My Opinion on the Hon’ble Division Bench Judgment
in W.P.No.574/2015 and batch:-
India is a Secular Nation treating all the religions equally with more protection to the minorities.
When other religions have only the followers of the faith on their respective religion Hinduism alone have two different set of people though they are Hindus one belong to Atheism and another belong to theism.
The Atheists are meant to question the existence of God as according to them there is no proof to it. They are called ‘Pahutharivaalargal’ born to alleviate the superstitious belief of the common people in the name of God. In fact ‘Pahutharivu’ means the dissection of a thing or object or subject with their knowledge and find out its truth.
The wonder is that there are no such ‘Pahutharivaalargal’ for other religions and thus ‘Hinduism’ stands as an unique on that also apart from having so many noble and precious characters of its own.
Hindu Gods are Gods taken birth as a human to teach the morals and the cream of life to the world and then go to heaven as God. Hindu Gods have so many epics supported by evidences left out in the place of birth of those Gods.
Unlike all other Constitutions our Constitution was given by our people to themselves and it is Sovereign Socialist Secular Democratic Republic.
It guarantees to all the persons not restricted to the citizens or Hindus or any other particular religion fundamental rights equally to freedom of conscience and the right to profession, practice and propagate religious subject to public order, morality and health and other provisions of Part III.
Whereas Arts.29 & 30 of our Constitution guarantee and protect the minorities either on the basis of their religion or language or script or Culture or distinct language. As already stated the so called atheists are not only available in minority communities and very strangely they respect their religious practices
Anyhow under the above narrated factual placement of our religion and its nature, making all the theists to visit their religious places called Temples or Brindhavans to follow their own religious practices, certain problems were felt by the intrusion and invasion of certain unruly elements, making the existence of temples became questionable.
The invaluable idols powered by Agamas, rituals and mantra of more than 500 years to 2000 years were smuggled and the structure of the temples due to lack of care became dilapidated. The heritage value of the temples and religious institutions were thrown to wind.
II. Present Public Interest Litigation:-
At that time a new was flashed in a News Paper about the failure to form the Heritage Commission in 2015 which immediately attracted the public spirited eyes of the then Hon’ble Chief Justice, now adorning the Apex Court Bench and took suo-motu action to protect the heritage value oriented religious Institutions and other public places. Then on his elevation the matter was posted before the Hon’ble Division Bench of Hon’ble Mr.Justice R.Mahadevan J and Hon’ble D.Adikesavalu J which Bench already with pain and cost of health undertaken a challenging long journey to bring the invaluable divinely idols smuggled to foreign countries back to India through a batch of litigations.
The above Bench after analyzing all the aspects and after hearing all the persons and experts in the field has delivered its land marking judgment running to 224 pages by referring to various Acts, Rules and Regulations to uphold the dignity and divinity of temples and protect the income of the temples and the properties owned by them.
The Bench upto page 117 and para 35 dealt with the history and cause of the case in their words and the various orders passed by the earlier Bench and the reports filed by the Amicus, Experts and the department.
From para 36 onwards it has started analyzing each and every problem faced by the temples minutely and given solutions to various issues.
III. Observation of the Hon’ble Division Bench:-
(a) After finding that nearly 90 Crores sanctioned by the Govt., of India through 13th Finance Commission to renovate and maintain the temples and monuments and the distribution of the same by the Govt., of Tamilnadu to 228 temples as discussed at para XII of 36.5 it has directed for the periodical audit inspection by an independent audit wing of HR & CE and also for the CAG Audit as Direction No.28 and Direction No.15 at page No.207/244 and 203/224 respectively.
A. CAG and the Contitution:-
Article 149 of the Constitution lays down the legal basis for the Parliament to prescribe the duties and powers of the CAG in relation to the accounts of the Union and of the States and of any other authority or body. The CAG Duties, Powers and Conditions of Service (DPC) Act, was passed in the Parliament in 1971. The DPC Act was amended in 1976 to separate the accounts from the audit in the Government of India. The duties and functions of the CAG as per our Constitutional provisions are enumerated below one by one:-
(a) Auditing the accounts related to the entire expenditure drawn from the Consolidated Fund of India, Consolidated Fund of every State and Union territory having a Legislative Assembly.
(b) Audit of the entire expenditure from the Contingency Fund of India and the Public Account of India as well as the Contingency Funds and the Public Accounts of States.
(c) Audit of all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts of any department of the Central Government and State Governments.
(d) Auditing the receipts and expenditure of the Government of India and each State to ensure that the rules and procedures in that regard are designed to secure an effective check on the assessment, collection and proper allocation of revenue.
(e) Auditing the receipts and expenditure of the following:-
All bodies and authorities substantially financed from the Central or State Revenues; Government Companies; and Other Corporations and bodies when so required by related laws.
(f) Auditing all transactions of the Central and State governments related to debt, sinking funds, deposits, advances, suspense accounts and remittance business. He also audits receipts, stock accounts and others, with approval of the President, or when required by the President.
(g) Auditing the accounts of any other authority when requested by the President or Governor. For example, the audit of local bodies.
(h) Advising the President with regard to the prescription of the form in which the accounts of the Centre and the States shall be kept (Article 150).
(i) Submitting audit reports relating to the accounts of the Central Government to the President, who shall, in turn, place them before both the Houses of Parliament (Article 151).
(j) Submitting audit reports relating to the accounts of a State Government to the Governor, who shall, in turn, place them before the State Legislature (Article 151).
(k) Ascertaining and certifying the net proceeds of any tax or duty (Article 279). The certificate is final. The ‘net proceeds’ means the proceeds of a tax or a duty minus the cost of collection.
(l) Acting as a guide of the Public Accounts Committee of the Parliament.
Further it compiles and maintains the accounts of State Governments. In 1976, he was relieved of the responsibilities regarding the compilation and maintenance of accounts of the Government of India due to the separation of accounts from audit, through departmentalization of accounts. The CAG submits three audit reports to the President:
• Audit Report on Appropriation Accounts
• Audit Report on Finance Accounts
• Audit Report on Public Undertakings
The President lays these reports before both the Houses of Parliament. After this, the Public Accounts Committee examines them and reports its findings to the Parliament.
B. Conclusion on CAG and the Court under Article 226:-
From the above it is clear as to how the CAG can deal with the audit the receipts and expenditure of all the bodies and the authorities substantially financed from the Central or State Revenues, Govt., companies and other Corporations and bodies when so required by related laws. In this case the Division Bench headed by the Hon’ble Mr.Justice R. Mahadevan who is well versed in Tax Laws after noting that huge amount was spent for the renovation of Srirangam temple between 2014 – 2016 to the tune of Rs.20,90,98,368 against the estimated amount of Rs.5,66,90,801/- as evidenced from para 36.5 (xvii) of his judgment at P.147/224 and then on observing that an amount of Rs.33,651.99 lakhs was due from persons who had taken temple land on lease by March 2010 by referring to an extract from the CAG Audit of the HR & CE Department enclosed at P.89 of the typed set filed in W.P.No.574/15 at para 36.5(xiv) of his judgment at P.145/224 has thought it proper to pull in the CAG in larger public interest.
C. Direction for CAG:-
Only after observing all the inflow of huge funds from the Govt., of India and the expenditure of 4 times more than that of the sanctioned amount, the Division Bench at P.203/224 has given direction No.15 to the CAG as follows:-
“(15) The CAG audit shall be done with ASI expertise to assess the damage structurally and evaluate the value of the antique destroyed. Further, the compliance, audit financial audit and performance audit shall also be done every year managing huge wealthy resources of the temples.”
Thus the above direction was given only on analysis of all the above factual and legal aspects as per the Arts.148 to 151 of the Constitution of India read with DPC Act referred to above.
IV. Direction of the Hon’ble Division Bench:-
(b) The Division Bench has ordered for the establishment of Mamallapuram World Heritage Area Management Authority and Heritage Commission within 8 Weeks as Direction Nos 1 and 2 at page 198 of 224.
(c) It has ordered for the removal of encroachment as Direction No.35 at P.210 of 224 within 8 weeks.
(d) As Direction No.47 and 48 at page 213/224 it has passed orders for the appointment of Othuvars and Archas for the Siva and Vishnu temples along with well qualified Sthapathi as Direction No.50.
(e) As Direction No.51 the Division Bench has passed an order for the payment of salary as per the Minimum Wages Act and as Direction No.51 for the settlement of retirement benefits within 30 days to the retired employees.
(f) At Page No.215/224 from Direction Nos.54 to 57, the Division Bench has dealt with the appointment of trustees and hereditary trustees.
(g) Above all, after noticing that the cases concerned with the temples take much time for the disposal ordered for the formation of the Tribunal within 6 months as Direction No.61 and 62.
(h) As Direction No.63 the Hon’ble Division Bench has brought all the employees under the purview of the Tamilnadu Govt., Servants Conduct Rules so as to make them liable and punishable
(i) As Direction NO.64 the Bench directed the Govt., of India to declare all the religious structures more than 100 years old as ‘National Monuments’ with immediate effect.
(j) Even for the maintenance of water bodies and animals directions were issued as Direction Nos.69 and 70.
(k) As direction Nos.71 and 73, the Division Bench passed orders for the placement of the Granite Board explaining the history of the temple.
(l) It has given direction for the recovery of the temple lands and the maintenance of the same also.
(m) It has pulled the Archaelogical Survey of India to assist and passed orders for invoking Customs Act also at Para 41.
V. Archakas from all the Communities:-
The Hon’ble Division Bench has generally observed the word ‘Archakas’ knowing Agamas and other religious rituals and reffered to the judgment of two Hon’ble Apex Court Judgments at Paras 46, 47 and 48 i.e., Seshammal –Vs- State of Tamilnadu (1972) 2 SCC 11 followed in Adhi Saiva Sivacharyargal Nala Sangam –Vs- State of Tamilnadu (2016) 2 SCC 725 in which the Government order dated 23.05.2006 providing the post of Archakas for all the communities was held to have the potential of following foul of the direction land down in Seshammal. Though the Community of Archakas was not the issue before the Division Bench it took care to deal with the same also.
The only thing which is left out is the fixation of outer time limit to inspect the temples for renovation and then fix the date to conduct Kumbhabishekam for the renovated temple already.
The judgment of the Hon’ble Division Bench has dealt with all other aspects exhaustively in a balanced manner in the interest of all concerned particularly in the light of Articles 25 and 26 of the Constitution of India and the development of all the Hindu Temples. I want to recall the observation of the Hon’ble Division Bench at para 55 “that the cultural and heritage value as well as the Archaeological Importance of the historical monuments, sites and temple and its properties have to be conserved, preserved and maintained.”
The Bench by its Directions has made sincere and honest attempts to achieve the same and hope that they will be achieved definitely in the interest of the Nation.
Designated Senior Counsel