Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt

The head of an Udipi monastery (a Math) was threatened with a government scheme for running it, after the Madras Endowments Board saw debt and mismanagement. A seven-judge Bench tested the Madras Hindu Religious and Charitable Endowments Act, 1951 against Articles 19(1)(f), 25, 26 and 27. It also decided whether a contribution levied by the Act was a fee or a tax.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

The Commissioner, Hindu Religious Endowments, Madras — appellant. He took the place of the President of the Hindu Religious Endowments Board under the Earlier Act.

Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt — respondent. He is the superior (Mathadhipati) of the Shirur Math at Udipi and the original petitioner in the High Court.

Union of India — intervener. The Attorney-General appeared for it.

State of Travancore-Cochin — intervener. Its Advocate-General appeared.

Procedural History

1. The Swami filed a petition under Article 226 in the Madras High Court, Civil Miscellaneous Petition No. 2591 of 1951. He asked for a writ of prohibition (an order stopping an authority from acting) against the Hindu Religious Endowments Board.
2. The petition was filed on 12 February 1951 under the Madras Hindu Religious Endowments Act (Act II of 1927), called the Earlier Act. The Board had started proceedings under section 61 of that Act.
3. The petition was heard with two similar petitions about the Chidambaram temple in South Arcot. All three questioned the validity of the Earlier Act.
4. The Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), called the New Act, came into force on 27 August 1951. The petitioners were allowed to amend their petitions to challenge it.
5. Under section 103 of the New Act, earlier notifications, orders and acts count as acts under the New Act. The Commissioner was therefore added as a party.
6. On 13 December 1951 a Division Bench of the High Court allowed the petition. The High Court examined both the constitutional questions and the merits in detail.
7. On the merits, the High Court held the Board's action a perverse exercise of its jurisdiction. It held that the Board should not be allowed to proceed with the scheme.
8. On the constitutional issues, the High Court declared many sections of the New Act ultra vires (beyond power) because they conflicted with Articles 19(1)(f), 25, 26 and 27. It made the rule nisi absolute and prohibited the Commissioner from framing a scheme for the Math.
9. The High Court gave a certificate under Article 132(1), and the Commissioner appealed to the Supreme Court as Civil Appeal No. 38 of 1953.
10. The Advocate-General for Madras confined his arguments to the constitutional points. He had applied to argue other grounds but did not press that application. He did not challenge the High Court's findings of fact on the merits.
11. The order of prohibition therefore had to stand whatever the Supreme Court decided on the constitutional points.

Facts

1. The Shirur Math is one of eight Maths at Udipi, South Kanara. They are reputed to have been founded by Shri Madhwacharya, an exponent of dualistic theism in Hinduism.
2. Udipi also has the Shri Krishna Devara Math, founded by Madhwacharya. It is supposed to hold an image of Krishna originally made by Arjun and miraculously obtained from a vessel wrecked on the coast of Tulava.
3. The Shri Krishna Math has no Mathadhipati. The heads of the eight Maths manage it by turns, each for two years in every sixteen years.
4. The change of headship is marked by a great festival called Pariyayam. An ancient usage requires the Mathadhipati to feed every Brahmin who comes to the place at that time.
5. The petitioner was installed as Mathadhipati in 1919 while still a minor. He took over management after coming of age some time in 1926.
6. The Math was heavily in debt then. Between 1926 and 1930 the Swami cleared a large part of the debt.
7. In 1931 his turn came to manage the Shri Krishna Math. He had to incur debts for the heavy cost of the Pariyayam ceremonies.
8. The finances improved to some extent. Trouble arose again in 1946, the year of his second Pariyayam.
9. Because of scarcity and high prices he had to borrow money, and the debts rose to nearly a lakh of rupees.
10. The Board under the Earlier Act then intervened. Under section 61-A it called on the Swami to appoint a competent manager.
11. The Swami's case was that a lawyer of Udipi named Lakshminarayana Rao, who wanted control of the Math, had instigated the Board.
12. On the Board's direction, Sripath Achar was appointed agent. A Power of Attorney was executed in his favour on 24 December 1948.
13. The Swami alleged that the agent wanted his own way, ignored the Mahant's wishes, gave no accounts and flouted his authority.
14. On 26 September 1950 the Swami served notice ending the agency. He asked the agent to hand over the account papers, vouchers and cash in hand.
15. The agent, supported by Lakshminarayana Rao, refused. He questioned the Swami's power to cancel the agency and threatened to refer the matter to the Board.
16. On 3 October 1950 the agent applied to the Board, complaining about the cancellation and about the management of the Math.
17. On 4 October 1950 the Swami filed a suit in the Sub-Court of South Kanara against the agent. He asked for the account books, an account of the management and an injunction.
18. On 4 October 1950 the Board issued a notice proposing an inquiry on 24 October at Madras.
19. On 21 October 1950 the Swami replied that the same matter was before the court in his suit. He asked that the inquiry be put off (sub judice, under judicial consideration). He sent a copy of the plaint.
20. The Board dropped that inquiry. Without waiting for the suit, it started proceedings suo motu (on its own motion) under section 62 of the Earlier Act.
21. On 6 November 1950 it issued a notice saying the endowments were being mismanaged and a scheme should be framed. The notice was served by affixture, with 8 December 1950 fixed for inquiry.
22. On 8 December the inquiry was adjourned to 21 December at the request of the Swami's counsel. On 8 December the Swami also asked the Board to direct the agent to hand over the account papers, as he could not file objections without them.
23. The inquiry was adjourned again to 10 January 1951 because the Swami's lawyer was unwell. A telegram on 9 January asked for a further adjournment.
24. The Board refused, closed the inquiry and reserved orders. The Swami sent a written explanation on 13 January 1951, which the Board admittedly received on 15 January.
25. On 24 January 1951 the Swami got a notice. It said the Board was satisfied that a scheme was needed for the proper administration of the Math and its endowments.
26. A draft scheme came with the notice. Objections were due by 11 February 1951, and the final order was to be made on 15 February 1951.
27. On 12 February 1951 the Swami filed the High Court petition. He alleged that the Board acted from bias and not in good faith.
28. His main contention was that the law on framing a scheme conflicted with Articles 19(1)(f) and 26, and was void under Article 13. He also alleged that the Act was discriminatory and broke Article 15.

Issues Raised

1. Is Article 19(1)(f) available to the Mathadhipati? Does he hold a right to property in the Math and its endowments in the legal sense, and does the article protect concrete rights of property at all?
2. Does Article 25 protect only individuals, so that it cannot be invoked for an institution or organisation?
3. Is a Math a religious denomination under Article 26? What is the meaning of religious denomination?
4. What is the scope of the right in Article 26(b) to manage its own affairs in matters of religion? Where is the line between matters of religion and other matters, and does the word religion carry only its strict etymological sense?
5. Do the sections of the New Act held invalid by the High Court (sections 18, 20, 21, 25(4), 26, 28, 29, 30(2), 31, 39(2), 42, 53, 54, 55(2), 56, 58(3), 63 to 69, 70, 76, 89 and 99) violate Articles 19(1)(f), 25, 26 or 27?
6. Is the contribution under section 76 a fee or a tax? If it is a tax, was it beyond the legislative competence of the Madras Legislature?
7. Does the section 76 contribution fall within Article 27, which forbids the use of tax proceeds for any particular religion?

Arguments Contended

For the appellant (Advocate-General of Madras) and the interveners

• The Advocate-General for Madras argued only the constitutional points. The sole counsel listed for the appellant are the Advocate-General and one other advocate.
• The Attorney-General, for the Union of India, argued that Article 19(1)(f) deals only with the natural right of a citizen to acquire, hold and dispose of property in the abstract. He argued that it gives no help to the respondent and that Article 31 does not apply.
• He candidly said he was not prepared to support the view of Patanjali Sastri C.J. in State of West Bengal v. Subodh Gopal Bose. He raised the point only to get an authoritative pronouncement.
• He argued that Article 25, which protects religious freedom of individuals, cannot be invoked in favour of an institution or organisation.
• He argued that a Math is not a religious denomination under Article 26. He argued that even if it is, only its right to manage its own affairs in matters of religion is protected, and nothing else.
• He argued that the word religion in Article 26 should be read in its strict etymological sense. He contrasted it with secular activity connected with religion that is not an essential part of it, referring to Article 25(2)(a) and Article 26(d).
• He relied on Article 25(2)(a). His contention was that all secular activities associated with religion, but not really an essential part of it, are open to State regulation.
• On section 76, he argued that the Constitution clearly separates taxes from fees. He pointed to the last entries of the three legislative lists on fees (including entry 96 of List I), to Articles 110 and 119 on Money Bills, and to Article 277.
• He strongly argued that the contribution is a fee. He argued that the State may render services whether or not those served want them.
• The Advocate-General of Madras frankly said he could not support the legality of Chapter VI (sections 63 to 69).
• Mr. Nambiar raised the argument that the word taxes in Article 27 covers all impositions such as cesses and fees. The judgment does not say for whom he appeared.
• The Advocate-General of Travancore-Cochin appeared for the intervening State. The judgment records no separate argument from him.

For the respondent (the Mathadhipati)

The judgment records the respondent's case mainly through the High Court's holdings and the original petition. It does not say that counsel argued each point before the Supreme Court.

• Mr. Somayya appeared for the respondent. The judgment records only that he did not dispute that sections 18, 39(2) and 42 are not applicable to Maths under the Act itself.
• Case as accepted by the High Court: the Mathadhipati has well-defined rights in the institution and its endowments. These are property rights under Article 19(1)(f), and restrictions on them are not reasonable restrictions under Article 19(5).
• Case as accepted by the High Court: as head of a religious institution he has a right under Article 25 to practise and propagate his religion freely.
• Case as accepted by the High Court: the Math belongs to the Sivalli Brahmins, a section of the followers of Madhwacharya. It is a religious denomination under Article 26, with a right to manage its affairs in matters of religion through the Mathadhipati.
• Case as accepted by the High Court: the provisions that substantially take away the Mathadhipati's rights violate Article 26.
• Case as accepted by the High Court: the compulsory contribution in section 76 comes within the mischief of Article 27.
• On behalf of the respondent, it was argued that section 76 is a tax and not a fee, so the Madras Legislature could not enact it.
• On behalf of the respondent, it was argued that a fee is voluntary. A person pays it only if he wants the service, and can avoid it otherwise. The licence fee was the example.
• Pleaded in the petition: the Board acted from bias and not in good faith. The law on framing a scheme conflicted with Articles 19(1)(f) and 26 and was void under Article 13. The Act was discriminatory and offended Article 15.

Court's Reasoning

The judgment is a single opinion by Mukherjea J. for the Court. It has no numbered paragraphs, so steps follow the judgment's own order and no paragraph numbers are given.

Opinion of Mukherjea J. (for the seven-judge Bench)

Preliminary matters

1. Noted: the Advocate-General confined his arguments to the constitutional points. He did not challenge the High Court's findings of fact. The High Court's order must therefore stand whatever the Court decides on those points.
2. Noted: a State Legislature can make laws on religious and charitable endowments under entry 28 of List III in the Seventh Schedule. No question of legislative competence was raised, except for the annual contribution in section 76.
3. Noted: all other points concern the validity of the sections that the High Court held to be in conflict with Articles 19(1)(f), 25, 26 and 27.

The scheme of the New Act

4. Noted: the preamble aims to amend and consolidate the law on the administration of Hindu religious and charitable institutions in Madras. The New Act can reach purely charitable endowments by notification under section 3.
5. Noted: the Earlier Act used a statutory Board for supervision. The New Act abolished that Board. Administration is now practically with a department of Government headed by the Commissioner.
6. Noted: Chapter II sets out the powers of the Commissioner and of the Deputy Commissioners, Assistant Commissioners and Area Committees. The State is divided into areas and divisions under them.
7. Noted: under section 18 the Commissioner may examine the records of subordinate officers, Area Committees or any trustee who is not a trustee of a Math.
8. Noted: section 20 puts religious endowments under the general superintendence and control of the Commissioner. He may pass orders needed to ensure proper administration and proper use of income.
9. Noted: section 21 lets the Commissioner, his officers and authorised persons enter the premises of a religious institution or place of worship. The only limit is that the officer must be a Hindu.
10. Noted: section 23 requires trustees to obey lawful orders. Section 24 requires the care of a man of ordinary prudence. Section 25 deals with registers, and section 26 with annual verification.
11. Noted: section 27 requires accounts and returns for the Commissioner. Section 28 allows inspection of properties. Section 29 forbids alienation of immovable property except leases up to five years without the Commissioner's sanction.
12. Noted: section 30 deals with expenditure for the comfort of pilgrims and others. After adequate provision for the purposes in section 79(2) as printed in the judgment, the trustee is guided by instructions from the Commissioner or Area Committee.
13. Noted: section 31 deals with surplus funds. The trustee may spend them for the purposes in section 59(1) with the Deputy Commissioner's written permission.
14. Noted: Chapter IV deals with Maths. Section 52 lists grounds for a suit to remove a trustee. Section 54 deals with the dittam, the scale of expenditure, which the trustee proposes and the Commissioner scrutinises. Government's orders are final.
15. Noted: section 55 lets the trustee spend Pathakanikas (gifts made to him personally) at his discretion for Math purposes, and requires him to keep accounts of them.
16. Noted: section 56 lets the Commissioner require the trustee to appoint a manager for the secular affairs of the institution. If the trustee does not, the Commissioner may appoint the manager himself.
17. Noted: section 58 lets a Deputy Commissioner frame a scheme for a religious institution if he has reason to believe it is needed for proper administration. Under section 58(3), a scheme for a Math may provide for a paid Hindu executive officer.
18. Noted: section 59 applies the cy pres doctrine (the doctrine applied by section 59 when the object of a trust fails) when the specific objects of a trust fail.
19. Noted: Chapter VI (sections 63 to 69) allows notification of an institution. The notification lasts five years and vests administration in an executive officer appointed by the Commissioner.
20. Noted: Chapter VII deals with budgets, accounts and audit. Chapter VIII deals with finance. Section 76 requires every religious institution to pay the Government a yearly contribution of not more than 5 per cent of its income, for services rendered.
21. Noted: Chapter IX is not material. Section 89 prescribes penalties for refusing to comply. Section 92 says the Act gives no power or duty in contravention of the rights of a religious denomination under Article 26(a), (b) and (c). Section 99 gives the Government revisional jurisdiction.

The High Court's four grounds and the Attorney-General's general contentions

20. Noted: the High Court held that the Mathadhipati has rights in the institution and its endowments that are property under Article 19(1)(f). It held that restrictions that take away or unduly limit those rights are not reasonable under Article 19(5).
21. Noted: the High Court held that the head of a religious institution has a right under Article 25 to practise and propagate his religion. It held that some provisions of the Act affect this right.
22. Noted: the High Court held that the Math belongs to Sivalli Brahmins, a section of Madhwacharya's followers. It held the Math to be a religious denomination under Article 26 with a right to manage its affairs in matters of religion through the Mathadhipati.
23. Noted: the High Court held that the compulsory contribution in section 76 falls within Article 27. The Court deferred this wide point to a separate discussion.
24. Noted: the questions the Attorney-General raised are whether these articles are available to the respondent at all and whether they protect the rights he claims.

Article 19(1)(f): the Mathadhipati's property rights

25. Held: a Mathadhipati does not hold Math property as a life-tenant, and his position is not like that of a Hindu widow or an English Bishop holding a benefice. He is not a trustee in the strict sense.
26. Noted: the Privy Council said he may be a manager or custodian who must discharge the duties of a trustee. It also said he is not a mere manager and Mahantship is not a mere office (Vidya Varuthi v. Balusami).
27. Held: the head of a Math has duties in connection with the endowment. He also has a personal interest of a beneficial character, sanctioned by custom and much larger than that of a Shebait in debutter property.
28. Noted: a Full Bench of the Calcutta High Court held that Shebaitship is itself property (Monahar v. Bhupendra). The Privy Council approved this in Ganesh v. Lal Behary and again in Bhabatarini v. Ashalata.
29. Noted: the Privy Council said the first two decisions stressed the proprietary element in Shebaiti right. It called it an anomaly accepted into Hindu law from an early date.
30. Noted: this Court adopted that view entirely in Angurbala v. Debabrata. It applies equally to the office of a Mahant.
31. Held: in Mahantship, as in Shebaitship, office and property, and duties and personal interest, are blended together. Neither can be detached from the other.
32. Noted: the Mahant's beneficial interest shows in his large powers of disposal and administration, and in his right to create derivative tenures in endowed property.
33. Held: these rights give the office the character of a genuine legal right of property, though it is anomalous to some extent.
34. Why: Mahantship is not heritable like ordinary property. That is because of its peculiar nature. The office is generally held by an ascetic whose tie with his natural family is cut off, so ordinary succession rules do not apply.
35. Held: the word property in Article 19(1)(f) should be given a liberal and wide meaning. It extends to well-recognised kinds of interest that carry the insignia or characteristics of proprietary right.
36. Held: the Mahant has the right to enjoy this property or beneficial interest as long as he holds office. To take away this interest and leave only the duties would destroy his character as a Mahant altogether.
37. Held: because he runs a public institution, reasonable restrictions can be placed on his rights in the public interest. The restrictions stop being reasonable if they make him unfit to discharge his duties.
38. Noted: a Mahant's duty is not only to manage the temporalities of a Math. He is the head of a spiritual fraternity.
39. Noted: the purpose of a Math is to foster spiritual training by keeping a competent line of teachers who give religious instruction and strengthen the doctrines of the school.
40. Held: this purpose cannot be served if restrictions bring the Mathadhipati down to the level of a servant under a State department. Reasonableness is to be judged from this standpoint.
41. Noted: the Attorney-General argued that Article 19(1)(f) deals only with the abstract right to acquire, hold and dispose of property, and that Article 31 does not apply here.
42. Noted: Patanjali Sastri C.J. expressed that view in State of West Bengal v. Subodh Gopal Bose (Civil Appeal No. 107 of 1952, decided 17 December 1953). It was his opinion alone. Two of the other four Judges did not definitely agree, and the other two gave no opinion.
43. Noted: the Advocate-General of Madras and other counsel did not raise the point. The Attorney-General himself said he was not prepared to support the view.
44. Held: it would not be proper to give a final opinion on this point, as no arguments were addressed on it.
45. Held: the Court proceeds, as it has in similar past cases, on the footing that Article 19(1)(f) applies equally to concrete and abstract rights of property.

Article 25: whether it can be invoked

45. Noted: Article 25 secures to every person, subject to public order, health and morality, freedom to hold religious belief of his own judgment and conscience. It also covers outward acts to exhibit that belief and the propagation of his ideas for the edification of others.
46. Noted: a question was raised whether the word persons means individuals only or also includes corporate bodies.
47. Held: the question is not relevant here. A Mathadhipati is certainly not a corporate body. He is the head of a spiritual fraternity and, by virtue of his office, a religious teacher.
48. Held: it is his duty to practise and propagate the religious tenets of which he is an adherent. If any provision of law prevents him from propagating his doctrines, it affects the religious freedom Article 25 guarantees.
49. Held: "Institutions as such cannot practise or propagate religion; it can be done only by individual persons". Whether those persons propagate personal views or the tenets of the institution is immaterial.
50. Held: it is the propagation of belief that is protected, whether it happens in a church, monastery, temple or parlour meeting.

Article 26: religious denomination

51. Noted: the first question is the meaning of religious denomination and whether a Math can fall within it.
52. Noted: the Oxford Dictionary defines denomination as a collection of individuals classed together under the same name. It also defines it as a religious sect or body having a common faith and organisation, with a distinctive name.
53. Noted: Shri Sankaracharya started the practice of setting up Maths as centres of theological teaching. Later teachers founded the sects and sub-sects of Hinduism.
54. Held: each such sect or sub-sect can be called a religious denomination. It has a distinctive name, often the founder's name, and a common faith and common spiritual organisation.
55. Held: the followers of Ramanuja (Shri Vaishnabas) form a religious denomination, and so do the followers of Madhwacharya and other teachers.
56. Noted: tradition establishes that Madhwacharya himself founded the eight Udipi Maths. Their trustees and beneficiaries profess to be his followers.
57. Noted: the High Court found that the Math is in charge of the Sivalli Brahmins, a section of the followers of Madhwacharya.
58. Held: Article 26 covers a religious denomination and also a section of it. The Math, or the spiritual fraternity it represents, can therefore come within the article.

Article 26(b): matters of religion

59. Noted: clause (b) speaks of management of its own affairs in matters of religion. The language suggests that a religious denomination can have other affairs that are not matters of religion, and the guarantee does not apply to them.
60. Noted: clauses (c) and (d) separately give the right to acquire and own property and to administer it in accordance with law.
61. Held: administration of property has been placed on a different footing from the right to manage affairs in matters of religion. The latter is a fundamental right that no legislature can take away. The former can be regulated by valid laws.
62. Held: questions merely about the administration of properties of a religious group or institution are not matters of religion to which clause (b) applies.
63. Noted: the Constitution does not define religion, and the term can hardly be defined rigidly. An American case (Davie v. Benson, 133 U.S. 333 at 342) described religion as views of one's relation to the Creator and the obligations of reverence and obedience.
64. Held: that definition is neither precise nor adequate. Articles 25 and 26 are based largely on Article 44(2) of the Constitution of Eire, and such a definition was doubtfully in the minds of the framers.
65. Held: religion is a matter of faith with individuals or communities and is not necessarily theistic. Buddhism and Jainism do not believe in God or any Intelligent First Cause.
66. Held: a religion has its basis in a system of beliefs or doctrines that its followers regard as conducive to their spiritual well-being. It is not correct to say that religion is nothing but doctrine or belief.
67. Held: a religion may lay down a code of ethical rules. It may also prescribe rituals, observances, ceremonies and modes of worship that are integral parts of religion. These may extend even to food and dress.
68. Held: the Constitution protects the freedom of religious opinion and also acts done in pursuance of a religion. This is clear from the words practice of religion in Article 25.

The Australian and American cases

69. Noted: Latham C.J. of the High Court of Australia, on section 116 of the Australian Constitution, said a government cannot leave acts done in pursuance of religious belief outside the protection of freedom of religion. Section 116 forbids Commonwealth laws prohibiting the free exercise of any religion (Adelaide Company v. The Commonwealth, 67 C.L.R. 116, 127).
70. Held: these observations apply fully to the protection of religion under the Indian Constitution.
71. Noted: restrictions on free exercise of religion are allowed under Articles 25 and 26 on grounds of public order, morality and health.
72. Noted: clause (2)(a) of Article 25 reserves the State's right to regulate or restrict economic, financial, political and other secular activities associated with religious practice. Sub-clause (b) lets the State legislate for social welfare and reform even if this interferes with religious practices.
73. Noted: the Attorney-General stressed clause (2)(a). His contention was that all secular activities associated with religion, but not an essential part of it, can be regulated by the State.
74. Held: a contention put in such broad terms cannot be supported.
75. Held: "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself". (Commentary: this is called the essential religious practices test.)
76. Why: if the tenets of a Hindu sect require food offerings to the idol at fixed hours, periodical ceremonies, daily recital of sacred texts or ablations to the sacred fire, all of these are parts of religion. The cost of money, priests, servants or marketable goods does not make them secular or commercial activities.
77. Held: all such acts are religious practices and are matters of religion under Article 26(b).
78. Held: Article 25(2)(a) does not contemplate regulation of religious practices as such. Their freedom is guaranteed except where they run counter to public order, health and morality. It contemplates regulation of activities that are economic, commercial or political, though associated with religious practices.
79. Noted: the Court looked at American and Australian cases on Jehovah's Witnesses. The group regards the literal interpretation of the Bible as fundamental. Its members refuse to take the oath of allegiance, refuse to salute the flag and oppose all wars.
80. Noted: in 1941 an incorporated company of Jehovah's Witnesses in Australia began teaching matters prejudicial to war activities. The Commonwealth took action under the National Security Regulations. The Australian High Court held that section 116 was not infringed (Adelaide Company).
81. Noted: The Court said these were undoubtedly political activities, though arising from religious belief. Latham C.J. pointed out that protection of religion is not absolute and must be reconciled with the sovereign power of the State to ensure peace, security and orderly living, without which civil liberty would be a mockery.
82. Noted: the American courts were agitated over compulsory flag salutes in public schools. In Minersville School District v. Gobitis (310 U.S. 586), two children, Lillian and William Gobitis, were expelled from a Minersville, Pennsylvania school for refusing to salute the flag. Their family were Jehovah's Witnesses.
83. Noted: by a majority, the U.S. Supreme Court held that the requirement did not infringe the liberty of religion under the First and Fourteenth Amendments. It said the legislature and school authorities may foster national unity among children.
84. Noted: the U.S. Supreme Court changed its view in West Virginia State Board of Education v. Barnette (319 U.S. 624). It overruled Gobitis and held that compulsory flag salute and pledge violated the First and Fourteenth Amendments.
85. Noted: this change shows how difficult it is for a court when genuine religious conviction conflicts with the political attitude expected of citizens in matters of unity and solidarity of the State.
86. Noted: on commercial activities prompted by religion, Murdock v. Pennsylvania (319 U.S. 105) concerned Jehovah's Witnesses going door to door in Jeannette, selling religious books and pamphlets published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax. They were convicted and fined.
87. Noted: the U.S. Supreme Court held the ordinance invalid as a denial of freedom of speech, press and religion. It held that the Witnesses could not be said to be engaged in a commercial rather than a religious venture.
88. Noted: a contrary view had been taken a few years earlier in Jones v. Opelika (316 U.S. 584). It held that a city ordinance requiring licences and taxes for selling books and pamphlets on the streets applied to a member of a religious organisation selling its printed propaganda.
89. Noted: the American and Australian Constitutions declare freedom of religion in unrestricted terms. Courts there introduced limits on grounds of morality, order and social protection. Balancing government interests and constitutional liberties is delicate, as the differing American decisions show.
90. Held: Indian Constitution-makers wrote into the Constitution the limits that American and Australian courts evolved. Articles 25 and 26 are clear enough to decide what matters are within religion without foreign authorities.
91. Held: freedom of religion in the Indian Constitution is not confined to belief. It extends to religious practices, subject to the restrictions the Constitution itself lays down.
92. Held: under Article 26(b), "complete autonomy in the matter of deciding as to what rites and ceremonies are essential" belongs to a religious denomination or organisation. No outside authority may interfere with its decision in such matters.
93. Held: the scale of expenses on religious observances is a matter of administration of property. Secular authorities can control it under a law of a competent legislature. No religion can require destroying the institution and its endowments by wasteful expense on rites and ceremonies.
94. Held: under Article 26(d), a religious denomination or its representative has a fundamental right to administer its properties in accordance with law. The law must leave the right of administration with the denomination, subject to restrictions and regulations the law may impose.
95. Held: a law that takes administration away from the denomination altogether and vests it in another authority violates Article 26(d).

The High Court's list of invalid sections

95. Noted: the Court turned to the specific grounds against the High Court's decision. The High Court's summing-up declared certain sections of the New Act ultra vires. This applied to this Math and to similar Maths. The sections were 18, 20, 21, 25(4), 26 (as far as 25(4) applies), 28, 29, 30(2) and 31. They also included 39(2), 42, 53, 54, 55(2), 56, 58(3), 63 to 69, 70(2), (3) and (4), 76, 89 and 99. The printed text is unclear in places.
96. Held: the High Court was not right to include sections 18, 39(2) and 42. They are not applicable to Maths under the Act itself, and Mr. Somayya did not dispute this.

Section 20: valid

97. Held: section 20 is valid. The Mathadhipati is in the position of a trustee of a public institution. Some control or supervision over due administration of endowments and due use of funds is necessary in the public interest.
98. Held: the section does not reduce the Mahant to a servant. Orders can be passed only for the purposes in the section, and not to interfere with the Mahant's rights sanctioned by usage or to lower his position as spiritual head.
99. Noted: section 91 is a saving provision that makes the position clear.
100. Held: a fear that the powers may be abused in individual cases does not make the provision bad in law.

Section 21: invalid

101. Held: the High Court was right about section 21. Entry by the Commissioner, his officers and authorised persons into the premises of a religious institution interferes with the fundamental rights of the Mathadhipati and the denomination under Articles 25 and 26.
102. Why: there can be no unregulated right of entry in a public temple for persons unconnected with spiritual functions. Custom bars outsiders from the sacred parts, such as the place of the deity. There are fixed hours of worship and rest for the idol.
103. Why: the section does not confine entry to the outer portion. It does not exclude the inner sanctuary, the Holy of Holies. It does not require due notice to the head, or entry at hours that do not interfere with rites and ceremonies.
104. Held: section 91 does not save section 21. Clause (a) excepts all express provisions of the Act, which would include section 21. Clause (b) says nothing about custom or usage, and does not say who would decide a dispute about interference with religious and spiritual functions.

Sections 23 to 29

105. Held: section 23 is valid. A person cannot complain of a direction to obey orders given under valid legal authority, once the invalid provisions of the Act are left out.
106. Held: the same reasoning applies to section 24.
107. Noted: sections 23 and 24 are not named in the High Court's concluding list, though the High Court attacked them in its discussion.
108. Held: section 25(4) is valid. Clause (4) allows additions or alterations to registers as a result of the inquiry under clause (3). That inquiry is into the actual state of affairs, and the object is an accurate record. Preparing registers is not wrong.
109. Held: section 26, on annual verification of registers, cannot be held bad for the same reasons.
110. Held: section 28 is valid. The High Court itself said section 28 is innocuous. Mere possibility of abuse is no ground for invalidity.
111. Held: section 29 is valid. All endowed properties are ordinarily inalienable. The restrictions on alienation are not bad. Clause (2), which lets the Commissioner impose conditions when sanctioning alienation, is perfectly reasonable.

Sections 30(2) and 31: invalid

112. Noted: section 30(2) is somewhat obscure. Clause (1) lets a trustee spend, after adequate provision for the purposes in section 70(2) as printed in the judgment, on the health, safety and convenience of disciples and pilgrims. Clause (2) says he shall be guided by the Commissioner's or Area Committee's instructions.
113. Held: if the trustee is guided but not fettered by the instructions, no objection arises. If he is bound to carry them out, it is an encroachment on his right.
114. Why: the Mahant has large powers of disposal over surplus income. His only limit is that he cannot spend it on personal uses unconnected with the dignity of his office. The purposes in clause (1)(a) and (b) benefit the institution, so he should not be compelled to act under Government officers' instructions.
115. Held: section 30(2) is an unreasonable restriction on the Mahant's right of property blended with his office, and was rightly held invalid.
116. Noted: section 31 is also far from clear. After the section 70(2) and section 30 provisions, it lets the trustee spend any surplus for section 59(1) purposes with the previous sanction of the Deputy Commissioner.
117. Why: one section 59(1) purpose is propagating the religious tenets of the institution. It is not understood why sanction is needed to spend surplus income on a primary duty of a Mahant.
118. Held: if the section means surplus can be spent only for section 59(1) purposes and only with the Deputy Commissioner's permission, it is a burdensome restriction on the Mahant's property rights. It would impair his dignity and efficiency as head. Section 31 was rightly held invalid.

Sections 39 to 59

119. Noted: sections 39 and 42 do not apply to Maths and are left out of consideration.
120. Held: section 53 is valid. The High Court condemned it only because courts have ample jurisdiction. That does not stop a competent legislature from legislating on the topic, as long as no fundamental right is violated.
121. Held: section 54 on the standard scale of expenditure is valid. The trustee submits proposals. They are published and suggestions are invited. The Commissioner reports to Government if modification is needed, and Government decides. The Court called this reasonable and salutary.
122. Noted: under section 55, a Mahant ordinarily has absolute power over Pathakanikas. If he dies without disposing of them, they count as Math property and go to the next Mahant.
123. Held: section 55(1), requiring that Pathakanikas be spent only for Math purposes, is an unwarranted restriction on the Mahant's property right.
124. Why: in some institutions custom may treat such gifts as gifts to the institution. The general rule is otherwise. Section 55(1) does not apply only where such a custom exists, so it is an unreasonable encroachment on the Mahant's fundamental right.
125. Held: the same objection applies to section 55(2). If Pathakanikas are the Mahant's property, nothing justifies forcing him to keep accounts. That they may form Math assets if he dies without disposing of them does not justify restricting him while he lives.
126. Held: section 56 was rightly invalidated. It is of an extremely drastic character.
127. Why: the manager is nominally the trustee's servant but practically does everything on the Commissioner's directions. The power can be used at the Commissioner's mere option, without any need such as mismanagement or maladministration.
128. Why: no rigid line can be drawn between the Mahant's spiritual duties and his interest in trust property. The Commissioner could at any moment deprive the Mahant of his right to administer the trust property even without negligence.
129. Held: this restriction would be opposed to Article 26(d). It would cripple his authority and reduce him to an ordinary priest or paid servant.
130. Held: section 58 is valid. A Government officer, not the court, settles the scheme. But ample safeguards exist: section 61 gives an appeal to the Commissioner, a right of suit against his order, and a further appeal to the High Court.
131. Held: the objection to section 58(3)(b) has little substance. The executive officer can only be a manager of the Math's properties and cannot exercise the functions of the Mathadhipati. The trustee can appeal to the Commissioner or sue under sections 61 and 62.
132. Held: section 59, applying the cy pres doctrine where the object of the trust fails from the start or by later events, is valid. Section 59 itself lists the objects, so the Deputy Commissioner only chooses among them. An appeal lies to the Commissioner.
133. Held: the Court did not agree with the High Court that sections 58 and 59 are invalid.

Chapter VI, sections 70, 89 and 99

133. Held: sections 63 to 69 (notification of religious institutions) are void, in agreement with the High Court.
134. Why: the provisions are extremely drastic. The worst feature is that no access is allowed to the court to set aside a notification. The Advocate-General of Madras frankly said he could not support their legality.
135. Held: section 70 is valid. Objection was taken only to clause (3), which lets the Commissioner and Area Committee make additions or alterations in the budget. A budget is indispensable in all public institutions. Preparing it under their supervision is not per se unreasonable. Clause (4) gives an appeal against an Area Committee's order to the Deputy Commissioner.
136. Held: section 89, on penalties, is valid. Once the objectionable portions are removed, the remaining valid provisions can be enforced by penalties.
137. Held: section 99, the Government's overall revisional power, is beneficial to the trustee. He can approach the Government for any irregularity, error or omission by the Commissioner or a subordinate officer.

Section 76: tax or fee

138. Noted: section 76(1) lets a religious institution be charged, for services rendered by the Government and its officers, a yearly contribution of up to five per cent of its income as prescribed. Section 76(2) adds up to one and a half per cent for audit for institutions with income of at least Rs. 1,000.
139. Noted: under section 76(3) the payments are due despite any scheme. Under section 76(4) the Government pays the salaries and expenses of the officers and the cost of auditing.
140. Noted: section 76 was attacked on two grounds. The first is that the contribution is a tax, beyond the State Legislature's competence. The second is that it falls within Article 27.
141. Noted: it is undisputed that the Act falls within entries 10 and 28 of List III of the Seventh Schedule. A fee on those matters may come under entry 47 of the Concurrent List.
142. Noted: a tax not in any specific entry could come only under entry 97 of List I or Article 248(1). Only the Union Legislature could then legislate on it.
143. Noted: the Court said the point is not free from doubt and needs careful consideration.
144. Noted: the Attorney-General argued that the Constitution separates taxes from fees. List I has many tax entries and a last entry, number 96, on fees. List II has the same pattern in entries 46 to 62.
145. Noted: Articles 110 and 119 say a bill is not a Money Bill merely because it imposes fines or demands fees for licences or services. A bill on a tax is always a Money Bill. Article 277 names taxes, cesses and fees separately.
146. Noted: the word tax in Article 265 may be used in a wide sense to include cesses and fees. Article 366(28) defines taxation as including any tax or impost, whether general, local or special.
147. Held: levying fees is only a particular form of exercising the taxing power. The Constitution still treats fees as a separate category for legislation. At the end of each legislative list is a power to legislate on fees for the matters in that list.
148. Noted: Articles 110 and 119 refer to fees for licences and fees for services rendered. The Court asked what characteristics distinguish a fee from a tax proper.
149. Held: the Court adopted Latham C.J.'s definition in Matthews v. Chicory Marketing Board (60 C.L.R. 263, 276). "a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered".
150. Noted: the essence of taxation is compulsion. It is imposed under statutory power without the taxpayer's consent, and payment is enforced by law (Lower Mainland Dairy v. Crystal Dairy Ltd. [1933] A.C. 168).
151. Noted: a tax is an imposition for a public purpose, with no reference to any special benefit to the payer. It goes to general revenue, so there is no quid pro quo between the taxpayer and the public authority. The quantum depends generally on capacity to pay.
152. Noted: a fee is generally a charge for a special service to individuals by a governmental agency. It is supposed to be based on the Government's expense, though costs are often assessed arbitrarily. Fees are ordinarily uniform and ignore ability to pay.
153. Held: because there are various kinds of fees, no definition can apply to all cases.
154. Noted: the respondent argued that a fee is voluntary: one pays it only if one wants the service, as with a licence.
155. Held: compulsion is present in all kinds of imposition, in different degrees, and it is not absent in fees. It cannot be the sole or a material test to separate tax from fee.
156. Why: apart from a poll tax, taxes fall only on certain people. House tax is paid by house owners, land tax by landholders, and municipal rates by those with property in the municipality. Nobody says these are not taxes because owning houses is a choice. Compulsion lies in the fact that payment is enforceable by law in spite of unwillingness.
157. Held: the distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while "a fee is a payment for a special benefit or privilege".
158. Noted: fees confer a special capacity. The special advantage, as in registration fees or marriage licences, is secondary to the primary motive of regulation in the public interest. In a tax any particular advantage is an incidental result of State action (Seligman).
159. Held: if a fee is a return or consideration for services, then on the face of the law the levy must be co-related to the expenses the Government incurs in rendering the services.
160. Noted: there are two classes of cases in which Government imposes fees. In the first, Government grants a permission or privilege, such as a motor vehicle licence. The amount depends on the benefit to the individual, not on the cost, so the tax element is predominant.
161. Held: if licence money goes to roads and other matters of general public utility, the licence fee has to be regarded as a tax.
162. Held: in the other class, Government does positive work for people and takes money in return. If the money is set apart for that work and not merged in public revenues, it counts as a fee, not a tax.
163. Noted: there is no generic difference between tax and fee. The taxing power appears as special assessments, fees and taxes (Seligman).
164. Noted: the Constitution makes the tax-fee distinction for legislative purposes. Fees have special reference to governmental action in respect of the matters in a list.
165. Noted: section 76 speaks of a contribution for services rendered by the Government, so it has the appearance of a fee.
166. Held: religious institutions may not want these services or see State interference as a benefit. But in the present concept of a State, services are not rendered only at the request of those who need them. If the larger public interest requires a special service for certain people, they must accept it, willing or not.
167. Noted: the contribution depends on the payer's capacity, not on the benefit conferred. Institutions with income under Rs. 1,000 are excluded from the additional charge. These are characteristics of a tax, and the levy bears a close analogy to income-tax.
168. Held: the material fact that negatives the theory of a fee is that the money is not earmarked for the expenses of the services. All collections go to the consolidated fund of the State and expenses are met from general revenues by appropriation.
169. Held: that alone might not be conclusive. But there is total absence of any co-relation between the Government's expenses and the amount raised, so the theory of quid pro quo (return or counter-payment) cannot apply.
170. Held: the High Court was right that the section 76 contribution is a tax and not a fee. It was beyond the power of the State Legislature to enact it.

Article 27

171. Noted: because of the decision on legislative competence, the second ground hardly needed consideration. Mr. Nambiar argued that the word taxes in Article 27 includes cesses, fees and other impositions.
172. Held: the Court did not need to decide that point. On the facts, the imposition is a tax but does not come within the latter part of Article 27.
173. Held: Article 27 forbids only the specific appropriation of the proceeds of a tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
174. Why: India is a secular State and freedom of religion is guaranteed to individuals and groups. It is against the policy of the Constitution to pay out of public funds for the promotion or maintenance of a particular religion or denomination.
175. Held: the object of section 76 is not the fostering or preservation of the Hindu religion or any denomination in it. Its purpose is to see that religious trusts and institutions, wherever they exist, are properly administered.
176. Held: this is secular administration. The object is to ensure that the endowments are properly administered and their income used for the purposes for which they were founded. No particular religion or denomination is favoured. Article 27 is not attracted.

Result

177. Held: sections 21, 30(2), 31, 55, 56 and 63 to 69 are the only sections to be declared invalid as conflicting with the fundamental rights of the respondent as Mathadhipati. Section 76(1) is void as beyond the legislative competence of the Madras Legislature.
178. Held: the rest of the Act is valid. The High Court's decision is modified to this extent. Its judgment is affirmed on the merits.

Authorities

• Vidya Varuthi v. Balusami (48 I.A. 302; Privy Council): a Mathadhipati is not a life-tenant, widow or bishop. He may be a manager or custodian with a trustee's duties, but not a mere manager. Relied on.
• Monahar v. Bhupendra (60 Cal. 452; the judgment's text spells it Monahai): Full Bench held that Shebaitship is itself property. Approved by the Privy Council.
• Ganesh v. Lal Behary (63 I.A. 448): Privy Council approved the Calcutta Full Bench view.
• Bhabatarini v. Ashalata (70 I.A. 57; the judgment's headnote spells it Ashdlata): Privy Council approved it again and stressed the proprietary element in Shebaiti right.
• Angurbala v. Debabrata ([1951] S.C.R. 1125): this Court adopted the Privy Council view. It applies equally to the office of a Mahant.
• State of West Bengal v. Subodh Gopal Bose (Civil Appeal No. 107 of 1952, decided 17 December 1953; [1954] S.C.R. 587): Patanjali Sastri C.J.'s lone view that Article 19(1)(f) concerns only abstract property rights. Not accepted or decided here.
• Davie v. Benson (133 U.S. 333 at 342; the headnote spells it Davis): its definition of religion was called neither precise nor adequate.
• Adelaide Company v. The Commonwealth (67 C.L.R. 116, 127): Latham C.J. on section 116 of the Australian Constitution. Acts done in pursuance of religious belief are protected, but not absolutely. Applied in principle.
• Minersville School District v. Gobitis (310 U.S. 586): flag salute in schools upheld by majority. Later overruled.
• West Virginia State Board of Education v. Barnette (319 U.S. 624): overruled Gobitis. Cited to show the difficulty of such cases.
• Murdock v. Penissyl-vania (319 U.S. 105; the headnote's spelling, for Murdock v. Pennsylvania): licence tax on religious colporteurs invalid. Cited as an example of commercial activity prompted by belief.
• Jones v. Opelika (316 U.S. 584; the headnote spells it Tones): taken a few years earlier, a contrary view. Noted.
• Matthews v. Chicory Marketing Board (60 C.L.R. 263, 276): Latham C.J.'s definition of a tax. Adopted.
• Lower Mainland Dairy v. Crystal Dairy Ltd. ([1933] A.C. 168): taxation is compulsion by statutory power and enforced by law. Followed.
• Also cited in footnotes: Findlay Shirras, Science of Public Finance, Vol. I, pp. 202-203 (tax versus fee, special benefit); Lutz, Public Finance, p. 215 (fees uniform); Seligman, Essays on Taxation, pp. 406, 408, 409 (special benefit; special assessments, fees and taxes; tax element in licence fees). The Oxford Dictionary meaning of denomination is also quoted in the text.

Provisions mentioned

• Article 13: laws that conflict with fundamental rights are void. Raised by the Swami's original petition.
• Article 15: bars discrimination. The Swami alleged the Act offended it.
• Article 19(1)(f) and 19(5): the right to acquire, hold and dispose of property, and the power to impose reasonable restrictions. Word property read widely. Restrictions must not make the Mahant unfit for his duties.
• Article 25: freedom of conscience and the right to profess, practise and propagate religion. Clause (2)(a) lets the State regulate economic, financial, political or other secular activity associated with religion. Clause (2)(b) allows social welfare and reform laws.
• Article 26: a religious denomination or section may manage its own affairs in matters of religion (b), own and acquire property (c) and administer it in accordance with law (d). Section 92 of the Act refers to clauses (a), (b) and (c).
• Article 27: forbids specific appropriation of tax proceeds for the promotion or maintenance of a particular religion or denomination. Held not attracted.
• Article 31: deprivation of property. The Attorney-General said it had no application here.
• Articles 110 and 119: Money Bills. Fees for licences or services do not make a bill a Money Bill. Used to separate taxes from fees.
• Article 132(1): the High Court gave a certificate under it for the appeal to the Supreme Court.
• Article 226: the writ jurisdiction of the High Court under which the Swami filed.
• Article 248(1) and entry 97 of List I: residuary power to tax. A tax not in any entry falls here, within Union competence.
• Article 265: the Court said the word tax there may be used in a wide sense.
• Article 277: names taxes, cesses and fees separately.
• Article 366(28): defines taxation as including any tax or impost.
• Article 44(2) of the Constitution of Eire: the model for Articles 25 and 26.
• Entry 28 of List III: religious and charitable endowments. State competence to legislate. Entry 10 of List III is also mentioned. Entry 47 of List III covers fees on List III matters. Concurrent List (a list of subjects on which both Union and State can legislate). Entry 96 of List I and entries 46 to 62 of List II are also cited.
• Section 116, Australian Constitution; First and Fourteenth Amendments, U.S. Constitution: mentioned in the foreign cases.
• Earlier Act (Act II of 1927), sections 61, 61-A and 62: the Board's powers to settle a scheme and call for a manager.
• New Act, section 3: allows extension to charitable endowments by notification.
• Sections 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31: general provisions as summarised above. Held valid except sections 21, 30(2) and 31. Section 18 was held not applicable to Maths.
• Sections 39, 42, 52, 53, 54, 55, 56, 58, 59, 61, 62: Chapter IV (Maths) and related provisions. Section 39(2) and 42 do not apply to Maths. Sections 55 and 56 fall.
• Sections 63 to 69: notification of institutions. Void.
• Section 70: budgets. Valid.
• Section 76: the contribution. A tax, void for lack of legislative competence.
• Sections 79(2), 89, 91, 92, 99, 103: section 89 penalties; section 91 saving; section 92 Article 26 saving; section 99 revision; section 103 treats Earlier Act acts as acts under the New Act. The judgment refers to section 79(2) in one place and section 70(2) in another, for the same purposes clause.

Judgement

1. The Court held that sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 are invalid as conflicting with the fundamental rights of the respondent as Mathadhipati.
2. Section 76(1) of the Act is void as beyond the legislative competence of the Madras Legislature.
3. The rest of the Act is valid.
4. The decision of the High Court is modified to this extent. The High Court's judgment is affirmed on its merits.
5. The appeal stands dismissed with costs to the respondent.

Legal Principle / Ratio

Article 26(b) protects matters of religion, and what is essential to a religion is first decided from that religion's own doctrines. Administration of property is not a matter of religion. Law may regulate it but may not take it away from the denomination altogether.

The Court said: "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself". A levy that is not tied to the cost of services and goes to general revenue is a tax, not a fee.

Subsequent Treatment

Mahant Jagannath Ramanuj Das v. State of Orissa (full title: Mahant Sri Jagannath Ramanuj Das and another v. The State of Orissa and another; 1954 AIR 400; 1954 SCR 1046)

• Court and date: Supreme Court of India, decided 16 March 1954. Mukherjea J. delivered the judgment of the Court. It was decided the same day as this case.
• The Court said the grounds against the Orissa Hindu Religious Endowments Act, 1939 were substantially the same as those against the Madras Act in Civil Appeal No. 38 of 1953. It named this case and said its judgment had just been delivered.
• It said the general questions on the scope of Articles 19(1)(f), 25, 26 and 27 for Maths and temples were fully discussed here. It did not repeat them and applied the principles laid down here.
• Section 11 of the Orissa Act matches section 20 of the Madras Act. The Court held the Commissioner's power not arbitrary, as it can be used only to ensure proper maintenance and administration.
• Sections 14 and 28 (care of a prudent person; obeying lawful orders) raised no objection, as with the Madras Act sections 24 and 23.
• Sections 38 and 39 let the Commissioner, an executive officer, frame a scheme with no appeal to a court. The Court held that this is an unreasonable restriction on the property right of the head, which is blended with his office. It contrasted section 58 of the Madras Act, which allows an appeal and a suit.
• The proviso to section 46 (directions on spending surplus) was held invalid, as with section 30(2) and section 31 of the Madras Act. Section 47 on cy pres stood, as an aggrieved party may sue in a civil court.
• Section 49 (annual contribution for the Commissioner's expenses) was held a fee and not a tax. The Court applied the tax and fee principles of this case.
• The Court reached a different result from this case on section 76 because the money went to a special fund set apart for the services, not to the general revenue. The grading by income did not decide the point.
• It held Article 27 not attracted, because the aim is secular administration of religious institutions, as held here.
• Result: only sections 38, 39 and the proviso to section 46 were invalid. A writ in the nature of mandamus was issued against enforcing them against the petitioners. No order as to costs.

Comparative Analysis

• Madras section 76 (contribution to general revenue, no link to cost) was a tax. Orissa section 49 (contribution into a special fund under section 50 for the Commissioner's expenses) was a fee.
• Madras section 58 (scheme by a Deputy Commissioner, with appeal and suit) was valid. Orissa sections 38 and 39 (scheme by the Commissioner, no court appeal) were invalid.
• Madras sections 30(2) and 31 (directions on surplus income) were invalid. The Orissa proviso to section 46 failed on the same ground.
• Madras section 20 and Orissa section 11 (general control by the Commissioner) were both held valid.

Critical Analysis

Analysis based on the judgment text.

• The Court left open whether Article 19(1)(f) covers only abstract property rights. It proceeded on the footing that it covers concrete rights too.
• The Court left open whether the word taxes in Article 27 includes fees and cesses.
• The Court admitted that no rigid line can be drawn between the Mahant's spiritual duties and his property interest. That makes the secular-or-religious test hard to apply in some cases.
• The Court applied the test mainly with examples (food offerings, ceremonies, recital of texts). It did not list every case of a practice that mixes religious and economic elements.
• Section 76 was struck down on competence, not on its fairness. The Court left open how a State could lawfully charge for supervision.
• The judgment gives no reasoned test for when a limit on a Mahant's spending is reasonable beyond the cases of sections 30(2), 31 and 55.

Significance

• The Court held that Articles 25 and 26 protect religious practices, not only belief.
• It held that a Math can be a religious denomination or a section of one under Article 26.
• It set the rule that the doctrines of the religion itself decide what is essential to it.
• It separated matters of religion (clause (b)) from administration of property (clause (d)).
• It gave a full explanation of the difference between a tax and a fee.
• It read Article 27 as forbidding only specific appropriation of tax proceeds for a particular religion.
• The Notes page on the right to freedom of religion cites the case. Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association is linked as a related case. No later judgment text was available to the page, so no later treatment is stated.

Exam-Important Points

• Essential practices rule: the doctrines of the religion decide what is essential. Food offerings, ceremonies and recitals stay religious even though they cost money.
• Article 26(b) versus 26(d): religious matters cannot be taken away. Property administration can be regulated but cannot be taken away altogether.
• Invalid sections: 21, 30(2), 31, 55, 56, 63 to 69, and 76(1). Trap: sections 20, 23 to 29, 53, 54, 58, 59, 70, 89 and 99 were held valid.
• Section 21 trap: entry into the inner sanctuary without notice or limits is invalid. Section 91 does not save it.
• Article 19(1)(f): the Mahant has property rights blended with his office. The question of abstract versus concrete property rights was left undecided.
• Article 25: a Mathadhipati is an individual who may invoke it. The corporate-body question was not relevant.
• Religious denomination: a collection of individuals with a common faith, a common organisation and a distinctive name. Followers of Madhwacharya qualify.
• Tax versus fee: a tax is part of the common burden, while a fee is a payment for a special benefit or privilege. A fee must be co-related to the cost of services.
• Section 76(1): a tax, so beyond the State's competence. Article 27 was not attracted, because the aim is secular administration.
• Outcome: appeal dismissed with costs. The High Court's order of prohibition stood because the merits findings were not challenged.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so no paragraph numbers are cited. The AIR and SCR citations are as printed on the judgment's header.