowments Act to South Kanara was violative of Article 14. The Supreme Court infact dismissed the appeal of the petitioners.
In regard to the primary contention of the petitioners that when the Principal Act was struck down by a Division Bench of this court the Act is dead, void ab initio, and that the order of stay granted by the Apex Court also cannot breathe life into it, is concerned, it is pointed out that the Supreme Court itself has said in its order dated 24.3.2015 that the consequence of the stay is that the "Act will be in force", hence there is no merit in the present contention.
What is the effect of interim stay granted by the Supreme Court cannot be subject matter of issue before this Court, when the Supreme Court itself has said that the Act will be in force.
Even if the Supreme Court had not observed that the Act will be in force because of the stay the decisions rendered by the Supreme Court clearly point out the same.
In the case of Indira Nehru Gandhi vs. Raj Narain and another, MANU/SC/0304/1975 : 1975 Supp SCC 1 the Supreme Court has held:
"The legal effect of that stay order was that the trial court's order.........................., "shall be deemed never to have taken effect"... It did not matter if the stay order, out of deference for existing precedents, had been framed in the form of a "conditioned" stay that is to say, a stay in law and effect with certain conditions annexed."
"The operation of the judgment of the trial Court and the consequential orders are stayed only on "sufficient cause" shown on the facts of that case."
Further in the judgment of Indira Nehru Gandhi (Smt.) vs. Raj Narain MANU/SC/0304/1975 : 1975 SCC (2) 159 rendered by Justice Krishna Iyer, it was held:
"the legal effect of an order of this Court suspending the application of the judgment and order of the High Court is that by sheer force of the first limb of this court's stay order, the judgment and order of the High Court is nullified for the once i.e., till the appeal is disposed of...... There is a plenary eclipse of the High Court's judgment and order during the pendency of the appeal."
As regards the contention that the Apex Court having vacated the order of Stay, in so far as Section 25 of Act No. 33 of 2001, which was struck down by the Division Bench of this court, it is contended that the Amendment Act of 2012 cannot be characterized as a colourable legislation and that The legislature had undoubted power to legislate by virtue of Entry 28 of List III of Schedule 7 to the Constitution of India. When the Act is within the legislative competence, no question of colorable exercise of legislative power will arise. (Sri Ram Ram Narain Medhi vs. The State of Bombay MANU/SC/0132/1958 : AIR 1959 SC 459 para 45).
It is also well settled that no motives could be attributed to the legislature. The question as to bona fides or motives will not arise in judging the constitutionality of enactments. (K.C. Gajapati Narayan Deo and others vs. The State of Orissa, MANU/SC/0014/1953 : AIR 1953 SC 375).
Therefore, it is contended that the writ petitions deserve to be dismissed as the questions of the law raised are unsustainable and the pleadings are vague and bereft of particulars. And no religious practice was claimed to have been affected adversely. In fact no mention of the religious practice is found in the writ petitions. Not even an optional or let alone essential religious practice is pleaded in the writ petition. The petitioners have no manner of right to seek adjudication of constitutional questions in vacuum.
7. In the light of the above rival contentions the points that arise for consideration are:
i) Whether the State Legislature has merely amended and further amended the provisions of Act No. 33 of 2001, by virtue of the 2011 Amendment Act and the 2012 Amendment Act, only to re-introduce provisions of the said Act that are held to be ultra vires, Articles 14, 25 & 26 of the Constitution of India - by a Division Bench of this court.?
ii) Whether the amended provisions by virtue of the 2011 Amendment Act and the 2012 Amendment Act, suffer from the same anomalies and unconstitutionalities which were found in the Principal Act that was struck down on that count, in Shri Sahasra Lingeshwara.?
iii) Whether the legislative power of the State under Entry 28 of List III of Schedule VII, to the Constitution of India, would enable the State to amend Act No. 33 of 2001, repeatedly, even during the pendency of the appeal before the Apex Court, against the verdict of the Division Bench of this court in Shri Sahasra Lingeshwara Temple case.?
iv) Whether Section 25 of the Principal Act was available on the statute book to be subjected to amendment, when the Apex Court had specifically vacated the Order of Stay in respect of the same.?
To consider the first and second points for consideration as framed above, it would be necessary to briefly take stock of the findings on which the decision in Sahasra Lingeshwara Temple case was rendered.
A batch of writ petitions were filed by Hindu temples, Managing Trustees in the management of temples, archaks and others, from various parts of Karnataka State, questioning the constitutional validity of the several provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (Act No. 33 of 2001). A learned single judge of this court having heard the matters on merits had, by an order dated 9.9.2005, held that the Act was constitutionally valid.
The Order of the learned single judge was carried in appeal before a Division Bench of this court. The Division Bench on having heard extensive arguments had framed the following points for its consideration:
"After hearing, we are of the view that the following points require our consideration:
(1) Object/history of the Act;
(2) Scheme of the Act
(3) Constitutional validity of the Act with Reference to Articles 14,25, and 26.
(4) Conclusions
(5) Relief."
The Object of the Act, according to the Bench was two fold - i) to make better provision for the management of Hindu Religious Institutions; and ii) to have a uniform law, in the light of a long standing public demand, to provide for regulation of all Charitable Endowments and Hindu Religious Institutions in the State of Karnataka.
The Scheme of the Act was apparent on a plain reading of the same. It however, was evident that it did not apply to all Hindu religious institutions. It was limited in its application to particular religious institutions.
As regards the Constitutional validity of the Act with reference to Articles 14,25, and 26 of the Constitution of India, was concerned, the contention as regards the provisions of the Act being discriminatory and arbitrary in the matter of application of the Act is concerned, essentially the exclusion of maths etcetera, in terms of Section 1(4) and the exclusion of Buddhists, Jains or Sikhs in terms of Section 2(16) being in violation of Article 14 of the Constitution of India-the point was examined with reference to the following cases:
(1) Ram Krishna Dalmia and others vs. S.R. Tendolkar and others, MANU/SC/0024/1958 : AIR 1958 SC 538,
(2) Shri Swamiji of Shri Admar Mutt vs. Commissioner, Hindu Religious and Charitable Endowments Department and others, MANU/SC/0509/1979 : AIR 1980 SC 1,
(3) Dr. M. Ismail Faruqui and others vs. Union of India, MANU/SC/0860/1994 : AIR 1995 SC 605
(4) Shastri Yagnapurushdasji and others vs. Muldas Bhundardas Vaishya and another, MANU/SC/0040/1966 : AIR 1966 SC 1119,
(5) Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, MANU/SC/0982/1996 : AIR 1966 SC 1113,
(6) Pannalal Bansilal vs. State of Andhra Pradesh, MANU/SC/0276/1996 : AIR 1996 SC 1023,
(7) Bal Patil and another vs. Union of India, MANU/SC/0472/2005 : AIR 2005 SC,
(8) M.P. Gopalakrishnan Nair vs. State of Kerala, MANU/SC/0305/2005 : AIR 2005 SC 3053.
The contention of the writ petitioners was accepted, in the circumstance that the exclusion of maths, as being in violation of Article 14 of the Constitution of India. That the legislation was apparently not uniform in its application.
It was also found that the Act did not apply to Hindu religious institutions or Charitable endowments - founded and managed by Hindu religious denominations. It was held that Hindu religious denomination temples were no different from other Hindu temples. The judgments in Mukundaraya Shenoy v. State of Mysore, MANU/KA/0087/1960 : AIR 1960 Mys. 18 and K. Eranna v. Hindu Religious and Charitable Endowments, 1970 (1) Mys. LJ 170 (DB), were cited with approval, to hold that the inapplicability of the Act to the Hindu Religious institutions run by Hindu religious denominations, as being violative of Article 14 of the Constitution of India. And that the State had failed in its duty to justify such exclusion.
As regards the definition of a 'Hindu', contained in Section 2(16) of the Act, not to include a Buddhist, Jain or a Sikh, it was held, while drawing reference to Explanation II appended to sub-clause (b) of Clause (2) of Article 25 of the Constitution and while distinguishing the judgments in Mahant Moti Das v. SP Sahi, MANU/SC/0021/1959 : AIR 1959 SC 942; Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, MANU/SC/0028/1963 : AIR 1963 SC 1638; State of Gujurat v. Shri Ambica Mills Limited, MANU/SC/0092/1974 : AIR 1974 SC 1300; The Division Bench disagreed with the learned single judge that on the principle of limits of judicial review, discrimination in a given circumstance could not be addressed with reference to Article 14 of the Constitution of India.
As regards the contentions regarding violation of Articles 25 and 26 of the Constitution of India is concerned - focus was on the following provisions of the Act:
"Sections 3 to 8 in Chapter II deals with the powers of the Commissioner.
Chapter III deals with the appointment of Archakas and temple servants, emoluments, salary etc.
Common Pool Fund is created in terms of Chapter IV. Advisory Committee is constituted in terms of Chapter V.
Notifying institutions are referred in Chapter VII and declared institutions are suggested in Chapter VIII.
Powers of the Commissioner are shown in Chapter IX."
It was found that the law was covered against the archaks in the case of A.S. Narayana Deekshitulu v. State of Andhra Pradesh, MANU/SC/0455/1996 : AIR 1996 SC 1765. Though the said judgment had been referred to a larger bench in a later judgment in A. Ramaswamy Dikshitulu v. Government of Andhra Pradesh, MANU/SC/0451/2004 : (2004) 4 SCC 661.
In so far as the challenge to the 'Common Pool Fund', 'the Advisory Committee' and 'Declared institutions'-was concerned, the Division Bench had considered the law laid down by the Apex Court with regard to the interpretation of Articles 25 and 26 of the Constitution of India in the following decisions:
(1) Bal Patil and another vs. Union of India, MANU/SC/0472/2005 : AIR 2005 SC 3172,
(2) Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, MANU/SC/0149/1965 : AIR 1966 SC 1113,
(3) Commissioner of Wealth Tax, Madras and others vs. late R. Sridharan by legal representatives, MANU/SC/0515/1976 : (1976) 4 SCC 489,
(4) Commissioner, Hindu Religious and Charitable Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, MANU/SC/0136/1954 : AIR 1954 SC 282,
(5) Ratilal Panachand Gandhi vs. State of Bombay, MANU/SC/0138/1954 : AIR 1954 SC 388,
(6) Sri Venkataramana Devaru vs. State of Mysore, MANU/SC/0026/1957 : AIR 1958 SC 255,
(7) Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others vs. State of Uttar Pradesh and others, MANU/SC/1164/1997 : (1997) 4 SCC 606,
(8) N. Adithayan vs. Travancore Devaswom Board and others, MANU/SC/0862/2002 : AIR 2002 SC 3538
(9) A. Ramaswamy Dikshitulu v. Government of Andhra Pradesh, MANU/SC/0451/2004 : (2004) 4 SCC 661,
It was found with reference to the above that the founding fathers of the Constitution had chosen to provide religious rights in terms of Articles 25 and 26 of the Constitution of India. The said rights were guaranteed to a citizen of India. The right is subject to Article 26, which provides for a right to administer a religious place.
In the light of the above, Chapter III was held not to be violative of Articles 25 and 26 of the Constitution of India.
It was also found that in terms of Section 17 of Chapter IV, a Common Pool Fund is created. And that out of contributions made by the notified institutions at 5% of their gross annual income after deduction of the donations made as contribution to the temple property and amount received for specified services or charges and the grant received from the State Government. That the temples receive donations by way of kanike, harike, hundi etc., depending on the name and fame of the temple, in addition to the religious practices available at the temple. Hence it was held that the gross annual income taken for the purposes calculating the percentage was arbitrary. That the Common Pool Fund could only be the surplus left over and not on the gross income. That if 5% of the gross annual turnover is taken away, it would not be possible to manage the temple and meet the expenses involved. That even the administration of the Fund was in the hands of a Commissioner. It is held that though laudable objects are provided in the matter of administration of the Common Pool Fund, but a careful reading of certain purposes would show that the said purpose seemed to be arbitrary in character.
It is in this context, the division bench has held thus:-
"It cannot be forgotten that money is taken out of the Hindu temple. Money is poured by Hindus. It may be a laudable object to provide to a poor institution of other religions. But it cannot be only from the funds of Hindu temple alone. The State has to provide such assistance as is necessary to such institutions but there can be no compulsion only from Hindu temple to provide assistance to such institutions. It can be voluntary by Hindu temples, but it cannot be compulsory, prima facie in terms of the Act. In Section 19(1)(h) rightly, the Government has chosen to say that the administration can be for establishment and maintenance of Hindu children. But those words are missing in Section 19(1)(i) and (j). This Court is not for a moment suggesting that poor institutions of other religions are not to be helped but who is to help is the question and how to help those institutions. After all, devotees of Hindu temples provide kanike or money to that Hindu temple for temple purposes and it cannot be spent for other non-Hindu causes without any relevance to the Hindus. Though Hindu religion does not prohibit such contribution prima facie, but still it is desirable that such amount if spent only for Hindu Institutions. As otherwise, there is every likelihood of the Hindu institutions asking for assistance/maintenance from other religious institutions which ultimately may result in unwanted religious quarrels.
Further as regards the "Advisory Committees", it was opined thus:
"62. Insofar as Advisory Committee is concerned, it is seen that it is headed by a Minister. The Committee is only vested as advisory power in terms of Section 22 but however what cannot be forgotten is that there is every likelihood of political temple advise for political purposes in the event of the Minister being a Chairman of the Advisory Committee. Therefore, though the Chairmanship at the hands of the Minister does not by itself be considered to be unconstitutional or illegal but still it would be a desirable thing to have head of non-political persons to avoid politics in religious institutions."
As regards the management of "notified Institutions" being taken over by the State, it was opined thus:-
"63. Lot of arguments are advanced with regard to notified institutions. At this stage, we must notice that this Act is enacted to have a uniform law for regulation of Hindu Religious Institutions. Government certainly has the power in terms of the Constitution to enact a law for better temple administration. In fact, the preamble to the Act itself would say that this Act is to make better provision for the management and administration of Hindu Religious Institution. There are several Muzrai temples which, as on today are rendering fairly good service. Temples and mutts, apart from providing religious services are also providing several welfare measures including food, shelter and education. If such temples are already better managed/administered, then why should such institutions are to be notified for the purpose of having a Committee in terms of the Act. Merely providing some assistance by Government to them should not be understood as a right over the temple for the purpose of administration in terms of Article 25 of the Constitution.
64. Article 26(b) provides for a law with regard to regulating or restricting any political and other secular activities and providing for social welfare etc. But taking over and providing administration in respect of the Government temples, despite their better management certainly would be in violation of not only Article 14 but also under Articles 25 and 26 of the Constitution of India. The State Government would be well advised to take over such temple only in the event of an adverse report after an opportunity against that temple. Taking all temples and administering them without any adverse order, as rightly argued would be hit by Article 26 of the Constitution of India.
65. But however, the power to take over the administration in the vent of mal-administration financial/mismanagement certainly cannot be termed as violation of Article 26(b) of the Constitution of India. Therefore, the Government cannot in the guise of better administration take over even the best administered temple for the purpose of managing the temple without justification. That would be certainly, as rightly argued, in violation of article 26(b) of the Constitution. Therefore, application of Section 23 in all temples without adverse report in our view, would be in violation of Article 26(b) of the Constitution of India."
As regards the constitution of the Committee of Management and exclusion of members of the Scheduled Caste and Scheduled Tribes, it was held as follows:-
"66. The Constitution of the Committee of management is provided under Section 25 of the Act. The Committee consists of pradana archak or archak. At least one member among Scheduled Caste and Scheduled Tribe. Of the other, at least five of whom, two are women from among the persons in the vicinity of the temple. The 2nd proviso to Section 25(3) would show that it would not apply to Hindu Religious denomination. We have in the earlier part of our judgment shown that this Court has made no distinction between Hindu denomination and Hindus and hence exclusion of Scheduled Caste and Scheduled Tribe from the Committee of management insofar as Hindu Religious denomination is concerned would be again hit by Article 14 of the Constitution of India. Moreover, the Scheduled Caste and Scheduled Tribe are to be a part of the Committee in the larger interest of Hindu Community. Their exclusion in the case of Hindu Religious denomination temples in our opinion would be an arbitrary, unjustifiable treatment thereby violating Article 14 of the Constitution of India.
67. Similarly, Section 25(4) provides for qualification to be a member of the Committee. Section 25(4)(a) would say that a member should have faith in God. It cannot be forgotten that he has to manage temples and that therefore he should have faith in Hindu religion as well. Similarly, Section 25(4)(d) provides for membership only to those who have donated or contributed for temple development. Why should a poor devotee be excluded us un-understandable. Similarly if a lawyer appears for or against an institution, he is disqualified. Therefore, from a reading of this section, what is clear to us is that at least some of the classes would appear to be arbitrary."
The Division Bench had concluded thus:
"69. We have repeatedly ruled that Hindu religion is one of the oldest religions available in India. It has the backing of centuries old scriptures, belief etc. Those believes, rituals, practices etc., are to be protected, unless the same is totally opposed to any part of the Constitution of India. Therefore, while on one hand, the religious rights in terms of article 26 are to be protected and on the other hand, maladministration, financial irregularities by any religious institution has to be taken serious note of in the larger interest of temple discipline itself. The State has to draw a balance in maintaining temple discipline/temple administration in terms of the Constitution of India. The State unfortunately in the case on hand in the guise of having a uniform law has been chosen to divide the religion itself in terms of our earlier discussion. Since the very Act is held to be discriminatory in its application, it is not possible to severe other parts and hence the entire Act has to be struck down as unconstitutional and we do so in the case on hand. We also deem it proper to observe that the intention of the Legislature seems to be a uniform law for all Hindu Religious institutions. If that is so, as has been done in Andhra Pradesh in terms of the Supreme Court, the Government would be well-advised to have a religious leaders/matadipathis/religious experts/social reformer's and other experts and thereafter proceed to pass a uniform law in terms of the judgment of the Supreme Court in Shri Swamiji of Shri Admar Mutt's case. The Government can also think of having different regulatory measures for temples/mutts/Jains etc. depending upon their religious belief etc. and of course, within the four-corners of the Constitution. However, it is for the Legislature to decide the religious reformative law in terms of this policy of uniform law for Hindu religions. We would leave it to the Legislature to take a legislative decision in terms of the Constitution. However, we deem it proper to observe that the Government would be doing a great service to the Hindu society by eliminating all the evil and corrupt practices, if at all prevailing in Hindu Institutions. That would go a long way in Hindu temple reforms.
5. Relief:
70. We have already ruled that the Act is hit by Articles 14 and 26 of the Constitution of India. We have further ruled that it is not possible to severe them. Hence, we deem it proper to strike down the entire act and consequently strike down the notification as unconstitutional. However, if any action is taken in terms of the Act prior to the date of the order, the same are protected and this judgment would operate prospectively from the date of this order."
Keeping in view the above opinion expressed by this court, we may examine the unamended provisions in relation to the amended provisions as brought about by the 2011 and the 2012 Amendment Acts.
Reproduced below are the provisions of the Act, which came in for direct consideration by the Division bench of this court in Shri Sahasra Lingeshwara case, in holding the same to be unconstitutional, as found in their unamended form and as amended by the 2011 and 2012 amendments, in column 1,2 and 3, respectively, in a tabular form:
It may be noticed that the Division bench of this court has categorically opined that the exclusion of maths, from the purview of the Act, is in violation of Article 14 of the Constitution of India. The object of the Act was to bring in a uniform law for all Hindu religious institutions in the State and hence the exclusion of a math, and temples managed by maths, from the purview of the Act being discriminatory was emphasized. It is however, seen that in both Act No. 27/2011 or Act No. 13 of 2012, maths and temples attached to or managed by maths, remain excluded from the purview of the Act.
And in spite of an assurance by the State in its appeal pending before the Supreme Court, as to a proposal to bring maths and temples managed by maths, within the purview of the Act, the State has religiously ensured that the same are kept out of the purview of the Act by repeated amendments as is seen from the tenor of Section 1(4), as it originally stood and as amended.
The non - application of the Act to a Hindu Religious institution or charitable endowment founded, organized, run or managed by Hindu religious denomination was held to be contrary to the settled position, by the judgment of the Division Bench. It was held that all sections of Hindus constitute a religious denomination within the meaning of Articles 25 and 26 of the Constitution of India and that in matters concerning temple administration, the State could not discriminate between temples managed by a Hindu religious denomination vis-a-vis, a temple managed by a Hindu religious institution.
Though the State has now chosen to delete the offending clause (ii) of sub-section (4) of Section 1 of Act 33 of 2001, which expressly indicated the non-application of the Act to any Hindu Religious Institution or Charitable Endowment managed by a Hindu Religious Denomination,-the State has chosen to define a Hindu Religious Denomination under Section 2(16) of Act No. 3 of 2012, by adopting the definition of a religious denomination as contained in the Oxford Dictionary, without indicating whether the Act would apply to such a denomination or not. According to the contention put forth by Shri M.N. Rao, there are several denominations within the fold of the Hindu religion and this, according to him is stated by the Apex court in the Shirur Math case, MANU/SC/0136/1954 : AIR 1954 SC 282. And by implication it is sought to be contended that an institution managed by a Hindu Religious Denomination is distinct and different from an institution managed by a Hindu Religious institution.
In the said case referred to above, however, it is seen that the court was answering a contention that a math does not come within the description of a religious denomination as provided for in Article 26 of the Constitution of India and even if it does, what cannot be interfered with was its right to manage its own affairs in matters of religion. The same is answered thus by the Apex Court:
"15. As regards Article 26, the first question is, what is the precise meaning or connotation of the expression "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under same name: a religious sect or body having a common faith and organisation and designated by a distinctive name." It is well know that the practice of setting up Maths as centers of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, - in many cases it is the name of the founder, - and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the Udupi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As Article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article.
It is therefore not evident that a Hindu Religious denomination would not fall with in the fold of a Hindu Religious institution. To wit, a math would be a Hindu religious institution, albeit that a spiritual fraternity represented by it is regarded as a Hindu religious denomination, as in the above case. The assertion that Hindus are not a religious denomination is untenable.
Further, the said sub-section (16) of Section 2, seeks to substitute the same. It originally read as follows:
"Section 2(16): "Hindu" does not include a Buddhist, Jain or Sikh;"
It was held by the Division Bench that such exclusion of Buddhists, Jains and Sikhs, from the definition of the expression "Hindu", suffers from violation of Article 14 of the Constitution of India.
There is no indication of including Buddhists, Jains or Sikhs under the definition of "Hindus", by the subsequent amendments.
In so far as the creation of a Common Pool Fund and the contributions to be compulsorily made from the same at a prescribed percentage for the purposes which were spelt out, the Division Bench has held that though the Hindu religion does not prohibit such contribution, it would still be desirable that such amount is spent exclusively for the Hindu institutions. Except for minor tinkering which does not address the concern of this Court, as expressed therein, there are no significant changes in the provision.
The Division Bench has held that though the Chairmanship of the Advisory Committee, in terms of Section 20 of the Act, could not by itself be unconstitutional or illegal it was expressed that it would be desirable to have a head without any political affiliations to avoid politics in religious institutions. But there is no change in the constitution of the Committee in that regard.
As regards Notified institutions contemplated under the Act, the view expressed by the Division bench was to the effect that though the State government would have the power to enact a law for the better administration of temples. When it is apparent that there are several temples and institutions which, apart from providing religious services, were also providing laudable social welfare measures, and were being managed in an efficient and transparent manner - the wisdom of notifying such institutions to be governed by a Committee was held to be inexplicable. It was held to be violative of Article 14 and Articles 25 and 26 of the Constitution of India. However, there is no change to the said scheme.
As regards the constitution of the Committee of Management as provided under Section 25, the Division bench has noticed that the second proviso to Section 25(3) of the unamended Act showed that it did not apply to Hindu Religious Denominations, or in other words members of the Scheduled Castes and Scheduled Tribes were excluded from the membership of the Committee of management of a Hindu Religious Denomination. This was held to be violative of Article 14 of the constitution of India. And that there was no distinction between a Hindu denomination and Hindus. Act No. 13 of 2012, which omits Section 25 and inserts a new Section 25, suffers from the same infirmity. In that, the second proviso to Sub-section (1) of Section 25 provides thus:
"Provided further that the Committee of Management in respect of notified institution be constituted according to the usage and practice prevailing therein"
By reference to an alleged usage or practice in a notified institution a member of a Scheduled caste or a Scheduled Tribe, can be indefinitely denied membership.
And more particularly, it is categorically spelt out thus in Section 2(a) of Section 25, thus:
"The Rajya Dharmika Parishat and Zilla Dharmika Parishat, while constituting the Committee of Management under sub-section (1), shall have due regard to the religious denomination to which the institution or any section thereof belongs."
Hence, the same mischief is perpetrated in denying membership to members of the Scheduled Castes and Scheduled Tribes, if the usages and practices of an institution managed by a Hindu Religious Denomination - did not permit such persons from becoming members of their committee of management.
In the light of the above picture that emerges, in the amended provisions of the Act, being more or less of the same tenor as were the unamended provisions - which were held to be unconstitutional by this Court in Shri Shasara Lingeshwara, point Nos. 1 & iii are answered in the affirmative.
In so far as points Nos. (iii) and (iv) are concerned, if the law passed by a Legislature is struck down by the Courts as being invalid for one or the other reason, it would be competent for the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. (See: Rai Ramakrishna vs. State of Bihar, MANU/SC/0031/1963 : AIR 1963 SC 1667). The Legislature can pass a retrospectively validating action taken under a law which was void because it contravened fundamental rights. If the legislature can by retrospective legislation, cure the invalidity of action taken in pursuance of laws which are void for want of legislative competence and can validate such action by appropriate provisions, the same power can be effectively exercised by the Legislature for validating action taken under laws which are void for the reason that they contravened fundamental rights. (See: West Ramnad Electric Distributioon Co. Ltd. vs. State of Madras, MANU/SC/0060/1962 : AIR 1962 SC 1753). It was held that Legislature can change the basis on which a decision is given by the Court, and thus change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. (See: Indian Aluminium Company vs. State of Kerala, MANU/SC/0370/1996 : AIR 1996 SC 1431).
And it is also laid down by the Apex court in Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union vs. Srinivasa Resorts Limited and others, MANU/SC/0436/2009 : (2009) 5 SCC 342, in a situation where in circumstances that a statute is held to be unconstitutional, the offending provisions are sought to be reintroduced with cosmetic changes, as in the present case on hand, thus:
"62. Section 40(3) is clearly comparable to Section 47(3) and also Section47(4), as the last part of that section is identical with the wording in Section 47(4). The only difference which we find is that instead of the word "gratuity", the terminology of "service compensation" is substituted. In our opinion, the High Court was right in opining that a mere cosmetic amendment could not have been made by way of introduction of Sections47(3) and 47(4). It was tried to be argued before us that in the present 1988 Act, the mischief pointed out by the High Court in the earlier Section40(3) of the 1966 Act has been remedied. We are unable to agree with such an argument. We do not see as to how and in what manner, the mischief has been remedied.
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64. The High Court also noted that the provisions of Sections 47(3) and47(4) were nothing, but a cosmetic amendment to the earlier Section40(3). It is, therefore, clear that no attempt has been made, whatsoever, to point out (sic remedy) the mischief found by the High Court in Section40(3) of the 1966 Act.
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70. The High Court found that instead of remedying the defects point out in Suryapet Coop. Mktg. Society Ltd. v. Munsif Magistrate, (1972) 2 An LT 163 a cosmetic change was made by raising the period of six months to one year. We are, therefore, unable to accept the submission of the learned counsel for the appellant that the High Court proceeded on to decide the constitutionality on the basis of a comparison. We do not, therefore, see how the aforementioned judgment in State of M.P. v. G.C. Mandawar, MANU/SC/0135/1954 : AIR 1954 SC 493, can be of any application and help to the present case."
Thus, it can be safely said that not only was the amendment, brought about by Act No. 13 of 2012, bad in law for the above reason but also for the reason that the Supreme court having granted an interim Order of Stay of the judgment of the Division bench of this court by an Order dated 2.4.2007 and again having modified the same, thereby vacating the interim order in so far as Section 25 of the Act, was concerned. The Section could not have been reintroduced in its avatar as contained in Act No. 27 of 2011, which came into force with effect from 04.05.2011 or as contained in Act No. 13 of 2012, which came into force with effect from 05.03.2012, at least in so far as Section 25 of the Act was concerned.
It is noticed that the specific challenge to Act No. 13 of 2012 is only in the form of an application filed in the petition in WP 64805-868, seeking to raise an additional prayer - to declare and strike down the said Act as void and inoperative-on the footing that the very grounds on which the 2011 Amendment Act is challenged in the batch of petitions would equally apply to the said Act.
The said application is formally allowed, as it is found by us that the above said broad assertion is indeed acceptable, as already found by us herinabove.
The fact that the Apex Court has expressed in its order dated 24.3.2015 that the Act would be in force, till the disposal of the appeal pending before it - is not with reference to the 2011 or the 2012 Amendment Acts, but is with reference to Act 33 of 2001. Since we are in agreement with the views expressed by the Division Bench of this court in Shri Sahasra Lingeshwara case, our work was cut out to only address whether the legislative exercise by the State to repeatedly amend the Act has only resulted in reiterating the very provisions which were held to be unconstitutional, the need for elaborate pleadings in that regard was hardly necessary. There is essentially little difference between the unamended Act and the amended Acts in so far as the offending provisions are concerned. The incidental contention that sub-Section 2(d) of Section 25 excludes office-bearers of political parties and hence the Section is completely altered, for instance, is not at all a convincing claim. To introduce and thrust a political 'big-wig' on a cash rich and influential religious institution could be achieved with ease by calling upon him to resign as an office bearer, temporarily.
In so far as the other contentions on merits are concerned, given the limited challenge to the amendment Acts being on the limited aspect as aforesaid, it would be unnecessary to address the same on merits. Accordingly, the writ petition in WP 65648-680/2011 is allowed along with the application for amendment, seeking an amendment in the main prayer, to include a challenge to Act No. 13 of 2012.
Accordingly, it is declared that the Karnataka Religious Institutions and Charitable Endowments (Amendment) Act, 2011 and the Karnataka Religious Institutions and Charitable Endowments (Amendment) Act, 2012, as being discriminatory, violative of Constitutional rights and are accordingly struck down in entirety. The other reliefs sought for by the petitioner are irrelevant.
In the result, the petitions in WP 64805-64868/2011, WP 72157/2012, WP 80796-80822/2013 and WP 65539/2012 are disposed of in the light of the decision in WP 65648-680/2011.
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