The Article 26 of the Constitution of India reads as thus provides four sub-provisions of the Article 26 deal with four different variants of the same right to institutional management of the religious sect. The phrases ‘establish,’ ‘manage’ and ‘maintain’ are words that hold the rights of ownership and other associated bundle rights. If one has a right to establish and manage ‘its own’ affairs, then it follows that such management shall be devoid of external interference. By way of the Church Bill, the external interference is made from the government itself, thereby the very idea of a fundamental right being a negative right to be exercised against the State’s power to regulate and curb takes a hit. As the difference between negative and positive rights goes, the government is restrained from exercising its power in the first case, in the later the government is mandated to manifest its authority. Article 26 (a) and (b) must be considered as negative rights which bar the governmental power to interfere in the institutional management of religious sects.
Similarly, (c) and (d) of Article 26 guarantee the right to own, acquire and administer religious institutionalized property.
The only minimal scope of governmental regulation is mentioned at the end of Art.26 (d) wherein it is stated that administration of property shall be in accordance of law. Here, quite clearly, ‘law’ denotes the ordinary civil laws of the land like the Indian Contract Act, The Transfer of Property Act, the Trusts Act, the Sale of Goods Act etc. The provision does not empower the State to bring about a new law for administration of the property specifically for the said community.
A comparison of the Bill may be attempted to be made as against the Institutions of Waqf Board and Devaswom Board by the propounders of the Bill, on the footing that even those are institutions wherein which the State was allowed to take control of religious institutions. Such a comparison is totally misplaced, for the property handled and managed by the Waqf Board are specifically endowed property given by a Muslim for charity purpose as an offering to Allah. This has a historical connotation as well since the properties of Waqf Board were originally properties of erstwhile Muslim Rulers of the State whose wealth was entrusted with the Board to further cause of Islam and to the noble cause of giving. Similar is also the case with the Devaswom Board. Not all temples come under Devaswom and definitely not by force. Both these statutory boards are not entrusted with any other religious property except those that are specifically assigned to them as stated above. In any case, both Devaswom and Waqf Boards are comprised of members of that particular religion and who have specifically averred that they follow that particular faith. Even that is missing with respect to the Church Bill.
Thus the proposed Kerala Church (Properties and Institutions) Bill, 2019 is riddled with factual inaccuracies presented as a premise and involves blatant disregard to the Part III rights of religious institutions and its followers. The Indian idea of inclusive secularism demands that the State respect the boundaries between its scope of legislation and people’s individual and fundamental right to faith as matter of privacy as well as religion. The Wall of Separation between the Church and the State is now important than ever.
ADV. FR. MANOJ GEORGE PLAKKOOTTATHIL