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Governance and administration of religious & charitable institutions in india diminishing elbow space for the third largest religion

Governance and Administration of Religious & Charitable institutions in India–diminishing Elbow Space for the third largest religion

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Governance and administration of religious & charitable institutions in india diminishing elbow space for the third largest religion

  1. 1. Regions with significant Christian populations are Nagaland 90%, Mizoram 87%, Meghalaya 71%, Manipur 40%, Tripura, Arunachal Pradesh, Kerala, Tamil Nadu, Goa and other parts of South India. Page 1 Governance and Administration of Religious & Charitable institutions in India–diminishing Elbow Space for the third largest religion Mangneo Lhungdim Going by the Finance Bill 2014, the government plans an umbrella law to tighten financial scrutiny and regulation of religious trusts and non-profit organisations. Some of India's religious trusts are among the richest in the world. Last year, Tirumala temple, managed by Tirumala Tirupati Devasthanams, collected about 575 crore in cash alone. Although most trusts that manage big temples have now been taken over by their state governments, authorities apparently are concerned about the smaller ones that are run privately. The law is already under examination by the new Government. An inter- ministerial panel has already drawn up the contours of the law that has proposed a centralised authority to deal with the non-profit sector, a practice followed in the US, Bangladesh and Nepal. Come 1st October and the non profit sector, particularly the legal definition of what constitutes charitable and religious activities will be redefined. This will put faith based charity work to an acid test. Christianity and critical role in nation building: Christians constitutes the third-largest religion next to Hinduism and Islam. The total official number of Christians in India as per Census in 2001 was 24,080,016 or 2.34% of the population. Indian Christians have contributed significantly to and are well represented in various spheres of national life. They include former and current chief ministers, governors and chief election commissioners. To be fair to these achievers, all these positions have come through merit and not under any known special scheme or reservation par se. Christian churches run thousands of educational institutions and hospitals contributing significantly to the development of the nation. Christian churches and institutions since time immoral have been contributing significantly to nation building which has gone unnoticed. In true demonstration of Christian’s Social Responsibility (CSR) to care for creation, all services rendered are humbly considered as a sincere expression of Christian agape love. Though charitable and religious institutions are special kinds of Trusts with clear ecclesiastical intent, in the absence of a Christian specific religious Endowment Act or Trust Act, almost all Christian institutions including the churches have incorporated within the Societies Registration Act. Thus, an analysis of the various existing legal frameworks in the country becomes relevant for Christian organisations to weigh the pros and cons through the lens of ecumenical jurisprudence. Though Christians are a tiny minority, the contribution in the field of education is not only impressive but shows the importance the Church has given to it in the Indian context. At the time of independence of India in 1947 only about 14% of the population were literate. If it has gone up to 55% of the population today, Christianity can be proud in playing its role in it. What is impressive is that 70% of all these schools are in rural areas, serving the poor, especially the dalits, the adivasis/tribal and other disadvantaged groups. Only a meagre 15% of Christian institutions are in cities and large towns. Another significant field of contribution is in the healthcare services. The first medical school for women in Asia-The Christian Medical College and Hospital, Ludhiana (estd 1894), CMC Vellore (estd 1900) and St. John's Medical College (1963) are India's premier medical institutions. 85% of the healthcare institutions run by the church in India are in remote villages. Most of these areas are totally or partially deprived of adequate healthcare and other infrastructures and services. The Catholic Church alone runs over 5000 health care institutions and hospitals even as a recent entrance in India, the EHA runs 20 hospitals and 42 projects covering 12 states of North, Northeast and central India.
  2. 2. Analytical understanding of trust, endowments, society, and nonprofit company A Society is basically an association formed by seven or more persons with some common objectives for promotion of literature, fine arts, science etc. There may or may not be some common asset to start with but, in course of time, the Society can acquire assets. In the case of a Trust, or a religious endowment the very basis of its formation is the existence of an asset or property which has been donated by the will maker for a particular purpose, social or religious. Charitable and religious institutions are special kinds of Trusts which have clear ecclesiastical intent. Waqf is another variant of Trust where the donor is a Muslim. The Wakf Act, 1995 governs Wakf Institutions and includes the provisions relating to Wakf Properties, their protection management, prevention of illegal alienation removal of encroachment etc. (See Table 2) The subjects on which an institution can be registered under the Societies Registration Act, 1860 are practically the same as those on which a Trust could also be formed. The Society, prima facie, is a democratic entity, as all its members (at least seven in number) have an equal say in its running whereas in a Trust, control over the property remains fully in the hands of the Trustees and depending on the clarity of the will, such a management continues to be in existence for a long time. Government intervenes only when Trustees change or the Trust becomes too old to be managed as per stipulations (cypres) of the original will, or on grounds of malfeasance or abuse of trust. Currently, ‘Societies’ is a subject under the State list (Entry 32) of Schedule 7 of the Constitution, whereas ‘Trust’ is in the Concurrent list (Entry 10). “Charities and charitable institutions” are also covered under the concurrent list (Entry 28). Religious endowments/Institutions: Kerala, Andhra Pradesh and Tamil Nadu and many other States have exclusive laws for governing religious endowments. While, Maharashtra, Gujarat, Rajasthan and Madhya Pradesh have specific Public Trusts laws to govern all kinds of Trusts and endowments (religious / non-religious) under their jurisdiction. Then, there are also endowment specific laws such as the Bodh Gaya Temple Act, 1949. The Wakf Act, 1995 governs Wakf Institutions including Mosques across India. All the above mentioned state specific Trust or endowments Acts aside from The Wakf Act, are oriented to administration and governance of Hindu religious and charitable institutions such as The Madras Hindu Religious and Charitable Endowment Act, 1952, or Bodh Gaya Temple Act, 1949. (See Table 1&2 for a comparison) Table 1: Comparison between Trust, Society and Section 25 Company (Sec 8) Differential factors Trust Society Nonprofit Company (Sec25/8) Basic Document Trust Deed - which contains objects of the trust (bye-law) Memorandum of Association Articles of Association with rules & regulations. Memorandum of Association Articles of Association Formation Very Easy Simple Little Hard Jurisdiction Deputy Registrar / Charity Commissioner Registrar of Societies - For Maharashtra Charity Commissioner Registrar of Companies Legislation / Statute Relevant state Trust Act - Bombay Public Trust Act 1950 Societies Registration Act 1860 Sec-25 (now 8) under Indian Companies Act 1956
  3. 3. Regions with significant Christian populations are Nagaland 90%, Mizoram 87%, Meghalaya 71%, Manipur 40%, Tripura, Arunachal Pradesh, Kerala, Tamil Nadu, Goa and other parts of South India. Page 3 Objects Social benefits & Charitable Literary, Charitable, Scientific and resource oriented Nonprofit Activities Re-amendment or Modification of Objects Alteration can be undertaken only by the Founder or settler. If the founder deceased alteration of objects is impossible Easy Legal Procedures Complicated Legal Procedures Required Members Minimum = 2 Maximum = No limit Minimum = 7 Maximum = No limit Minimum = 7 Maximum = No limit Registration As Trust with the Registrar. As Society with Society Registrar - Both as a society and a trust in some states like Maharashtra and Gujerat. As per Companies Act under Section 25 Stamp Duty 4% of Trust property Value will be executed in non judicial stamp paper with the registrar No stamp paper required for Memorandum of association, and rules and regulations. No Stamp paper required for Memorandum of association and articles of association. Name Very easy to choose Very easy to choose Prior approval required from Registrar of Companies. Management Board Trustees Governing Body or Managing/Executive Committee Board of Directors & Management committee Mode of succession on Board of Management Usually by appointment Usually by Election By Appointment and by election Meetings No provisions Annual Meeting As per Law. Governing Body meeting as per the rules of Society. Quite Extensive as per the provision of Company Law Legal Status Limited Legal Status Limited Legal Status Full Legal Status Statutory Regulations Nominal Limited Maturable - Exhaustive Membership Transfer Impossible Impossible Free or Control as per desire. Member Admission Not applicable Governing Body Control General Body or Board Control through issue of Capital. Dissolution or Take over by State Possible Possible Very risky and difficult Payment to Members As notified in Trust deed Not restricted but so in some state Acts. As approved by Company & State. Note: while legal registration of the management body of a church, mosque or a mandir is oriented towards managing a property/trust it may be quite different when it comes to the legal framework of managing an association, society or trust of a religious community.
  4. 4. Table 2: Governance & Legal Framework for Places of Worship Religious Worship places & institutions Legal Framework and Governance Hindu temples (mandir, ashrams, etc) Bodh Gaya Temple Act, 1949, Religious Endowments Act, Charitable and Religious Trust Act etc. Mosques (Masjid, Dargahs, Kabrastans, Ashoorkhanas, Idgahs, Khankhas, Chillas, Imambadas, etc. The Wakf Act, 1995 governs Wakf Institutions and includes the provisions relating to Wakf Properties, their protection management, prevention of illegal alienation removal of encroachment etc. also provides for the schemes and rules for management, appointment or removal of Trustees, Mutawalli etc. Act has come into force from 1-1-1996 throughout India except Jammu & Kashmir. Churches (girjah, cemetery, seminaries, etc.) With revocation in 1960 of the Indian Church act 1927, churches and Christian organisations in India are governed under SRA 1860 largely with negligible numbers under Charitable & Religious Trust Act... Gurudwaras In 1971, the Government of India entrusted the management of Gurudwara, through an ordinance, to a five member Gurdwara Board. The ordinance was replaced by the Delhi Sikh Gurdwaras Act, 1971, passed by Parliament, providing for a committee to be elected by Sikh vote. Monasteries The Bodh Gaya Temple Act of 1949, (state govt act), While legal incorporation of monasteries may have state act or national acts, Buddhist organisations of national level are registered under SRA 1860. Concluding Note: The prevailing legal framework and the diminishing elbow space for voluntary NPOs and the charitable and religious, has created a general confusion and at its best has accentuated a steady yet increasing rush to corporatize into companies under section 8 (Sec-25) of the Indian Companies Act 1956. The decision to incorporate as a non profit company may partially serve the legal purpose for Christian church so far as its development, economic or charitable activities and programmes are concern. This however, will still leave a legal vacuum for Church and its religious activities in India. This naturally brings to the fore an urgent needs to advocate for a Christian specific religious endowment or Religious & Charitable Trust Act for the country. Even as a consensus is needed to be mobilised at the national level for an appropriate legislation, Christian leaders, elected representatives, Civil society and faithbased NPOs of the NE states must consider a state specific religious endowment Acts in all the Christian majority states of NE (Mizoram, Nagaland, Meghalaya and also in Manipur) on the similar line of The Bodh Gaya Temple Act, 1949 or The Madras Hindu Religious and Charitable Endowment Act, 1952. The maxim: “Social responsibility of the Church is when the church moves outside its walls to engage in the difficult issues facing our community and the world” should serve as the clarion call. As I conclude this note, let me salute Paul Nayanar - former swayamsewak and mukyasikshak of RSS in Nagercoil Town in early 70's, who converted to Christianity when he was despised by his own family, inspite of his sacrifices in his family for the family, and became an evangelist. Resources referred: The American Baptist Christians in North-east India; Amrit Kr Goldsmith (Facets of the North-east) Christian Contribution to Indian Nation Building; Bishop Dr. Y. Ambroise (2008) Societies, Trust/charitable Institutions, Waqfs and Endowments; 9th Report of the Administrative Reform Commission-GoI) http://arc.gov.in/9threport/ARC_9th_report.htm Websites of major Indian Christian Churches and organisations Budget makes it easier for Govt to shut down NGOs and trusts - by Subhomoy Bhattacharjee , Anil Sasi | New Delhi | July 11, 2014 (http://indianexpress.com/article/business/business-others/budget-makes-it-easier-for-govt-to-shut-down-ngos-and-trusts/) Budget, a carrot and stick for NGOs and Trusts- Legal Series Vol. VII, Issue 4/July 2014 http://fmsfindia.org.in/publication_upload/standard/s&n-ls-v7-i4.pdf

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Governance and Administration of Religious & Charitable institutions in India–diminishing Elbow Space for the third largest religion

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