Control of Bodh Gaya Temple: Hindu v. Buddhist Rights?

Authored by Aditya Tandon and Harsh, second-year regulation college students at Hidayutallah Nationwide Regulation College, Raipur

Bodh Gaya is taken into account to be a sacred place for Buddhists. Satirically, the internationally well-known Mahabodhi Temple (hereinafter known as ‘Temple’) has been beneath the efficient management of Hindus for ages. This sanction for an unacceptable cultural domination has been supplied beneath the Bodh Gaya Temple Act, 1949 (hereinafter known as ‘Act’). It violates the provisions of the Indian Structure, significantly the ideas of secularism and elementary rights as enshrined beneath Half III of the Structure. Within the backdrop of large-scale protests taking place for the previous two months, which is the most recent episode of the many years outdated dispute, the authors query the constitutionality of the Act and argue for its repeal or modification with a purpose to serve justice to the Buddhist neighborhood.

Part 3 of the Act gives for the formation of the Bodhgaya Temple Administration Committee (hereinafter known as ‘Committee’) for the administration and management of the Temple. It says that the committee shall encompass eight members, 4 of whom ought to be Hindus and the opposite 4 Buddhists. It’s fascinating to notice that earlier than 2013, the Act supplied that the District Justice of the Peace (hereinafter known as ‘DM’) of Gaya who’s the ex- officio Chairman of the Committee shall be a Hindu and if the DM shouldn’t be a Hindu, then the State authorities would appoint a Hindu DM because the Chairman in the meanwhile DM is a non-Hindu. The proviso to Sub-Part 3 of Part 3 of the Act, which supplied for this, was deleted by an modification in 2013 by the Bihar Legislative Meeting. The preamble of the modification should be thought of because it recognised that Part 3(3) of the Act violated the ideas of secularism and thereby eliminated the necessary situation that the Chairman needed to be a Hindu, even when the DM was a non-Hindu. The authors argue that the reasoning supplied within the Preamble of the modification may be prolonged to Part 3(2) of the Act as properly. Earlier than the 2013 modification, the committee was numerically dominated by Hindus, and this was mandated by the Act itself. The modification seeks to take away the necessary nature of the DM being a Hindu, nonetheless, it isn’t far-fetched to achieve the view that almost all DMs are going to be Hindu, contemplating the demography of Bihar and India.  This may be substantiated by this checklist of all DMs of Bodh Gaya from 1949 to 2022.

One other troubling provision is Part 5(3) of the Act, which asserts that any act can’t be challenged merely on the grounds of a emptiness in or any defect within the structure of the Committee. This suggests that the state authorities would possibly even nominate extra Hindu members than what has been mandated by the Act itself, as per their expediency, thereby leaving the Buddhists with no resort left. That is regarding, particularly given the truth that based on Part 8 of the Act’s bye-laws, the quorum for any assembly shall be 4. A scenario the place selections may be taken by simply 4 Hindu members would elevate important considerations in regards to the equity and representativeness of the decision-making technique of the Committee. As well as, the legislators have been properly knowledgeable of the age-old dispute between the Hindus and Buddhists and whereas bearing in mind this truth, they inserted Part 12 within the Act, which states that any dispute between Hindus and Buddhists in relation to the Temple shall be determined by the state authorities. The choice of the state authorities is more than likely to be pro-Hindu, contemplating the vote financial institution nature of politics and the bulk Hindu demography within the area.

The landmark instances of Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India established that pre-constitutional legal guidelines should not have a presumption of constitutionality. Given the truth that the Act was enacted in 1949, it doesn’t benefit from the prerogative of presumption of constitutionality. Due to this fact, the judiciary should scrutinise carefully the provisions of the Act for any potential constitutional violations, significantly these of  Article 14.

The actual fact that there’s a obligatory inclusion of non-Buddhists within the Committee of a Buddhist place of worship, even with out a mandate that if a non-Buddhist is included, he ought to possess the information of Buddhism, posits a transparent violation of not solely Article 14 but in addition of Articles 25 and 26. It is very important notice that this obligatory inclusion of the members of one other neighborhood within the administration committee of a spot of worship of a neighborhood is an anomaly, and no related regulation exists for Hindus or for the followers of some other faith in India. The truth is, Part 6(2)(ii) of the Shri Sanwaliaji Temple Act, 1992 states that the State Authorities will nominate three members who’ve served within the Vaishnava Sampradaya and the Sanwaliaji Temple is devoted to Lord Vishnu and therefore, the Act justifies the nomination of such a member. As well as, Part 6(2) of the Shri Jagannath Temple Act, 1955 prohibits anybody however a Hindu from becoming a member of the board of members managing the temple. Different Acts governing temples just like the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988, don’t particularly debar members of different religions from being part of the Temple Administration Committee, however undoubtedly don’t mandate their obligatory inclusion. Thus, there isn’t a affordable classification primarily based on intelligible differentia for this totally different and unfair therapy being meted out to the Buddhists as envisaged within the case of State of West Bengal v. Anwar Ali Sarkar.

In accordance with Articles 25(1), 26 (b) and 26 (d), all individuals have the liberty to freely profess, propagate and observe their faith and handle the affairs of their very own faith and have management over their property. As has been mentioned, there are lots of impediments which have been created by the pro-Hindu provisions of this Act to the Proper to Freedom of Faith of the Buddhists.

It may be argued on behalf of the Hindu proponents that the time period ‘Hindu’ consists of Buddhists as properly and there arises no argument in opposition to inclusion of non-Buddhist members, by drawing inspirations from Rationalization II of Article 25 of the Indian Structure and Hindu Marriage Act, 1955 which gives that the time period ‘Hindu’ consists of Buddhists. Nonetheless, the mandate beneath Part 3 of the Act for obligatory inclusion of 4 Buddhist members within the Committee highlights the intention of the legislators to disintegrate Buddhists from the time period ‘Hindu’. In any other case, the Act might have simply talked about that the members of the committee ought to be eight Hindus. It may be inferred that the intention of the lawmakers was to not embrace Buddhists beneath the time period ‘Hindu’ within the sense of Article 25.

This may be additional substantiated by resorting to Part 12 of the Act, which says that if there exists any dispute between Hindus and Buddhists relating to the way of use of a temple or temple land, the choice of the State Authorities shall be last. This suggests that the legislators have been apprised of the truth that there exists a dispute between the 2 sects for efficient management of the Temple and its administration. Furthermore, there’s a elementary downside with disputes being settled by the State authorities, as there may be the potential for pro-Hindu bias for causes which were mentioned beforehand. As a substitute of the disputes being settled by the State authorities, they may go to an Arbitrator as is supplied beneath Part 23 of the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988.

The Locations of Worship Act, 1991, as argued, would possibly develop into an obstacle to Buddhists’ declare, as in impact, it prohibits the conversion of any spiritual place of worship after fifteenth August, 1947. It is very important notice that Part 3 of the abovementioned Act makes use of the time period “No particular person shall convert anyplace of worship…”. Thus, it prohibits extra-judicial conversion/destruction of a spot of worship, much like what occurred within the case of Ram Janmabhoomi in Ayodhya. It’s the vagueness of Part 4(1) of the identical Act that makes the scenario difficult, because it states that “spiritual character of a spot of worship present on the fifteenth day of August, 1947 shall proceed to be the identical because it existed on that day”. Nonetheless, it’s nowhere outlined within the regulation what the time period ‘spiritual character’ means. It’s extremely unlikely that the Court docket would maintain that the change in composition of a temple committee, that too due to it violating Article 14, would someway change the “spiritual character” of a spot of worship. The case shouldn’t be about changing a Hindu temple right into a Buddhist temple or vice versa, however in regards to the management and administration of a spot of worship.

The Act, in its current kind, stands in contradiction to the values of secularism, equality, and non secular freedom enshrined within the Indian Structure. By successfully inserting the management of a profoundly sacred Buddhist website within the arms of a committee not wholly consultant of the Buddhist neighborhood, the Act sustains an imbalance that undermines the autonomy of non secular minorities. Its provisions battle with Articles 14, 25, and 26, and mirror outdated authorized considering that not aligns with modern constitutional requirements. Addressing this imbalance shouldn’t be merely a matter of non secular sentiment however a constitutional obligation. In conclusion, the authors consider that the BGT Act ought to be amended with a purpose to restore possession and administration to the Buddhist neighborhood.