Shri Padmanabhaswamy Temple Case (Marthanda Varma v. State of Kerala) - A Critique

The main issue was as to who is to manage the temple which has been under the control and management of the Travancore royal family at least for the last more than 250 years. One of the main contentions was that the management or trusteeship of the temple was vested in the Ruler of Travancore, the whole concept of which underwent a change after the Constitution, particularly post Constitution 26^th Amendment abolishing Privy Purses and other privileges to the former rulers and the death of the ruler who signed the Covenant.

The origin of the temple is shrouded in mystery. The common ground in various versions is that the royal family at Trivandrum has been administering the temple. Different historical versions accept that the temple was originally built by the Maharaja of the place, of whichever dynasty and whatever name. It is also accepted that sometime till the 18^th century the temple was administered by Ettara Yogam and Ettuveettil Pillamars. The temple was destroyed by fire in the 17^th century. It is said that Veera Marthanda Varma, the ruler of Travancore, as we now know it, reconstructed the present temple and the consecration of the new idol was done under his aegis in 1739. This much appears to be accepted, and in any case is undisputed in the pleadings. Therefore it is only the legal consequences of various happenings and instruments / laws that really matter and which the Court considered and decided. It is submitted that the judgment and final order of the Court is realistic and cannot be said to be flawed.

In the factual setting it was held that historical accounts, popular and customary beliefs, etc. and the long recognized and accepted fact that the management of the temple has always been with the Ruler of Travancore lead to the conclusion that for centuries the temple had been under the exclusive management of successive rulers from the royal family of Travancore and that the rulers of Travancore, till the signing of the Covenant merging the princely state with the Indian Union, were managing it in the capacity of shebaits of the temple. A shebait is one who is entrusted with the management of the endowed property- the temple. The shebait could be the founder or settler himself or anyone appointed by him. Whatever the origin of the temple and whoever may have been managing it earlier, it is accepted that after it was destroyed in a fire it was built and consecrated under the aegis of Marthanda Varma, the then Maharaja of Travancore and the temple as we now know it has been under the control and management of the royal family there since then. Hence the finding that the shebaitship is with the royal family cannot be faulted. In any event successive rulers have been at least de facto shebaits, that is, those exercising all the functions of shebaits and being in control and management as such though legal title may be lacking. This position is independent of the dedication by Marthanda Varma and offering to the Lord the entire kingdom in 1750. If that were to be treated as the sole endowment and the basis of shebaitship, the shebaitship may not survive after the Constitution and the republican body politic, such dedication being inconsistent with the constitutional ethos and non est. Such is not the case.

The Full Bench judgment of the Calcutta High Court in Monohar Mukherjee v. Bhupendra Nath Mukherjee (1933) ILR 60 Cal 452 has been referred to and quoted as being the judgment of Asutosh Mookerjee, J. It is, however, the judgment of Manmatha Nath Mukherji, J. speaking for a 5-judge Bench on a reference made by a Division Bench presided over by Rankin, CJ.

This shebaitship has nothing to do with the powers and functions of royalty as such. Shebaitship is like any other inheritable property and would devolve in accordance with the applicable laws of succession, custom and usage. Therefore the Covenant/ Instrument of Accession and the Constitution including the 26^th Amendment abolishing the privy purses have no bearing on this. Art 291 concerned payment of privy purse sums, its repeal ended such payments. Art 362 which also is repealed only required the Union and the States to have due regard to Art 291 while exercising their legislative or executive power. The definitions and meaning of expressions in Art 366 are only for the purpose of the Constitution. 'Ruler' in the Travancore Cochin Hindu Religious Institutions Act (TCHRI Act) is used and meant only to identify, to describe and locate the person and not the capacity (of ruler) as such. Therefore shebaitship will continue to be in the family and pass on to the successors of the last ruler as per law and custom. After the death of the person who was in control and management, the heritable interest will devolve in accordance with the applicable law and customary rights. Shebaitship did not lapse in favour of the State by the principle of escheat. This also cannot be faulted. Indeed, the State's intervention in temples should be minimal and in very exceptional circumstances only. It is significant to note that while the understanding on the part of the State machinery of the legal position is not controlling or determining, it is a relevant factor to be taken note of. The State has also understood and acknowledged the position that the temple is and has been under the management of the Travancore royal family. The High Court, it is submitted, perhaps took a narrow view of the matter in interpreting 'Ruler' and holding that the trusteeship/ privileges in respect of the temple lapsed with the death of the last ruler.

It was clarified by the appellant royal family and reiterated by the Court that the family does not claim the temple and its properties as belonging to them, their claim is only to manage it as trustee. Under section 18 of the TCHRI Act the administration and properties of the temple vested in trust in the Ruler shall be carried on subject to his control and supervision by an Executive Officer appointed by him. Section 20 lays down that there shall be a committee- Sree Padmanabhaswamy Temple Committee to advise the Ruler in the discharge of his functions. It was suggested by the family and accepted by the Court that the 'trustee' in sec 18 shall delegate his powers of administration thereunder to the Administrative Committee which shall administer the temple through an Executive Officer appointed by it. No decision on certain matters of policy shall be taken except with the approval of the trustee. That committee shall consist of the District Judge, Tiruvananthapuram who would be the Chairperson and include a nominee of the trustee-the ruler, a nominee of the Government of Kerala, a nominee of the Ministry of Culture, Government of India and the Chief Tantri of the temple. On all matters of policy regarding the temple administration the trustee shall be guided by the advice of the Advisory Committee (under sec 20) comprising a retired High Court Judge, to be nominated by the Chief Justice of the Kerala High Court, as Chairperson, an eminent person to be nominated by the trustee and a reputed chartered accountant to be nominated by the Chairperson in consultation with the trustee. This arrangement, it is submitted, appears to be broad based and balanced and should allay any apprehensions about nonfeasance, misfeasance or malfeasance. This would be within the permissible limits of delegation of a trustee's /shebait's powers- arrangement or scheme for management and routine administration without abdicating altogether his duties and functions.

It is submitted that in the circumstances of the case and its impact on the public psyche and popular sentiment the judgment and directions appear to have much to commend themselves.

However, all this is subject to an important caveat. The Court refrained from considering the issues in the audit report of Sri Vinod Rai, the former CAG on the ground that the exercise involved entering into various factual issues for the first time in the Supreme Court and no adequate opportunity was given to various stake holders. This is unacceptable. In taking the way forward, the Court seems to have lost the way. It is to be remembered that in a matter like this the Court is exercising parens patriae jurisdiction. Refraining from considering the Vinod Rai report is abdication of the Court's duty and function. The Court ought to have afforded opportunity to all parties, looked into the report and recorded its findings thereon, especially when the report was filed into the Supreme Court as directed.

The expanse of the jurisdiction under Art 136 needs no reiteration, it is open and permissible for the Court to do what is done in an original court. The Court's views and findings on the report also should have been put into the scales before the final directions were given. While the legal position enunciated as regards shebait and the shebaiti rights of the Travancore ruler appear to be unexceptionable, the issue whether the ruler and his successors were guilty of any maladministration or frittering away the temple's wealth, more so in the light of the audit report sought and obtained by the Court, and may have therefore disentitled themselves to be shebaits, was not addressed and decided. The judgment may not be wrong but it is incomplete. It leaves loose ends with certain tasks unfinished. It would be appropriate and would inspire greater confidence and strengthen the foundations of the order if such a corrective measure is taken even now.

[The expression 'Ruler' is used here as in the TCHRI Act]

Views are personal only.