For God’s Sake

ON JULY 13th, a Bench of the Supreme Court of India comprising Justice UU Lalit and Justice Indu Malhotra delivered a historic verdict in the Sree Padmanabhaswamy Temple case. The verdict was delivered in two special leave petitions and a writ petition preferred against the judgment of January 31st, 2011 of the Kerala High Court. The high court had held in a batch of writ petitions and civil suits that the ‘Head’ or ‘Ruler’ of the Travancore Royal Family and his successors had no right to control or manage the affairs of the Sree Padmanabhaswamy Temple owing to the abolition of all royal titles by the Constitution (Twenty Sixth Amendment) Act, 1971.

The high court had issued detailed directions which empowered the state government of Kerala to constitute a trust to take over the control of the Temple, its assets and management. Critically, such a trust was authorised by the high court’s judgment to open all the vaults (‘Kallaras’) of the Temple, inventorise all their contents and create a museum to exhibit all the ‘treasures’ of the Temple for the public, devotees and tourists on a payment basis within the premises of the Temple.

Effectively, the judgment of the Kerala High Court had the following specific consequences: First, the rights of the Travancore Royal Family and the devotees of Lord Padmanabhaswamy to manage and preserve the sanctity of the Temple respectively, were assigned to the state government of Kerala. Second, the so-called treasures of the Temple, which form part of the Deity’s property under Indian law, were directed to be monetised by the state government by putting them on display for the general public, and not just to practising Hindus who believe in the Deity, within the premises of the Temple for a fee.

The judgment sets a powerful precedent for those temples similarly placed as the Sree Padmanabhaswamy Temple. TheDevaswom Boards in Kerala can be restructured on the basis of the judgment to ensure that devotees have a greater say in administration

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The history and tradition of the Temple were rewritten by the high court’s judgment. With all humility, it is this author’s opinion that none of the directions of the high court could have been supported by any reasonable constitutionalist who believes that the state must not involve itself in the running of religious institutions either directly or indirectly. That apart, the high court’s directions were clearly at loggerheads with the fundamental rights of those who believe in the Deity of the Temple, the religious traditions of the Temple and the need to respect the sanctity of the Deity’s property.

What made matters worse for the Temple was that its security risk spiked exponentially thanks to all the treasure talk, which, in turn, made the Temple more dependent on the state for its security. Everything that is unconstitutional and unsustainable with state control of temples was facilitated by a judgment of a constitutional court of the most literate state of the country. But then what started the proceedings before the high court in the first place? Before answering this question, it is important to digress into history a bit.

In May 1949, the then rulers of the princely states of Travancore and Cochin entered into a Covenant with the Indian Union which captured the terms of agreement between the parties. Article VIII of said Covenant guaranteed to the Ruler of the Travancore state, Shri Chithira Thirunal Balarama Varma, and his successors the right to control and manage the Sree Padmanabhaswamy Temple. In 1950, the Travancore Cochin Hindu Religious Institutions Act 1950 (the TCHRI Act 1950), which is the legislation that applies to administration of temples in Kerala by Devaswom Boards, that is, religious endowment boards, came into force. Chapter III (Sections 18-23) of the TCHRI Act 1950 specifically dealt with the Sree Padmanabhaswamy Temple and expressly codified the rights guaranteed under Article VIII of the Covenant and used the term ‘Ruler’ to refer to the head of the Travancore Royal Family. Under Sections 18-23, the Ruler is empowered to administer the Temple through an Executive Officer appointed by him, with the advice of a three-member Advisory Committee nominated again by him.

In May 1949, the rulers of the princely states of Travancore and Cochin entered into a Covenant with the Indian Union. It guaranteed Shri Chithira Thirunal Balarama Varma and his successors control of the Sree Padmanabhaswamy Temple

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The original signatory of the Covenant, Shri Chithira Thirunal Balarama Varma, passed away in 1991 and was succeeded by his younger brother, Sree Uthradom Thirunal Marthanda Varma, who passed away in 2013. He was in turn succeeded by his nephew Sree Moolam Thirunal Rama Varma, who is the current head of the royal family. What is important to note is that each male member of the royal family is given the prefix ‘Padmanabhadasa’, that is, an eternal slave and faithful servant of Lord Padmanabhaswamy, which is a tradition traceable at the very least to the dedication of the Kingdom of Travancore in 1750 by the legendary king Anizham Thirunal Marthanda Varma to Lord Padmanabhaswamy, who ruled the kingdom as the vice regent of the Deity. This effectively made the Deity the Ruler of the Kingdom and all agreements or treaties were entered into by the Padmanabhadasa as the representative of the Deity. This applied to the Covenant as well.

How is this history relevant to the Supreme Court’s judgment? Around 2009, a practising advocate, who was a tenant on premises belonging to the Temple, was asked to vacate the premises by the then executive officer of the Temple administration. This resulted in the tenant filing a writ petition in 2009 before the high court questioning the authority of the executive officer to seek his eviction since, according to the tenant, the executive officer’s appointment itself was illegal. This was based on the assumption that no member of the Travancore Royal Family had the authority over the Temple’s management after the death of the original signatory to the Covenant in 1991, coupled with the 26th Amendment which abolished titles such as ‘Ruler’. In other words, according to the tenant, the term ‘Ruler’, as used in the TCHRI Act 1950, was limited in its application to the signatory of the Covenant alone who passed away in 1991, and therefore none of his successors had the legal right under the Act to manage the Temple. The tenant also sought a direction from the high court to transfer the control and management of the Temple to the state government.

In addition to said writ petition by the tenant, three civil suits were filed between 2007 and 2009 by employees of the Temple and others before courts in Thiruvananthapuram, one seeking an injunction against opening of the Temple’s six vaults by the Temple management, and the rest questioning the authority of the office bearers of the Temple to occupy their positions. In 2010, the then Ruler of the Travancore Royal Family, Sree Uthradom Thirunal Marthanda Varma, filed a writ petition before the high court seeking transfer of these suits to the high court. The transfer was sought on the ground that since the central question of authority related to the interpretation of Article VIII of the Covenant entered into
between his predecessor and the Indian Union in May 1949, the high court was the appropriate forum to adjudicate the question.

Consequently, given the common issue raised in the writ petition filed in 2009 by the tenant and the writ petition filed by the Ruler in 2010, both petitions were taken up together by the Kerala High Court. The issue, therefore, for adjudication by the high court was as follows: In view of the 26th Amendment to the Constitution, which abolished royal titles among other things, could Sree Uthradom Thirunal Marthanda Varma and his successors, after the death of the original signatory to the Covenant, claim to be the ‘Ruler of Travancore’ as used in the TCHRI Act 1950 in order to claim ownership, control and management of the Sree Padmanabhaswamy Temple? This resulted in the judgment of 2011 wherein the Kerala High Court answered the question in the negative. It is this judgment that was subject to challenge before the Supreme Court in special leave petitions preferred by Sree Uthradom Thirunal Marthanda Varma and the Sree Padmanabhaswamy Temple Trust. Subsequently, the Chief Thantri of the Temple and other devotee organisations, such as People for Dharma and Temple Protection Movement, joined the proceedings before the Supreme Court as Intervenors to present their grievances with respect to the high court’s judgment. The Intervenors were represented in the Supreme Court by this author.

What makes the Supreme Court’s verdict historic? Its salient findings and outcomes are the following:

– The Supreme Court has recognised that Article VIII of the Covenant represents the acknowledgement by the Indian Union of the special relationship of Shebaitship (the earthly custodian and representative of the Deity) that exists between the Travancore Royal Family and Lord Padmanabhaswamy. The court further recognised that said relationship was independent of and unrelated to any titles bestowed upon Indian rulers by the British. Therefore, according to the court, the 26th Amendment of 1971 to the Indian Constitution had no bearing on the pre-existing special relationship between the Travancore Royal Family and the Temple since the amendment was meant to abolish only those titles and privileges which came in the way of the republican character of independent India;

– The Court has further recognised that Article VIII of the Covenant forms the basis of Chapter III (Sections 18-23) of the TCHRI Act 1950 which specifically deals with the administration of the Sree Padmanabhaswamy Temple. The object of providing a specific chapter in the Act for the Temple was to ensure that the rights guaranteed by Article VIII of the Covenant are protected and guaranteed to the successors of the Ruler, and not merely to the signatory of the Covenant during his lifetime, even after India’s transition to a republic. The court specifically noted that this was precisely the reason why even the state government of Kerala has never diluted the position or the rights of the Ruler of the Travancore Royal Family through amendments to Chapter III of the TCHRI Act 1950, despite having undertaken multiple amendments to the TCHRI Act 1950 before and after 1971, and even after the death of the original signatory of the Covenant in 1991. Therefore, as of date, in so far as Chapter III is concerned, it remains as it stood in 1950 with respect to the Ruler and his successors, proving that it is meant to secure their rights guaranteed under Article VIII of the Covenant.

– Accordingly, the Supreme Court set aside the judgment and directions of the Kerala High Court and laid down an administrative structure for the Temple largely based on the suggestions placed before the court by the current head of the Travancore Royal Family. Under the structure as accepted by the Supreme Court:

– Decisions relating to all policy related matters of the Temple shall be taken by the ‘Ruler’/Head of the Travancore Royal Family who shall be advised by a three-member Advisory Committee in the discharge of his functions in accordance with Section 20 of the TCHRI Act 1950. The Advisory Committee shall consist of a retired high court judge who shall be nominated by the Chief Justice of the Kerala High court. The retired high court judge shall be treated as the chairperson of the Advisory Committee. The second member shall be an
eminent person nominated by the Ruler, and the third member shall be a reputed chartered accountant to be nominated by the chairperson of the committee in consultation with the Ruler. The advice of the Advisory Committee is not binding on the Ruler;
– A second committee, namely the Administrative Committee consisting of five members, shall exercise the powers of administration previously wielded by the executive officer appointed by the Ruler. Importantly, under Section 18(2), such powers of administration will be again subject to the control and supervision of the Ruler. The five members of the committee shall be the district judge of Thiruvananthapuram, one member nominated by the Ruler, one member nominated by the state government of Kerala, one member nominated by the Union Ministry of Culture, and the Chief Thantri of the Temple;

– Importantly, the Administrative Committee shall not take any decision on the following matters of policy except after obtaining the approval of the Ruler:

– Any expense item exceeding Rs 15 lakh per month;
– Any one-time expense of Rs 1 crore;
– Any major renovation/ expansion of the Temple;
– Any changes in the standard operating procedures of the Temple Administration as laid down by the Ruler; and
– Any fundamental changes in the character of the Temple that would affect the religious sentiments of its devotees.
– All members of both committees shall be Hindus within the meaning of the TCHRI Act 1950.

It is evident from the above that in stark contrast to the judgment of the Kerala High Court, the Supreme Court has restored the position of the Head of the Travancore Royal Family as the Shebait of the Temple, under whose control and supervision both committees shall function. In addition to the above, in Paragraph 116 of the judgment, the court has spelt out 12 detailed directions, among other things, to preserve the religious practices of the Temple, to recover the property of the Temple from encroachers and to ensure that the funds of the Temple are spent on religious and charitable purposes deemed appropriate by the Advisory Committee, and hence the Ruler.

Critically, the decision of opening the vaults of the Temple has been left to the discretion of the committees, which effectively leaves the decision to the Advisory Committee since it is a matter of policy and religious tradition. The Advisory Committee under Section 20 of the TCHRI Act, in turn, is meant to advise the Ruler, which makes the Ruler the last word on such matters.

The Ruler is, of course, bound by the traditions of the Temple.

Therefore, notwithstanding the presence of a nominee of the Union Government, a nominee of the state government and a district judge in the five-member Administrative Committee, and a retired high court judge in the three-member Advisory Committee, the overall control on all issues, major and minor, remains with the Ruler in accordance with the clear object of Article VIII of the Covenant and the express intent of Sections 18-23 of the TCHRI Act 1950. The recognition by the Supreme Court of the continued validity of Article VIII of the Covenant makes the judgment a powerful precedent for those temples which are similarly placed as the Sree Padmanabhaswamy Temple and are protected by similar Covenants entered into with other erstwhile princely states. At the very least, the Devaswom Boards in Kerala, which are the product of the Covenant, can be restructured on the basis of the judgment to ensure that devotees have a greater say in the administration of the temples, which is currently not the case. Given that most such temples have suffered heavy bureaucratisation over the decades, it may be worthwhile to explore the use of this judgment to pare down the presence and interference of the state and its mandarins in temples.

The Supreme Court has left it to the Sree Padmanabhaswamy Temple to bear its security expenses, which is a matter of concern given its exposure to security risks caused by talk of its ‘treasures’ by the state and Union Governments between 2009 and 2011

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Does this mean all is hunky dory with the judgment? Ideally, the Supreme Court ought to have given effect to the letter and spirit of Articles 25(2)(a) and 26 by not giving state nominees assured positions in the Temple’s administration, notwithstanding the supremacy of the Ruler in the administrative structure and notwithstanding the fact that the structure is largely based on the suggestions of the current Ruler. This is because the state is the worst of tenants who never vacates and has a track record of encroaching upon the autonomy of Hindu religious institutions. Unfortunately, although the Supreme Court accepted the contentions of the Intervenors with respect to the binding nature of Article VIII of the Covenant, it refused to consider arguments raised only by the Intervenors under Articles 25 and 26 of the Constitution on the ground that such arguments were not raised in the proceedings before the high court. Given the extraordinary nature of the matter, the Supreme Court ought not to have allowed technicality to come in the way of recognising and enforcing fundamental religious freedoms since the dispute was not in the nature of a commercial dispute between private parties.

Also, the Supreme Court has left it to the Sree Padmanabhaswamy Temple to bear its security expenses, which is a matter of concern given the fact that the Temple’s exposure to security risks was caused by the constant talk of its ‘treasures’ by both the state and Union Governments between 2009 and 2011. Therefore, either of the two governments or both must defray the security expense of the Temple since both governments have benefitted and will continue to benefit from the tourism generated by the Temple from within and outside the country.

Given that the Kerala High Court’s judgment had completely assigned the control of the Temple to the state government, the structure laid down by the Supreme Court based on the suggestions of the Travancore Royal Family comes as a huge relief to the devotees of Lord Padmanabhaswamy. However, the structure cannot be treated as an ideal template for other temples given that it does not fully pass muster on the anvils of Articles 25 and 26 since the court did not test the structure with reference to the provisions of the Constitution that are central to individual as well as institutional religious freedoms. Devotees may draw solace from the fact that the structure prescribed by the Supreme Court for the Sree Padmanabhaswamy Temple is certainly much better than the wholesale takeover of temples witnessed in the recent past in Uttarakhand, and the bureaucratic and political entrenchment seen in the Tirumala Tirupati Devasthanam or the Shri Jagannath Temple in Puri, or the thousands of temples across the country.

A lesser known fact is that the Union Government was represented in the proceedings before the Supreme Court in the Sree Padmanabhaswamy Temple case at least from March 20th, 2017, until the conclusion of arguments on April 10th, 2019, which is reflected in over 20 orders passed by the court during that period. Yet, as reflected by the judgment of the Court, the Union Government for reasons best known to it, chose not to actively participate in the proceedings to clarify its position on Articles 25, 26 and the larger question of the freedom of temples from state control.

Given that the issue of Temple control falls under Entry 28 of the Concurrent List, the Union Government is constitutionally competent to not just take a position in such matters, but is also best placed to pass a Central legislation which eliminates state control of temples or, at the very least, cuts the role of the state to size in temples in a manner consistent with Articles 25(2)(a), 26 and 31A(b). Since the dispensation at the Centre appears keen on undoing the legacy mistakes made by previous dispensations, particularly in relation to civilisational matters, it may want to set the balance right even on this front as it affects at least 75 per cent of the population.

About The Author

J Sai Deepak

J Sai Deepak is a commercial and constitutional litigator who practises as a counsel before the Supreme Court of India, the High Court of Delhi, the NCLAT and the CCI. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution, and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation

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