ISSN (Online) - 2349-8846
-A A +A

How Courts Deal in Practice with Hinduism

Ronojoy Sen (isasrs@nus.edu.sg) is senior research fellow at the Institute of South Asian Studies and South Asian Studies Programme, National University of Singapore.

Filing Religion: State, Hinduism, and Courtsof Law edited by Daniela Berti, Gilles Tarabout andRaphael Voix, New Delhi: Oxford University Press, 2016;pp 358, `1,095.

 

The relationship between state and religion is a contentious one, possibly more so in India than in many other countries. The volume under review, edited by three social anthropologists, focuses on one aspect of this relationship—court interventions in Hindu temples, practices and sects—and how they have shaped Hinduism at large. The essays in this book are not restricted to India. One of the contributors looks at Nepal, the only Hindu majority nation other than India, bringing in a welcome comparative perspective.

In their introduction, the editors note that the volume is about how “courts deal in practice with Hinduism” (p xvi). Drawing on and expanding the works of, among others, authors such as Christopher Fuller (1988), Rajeev Dhavan (2001), Marc Galanter (1989) and the reviewer himself, the volume concludes that the “courts are crucial actors in the considerable transformations that religions have undergone in South Asia over the last few centuries” (p xi). In making their case, the contributors explore a wide range of issues, from the ban on the entry of women into Sabarimala during its annual pilgrimage, something which continues to stoke controversy and vex the courts, to the sensational case of the Tarakeswar mahant from colonial times.

Temple Management and Essential Practices

Not too long ago, the appointment of six Dalits as priests by the Travancore Devaswom Board (TDB), which manages over 1,200 temples in Kerala, including the famous Sabarimala shrine, made headlines. The issue of appointing non-Brahmin priests is at the centre of Gilles Tarabout’s essay “Birth vs Merit: Kerala Temple Priests and the Courts.” He argues that the issue exemplifies the tension in the Constitution between non-interference in religious matters and the state’s duty, under Article 25(1), to introduce social reform in Hinduism. He traces the Court rulings beginning with the Seshammal v State of Tamil Nadu, 1972 (Seshammal case), where the Supreme Court had ruled that the appointment of priests is a “secular” matter. This was reaffirmed by several rulings, including Shri Narayana Deekshitulu v State of Andhra Pradesh, 1996 (Narayana Deekshitulu case), where the Court said that the service of a priest is “secular.”

For Kerala, in particular, the Supreme Court in N Adithyan v The Travancore Devaswom Board, 2002 (N Adithyan case) ruled that “duly qualified” persons cannot be prohibited from being appointed by the TDB as priests on the ground that they were “not a Brahmin by birth or pedigree.” However, theaggressively reformist stance of the Court is also a part of the process, according to Tarabout, of turning non-Brahmin priests into “new” Brahmins by schooling them in rituals and making them pass examinations.

Deepa Das Acevedo’s essay on Kerala’s Sabarimala temple (“Celibate Gods and ‘Essential Practices’ Jurisprudence atSabarimala, 1991–2011”) sheds light on the contested “essential practices” doctrine of the Indian courts, which has nowbecome standard to decide which religious practices enjoy protection under Article 25. She does so by examining the case of the actress Jaimala, who had claimed to have participated in Sabarimala’s annual pilgrimage, and the Kerala High Court judgment which ruled that the ban on fertile women during the pilgrimage was an “essential practice.” Acevedoargues that both the cases highlight the Court’s preference for “faith over custom, prescription over description, and old over new” (p 121).

Hindu Sects and Holy Men

Raphael Voix’s essay on the Ananda Marga group (“The Legal Making of a ‘Hindu Sect’: Understanding the Tandava Case in Its Context”) captures how judicial intervention has shaped the transformation of a group that had a negative image, including being charged with arms trafficking, to one that conforms to mainstream Hinduism. He focuseson the lawsuit challenging the Kolkatapolice’s ban on the group’s tandava dance—performed with skulls and daggers—and the four phases of this case. The Court’s intervention began in 1980 with the Calcutta High Court upholding the ban on staging the tandava dance in public. After plenty of twists and turns, with interventions by the Supreme Court in 1983 and a single-judge bench ofthe Calcutta High Court in 1990, the apex court gave its final verdict in 2004 (Commissioner of Police and Others v Acharya Jagadishwarananda Avadhuta, 2004). There the Court ruled that holding the tandava dance in public was “not an essential part of the Ananda Margi faith.” Despite the upholding of the ban on tandava dance, Voix makes the important point that the earlier 1983 Supreme Court ruling granting the status of a Hindu sect to the Ananda Marga had profound implications forits survival. He concludes that courts “created the impetus behind the institutionalization of the sect” (p 193) and gave it respectability as one of many reformist Hindu groups.

A very different subject from the Ananda Margis is the case of the mahant of Tarakeswar, Madhava Giri, who was accused in 1873 of seducing a married woman. The woman, Elokeshi, was later murdered by her husband Nabin Chandra Bandyopadhyay. The husband was sentenced to life imprisonment, which was later commuted. In her essay, France Bhattacharya (“British Justice and the Lustful Mahant”) analyses the trial of the mahant who was sentenced to three years of imprisonment and a fine. When the mahant appealed to the high court, the two-judge bench confirmed the earlier sentence. However, Bhattacharya argues that the British judges did not “take into account customs that tolerate a certain degree of promiscuity between a mahant and female devotees” (p 221). The judges were also influenced by public opinion, which was overwhelmingly in favour of Nabin Chandra.

Personal Laws

There are two essays, by Jean LouisHalperin (“Recent Changes in Case Law Concerning Hindu Marriage”) and Srimati Basu (“Unfair Advantage? Polygyny and Adultery in Indian Personal Law”), which examine the complex terrain of personal laws and how in different ways they discriminate both on gender and religion. Halperin looks at the impact of the Supreme Court’s Gullipilli judgment (Gullipilli Sowria Raj v Bandaru Pavani, 2009), which invalidated a marriagebetween a Christian man and a Hindu woman registered under the HinduMarriage Act. According to Halperin, the precedent of Gullipilli case may have made conditions “less favourable” to mixed marriages.

Basu uncovers the “deeply patriarchal” logic to questions of plural marriage and adultery. She examines cases such as Sowmitri Vishnu (Sowmitri Vishnu v Union of India, 1988)to argue that punitive adultery laws exempt women from any “transactional agency.” She argues that the differences in personal laws have had enormous material impact, reinforcing the “economic marginalization” of Muslim women. Basu contrasts this with the situation in Bangladesh, where Muslim personal law has been reformed, and the courts are able to give much better economic settlements for Muslim wives.

Nepal’s Secularism

Chiara Letizia’s essay “National Gods at Court: Secularism and the Judiciary in Nepal” examines how the courts areinfluencing Nepal’s nascent secularism, which is now officially enshrined in the country’s 2015 Constitution. She looks at two cases involving the pre-eminentdeities of Nepal—Kumari and Pashupati—which, she argues, bear the imprint of the Indian model of secularism. She notes that both cases illustrate a “form of secularism that ascribes to the state and to the courts an active role in both supporting and reforming religious traditions” (p 60). Indeed, in the Pashupatinath case, the court recommended looking at the Indian model.

An important difference in the Nepali case, according to Letizia, is the appointment of committees of experts and stakeholders to encourage negotiations. This, she believes, offers “an example of the potentially constructive role played by the Court as an important forum fornegotiating reform and identifying pragmatic solutions” (p 61).

This edited volume uncovers the complexity and paradoxes of Indian secularism by examining the judicial interventions in Hinduism. One of the essays provides a window into the attraction of the Indian model of secularism in neighbouring Nepal. The volume is also of enormous contemporary relevance. Many of theissues examined in the book continue to be furiously debated in the public sphere. This includes appointment of non-Brahmins as temple priests, the primacy of the courts in deciding what is “essential” to religious practices, godmen who areaccused of various misdemeanours and the need for reform of personal laws.

CASES CITED

Commissioner of Police and Others v Acharya Jagadishwarananda Avadhuta (2004): 12, SCC, p 770.

Gullipilli Sowria Raj v Bandaru Pavani (2009):1, SC, p 714.

N Adithyan v The Travancore Devaswom Board (2002): AIR, SC, p 3538.

Seshammal v State of Tamil Nadu (1972): AIR, SC,p 1586.

Shri Narayana Deekshitulu v State of Andhra Pradesh (1996): AIR, SC, p 1765.

Sowmitri Vishnu v Union of India (1988): AIR, SC,p 835.

References

Dhavan, Rajeev (2001): “The Road to Xanadu: India Quest for Secularism,” Religion and Personal Law in Secular India: A Call to Judgment,Gerald Larson (ed), Bloomington: IndianaUniversity Press.

Fuller, Christopher (1988): “Hinduism and Scriptural Authority in Modern Indian Law,” Comparative Studies in Society and History, 30(2).

Galanter, Marc (1989): Law and Society in Modern India, New Delhi: Oxford University Press.

Sen, Ronojoy (2010): Articles of Faith: Religion, Secularism, and the Indian Supreme Court,New Delhi: Oxford University Press.

Updated On : 7th Nov, 2017

Comments

(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top