Devaswom Board: Kerala HC “distressed”, says time has come to make nominations, elections transparent

In a significant judgment which could ignite a political debate in Kerala, the High Court of Kerala has expressed its distress at the absence of a democratic and transparent system in the State for nomination and election of members to Travancore Devaswom Board and Cochin Devaswom board, the statutory bodies which administer Hindu temples in the State..The Court made it clear in unequivocal terms that “time has now come for the Executive and the Legislature to act..to make the process of nomination and election of members to the Boards open and transparent.”.A Bench of Justice PR Ramachandra Menon and Devan Ramachandran delivered the judgment in a petition filed by TG Mohan Das, a right-wing activist and a writer on various social and religious issues..Senior Advocate Mohan Parasaran along with advocate Sajith Kumar V appeared for Mohandas. Advocate General CP Sudhakara Prasad along with Senior Government Pleader V Manu appeared for the State of Kerala. Advocate KP Sudheer appeared for Cochin Devaswom Board..The challenge.Mohandas had challenged the vires of Sections 4(1) and 63 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Act). These two provisions lay down the constitution of the two Devaswom Boards – Travancore Devaswom Board (TDB) and Cochin Devaswom Board (CDB)..He was aggrieved by the alleged arbitrariness in the process of nominations and elections of members to the TDB and CDB. According to him, the method of nomination and appointment of members to the TDB and CDB was undemocratic and in derogation of the rights of the devotees to be part of such process..His assertion was that under the prescriptions of the two sections aforementioned, the nominations and election of the members to the two Boards in question are vested with the Hindu Ministers of the Cabinet of the Government of Kerala and the members of the Legislative Assembly who profess the Hindu religion, exclusively but that no devotees, including the petitioner, would obtain any right to be part of this process..The petitioner had alleged that the manner of nominations and elections, as provided in these two sections, to the post of members to the Boards violates the principles of democratic election and that it annuls the constitutional right of every devotee to be able to nominate and elect members through a process of direct election..Further, it was his argument that even when the Ministers elect the members, it was not their will that was given paramountcy because, under the Kerala Secretariat Office Manual, the Hindu members will have to form a Cabinet Sub Committee or a group of Ministers to elect the members to the Boards and that all such decisions of the Sub Committee or the group of Ministers will obtain sanction only after approval by the Minister concerned and the Chief Minister..The net effect would be that the Chief Minister, who may belong to any religion, would thus obtain the locus to reject the recommendation of the Cabinet Sub Committee of group of Ministers, thus impeding the real will of the Hindu Ministers..The petitioner also cited the judgment In re: Temples in the Erstwhile Malabar Area wherein the Kerala High Court in 1995 had directed the government to consider the formation of a Board for the whole of Kerala on the lines of the recommendations made by two commissions, which had conducted studies about Devaswom Boards..Interestingly, BJP MP Subramanian Swamy who was impleaded as a respondent in the matter also supported the submissions of Mohandas and in fact travelled “beyond them by saying that the Act itself and not merely Sections 4(1) and 63 are unconstitutional”..Judgment.Provisions are not ultra-vires but transparency need of the hour.The Court, placing reliance on a catena of decisions, upheld the vires of the assailed provisions. However, it made it clear that there is substance in the petitioner’s argument that the process of nomination or election of the members to the two Boards are steeped in secrecy and non-transparency..“Even though we are of the view that Sections 4(1) and 63 of the Act cannot be found to be ultra vires the Constitution on the touch stone of Articles 25 and 26 and even though we cannot find favour with the submission of Sri.Parasaran that the powers vested with the legislators are bad on account of conflict of interest, we are certainly of the view that his last submission afore, that the processes of nomination or election of the members to the two Boards are steeped in secrecy and non-transparency, requires some consideration.”.The court stated that one of the reasons for such non-transparency was because even though Sections 4(1) and 63 provide for nomination and election of members to the Boards from candidates who are free of disqualification prescribed under Sections 7 and 66, nothing is available in the Act as to the manner in which the candidates for such nomination or election are to be identified..“The power of identifying the candidates for being nominated or being elected thus appears to be completely unbridled and uncanalised at the hands of the Legislators..The Court held that this is an area where the Government and legislature should immediately devote its dispassionate attention. It noted that the Act is completely silent with regard to the manner in which candidates are identified by Ministers for being nominated while, as regards the candidature of a member put up for election by the Legislators is concerned, Schedule II of the Act only says that every Legislator would be entitled to nominate a duly qualified person. In both these events, it is doubtless that the candidature of persons put up for nomination or election are exclusively within the choice of the Legislators and Ministers..This, the Court stated, would lead to “cronyism, favouritism, patronisation and such other irrelevant considerations, while the field of choice is created for nomination/election of members to the Board.”.Candidates should be of unquestioned integrity.Placing reliance on the judgment of Supreme Court in Centre for PIL and another v. Union of India and another ((2011) 4 SCC 1) and Board of Control for Cricket v. Cricket Association of Bihar and others ((2016) 8 SCC 535, the Court stressed on the unexpendable need for transparency in such appointments and the requirement for unimpeachable personal integrity of candidates..“We are certain that the underlining principles in the said judgments would apply to the post of members of the Boards also because they are entrusted with the task of administration of institutions in which the citizens have reposed implicit faith and belief and consequently, the members would come to occupy the position of trustees of their beliefs. The primary requisite of such a member would certainly be a clean record, good reputation, unimpeached character, unquestioned integrity, substantial degree of administrative capacity and experience in temple administration and such other institutions.”.Distressed and the way forward.While acknowledging that the Court may not be able to command and compel the Government or the Legislature to make laws in a particular manner, it did not hide its “distress” about executive inaction..“We are certainly distressed that in spite of the express desire shown by this Court, for having a more democratic and transparent system in the State for nomination and election of members to the Boards in Krishnan (supra), In re: Temples in the Erstwhile Malabar Area (supra) and Gopalakrishnan Nair (supra), not even a little step has been taken by the Executive or by the Legislature to consider and put in place a system, within the parameters of the Act, to ensure that the process of nomination and election is transparent and legitimate to the maximum extent and that members are not chosen in secrecy and beyond the reach of reasonable scrutiny by the citizens and other bona fide stake holders.”.It then proceeded to consider the manner in which the process of nominations and elections to the Boards could be made transparent, democratic and legitimate. The answer given by the court was to ensure that the candidates being considered, are chosen well..Put out the details of candidates in public domain.In perhaps the most significant part of the judgment, the Court held that the only way to ensure that people of integrity and competence are made part of the Devaswom Board is by making the process of identification of the candidates transparent and the information regarding this being allowed to be placed in public domain..“The Government may, either allow citizens to offer their candidature in a prescribed manner by stipulating specific qualifications or conditions or the Ministers and Legislators, within the electorate, may make a choice of their candidates, as is now provided in the Statute, but with an obligation and enjoinment to disclose such nominations for public scrutiny and opinion suitably, perhaps in a website maintained for this purpose. This would enable the citizens to know who the potential candidates are and would enable them to make their views on such candidatures available to the competent authorities, which, we are certain, will go a long way in obtaining transparency to the process.”.The Court also urged the Government to frame suitable Rules so as to allow the citizens to offer themselves as candidates or to suggest eminent persons of their choice, who may be supported by a fixed number of nominations, to be considered for being nominated or elected to the Boards..While leaving it to the Executive to finalise the formal procedure and the methodology for all these, the Court said that it is high time the Executive and Legislature act, to make the process of election and nomination transparent..“….time has now come for the Executive and the Legislature to act and cause framing of appropriate Rules/ Procedure/Mechanism to make the process of nomination and election of members to the Boards open and transparent.”.Read the judgment below..Image courtesy: Manorama News