Read Time: 11 minutes

Synopsis

The Madras High Court recently allowed two writ petitions filed seeking direction to restrain the Government of Puducherry from interfering in the administration of two temples.

The bench of Justice N Anand Venkatesh observed that the arguments put forth by the Additional Solicitor General in the matter were such that they gave an impression as if temples can never be managed by private persons and they will always be safer to be in the hands of the Puducherry Hindu Religious and Charitable Endowment Department (HRCE Dept).

Court pointed out that the ASG submitted that the officials of the HRCE Dept will have to necessarily administer the temples at Puducherry, failing which, there will be anarchy and it will seriously affect the interest of the temples.

Through the first petition, a direction had been sought to restrain the government from interfering with the affairs of the idol of Arulmigu Shree Sundarmoorthi Vinayagar by purporting to exercise powers under Section 4(1) of the Pondicherry Hindu Religious Institutions Act, 1972 (the Act).

Whereas, through the other petition, a direction was sought to quash a government order passed in May last year whereby a new Board of Trustees was constituted in exercise of powers under Sections 4(1) and (1A) of the Act for the administration of Sri Venkateswara Devasthanam, Group of Temple, Yanam.

The main contention raised by the petitioners was that since Sections 4(1) and 9(1) of the Act have already been struck down as unconstitutional by the high court, therefore, the official respondents did not have any power or jurisdiction to interfere with the administration of temples at Puducherry.

Section 4(1) of the Act deals with the appointment of a Board of Trustees for a temple whereas Section 9(1) provides for the appointment of an Executive Officer for an institution or group of religious institutions.

In Meenakshi Devi Bhavanani & another Vs. Union of India & Others (1986), a single judge bench of the Madras High Court had struck down both the provisions and declared Sections 4(1) and 9(1) of the Act unconstitutional.  The order was also confirmed by a division bench of the high court.

However, when the appeal was filed before the Supreme Court, though it had not interfered with the decision of the single judge bench as affirmed by the division bench, it had left the question open for consideration to be decided by an appropriate bench of the top court in a different pending case of 2012.

The legal issue before the high court was that whether the order dated 18.2.2013 passed by the Apex Court by leaving open the question to be considered in a pending writ petition wiped away the order passed by the high court declaring Sections 4(1) and 9(1) of the Act as unconstitutional.

The high court observed that an Act or a provision of law, which is declared as unconstitutional for violation of the Fundamental Rights under Part III of The Constitution of India, is a still born child in the eye of law. "It is deemed to have never been in existence by virtue of Article 13(2) of The Constitution of India", said the court.

Court held that Government Orders that have been issued derive their source from Section 4(1) of the Act and if the source itself has been declared as unconstitutional, it will be in the nature of a building without foundation and it has to naturally crumble down.

"After the provision has been declared as unconstitutional, the Government Orders issued and all that transpired thereafter must be held to be a nullity in the eye of law," concluded the court. 

Further, court rejected the plea raised by the ASG that in the instant matter, doctrine of merger, and doctrine of necessity were applicable.

Court held that though the order passed by the high court got merged with that of the order of the Supreme Court, such merger did not result in the law declared by this Court getting reversed.

"The relevant portion in the common order of the Supreme Court, which is extracted supra, makes it clear that the Apex Court was not expressing any opinion, either way, on the constitutional validity of the provisions and the question was kept open to be decided in the pending case in W.P.(C) No.476 of 2012," highlighted the court. 

On the doctrine of necessity, court observed that power exercised by the officers of the HRCE Dept and the Government Order passed are traceable only to such a power given under the provisions of the Act and once such power under ceases to exist, it cannot be continued to be exercised with the aid of the doctrine of necessity.

"If such exercise of power is permitted, the State and its Instrumentalities would continue to pass orders and take control of the administration of temples even in the absence of a statutory provision by just invoking the doctrine of necessity," said the court. 

Court stressed that the doctrine of necessity can never be invoked in a case of this nature and this doctrine is not meant for disregarding the orders passed by a Constitutional Court declaring a law as unconstitutional.

Case Title: The Idol of Arulmigu Sri Sundaramoorthi Vinayagar v UOI and connected matter