1. The significance of the Char Dham board verdict

It is a setback to Hindutva and a victory for state regulation of temples

• In a major setback to Hindutva arguments on the state’s control of Hindu temples, the Uttarakhand High Court on July 21 upheld the constitutionality of the Uttarakhand Char Dham Devasthanam Management Board Act, 2019 that was surprisingly enacted by the Bharatiya Janata Party government though Hindtuva forces are opposed to such kind of laws.
• All religious reforms are resisted. Thus the Sabrimala judgment (2018) saw huge public protests similar to those after the Shah Bano judgment (1985). From the bogey of ‘minority appeasement’, the nation has now moved to injustices against Hindus. Hindus are under threat is the new battle cry. This writer favours grant of autonomy to Hindu temples in managing their religious affairs as state control of temples is neither constitutionally permissible nor desirable. But in the last six years, the central government has not taken any initiative to release temples from the clutches of the state.
• The Uttarakhand law allegedly takes control of four of the most sacred places in the State including Kedarnath and Badrinath, which was challenged by MP and former Minister Subramanian Swamy. Such laws are in place for a number of temples such as Jagannath Puri (1955), Vaishno Devi(1988), Shrinathji at Nathdwara (1959), Mahakal at Ujjain (1982), Kashi Vishwanath (1983), and Tirupati Balaji temple (1987). Interestingly even Manu’s code provided that priests do not have the absolute right in temple management; instead, kings (state) in ancient India had a vital say in temple management. Even Kedarnath and Badrinath were under state management as prescribed by the Shri Badrinath and Kedamath Temples Act, 1939. The newly enacted law merely replaced this Act. The Chief Justice of the Uttarakhand High Court, Ramesh Ranganathan-led Bench in its 129 page order not only cited 144 judgments but also examined all issues connected with the violation of religious rights of Hindus in temple management.

Laws upheld by the judiciary

• Though Hindutva forces blame the Congress party and secularism for these laws, these laws were upheld by courts. Thus, the Shri Jagannath Temple Act was upheld by the Supreme Court of India in Raja Birakishore vs The State Of Orissa (1964), the Nathdwara Temple Act in Tilkayat Shri Govindlalji Maharaj vs The State Of Rajasthan And Others (1963), the Tirupati Balaji law in Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors (1996) and the Uttar Pradesh Sri Kashi Vishwanath Temple Act in Sri Adi Visheshwara Of Kashi … vs State Of U.P. And Ors (1997). There are consistent judgments of the Supreme Court such as State Of Orissa And Sri Jagannath … vs Chintamani Khuntia & Ors (1997) and M.P. Gopalakrishnan Nair & Anr vs State Of Kerala & Ors (2005) holding that the management of temple is primarily a secular act.
• Chief Justice Ranganathan (he retired on July 27, 2020) accordingly held that though offerings (of money, fruits, flowers or any other thing) are given to the deity, religious practice ends with these offerings, and that collection and distribution of these offerings for the maintenance and upkeep of temple are secular activities.
• The Supreme Court in Nar Hari Sastri And Others vs Shri Badrinath Temple Committee (1952) had already held Badrinath to be a public temple of Hindus and not confined to any family or denomination, and that secular activities of these temples can be regulated by the state. The Court explicitly said that legislature is not bound to demonstrate mismanagement of temples while enacting such laws.
• One of the major arguments of Hindutva victimhood is that this kind of state control is absent for Muslim waqfs and Sikh gurudwaras. But then as many as 27 waqf laws have been enacted so far. The Shiromani Gurudwara Parbandhak Committee Act too was enacted in 1925. In the latest judgment, Chief Justice Ranganathan rightly observed that it is not necessary that the legislature should make a law uniformly applicable to all religious or charitable institutions or endowments. Acknowledging the diversities of our society, he went to say in paragraph 34 that ‘enactment of a uniform law in one go, though desirable, may perhaps be counter-productive’. Thus, the concept of one nation, one law was impliedly rejected.
• Moreover the right to management under Article 26 (Freedom to manage religious affairs) can only be claimed after the fact of establishment has been proved. Dr. Swamy could not prove ‘who established the Badrinath temple after Hindu temples were destroyed by Buddhists’ and who has been deprived of right to management. The judgment thus acknowledges that the history of temple destruction in India certainly pre-dates Muslim invasion.
• The court held that Article 26 cannot be invoked if the denomination never had the right to manage temple properties. It merely acknowledges the pre-existing right. Dr. Swamy failed to convincethe court about any denominational sect having managerial rights in respect of these temples. Relying on earlier decisions, the court clarified that ‘in matters of religion’, right to management is a guaranteed fundamental right under Article 26(b) but in respect of properties, the right to administer properties under Article 26(c) is to be exercised in ‘accordance with law’. Thus, the state is entitled to regulate administration of religious or temple properties by means of validly enacted law. But a law that completely and permanently takes away the right to management will clearly be violative of Article 26(c).

As a denominational sect

• The biggest setback to the Hindutva group is the rejection by the High Court of recognising Sanatan Dharma as a Hindu denominational sect. In paragraph 83, the court observed that the “Hindu dharma is said to be ‘Sanatana’, i.e. one which has eternal values: one which is neither time bound nor space bound.” Since all Hindus by and large have faith in Sanatan Dharma, they cannot be equated to any religious denomination, for the chord of a common faith and spiritual organisation which unites the adherents together, is absent. Citing the Sabrimala judgment (2018), the court observed that Hindu believers including those of the Shaivite and Vaishnavite forms of worship, are not denominational worshippers. No caste or sub-caste or sect of the Hindu religion, who worship mainly a particular deity or god, can be termed as a religious denomination.
• The judgment is likely to be stayed on this point by the Supreme Court as a nine-judge Bench of the court is reviewing the Sabrimala verdict on the rights of denominational sects.
• Finally, the plea based on Article 31-A(saving of laws providing acquisition of estates) was also rejected though the 2019 Act indeed vested the administration of these temples in the Char Dham board in ‘perpetuity’ rather than for the limited duration as is permissible under Article 31A(b) because properties of these temples will continue to be owned by the deities and mere possession will be vested with the board.

2. A policy with many a right intention

The NEP has several innovative ideas and daring proposals, but also makes a few problematic assumptions

• Thirty-four years after the last National Policy on Education was introduced, in 1986, the National Education Policy, 2020 has been announced. It has been approved by the Union Cabinet, and will hopefully be approved by Parliament soon. It has several innovative ideas and daring proposals, but also makes a few problematic assumptions.
• A majority of the path-breaking proposals submitted by the Dr. K. Kasturirangan Committee, in the 2019 draft National Education Policy, seem to have been approved. Those proposals saw extensive debates and discussions in the country and generated a lot of feedback. Very few important proposals that figured in the draft have been ignored in the final policy. There are a couple of major new proposals in the 2020 policy which were not proposed in the draft or which have been marginally modified from the draft policy. While I welcome the policy as it promises a large set of transformative reforms of the entire education system, I refer to some proposals and issues here.

Bold moves

• It is heartening that there are statements in the policy such as “education is a public good” and “the public education system is the foundation of a vibrant democratic society”. I wish these statements forcefully guide the formulation of the policy in all aspects. The recognition of education as a public good has important implications for public policy in planning, providing, and financing education. It also has important implications for the state’s approach towards private education. In fact, benevolent private players and private philanthropists draw inspiration from the nature of education as a public good. It is public education that contributes to the building of nations, their growth — socially, economically, politically, culturally, and technologically — and the building of a humane society. There are many more statements in the policy that may be welcomed. For instance, the policy promotes a holistic education as well as “each student’s holistic development in both academic and non-academic spheres”, emphasises extra-curricular activities, emphasises research, speaks of “substantial investment in a strong, vibrant public education system”, and so on.
• The major recommendations of the Committee that have been approved include a 5+3+3+4 system in school education that incorporates early childhood care and education; universal education that includes the secondary level; adoption of school complexes; breakfast in the school meal programme; and introduction of vocational education at the upper primary level. A series of reforms have been proposed in higher education too. These include a multidisciplinary system offering choices to students from among a variety of subjects from different disciplines; integrated (undergraduate, postgraduate and research levels) education; a four-year undergraduate programme; and overhauling of the governance structure in higher education. There will be just one regulatory body for the entire sector in the Higher Education Commission of India. The policy also places emphasis on the liberal arts, humanities, and Indian heritage and languages; facilitates selective entry of high-quality foreign universities; aims to increase public investment in education to 6% of the GDP; promises to provide higher education free to about 50% of the students (with scholarships and fee waivers); and aims to increase the gross enrolment ratio in higher education to 50% by 2035. Some of these proposals were suggested by earlier committees such as the Yashpal Committee and C.N.R. Rao Committee, and several experts. As they have immense scope in revitalising the system, we may applaud many of these moves.
• Some policy decisions are bold. For instance, the policy says, “Wherever possible, the medium of instruction until at least Grade 5… will be the home language/mother tongue/local language/regional language.” It also says the three-language formula will be implemented. The first proposal, which should apply to all schools including private schools, will reduce elitism and dualism in schools to a great extent, though one might expect a bolder move like a common school system, which would be a greater equaliser. The three-language formula will promote national integration. Reforms like revamping the University Grants Commission and abolishing the affiliating system were only dreamt of earlier by many experts. Of course, implementation of these audacious reforms is still a major challenge.

Missing in the final policy

• What are the proposals or statements that were emphatically made in the draft but are missing in the policy? One important statement that was repeatedly made in the draft policy, that all commercially oriented private institutions will be closed, is missing in the final policy — though the 2020 policy promises closure of substandard teacher education institutions only. Now the policy simply states, “The matter of commercialization of education has been dealt with by the Policy through multiple relevant fronts, including: the ‘light but tight’ regulatory approach that mandates full public self-disclosure of finances”, though almost every policymaker and administrator in education recognises that there is a serious problem with the private education sector in India. Second, the draft policy promised doubling public expenditure on education to 20% of the total government expenditure, from 10%. The 2020 policy simply reaffirms the commitment to allocation of 6% of GDP.
• A few other recommendations of the Committee did not find a place in the final policy. They include setting up of a National Education Commission at the national level and a similar one at the State level. There is no mention of State School Education Regulatory Authorities in the 2020 policy. At the State level, the Department of School Education is regarded as the apex body. There is also no promise of ‘full’ recruitment of teachers at all levels, though the policy promises robust recruitment mechanisms to be put in place.
• Among the few new proposals, the establishment of a model Multi-Disciplinary Education and Research University in every district is one. In school education, a National Assessment Centre has been promised to make assessment and evaluation more holistic. The policy, unlike the draft, rightly recognises the need to strengthen the Central Advisory Board of Education.
• Apart from a few controversial proposals, a few untenable basic beliefs and assumptions of the Committee prevail. The Committee seems to have great faith in “light but tight” regulation, confidence in the private sector in making honest self-disclosures of all aspects of their operations, and faith in the adequacy of common norms for public and private institutions. It also seems to have faith in the government’s ability to implement many reforms — for example, in doing away with the affiliating system and making all colleges autonomous degree-awarding colleges of high quality, ensuring institutional and faculty autonomy, and in the autonomous functioning of institutions of governance with no external interference. Policymakers and administrators have been struggling unsuccessfully with some of these issues for years. A major challenge policymakers will continue to face is how to differentiate the benevolent philanthropic private sector from undesirable but powerful market forces in the education sector and regulate the entry and growth of the latter.