FREEDOM OF RELIGION AND THE

SUPREME COURT OF INDIA

Aantal woorden: 52.235

Masterproef van de opleiding

‘Master in de Rechten’ aan de Universiteit Gent
Ingediend door

Anil Rao

(Studentennummer: 20032834)

Promotor: Prof. Dr. Eva Brems

Commissaris: Yaiza Janssens
2
 Preface

To say that this thesis is long overdue is an understatement. It has taken me much longer
than I had anticipated but I would do it all again. What I have learned during this journey, I
will carry with me for the rest of my life. I had no idea what was awaiting me when I chose
this topic. At first, I thought it would be an interesting way for me to combine my personal
background with my legal education. Little did I know how difficult yet illuminating this
journey was going to be.

I would like to start by thanking my promotor, prof. dr. Eva Brems. Without her willingness
to give me the freedom to do this research, I would never have learned what I did. I am
deeply grateful for the patience and understanding that she has shown towards me.

For their unconditional support, I would like to thank my mother Anne Cardinael, my brother
Ashok Rao and my sister Sarika Rao. It is safe to say that without their love and support I
would not have made it to this point.

Another word of thanks goes to the people from the research centre Vergelijkende
Cultuurwetenschap at the Universiteit Gent: Jakob De Roover, Sarah Claerhout, Marianne
Keppens, Nele De Gersem, Jolien Vandenbroeck and Willem Derde. Without their help,
support and encouragement, these past few years would have been unimaginably more
difficult. Additionally I would like to thank my girlfriend from India, Drishti Karkar, who has
also been a source of inspiration and motivation these past few years and her experience
has proved invaluable.

Finally, I dedicate this thesis to my father, Balagangadhara Rao. He is the one that sparked
an interest in law within me all those years ago and encouraged me to study law at his alma
mater. Without his stimulation and unwavering support, I would not have had the courage
to start these studies at a later age. His unrelenting thirst for knowledge and deep conviction
that there are always things to learn from other people and cultures has really shaped how
I am in this world and made this choice of topic all the more evident.

Ghent, 14 August 2018

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Table of Contents
Preface ................................................................................................................... 3

Introduction............................................................................................................ 9
Between Scylla and Charybdis? .............................................................................................. 10
Jurisprudence and Sources..................................................................................................... 13
About the Indian Legal System ............................................................................................... 14
The Structure of the Thesis .................................................................................................... 15

Chapter I: The Indian Constitution and Religious Freedom .................................. 17

1. From Constituent Assembly to Constitution ............................................................ 19

Representing the Will of the People? ..................................................................................... 20
The Resulting Assembly ......................................................................................................... 21

2. Religious Freedom: A Fundamental Right? .............................................................. 22

Freedom of Religion in the Constituent Assembly .................................................................. 25
Religious Freedom and Religious Law ..................................................................................... 29

3. Reflections and Questions ....................................................................................... 31

Chapter II: Hinduism and the Indian Judiciary ...................................................... 38

1. Is Hinduism a Religion? ............................................................................................ 39

The Emerging Consensus ....................................................................................................... 41
Hinduism: The Issues ............................................................................................................. 44

2. The Freedom to Reform Hinduism? ......................................................................... 46

Ameliorating Hinduism? ........................................................................................................ 47
The Supreme Court’s Hinduism .............................................................................................. 50
‘Hinduism’ and the Judiciary: The Issues ................................................................................ 53

Chapter III: The State Takes Over a Temple .......................................................... 55

1. The Jagannath Temple Legislation ........................................................................... 56

Analysis ................................................................................................................................. 60

2. The Raja v. the State ................................................................................................ 61

The Orissa High Court Decision .............................................................................................. 62

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 The Supreme Court Appeal .................................................................................................... 67
Analysis ................................................................................................................................. 69

3. The State v. the Sevaks ............................................................................................ 79

The High Court Decisions ....................................................................................................... 79
The Supreme Court Appeal .................................................................................................... 83
Analysis ................................................................................................................................. 86

4. Conclusion ............................................................................................................... 89

Chapter IV: The Supreme Court and the Temples ................................................. 91

1. The Issue of Temple Entry ........................................................................................ 93

The Nature of the Temple Entry Cases ................................................................................... 94
An Early Case ......................................................................................................................... 96
Analysis ................................................................................................................................. 99

2. Teaching Hinduism to the Hindus .......................................................................... 102

The Satsangi Case ................................................................................................................ 103
The Supreme Court Judgment.............................................................................................. 105
Analysis ............................................................................................................................... 111

3. The Doctrine of Essential Practices ........................................................................ 118

Conclusion .......................................................................................................... 123

Potential Routes .................................................................................................................. 125

Bibliography ....................................................................................................... 131

Nederlandse samenvatting ................................................................................ 139

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 Introduction

In 2017, a report by the Pew Research Center ranked India among the worst countries in the
world with regard to social hostilities related to religion; only Syria, Nigeria, and Iraq did
worse. India stood alongside Egypt and Pakistan in the list of populous countries with the
highest overall restrictions on religion.1 In this period, these other countries saw bloody civil
wars, frequent kidnappings and bombings by Islamist movements, systematic violence
against minorities, hundreds of death sentences for members of a banned religious
movement, blasphemy laws, etc. In contrast, India identifies itself as a secular republic,
which recognizes the freedom of religion as a fundamental right. Qua scale and intensity,
the country’s human rights violations and violence related to religion came nowhere near
the situation in Syria, Iraq, Egypt, or Pakistan. How then could India be placed alongside such
countries?

The report was short on detail, but its main remark about India said that “harassment of
Hindus by both government and social groups was reported in 2015.” It went on to explain
that members of “the lowest Hindu castes” faced obstacles to access government
institutions and services, but this should not divert our attention away from the general
remark.2 Hindus are supposed to constitute the majority religion in India and, yet, they
apparently feel harassed by the government. Indeed, there are many complaints about the
way in which the state has treated Hindu traditions and institutions. State control of temples
is a major issue here. From the 1950s, governments in India enacted legislation that gives
them control over the administration of ‘public’ temples and other Hindu institutions; often,
this extends to managing the ‘proper performance’ of rituals. Critics argue that this violates
the right to free practice of religion and the right of religious denominations to manage their
own affairs in matters of religion, both of which are guaranteed by the Constitution.
Moreover, they say, the state discriminates on grounds of religion: it systematically

1
PEW RESEARCH CENTER, Global Restrictions on Religion Rise Modestly in 2015, Reversing
Downward Trend (Report released on 11 April 2017). See:
http://www.pewforum.org/2017/04/11/global-restrictions-on-religion-rise-modestly-in-2015-
reversing-downward-trend/.
2
PEW RESEARCH CENTER, Global Restrictions on Religion, 24.
9
interferes in Hindu institutions and practices, while it largely leaves alone the institutions
and practices of Muslims and Christians.3

Here was the first surprise that confronted me when I started working on my thesis. In India,
we find a state that attributes great importance to being a ‘secular’ republic and to
recognizing the constitutional right to freedom of religion. Still, it appears to interfere in
religious institutions in ways usually associated with states that have an established religion
and strict government regulation of religious practice. Moreover, members of the dominant
religious majority feel that they are being discriminated against and that the Constitution
and the judiciary do not provide adequate protections against state infringements of their
free exercise of religion.

Between Scylla and Charybdis?

The second surprise came when I started reading relevant decisions by Indian courts. These
did not at all look like the legal judgments with which I had become familiar during my
university education. Many of the Indian texts lacked structure: there was no section that
stated the facts of the case; the relevant legislation and clauses were mentioned only in
passing; the legal question(s) remained unclear; the decisions were interspersed with
incoherent and irrelevant remarks and passages that read like sermons about religion and
morality.

Later, I discovered that I was not alone in noticing this. In fact, two young jurists recently
pointed out these problems in judgments by the Supreme Court of India. In 2016, the Chief
Justice wrote a major decision that has illegible sentence structures and of which “the
second sentence ran into 228 words separated by over six commas and 17 ‘ands’.” “Whether
the crux of the decision can be understood is questionable,” these commentators note. They
also point out the moral judgments and verbosity that tarnish the decisions. Moreover:

…[S]everal judgements do not record submissions or issues raised by both

parties, which often results in a reader being unable to make out the link

3
For illustrations, see S. SWAMY, “Freeing temples from state control,” The Hindu, 20 January 2014,
https://www.thehindu.com/opinion/lead/freeing-temples-from-state-control/article5594132.ece;
SRIJAN Foundation, “Reclaiming Hindu Temples From Govt Control,” Medium, 3 September 2016,
https://medium.com/freeing-hindu-temples-from-govt-control/reclaiming-hindu-temples-from-
govt-control-c9b9cf8bac45; R. JAGANNATH, “Fence that eats the crop: Government running Hindu
temples is another anomaly India’s selective secularism fosters,” The Times of India, 29 August
2017.
10
 between the legal provisions used to arrive at a judgment and the facts to which
they are applied. Lastly, in most judgments, a uniform structure (recording of
facts, issues, submissions and then reaching the decision) is lacking.4

It was a shock for me to discover that the most pre-eminent judges in India have written
judgments of such poor quality during the past decades.

The puzzlement only increased when I examined the court decisions about Hindu temples
and religious freedom. Here, high-level judges approved of laws and policies that appeared
to involve blatant violations of the constitutional right to “freely profess, practise and
propagate religion” (Art. 25) and of the right of any religious denomination “to manage its
own affairs in matters of religion” (Art. 26). When I tried to imagine similar situations in the
legal system of any Western secular democracy, it became absurd to insist that the Indian
state respects the right to religious freedom.

Still, I saw two pitfalls here. The first is that of taking ‘secular democracies’ in the West as
the normative standard of secularism and religious freedom, and endlessly concluding that
India does not live up to this standard. This exercise would be both tedious and vulnerable
to criticism. There are substantial differences between the political and legal structures of
Western democracies with regard to religion. Therefore, one cannot infer some generic
model of the secular state and religious freedom, scholars have argued. Like these countries,
they say, India has had its own historical trajectory towards secularism and its own set of
problems to solve. The result is the Indian secular state and its distinct constitutional
provisions and policies, which should be understood against this background, rather than
being measured against some imaginary Western ‘standard’.5

This type of argument brings us to the second pitfall. India is home to laws and policies which
the citizens of any Western secular democracy would regard as flagrant violations of
religious freedom. This argument now asks us to consider these violations as a expressions
of some ‘unique’ form of secularism and religious freedom, since we are dealing with India

4
A. PILLAI and R. SEKHAR, “The art of writing a judgment,” The Hindu, 24 July 2018. See:
https://www.thehindu.com/opinion/op-ed/the-art-of-writing-a-
judgment/article24497762.ece?homepage=true.
5
This is an old argument, see M. GALANTER, “Secularism East and West,” Comparative Studies in
Society and History 17, no. 2, January 1965, 133-159. Today, the political philosopher R. BHARGAVA
is its main exponent, see his “The Distinctiveness of Indian Secularism,” in The Future of Secularism,
ed. T.N. SRINIVASAN, New Delhi, Oxford University Press, 2007, 20-53.
11
and not with a Western country. This is relativism of the worst kind: events and situations
that would be condemned as harmful infringements of a fundamental right in the West are
to be accepted as ‘distinct’ expressions of that same right in a non-Western culture. “Would
you ever endorse the same type of laws and policies in your own country?” is a question
that often came to mind in this context. I think it unlikely that any Western proponent of
religious freedom would accept the type of legislation and policies implemented by Indian
governments during the past 70 years as a viable framework for her own country.

Methodologically, I had to sail between the Scylla of describing India as a failure to abide by
the standards of Western secular democracy and the Charybdis of justifying infringements
of the right to religious freedom as though these constitute a ‘distinctly Indian’ secularism. I
hope I have succeed to some extent in this thesis. When analysing Indian legislation and
decisions about religion, I regularly take recourse to thought experiments that invite the
reader to imagine the implementation of a comparable law, policy, or legal decision in
Belgium or another Western democracy. The aim of these thought experiments is not to
chide Indian judges for not being Western enough, but to make the reader aware of the
significance of the problems involved.

It is important to note that the kind of problem that I will be signalling is not one of
contrasting some normative notion of ‘law’ with ‘law’ as it is practiced in India. The point is
more fundamental. Not every statement made ‘duly’ by an authority can be considered and
defended as the ‘law’ of a land. To become a ‘law’, some statement must follow certain
cognitive standards (whatever these might be, whether they are explicated or not) to be
considered as such. The sentence “Jesus is the son of God” could never be considered a ‘law’,
even if a law would make belief in its truth compulsory. “Cars are driven on the left side of
the road” can become a law, if it undergoes the right procedural process and formulation.
In this sense, the problem I will be signalling with respect to India is not a normative but a
cognitive problem.

Raised as a question, the problem looks as follows: in Indian constitutional law, with respect
to the freedom of religion, do judges and lawgivers abide by the minimal cognitive standards
that their ‘legal statements’ (whatever their nature) should fulfil to be considered as ‘law’?
Some statement is a part of a theory in physics or chemistry or mathematics because of both
its content and its form. I believe that the same consideration holds good for the legal
domain as well. A statement in physics could be false, the way a legal statement could be
12
invalid. However, the issue I have confronted while reading Indian legislation and legal
decisions is not that of the validity of legal statements, but a very different one: How could
statements which cannot possibly be legal statements nevertheless be considered as laws
and legal judgements? One of the aims of this thesis is to show to the reader how relevant
and important this question is in relation to the Indian court decisions concerning religious
freedom and Hindu temples.

Jurisprudence and Sources

As a law student, a third surprise awaited me when I began to search for relevant literature:
the debates about freedom of religion in Indian law show a remarkable scarcity of
jurisprudence. Apart from rudimentary summaries of Supreme Court decisions, the legal
literature devoted to this theme during the past 50 years is limited to three or four
monographs and a few dozen articles. The body of jurisprudential literature on a single
major case of the US Supreme Court or the European Court of Human Rights easily outstrips
the entire body of literature on religious freedom in Indian law.6 Moreover, most of the
analyses do not consist of jurisprudence strictly speaking, but are socio-legally, historically
or politically oriented.

The situation is similar for the legislation about government control of Hindu temples. There
is no dearth of relevant cases; on the contrary, from the 1950s until today, the Supreme
Court and High Courts have had to decide about hundreds of such cases. Yet, the available
jurisprudential scholarship is more or less limited to revised editions of two old works: B.K.
Mukherjea’s The Hindu Law of Religious and Charitable Trusts, originally delivered as a set
of lectures in 1951, and V.K. Varadachari’s Law of Hindu Religious and Charitable
Endowments, first published in 1965.7

6
This becomes apparent when one searches for scientific publications through databases such as
HEIN Online. Searches related to religious freedom in Indian law result in a few dozen scholarly
articles that focus on this theme; searches related to religious freedom in US law give access to
thousands of such articles.
7
B.K. MUKHERJEA, The Hindu Law of Religious and Charitable Trusts: Tagore Law Lectures, 5th ed.,
Kolkata and New Delhi, Eastern Law House, 1983; V.K. VARADACHARI, Law of Hindu Religious and
Charitable Endowments, 4th ed., Lucknow: Eastern Book Company, 2006. Apart from these works,
there are a few articles and one book dealing with political dimensions of this theme: See D. DAS
ACEVEDO, “Divine Sovereignty, Indian Property Law, and the Dispute over the Padmanabhaswamy
Temple,” Modern Asian Studies 50, no. 3, 2016, 841-865; F. PRESSLER, Religion under Bureaucracy:
Policy and Administration of Hindu Temples in South India, Cambridge, Cambridge University Press,
1988.
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As a student of law writing my thesis, I could not rely on a well-developed body of
jurisprudence to study the Indian constitutional law concerning freedom of religion and
temples. The only option I had was to turn to the primary sources: namely, to study the
relevant debates of the Constituent Assembly and the original text of High Court and
Supreme Court judgments. For this reason, only the second chapter provides an overview of
the standpoints in the secondary literature about religious freedom in Indian law, but the
other chapters draw upon original sources almost exclusively.

About the Indian Legal System

Since the thesis will discuss decisions by the High Courts and Supreme Court of India, it is
necessary to sketch the structure of the legal system of post-Independence India. Often, it
is said that this system reproduces the outlines of the colonial system built by the British,
whose common law heritage firmly established “the binding force of precedents” in India,
“meaning thereby that the judgments delivered by the superior courts are as much the law
of the country as legislative enactments.”8

The Constitution of 1950 created the Republic of India as a federal union, which today
encompasses 29 states and 7 union territories, each of which is subdivided into districts. The
judiciary is structured along the lines of these levels. As the only court of the union judiciary,
the Supreme Court stands at the apex of a hierarchy of courts and judges. The state-level
judiciary provides for a High Court for every Indian state and a District Court for every district
(or several districts in some cases).9 Both for the Supreme Court and High Courts, new judges
should be appointed by the President after consultation with current judges. However,
practically, the judges have taken over the appointment of new colleagues by means of a
“creative interpretation of the Constitutional provisions.”10

The Supreme Court consists of the Chief Justice and more than 30 judges today. It is
responsible for adjudicating constitutional issues; “when a dispute arises regarding the
meaning of a provision of the Constitution, it is only the Supreme Court which can

8
R. K. SRIVASTAVA, “A Guide to India’s Legal Research and Legal System,” GlobaLex.
http://www.nyulawglobal.org/globalex/India_Legal_Research.html.
9
Constitution of India 1950, Part V. The Union, Article 76.
10
B.N. SRIKRISHNA, "The Indian Legal System," International Journal of Legal Information 36, no. 2,
2008, 244.
14
authoritatively and finally say what should be the meaning.”11 Citizens have a “right to
constitutional remedies,” which empowers them to move this court for the enforcement of
fundamental rights guaranteed by Part III of the Constitution. Moreover, the Supreme Court
has the power to issue directions, orders or writs for the enforcement of these rights. It also
serves as the highest court of appeal for certain types of cases, especially if the case involves
a substantial question of law regarding the interpretation of the Constitution. In such cases,
any party may appeal to the Supreme Court on the ground that a question of constitutional
interpretation has been wrongly decided.12 It is not the case that the Constitution puts clear
limits on the jurisdiction of the Supreme Court, however, and as years progressed this Court
has begun to intervene ‘suo motu’ in a variety of issues that are not clearly demarcated in
any legal document.

At the level of the states, the High Court is the final court of appeal in most civil and criminal
matters. Like the Supreme Court, it has the power to issue directions, orders, and writs for
the enforcement of fundamental constitutional rights. Every High Court has a Chief Justice
and such other judges “as the President may from time to time deem it necessary to
appoint.”13 In the territories over which it has jurisdiction, each High Court has
superintendence over all lower-level courts and tribunals.

At the district level, the District Judge oversees the administration of justice in the district(s)
assigned to him. He presides over the District Court, where he may be assisted by Additional
and Assistant District Judges. This court serves as the court of appeal for most civil and
criminal matters within the district; in some matters with large financial stakes, it acts as the
court of original jurisdiction. Under the Code of Criminal Procedure, the District Judge “also
exercises power of a court of sessions dealing with criminal trials of serious offences.” Below
this level, there are several levels of subordinate civil and criminal courts.14

The Structure of the Thesis

One of my concerns while writing this thesis was that it should not expect more than a
cursory knowledge of modern India from its readers. Therefore, the first chapter provides

11
S. PAL, India’s Constitution: Origins and Evolution, Vol. 2: Articles 19 to 28, Gurgaon, LexisNexis,
2015, lxxix.
12
Constitution of India 1950, Part V. The Union, Articles 124-144.
13
Constitution of India 1950, Part VI. The States, Article 216.
14
SRIKRISHNA, "The Indian Legal System," 243.
15
some necessary historical background and explains the process whereby a new constitution
was created for post-Independence India. It shows how the constitution-makers envisioned
the ‘fundamental right’ to freedom of religion and how this resulted in peculiar
constitutional clauses.

These clauses would go on to generate basic problems for the Indian judiciary in its handling
of cases related to religion. While my thesis aims to examine these problems, it takes a route
different from many analyses of religious freedom: it does not focus on the situation of
minorities but on the treatment of the ‘majority religion’ in India. How have the Indian
Constitution and judiciary dealt with this religion called ‘Hinduism’? To begin answering this
question, the second chapter first sketches the current academic consensus about the
nature of Hinduism and traces out its consequences for legal discussions about freedom of
religion. Next, it examines to the academic literature by juxtaposing two approaches to the
question as to how the Indian judiciary has tackled major issues relating to Hindu practices
and institutions. This contrast allows me to narrow down the research problem I seek to
address in the thesis.

The following chapters turn to the legislation and judgments about Hindu ‘religious’
institutions in post-Independence India. Chapter three consists of a study of the legal cases
concerning one of the major Hindu temples in India. The disputes about the Jagannath
temple in Puri bring to the surface major jurisprudential and conceptual issues in the legal
treatment of ‘Hindu religious endowments’. More particularly, these concern the judges’
discussions of ‘the religious’ and ‘the secular’ and their understanding of the right to
freedom of religion and protection against state interference in religious practice.

Next, I turn to assessing whether this set of issues about ‘the religious’, and ‘the secular’
return in other cases relating to Hindu institutions and practices. Chapter four characterizes
some major problems that have come to the surface in the Supreme Court’s decisions about
cases concerning temple management and temple entry. Through analysis of the judgment
texts, I illustrate the peculiar inconsistencies that keep recurring in the reasoning of the
Indian judges about Hinduism and religion. Finally, the conclusion emphasizes the depth of
the difficulties faced by any study of the Indian constitutional law and jurisprudence
concerning religion and religious freedom. To tackle these difficulties, new research routes
will need to be opened up. Therefore, the thesis ends with some reflections about potential
directions for future research.
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 Chapter I: The Indian Constitution and Religious Freedom

The call for a new constitution, which should give ‘self-rule’ to the Indian people after
centuries of colonialism, was central to the freedom movement of the first half of the
twentieth century. The constitution would grant the rights and freedoms that had been
denied by the British government to its Indian subjects. Hence, in the decades preceding the
Independence of 1947, several draft proposals for the constitution included ‘fundamental
rights’ sections. One of these rights, considered essential in a country home to many
religions, was that of freedom of religion. This was incorporated in the form of typical
clauses: “Freedom of conscience and the free profession and practice of religion are, subject
to public order or morality, hereby guaranteed to every person.”15

When the Constitution of India of 1950 was passed, however, its freedom of religion article
ended up having a significantly different and more complex shape:

25. (1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.

(2) Nothing in this Article shall affect the operation of any existing law or prevent
the State from making any law— (a) regulating or restricting any economic,
financial, political or other secular activity which may be associated with
religious practice; (b) providing social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes and sections of
Hindus.16

This article is remarkable because of the provisos in its second clause, which explicitly allow
the state to make laws about religious institutions and about ‘secular activity’ associated
with religious practice. Since clause 25(2) plays a major role in the Indian judiciary’s
reasoning, we need to find out how this article came to take the form it did. This chapter will
do so in two steps. First, I briefly sketch the historical development of the Constitution: What

15
From the Nehru Report of 1928, a draft constitution composed by a committee led by Motilal
Nehru, in B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 1, Gurgaon,
Universal Law Publishing, 2015 (Hereafter: B. SHIVA RAO, The Framing of India’s Constitution: Select
Documents, vol. x).
16
Constitution of India 1950, Part III. Fundamental Rights, Article 25.
17
was the nature of the constitution-making body and how did it draft the constitution? Next,
I examine the debates about the right to religious freedom in the Constituent Assembly:
How did the members of the constitution-making body view this fundamental right and why
did the resulting article take this distinct form?

Before I start, a note is required about sources. In 1966, the American historian Granville
Austin wrote a history of the Indian constitution, which is considered authoritative by many
experts in the field. However, this narrative about the making of the constitution is
subordinated to the history of nation-building: the Indian independence movement and the
resulting independence become the backdrop within which nationalism came to express
itself in the form of the constitution. Because of this, the process of the emergence of the
Constitution of India appears as the embodied will of the leaders of the Congress party
(representing the people) as they articulated the interests of the nation.17 This rather
constructed history, which irons out the creases in a complex process, has been criticized by
Indian legal experts, especially Upendra Baxi.18 When Mithi Mukherjee tried to improve the
account in 2010, she focused mainly on the conflict between the interests of the British
empire and the interests of the British nation and told a story of the emergence of the
constitution as an embodiment of twin discourses of imperial justice as equity and imperial
justice as liberty. The British empire’s shadow never let go of India and its Constitution
stayed strictly within colonial limitations, she suggests.19

Even though both types of accounts have merits, I have deliberately stayed away from using
them in the short history I sketch. This chapter’s purpose is not to take a position in the
scholarly debate about the development of the Indian Constitution, but to provide the
background necessary for understanding the following chapters, which concern religious
freedom and temples in Indian law. For this reason, it was preferable to turn directly to the
available historical documents and give the reader a rough idea of the subject matter I will
be dealing with. Without choosing sides in the debate, I outline the process whereby the
Indian Constitution and its religious freedom clauses emerged. Because most documents

17
A. GRANVILLE, The Indian Constitution: Cornerstone of a Nation, New Delhi, Oxford University
Press, 1966.
18
U. BAXI, "The Little Done, the Vast Undone: Some Reflections on Reading Granville Austin’s the
Indian Constitution," Journal of the Indian Law Institute, 1967, 9, no. 3, 323-430.
19
M. MUKHERJEE, India in the Shadows of Empire: A Legal and Political History, 1774-1950, New
Delhi, Oxford University Press, 2010.
18
were collected by B. Shiva Rao, a former member of the Constituent Assembly, in five
massive volumes, I will primarily make use of this collection.20

1. From Constituent Assembly to Constitution

The British rule of the Indian subcontinent had gone through two phases. In the first, from
the second half of the eighteenth century, the East India Company—a private company
owned by stockholders and controlled by a Board of Directors—gradually conquered and
colonized large parts of India. To extract revenue from its Indian territories, the Company
established an elaborate governmental apparatus from the Governor-General down to the
District Collectors. In 1857, a major uprising against the British inaugurated the second
phase. Queen Victoria decided to take over the rule of the subcontinent from the Company;
thus, the Raj was born: the Queen was declared Empress of India and established a cabinet-
level Secretary of State for India and fifteen-member Council of India. In India, the
government was headed by a Governor-General/Viceroy appointed by the Crown.

The first half of the twentieth century saw the rise of the Indian independence movement,
in which the Indian National Congress, a political party founded in 1885, played the leading
role. Under the guidance of Mohandas K. Gandhi, the Congress party became a mass
movement that would steadily increase the pressure on the British colonial powers to grant
autonomy to India. After the end of the second World War, the British gave in to the Indian
demand for a constitution-making body. This led to the creation of the Constituent Assembly
in November 1946. For almost three years, this body worked on drafting the constitution for
the new Republic of India, which finally took effect on 26 January 1950. In those years, the
textbook story says, a body of representatives of the Indian people drafted the longest
constitution for the largest democracy in the world:

The very fact that the Constitution of Indian Republic is the product not of a
political revolution but of the research and deliberations of a body of eminent
representatives of the people who sought to improve upon the existing systems
of administration, makes a retrospect of the constitutional development
indispensable for proper understanding of this Constitution.21

20
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 1-5.
21
D. DAS BASU, cited in S. PAL, ed. India’s Constitution: Origins and Evolution, Vol. 2: Articles 19 to
28, Gurgaon, LexisNexis, 2015, lii.
19
Since the Constitution’s historical development is considered essential to understanding its
nature and functioning, this chapter will begin by briefly sketching the outlines of this
process.

Representing the Will of the People?

In February 1924, Motilal Nehru, a leader of the Indian National Congress and the father of
India’s first prime minister, moved an amendment to a resolution in the Central Legislative
Assembly, the lower house of British India’s legislature. In the amendment, the majority
called upon the British government in India “to summon, at an early date, a representative
Round Table Conference to recommend, with due regard to the protection of the rights and
interests of important minorities, the scheme of a constitution for India.”22 This iconic
moment came to be known as ‘the National Demand’. During the following decades, the
demand for a new constitution-making body gathered pace. Time after time, the Congress
leadership said that this body should be elected on the basis of universal adult suffrage or a
system as near it as possible. Only thus would it be able to represent the will of the people
of India and draft a constitution for an independent Indian nation.23

In 1937, the Congress party won the elections to the Provincial Legislatures under the
Government of India Act of 1935, a new ‘constitution’ that had resulted from the British
attempt to accommodate the call for constitutional reform in India. This victory was seen as
a complete rejection of the colonial ‘constitution’ and overwhelming support for the
objective of Independence. Another resolution was passed to demand a Constituent
Assembly and to call upon all Congress members to combat the new India Act and “expose
the autocratic and undemocratic nature of the new constitution.”24 In contrast to this lack
of democracy, the Assembly itself would come into being “only as the expression of the will
and the strength of the Indian people” and it “will represent the sovereignty of the Indian
people and will meet as the arbiter of our destiny.”25

The British colonial powers were not so sanguine about the prospect of self-government
that would reflect the sovereignty of the Indian people. However, the beginning of the

22
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 1, 35.
23
See “Congress Resolution on the White Paper and the Communal Award,” June 1934, in ibid., 77.
“Congress Resolution on the Government of India Act, 1935,” April 1936, in ibid., 80.
24
Ibid., 84-5.
25
Ibid., 82-90, 94-5.
20
Second World War changed things: since support from India would be needed for the war
effort, the British felt compelled to concede to the demand for a Constituent Assembly. After
the end of the war, the government declared, the new constitution-making body would be
established and the new constitution should become a fact.

Yet, when the Constituent Assembly was eventually created in 1946, its election was not
based on adult suffrage or any system near to it. The British government came up with
concrete proposals, after it had sent a Cabinet Mission to examine the issues at stake in
India. Even though adult franchise would be preferable, it argued, this would lead to an
unacceptable delay in the drafting of the new constitution. Therefore, the only practicable
course would be to make use of the recently constituted Provincial Legislative Assemblies as
electing bodies and to add representatives from the Princely States, which were ruled by
local ‘princes’ in a subsidiary alliance with the British government.26

These Provincial Legislative Assemblies were the legislative bodies of the Provinces of British
India, which had taken shape under the regulations of the Government of India Act of 1935.
They had not at all been elected through universal suffrage or by an electorate ‘near it as
possible’, since the India Act imposed strict qualifications for inclusion in the electoral roll
for these Assemblies. To be allowed to vote, Indians had to live up to requirements
dependent on taxation, property, education, literacy, etc.27 Consequently, the Assemblies
had been voted into power by a small section of the Indian population. Nonetheless, the
body that would frame the new constitution for India consisted of a sub-set of these
Assemblies selected by their own members, who had in turn been chosen by a limited
electorate. In other words, the Assembly would be elected indirectly under the provisions
of the colonial Act that had been called “autocratic and undemocratic” by the Congress
leadership only a decade before.28

The Resulting Assembly

In the 1930s and 1940s, the All-India Muslim League began to oppose the Congress efforts
for a Constituent Assembly and argued that these would result in a Hindu-dominated nation
or ‘Hindu raj’, where Muslims lived as second-class citizens. Led by M.A. Jinnah, this Muslim

26
Ibid., 197.
27
See the 6th schedule of the Government of India Act, 1935, which stipulates the qualifications for
inclusion in the electoral roll for the different Provinces of British India.
28
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 1, 84-5.
21
party advocated the so-called “two-nation theory,” calling for a division of British India into
India and a separate nation consisting of the Muslim-majority provinces in the North West
and North East. Eventually, British India was split up into the two sovereign dominions of
India and Pakistan by the Indian Independence Act of 1947.29

This led to a similar split in the Constituent Assembly. In its post-Partition form, the
Constituent Assembly of India consisted of 299 members, the large majority chosen from
the Provincial Legislative Assemblies. It first convened in December 1946 and took almost
three years to complete its task of drafting the Constitution. Several committees were
created in its framework, such as the Advisory Committee on Fundamental Rights and
Minorities. The entire process was coordinated by the Constitutional Advisor, Sir Benegal
Narsing Rau, a member of the Indian Civil Service and former colonial judge.30 Working on
the basis of notes by him and by individual members, the committees composed a first set
of draft clauses for the constitution. After a round of discussions in the Assembly, the
Constitutional Advisor prepared a draft constitution on this basis. Next, the Drafting
Committee, chaired by India’s first law minister, B.R. Ambedkar, discussed and revised the
draft constitution. In November 1948, a new version of the draft constitution with
recommended amendments was introduced into the Assembly, which would take a year
discussing it and finally adopted the Constitution of India on 26 November 1949. 31

2. Religious Freedom: A Fundamental Right?

The first draft of the Constitution of India contained 240 clauses and 13 schedules. Its
sources of inspiration were clear: almost every clause had a margin note that showed it
originated in—or borrowed from—the Government of India Act of 1935, the Irish
Constitution of 1937, or some other Western constitution. In fact, 147 out of 240 clauses in
the draft constitution referred to the colonial India Act of 1935 as their source; the sections
concerning the government apparatus often reproduced parts of this “autocratic and
undemocratic” Act with minor modifications.

To remove autocracy and instil democracy in post-Independence India, the draft

constitution included a part named “Fundamental Rights including Directive Principles of

29
H. KULKE and D. ROTHERMUND, A History of India, 4th ed., Abingdon, Routledge, 244-325.
30
See B.N. RAU, India's Constitution in the Making, Bombay, Orient Longmans, 1960, xv-xix.
31
PAL, xciii-xciv. B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 4, 935-6.
22
State Policy” (Part III). In this part, the fundamental rights of India’s citizens were to be
constitutionally guaranteed: equality before the law, freedom of speech, freedom of
religion, etc. Prima facie, this part appeared to put strict limits on the scope of the state’s
power and prevent arbitrary interference in the lives of India’s citizens. As a clause of the
draft Constitution said:

Nothing in this Constitution shall be taken to empower the State to make any
law which curtails or takes away or which has the effect of curtailing or taking
away any of the rights conferred by Chapter II of this Part [the Chapter
containing Fundamental Rights] except by way of amendment of this
Constitution under section 232 and any law made in contravention of this sub-
section shall, to the extent of the contravention, be void.32

The Constitution includes a variant of this clause and thus appears to provide strong
protection of the citizen’s rights against infringement by the state. However, a closer look
complicates the matter.

The first complication has to do with the relation between ‘fundamental rights’ and
‘directive principles’. The Constitution of 1950 incorporates two distinct parts: Part II on
Fundamental Rights and Part III which contains the Directive Principles of State Policy. The
Advisory Committee on Fundamental Rights had suggested this division into two parts
because of the difference between “rights enforceable by appropriate legal process” and
principles “which, though not enforceable in courts, are nevertheless to be regarded as
fundamental in the governance of the country.”33 This distinction came from the Irish
Constitution of 1937. The directive principles generally accommodated concerns about
‘social justice’ and ‘informal rights’; since these would not be justiciable, they were
presented as principles intended for the general guidance of the legislative branch.
However, in the Constitution of India, the Directive Principles of State Policy are preceded
by a proviso that transforms them into a constitutional obligation of the state:

The provisions contained in this Part shall not be enforceable by any court, but
the principles therein laid down are nevertheless fundamental in the

32
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 3, 7.
33
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 2, 294.
23
 governance of the country and it shall be the duty of the State to apply these
principles in making laws.34

A basic question that came up was that of the relationship between the fundamental rights
granted to each citizen, on the one hand, and these directive principles, on the other hand.
There might be occasions where the constitutional obligation to apply the wide-ranging
directive principles could compel the state to enact legislation that infringes upon one or
several constitutional rights. Should fundamental rights then be subordinated to directive
principles aiming at ‘social justice’ or the other way around?

This question became particularly pertinent where it concerned the right to freedom of
religion. The significance for post-Independence India appeared obvious: the country was
home to several religions and minorities; therefore, the right of citizens to freely profess and
practice their religion should be protected against state infringement. Nevertheless, the
clause that resulted from the work of the Constituent Assembly appears more concerned
about increasing the regulation of religion by the state, than about putting limits on the
state’s power to intervene in religion. This is the second complication.

In the section on “Rights relating to religion” of the draft constitution of 1947, the main
clause concerning freedom of conscience and religion went as follows:

20. (1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.

Following the suggestion of the Sub-Committee on Fundamental Rights, the draft

constitution added this qualification:

The rights conferred by this sub-section shall not include any economic,
financial, political or other secular activities which may be associated with
religious practice.35

Moreover, sub-clause (2) allowed for a category of laws that should remain unaffected by
the recognition of the right to freely profess, practice and propagate religion:

34
Constitution of India 1950, Part IV: Directive Principles of State Policy, Art. 37.
35
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 3.
24
 Nothing in this section shall preclude the State from making laws for social
welfare and reform and for throwing open Hindu religious institutions of a
public character to any class or section of Hindus.36

Both ‘limitations clauses’ would be retained in the Constitution of India of 1950 but
formulated in stronger language.37

What do these clauses tell us about the constitutional right to freedom of religion in India?
The proviso about public order, morality and health in the main clause is familiar from other
constitutions and conventions.38 In contrast, the wording in clause 25(2) is peculiar to the
Indian Constitution. It provides for a different type of ‘constraint’ on religious freedom.
Basically, the clause creates two categories of laws that should not be limited by the right
freely to profess, practise and propagate religion. The first category comprises laws aimed
at regulating or restricting any secular activity which may be associated with religious
practice. The second category of laws are those that provide for social welfare and reform.
Taken together, these provisos create a wide space for the state to enact laws exempt from
the compulsion to respect the fundamental right to freedom of religion.

Freedom of Religion in the Constituent Assembly

In 1947, the Constituent Assembly’s Sub-Committee on Fundamental Rights worked on an
outline of the fundamental rights section for the draft constitution. The deliberations
concerning the right to freedom of religion started from a draft article by the lawyer K.M.
Munshi:

All persons are equally entitled to freedom of conscience and the right freely to
profess and practise religion in a manner compatible with public order, morality
or health. The right to profess and practise religion shall not include economic,
financial or political activities associated with religious worship.39

36
Ibid.
37
Constitution of India 1950, Part III. Fundamental Rights, Article 25.
38
E. K. CASSIDY, "Restricting Rights? The Public Order and Public Morality Limitations on Free
Speech and Religious Liberty in UN Human Rights Institutions," The Review of Faith & International
Affairs, 2015, 13, no. 1.
39
B. SHIVA RAO, The Framing of India’s Constitution: Select Documents, vol. 2, 122.
25
The second sentence addressed a concern of some members: the right to freedom of
religion might be abused to protect all kinds of activities ‘associated with religion’, about
which the state should be free to legislate. Despite this addition, Rajkumari Amrit Kaur, the
future health minister of India, wanted it to be recorded that the clause was defective
“inasmuch as it might invalidate legislation against anti-social customs which have the
sanction of religion.”40 Kaur’s problem was that the clause granted the right freely to practise
religion, which would prevent the state from making laws that ban any practice ‘sanctioned
by religion’.

Several committee members pointed to the risks of a clause that would grant “the right
freely to profess and practice religion.” One said that an explanation should be added, since
“wide import…may be given to the word religion” and this would impact negatively on the
social legislation from the beginning of British rule down to the present day. In other words,
the ‘social’ legislation implemented by the colonial government should be protected from
infringement by this constitutional right: “The committee will realize that if for any reason
the Federal Court construes the clause relating to religion and practise of religion in a wide
sense, it may have the effect of invalidating all existing legislation apart from prohibiting
such legislation in the future.”41 Several members were “naturally anxious that no clause in
any fundamental right shall make impossible future legislation for the purpose of wiping out
these evils,” such as polygamy, prevention of inter-caste marriages, or dedication of girls to
temples. For this reason, they proposed to replace “free practice of religion” with “freedom
of religious worship,” which should be much more limited in scope.42 Hence, the revised
report included a modified clause which granted freedom of religious worship instead of
practice.43

However, this did not settle the matter. When the Sub-Committee on Minorities considered
the proposal, it reintroduced the right freely to ‘practise’ religion into the clause.44 Kaur
objected in a note where she argued that the words “free practice of religion” had been
deliberately omitted in the Fundamental Rights Sub-Committee, because they would be a

40
Ibid.
41
Alladi Krishnaswami Ayyar in a letter to B.N. RAU, 4 April 1947, in ibid., 143. Emphasis added.
42
Ibid., 146-7.
43
Ibid., 173.
44
Ibid., 205.
26
bar to future social legislation and invalidate past colonial legislation about practices such as
sati (‘widow-burning’), female infanticide and widow remarriage. Even worse: “To make the
‘free practice of religion’ a justiciable right is, I submit, an error and will defeat not only social
progress but will keep alive communal strife.”45 For Kaur, religious processions should not
count as worship but as practice of religion and, therefore, did not come under freedom of
religion. Other members also argued that the immersion procession of the clay idol of
Ganapathi in water (this immersion itself is a ritual that follows the puja ritual which a
devotee offers to the idol) was “not worship but practice of religion. If you go to a temple, it
is worship. Further than that, it will be practice of religion.”46

In the proceedings of the Advisory Committee, K.M. Panikkar, a famed professor of history
and diplomat, elaborated on the issue:

The question is whether a fundamental right should be introduced to cover all

religious practices which the legislature may at one time or other have to deal
with by legislation. It seems to me rather a wide power to be restricted by a
fundamental right. We thought that it is essential to give a certain amount of
discretion in that matter to the State. It does not mean that religious practices
are to be interfered with. If the State considers that certain religious practices
require modification by the will of the people, then there must be power for the
State to do it.47

Several members concurred: “To say that it will be open to people to claim a safeguard
against a thing done by the legislature in the Supreme or other courts on the ground that
the law infringes the practices that come under the name of religion is to make any
constitution utterly unworkable.” Another member argued that religious practice had been
responsible for disturbing the peace of the country, since it was used to create communal
conflict: “We can trust the wisdom of the legislatures not to interfere with religious
practices, but to give a kind of solemn sanction in a constitutional document to these
practices will be perpetuating an evil which will strike at the very foundation of the State.”48

45
Ibid., 213.
46
Ibid., 213, 65.
47
Ibid., 265.
48
Ibid., 265-6.
27
However, other members objected to the proposal to erase the word ‘practice’ from the
clause. In countries where the constitution granted religious freedom, Munshi pointed out,
it was “generally left to the judge to decide what is religion and what is not.”49 Besides, a
colleague added, it would still be “open to the government to take any step to prevent the
observance of religious worship or practice on grounds of public order, morality or health.”50
And, with regard to social reform, another proviso could always be inserted to cover that.
At one point in the committee proceedings, the Chairman, Congress leader and lawyer
Vallabhbhai Patel, tried to settle the disagreement: “It is only a question of guaranteeing a
certain amount of religious worship. The minimum is provided as a guarantee.”51

Ultimately, it required the intervention of two minority members, a Sikh and a Christian, to
reverse the tide of the discussion; they did so by pointing out that ‘religious practice’ was
important to their religion. The Chairman then put the amendment to a vote and the
majority were in favour of inserting the term ‘religious practice’ into the clause.
Immediately, however, a member insisted that this acceptance of “the enlargement of
practice of worship” compelled the Committee to provide for another matter, namely,
“social reforms in the particular community must be permissible with the consent of the
legislature of course.”52 The Chairman agreed about the issue of social reform and a new
proviso was added:

The freedom of religious practice guaranteed in this clause shall not debar the
State from enacting laws for the purpose of social welfare and reform.53

When the Assembly adopted the clause concerning religious freedom for the first time, it
took another step towards increasing the scope for government interference. Munshi
moved an amendment: “The freedom of religious practice guaranteed in this clause shall
not debar the State from enacting laws for the purpose of social welfare and reform and for
throwing open Hindu religious institutions of a public character to any class of or section of
Hindus.” He briefly stated the reasons for the addition:

49
Ibid., 265.
50
Ibid., 265-6.
51
Ibid.
52
Ibid., 267.
53
Ibid., 291.
28
 After the Explanation above was drafted it was thought that the practice of
religion referred to should not be of such a character as will interfere with the
right of the Legislature to legislate on social questions. The question arose with
regard to the throwing open of all temples to all classes of Hindus, whether it
would be religious practice. In order to prevent any such construction of clause,
it was decided that the throwing open of Hindu religious institutions shall not
be held to contravene the practice of Hindu religion.54

This addition, adopted by the Constitution of 1950, is unusual in that it targets one particular
set of practices related to one specific religion and declares that these should be excluded
from the freedom of religious practice.

Religious Freedom and Religious Law

In November and December 1948, religious freedom became the subject of another round
of discussions in the Assembly.55 A major issue was the potential conflict between the
fundamental right to religious freedom and one of the Directive Principles of State Policy.
Article 35 of the draft constitution said: “The State shall endeavour to secure for the citizens
a uniform civil code throughout the territory of India.”56 This principle generated
controversy, because its implementation would amount to abolishing the system of personal
law instituted by the British colonial government.

In the late eighteenth century, the East India Company had decided that the law of the Quran
and of ‘the Shastras’ (texts viewed as repositories of Hindu law by the British) should
continue to be applied to matters in which they had been invariably applied in the past. 57 A
regulation stated that “in all suits regarding inheritance, succession, marriage and caste and
other religious usages or institutions, the laws of the Quran with respect of Mohamedan and

54
Constituent Assembly Debates, vol. 3, 1 May 1947.
55
In December 1948, a second debate occurred about article 19 of the draft constitution, which
concerned the introduction of the right to propagate religion into the freedom of religion clause.
Since the question of propagation, conversion, and proselytization generated a highly specific
debate, which is not directly relevant to my thesis, it will not be discussed here. See S. CLAERHOUT,
Losing My Tradition: Conversion, Secularism and Religious Freedom in India, Unpublished doctoral
dissertation, Comparative science of Cultures, Ghent University, 2010.
56
This became Article 44 of the Constitution of India 1950.
57
J. W. KAYE, Christianity in India: An Historical Narrative, London, Smith, Elder & Company, 1859,
374-5; See also 21 Geo. III. Cap. 70, section 16 and 37 Geo. III. Cap. 142, section 13, in The Law
Relating to India, and the East India Company, London, W.H. Allen, 1842, 50, 123.
29
those of the Shastras with respect to Gentoos (Hindus) shall be invariably adhered to.”58 Out
of this decision grew a system of personal law, where civil issues such as marriage,
succession, inheritance, and charities fell under the authority of Hindu and Muslim personal
law, for Hindus and Muslims respectively.

When the directive principle about the uniform civil code came before the Assembly,
Mohammad Ismail Khan, a representative of the Muslim League, proposed to add the
following proviso: “Provided that any group, section or community of people shall not be
obliged to give up its own personal law in case it has such a law.” He justified this proviso by
saying that the right of a community to follow its own personal law was a fundamental right
and should be included among the statutory and justiciable fundamental rights. The
Assembly was trying to create a secular state and such a state “should not do anything to
interfere with the way of life and religion of the people.”59 Others agreed that the uniform
civil code article might clash with the article guaranteeing freedom of religion. While this put
limitations on the practice of religion, these should also be restricted:

I can quite see that there may be many pernicious practices which may
accompany religious practices and they may be controlled. But there are certain
religious practices, certain religious laws which do not come within the
exception in clause (2), viz. financial, political or other secular activity which may
be associated with religious practices.60

The concern was that the directive principle would give latitude to the state to ignore the
right to religious freedom and interfere in the religious laws of communities. For Muslims
and some other communities, it was argued, “their personal law depends entirely upon their
religious tenets” and, in a secular state, “citizens belonging to different communities must
have the freedom to practice their own religion, observe their own life and their personal
laws should be applied to them.” 61

In response, Munshi pointed out that one had already accepted that “the principle that if a
religious practice followed so far covers a secular activity or falls within the field of social

58
R. K. WILSON, Anglo-Muhammadan Law: A Digest, London, W. Thacker & Co., 1908, 29.
59
M. I. KHAN, in Constituent Assembly Debates, vol. 7, 23 November 1948.
60
N. AHMAD, in Constituent Assembly Debates, vol. 7, 23 November 1948.
61
B. P. SAHIB BAHADUR, in Constituent Assembly Debates, vol. 7, 23 November 1948.
30
reform or social welfare, it would be open to Parliament to make laws about it without
infringing this Fundamental Right of a minority.”62 Since legislation covering secular activities
was permitted, religious freedom could not possibly mean that the Parliament would have
no right to enact a uniform civil code in the future. “Religion,” he said, “must be restricted
to spheres which legitimately appertain to religion, and the rest of life must be regulated,
unified and modified in such a manner that we may evolve, as early as possible a strong and
consolidated nation.” 63

Counter-arguments came from another member of the Assembly, M.I. Khan, who objected
to the statement that personal law has nothing to do with religion. Khan raised a major issue:
if Islamic doctrine determines that following Sharia law is a vital part of religion, how could
the government decide that this is not part of religious practice? And if this practice was not
obviously harmful to non-Muslims and did not infringe the rights of others, why should it
not be protected by the right to religious freedom?64 The fact that some people held the
opinion that this set of practices should not come under religious practice was not sufficient
as a ground to exclude it from the citizens’ right to freedom of religion, especially if the
relevant community considered these practices vital to its religion.

In the end, all these amendments to the uniform civil code article were rejected. Though the
focus of this debate appeared to be on the issue of Muslim personal law, the implications
turned out to be much more important for other groups. The uniform civil code was rarely
pursued in the second half of the twentieth century (and remains a pipe dream today)
because of the opposition of Muslim groups. In contrast, the Indian government would go
on to intervene massively in the realm of Hindu ‘law’ and practice throughout these decades.

3. Reflections and Questions

The religious freedom clauses of the Indian Constitution took a complicated form because
the Constituent Assembly wanted to assure that the state would be able to implement
‘social legislation’—a type of legislation that regulates practices ‘associated with religion’
and controls religious institutions, in the name of social justice and reform. Therefore, clause

62
K.M. MUNSHI, in Constituent Assembly Debates, vol. 7, 23 November 1948.
63
K.M. MUNSHI, in Constituent Assembly Debates, vol. 7, 23 November 1948.
64
M.I. KHAN, in Constituent Assembly Debates, vol. 7, 1 December 1948.
31
25(2) enables the Indian state to disregard the right to freedom of religion in wide and
indeterminate realms of law-making. The Constituent Assembly made the desire to reform
‘anti-social customs’ related to ‘religion’ into a legitimate ground for government
intervention in traditional practices and institutions. From a legal point of view, this raises
several questions.

1. The first question concerns the way of going about with fundamental rights apparent both
from the proceedings of the Constituent Assembly and from the resulting constitutional
clauses. Consider the introduction of directive principles into the Constitution. Initially, it
had been obvious that these were non-justiciable and served as ‘guiding principles’ of
‘educative value’; hence, they would be subordinate to justiciable fundamental rights.
However, Assembly members began to argue that these directive principles were also
‘fundamental’ and that pursuing them should be the state’s duty. At one point, the
Constitutional Advisor even argued that the directive principles should overrule the
fundamental rights, since they concerned the general welfare and not just that of the
individual.65 Consequently, a constitutional provision was introduced laying down the state’s
obligation to apply these principles in law-making. Thus, the Constitution contains an
incipient conflict between the fundamental rights of the citizen and the directive principles
of state policy: these principles may give the state ‘constitutional’ grounds to infringe
individual rights in the name of social justice and welfare. This would effectively cancel out
the rights in question by subjugating them to social justice policies of governments.66

The Assembly’s deliberations about the free ‘practice’ of religion reveal that this is but one
instance of a general attitude. Its members insisted on including clauses that would allow
for a range of restrictions and exceptions on the right to religious freedom; some wanted to
exclude the freedom of ‘practice’ altogether. The post-Independence state, they argued,
should be able to continue to expand the ‘social legislation’ of British India, which would
inevitably imply interference in religious practice. This concern gave shape to the
constitutional religious freedom clauses: the state should be free to interfere in secular
activity ‘associated with’ religious practice; ‘social welfare and reform’ and ‘the throwing

65
B. SHIVA RAO, The Framing of India’s Constitution, vol. 3, 218-226.
66
J. USMAN, “Non-Justiciable Directive Principles: A Constitutional Design Defect,” Michigan State
Journal of International law, 2007, 15, 1, 643-696.
32
open of Hindu institutions’ are permissible grounds for the government to create laws that
involve prima facie violations of a fundamental right.

The most obvious justification for these clauses goes as follows: the Indian constitution-
makers aimed to avoid that the right to religious freedom would give a free pass to the
violation of other rights by condoning oppressive and discriminatory practices. However, if
this were the aim, the classical limitations clause included in Article 25 should be sufficient:
to say that the right to freedom of religion is “subject to public order, morality and health”
entails that the exercise of this right is restricted and cannot allow citizens to infringe the
rights of others, cause harm to others, or violate criminal law.

Yet, these restrictions are equally restricted: the interpretation of limitations clauses should
guarantee continued protection of the citizen’s rights against state infringement. That is,
legal restrictions on freedom of religion have a limited scope and should live up to strict
conditions and tests: they can only be determined by a narrowly tailored law; they need to
have a legitimate aim and should be both appropriate and necessary to achieve a specific
ground; they cannot be discriminatory and destructive of guaranteed rights.67 Generally,
these conditions show a concern for preventing that legal restrictions on the freedom of
religion impair and put into jeopardy the essence of this right. In more general terms, as the
UN Human Rights Committee has put it, “the relation between right and restriction,
between norm and exception, must not be reversed.”68

By creating several more permitted grounds for legislation that ‘restricts’ the freedom of
religion, without providing any clarity about the conditions under which these grounds can
legitimately be invoked by the state, the Indian Constitution appears to do away with this
caution as to guaranteeing the correct relation between right and restriction. Indeed, one
commentator suggests that “the limitations…are given the primary place and not the
substantive right to which they are appended.”69 It is no coincidence that Constituent
Assembly members referred to the ‘social legislation’ of British India to argue for such

67
E. K. CASSIDY, "Restricting Rights? The Public Order and Public Morality Limitations on Free
Speech and Religious Liberty in UN Human Rights Institutions," The Review of Faith & International
Affairs, 2015,13, no. 1.
68
Human Rights Committee, General Comment no. 27 (67), par. 13.
69
N. BEG, cited in G. J. JACOBSOHN, The Wheel of Law: India’s Secularism in Comparative
Constitutional Context, Princeton and Oxford, Princeton University Press, 2003, 33.
33
additional restrictions. The colonial state had penetrated deeply into the lives, traditions,
and institutions of its Indian subjects. In spite of apprehensions about offending ‘the
religious prejudices of the natives’, the British governments had implemented legislation
which sought to reform (or ban) traditional practices and encroached on the administration
of Hindu temples.70 The recognition of fundamental rights in the post-Independence
Constitution appeared to be part of an effort to emancipate the Indian people from such
intrusions into their lives and traditions. Instead, however, the Assembly members
expressed a different concern: the recognition of the right to religious freedom threatened
to put government control of traditional practices and institutions off limits to the Indian
state. And this was unacceptable. To them, the importance of protecting the extensive scope
of state power against potential infringement by citizens’ exercising their rights superseded
that of protecting these citizens’ rights against state infringement. If this stance towards
fundamental rights was indeed inscribed into clause 25(2) of the Indian Constitution, this
generates a major question: How did it live on in the court decisions that involved the
constitutional right to freedom of religion? Do we see a continuing effort to allow the state
to intervene in traditional practices and institutions?

2. A second question has to do with the Constituent Assembly’s status. This body claimed to
represent the people of India and passed the Constitution as an emanation of the will of this
people. Since the Constitution grants the authority to the state to interfere extensively in
religious practices and institutions of the majority of the people, the Assembly’s claim about
representing the popular will becomes all the more important. If this claim cannot be
legitimized, this would amount to a minority decreeing how the majority should live and
practice its traditions.

When we examine the composition of the Assembly, the claim that it represented the Indian
people and its will becomes suspicious. Most of the 299 members were elected by the
Provincial Legislative Assemblies of British India from among their own membership. The
voters that had elected the latter Assemblies consisted of a small sub-set of the Indian
population, selected on criteria stipulated by the colonial government. Consequently, a
small group indirectly elected by a minority of the population under colonial regulations
declared itself to be the representatives of the Indian people. They went on to debate the

70
See, for instance, N. GARDNER CASSELS, Social Legislation of the East India Company: Public
Justice versus Public Instruction, New Delhi, Sage, 2010.
34
content of the Constitution and formulate its clauses and amendments in a language and
idiom inaccessible to the large majority. Still, the Preamble declares: “We, the People of
India, having solemnly resolved that…”

Perhaps this situation can be explained as the inevitably messy trajectory of a nation that
sought to emancipate itself from colonial rule in difficult circumstances. In most former
colonies, the legislators and rulers of the post-Independence nation consisted of the colonial
elites of yesteryears. However, historical circumstances cannot lend legitimacy to the
resulting constitutional provisions. These claim to grant fundamental rights to the people,
but then introduce wide-ranging restrictions and exceptions, which specifically target the
practices of the majority. Now, most members of this majority had participated neither in
electing the constitution-makers nor in any further step of the constitution-making process.
Does this not amount then to a small minority imposing its ‘will’ on the majority and having
the state determine how the people can and cannot live and practice its religions?

3. Another question concerns the language use in the debates about religious freedom in
the Assembly and its committees. These contain peculiar statements. Consider the
discussion about replacing ‘practice of religion’ with ‘freedom of worship’. Committee
members spoke as though it is obvious that one part of a ritual constitutes worship while
another is mere practice. One member suggested that only that which happens in a temple
is worship; the rest is practice. Now, to say that only acts done in a temple count as ‘worship’
clashes with the meaning of this word. According to the Oxford English Dictionary, the verb
‘worship’ has the following meanings: “1. To honour or revere as a supernatural being or
power, or as a holy thing; to regard or approach with religious veneration.” “2. To perform,
or take part in, an act of worship directed towards (a god, etc.); to venerate with appropriate
acts, rites, or ceremonies.” If this is what ‘worship’ refers to, it makes no sense to say: “If
you go to a temple, it is worship. Further than that, it will be practice of religion.” This would
entail that one can only revere something as a supernatural being or holy thing within a
particular type of building. ‘Worship’ (and its freedom) then would not cover praying to God
in one’s home, venerating Christ in open air, or doing a ritual for Ganesha in a puja room.

Given these meanings of ‘worship’, the statement made by the chair of the Advisory
Committee sounds nonsensical: “It is only a question of guaranteeing a certain amount of
religious worship. The minimum is provided as a guarantee.” How can one divide the act of
revering or venerating a deity into amounts and establish a minimum amount of worship?
35
There is no unit of measurement for ‘amounts’ of worship and no standard that establishes
the minimum. It sounds equally incoherent to speak of “the enlargement of practice of
worship,” as another member did, as though worship can be enlarged and diminished. Still,
such statements were not simply made by the Indian constitution-makers, they also played
a crucial role in formulating constitutional clauses.

In the discourse about ‘religious’ and ‘secular’ activity, parallel issues show up. Munshi, a
respected lawyer, implies that following Sharia law is not part of religion, whereas this is the
immutable will of God according to Islam and an essential part of worshipping Him. To argue
that ‘religion’ “must be restricted to spheres which legitimately appertain to religion” here
and that the practicing of Sharia law belongs to secular activities that “may be associated
with religious practice,” indicates a profound ignorance of religion. This is also apparent in
the future law minister Ambedkar’s addition that there “is nothing extraordinary in saying
that we ought to strive hereafter to limit the definition of religion in such a manner that we
shall not extend beyond beliefs and such rituals as may be connected with ceremonials
which are essentially religious.”71 How should a legislator or judge who is interpreting a
religious freedom clause understand ‘religion’ in that case? By finding out which beliefs and
rituals may be connected with ‘ceremonials that are essentially religious’. This is a puzzling
statement, but there is a more important problem: according to these people, following the
revealed will of God is not essentially religious, whereas this is the core of religions like Islam,
Christianity, and Judaism.

Certain utterances about the ‘constitution’ and ‘religious practice’ give the impression that
the speakers lack knowledge of the objects they are talking about. What are we to make of
the following? “To say that it will be open to people to claim a safeguard against a thing
done by the legislature in the Supreme or other courts on the ground that the law infringes
the practices that come under the name of religion is to make any constitution utterly
unworkable.” If this is the case, then any constitution that recognizes free exercise of religion
should be unworkable, which is clearly not the case. Secular courts in the western world
have frequently protected people against laws that infringe their religious practices; judges
appear to have done so in reasonable and equitable ways. Similarly: “We can trust the
wisdom of the legislatures not to interfere with religious practices, but to give a kind of

71
B.R. AMBEDKAR, in Constituent Assembly Debates, vol. 7, 2 December 1948.
36
solemn sanction in a constitutional document to these practices will be perpetuating an evil
which will strike at the very foundation of the State.” This member suggests that
constitutional recognition of the right to free practice of religion amounts to a ‘solemn
sanction’ of religious practices. Now, any constitution gives citizens the right to act in all
kinds of ways, but this does not imply that it solemnly sanctions the resulting actions; the
right to freedom of speech, for example, nowhere entails a constitutional sanction of
citizens’ speech.

The point here is not to show the absurdity of these locutions. Many Assembly members
belonged to the intelligentsia of British India; they had been educated in English and
appeared fluent in this language; some were trained lawyers, others seasoned politicians.
For decades, these people had been talking about the ‘constitution’, ‘rights’, ‘worship’ and
‘freedom of religion’. Yet, in the crucial setting of drafting a constitution for India, they make
statements that indicate ignorance of the meaning of these English words and of the objects
they refer to. A superficial attempt at making sense of such sentences shows that they are
either incoherent or unreasonable. But how could English-educated intellectuals possibly be
ignorant of the meaning of the words and sentences they utter? Since this thesis will go on
to examine judgments by Indian courts, another question poses itself: do the decisions and
reasoning of the judges reveal similar problems or not?

37
 Chapter II: Hinduism and the Indian Judiciary

The provisos added to Article 25 are central to the way in which the Indian judiciary has dealt
with ‘religion’ since the 1950s. In spite of the right to free practice of religion, the state
enacts and enforces laws that regulate or restrict ‘secular activity associated with religious
practice’ and that provide ‘social welfare and reform’. Though only the last phrase of clause
25(2) refers to “Hindu religious institutions,” the debates in the Constituent Assembly
committees show that these provisos primarily reflected a desire to interfere with
‘Hinduism’ to ‘ameliorate’ the harmful effects it had on Indian society. When one believes
that ills in society are the results of a specific religion, interfering with that religion becomes
crucial to any state policy that seeks the people’s welfare. Hence, as one scholar puts it: “In
crucial respects the Constitution is a charter for the reform of Hinduism.”72

But what does it mean to constitutionally guarantee freedom of religion, when the freedom
of the state to interfere with one specific religion also becomes enshrined in the
Constitution. As the language of clause 25(2) shows, the authors believed that one could
interfere in the ‘secular’ aspects of a religion without interfering with its ‘religious’ aspects.
Further, many Assembly members also believed that Hinduism was, basically, a good (or
neutral) religion but that its corrupt and harmful practices should be ‘reformed’. They
inscribed these opinions into the Constitution. In that case, it must make sense to the
lawmaker and the judiciary to speak of Hinduism as a religion, to identify its true character,
and to discriminate between genuine religious practices and ‘harmful’ secular aspects.

To test the truth of these assumptions, this chapter will first provide an overview of what
the learned world knows about this religion today. Here, we face two kinds of complexities:
Does ‘Hinduism’ exist as a phenomenon with an identifiable outline and discernible unity?
Is this Hinduism a ‘religion’ about which constitutional provisions and legal decisions can
speak in reasonably coherent terms? To clarify these questions, I examine the emerging
consensus about ‘Hinduism’ in contemporary scholarship. This consensus has consequences
for the legal debates about Hinduism. The second part of the chapter contrasts two ways in
which current legal scholarship attempts to account for the place of Hinduism in

72
M. GALANTER, Law and Society in Modern India, New Delhi, Oxford University Press, 1997, 247.
38
contemporary Indian law. This contrast allows me to narrow down the problem I seek to
investigate in the remaining chapters.

1. Is Hinduism a Religion?

No discussion about Hinduism in Indian law can ignore the developments in the study of this
religion during the last three decades. By the end of the nineteenth century, a standard
account had crystallized in Western scholarship: Hinduism is the religion of the Hindus, who
form the majority of the Indian population; it is divided into a Brahmanical tradition and
popular religion; the Vedas and Bhagavad Gita are among its sacred scriptures; the Brahmins
constitute its priesthood; the caste system is intertwined with this religion. These claims go
hand in hand with moral disapproval of Hinduism as a religion that sanctions social evils like
caste discrimination, temple prostitution, untouchability, the dowry system, discrimination
of women, etc. In the twentieth century, this became a common-sense account of Hinduism,
widely shared among Western and Indian intellectuals.

Already during the colonial period, however, scholars raised certain issues: Hinduism knew
of a vast internal diversity and no doctrine or belief was shared across all its strands; it had
no generally accepted sacred books and religious authorities; this religion appeared to
encompass polytheism, monotheism, pantheism, henotheism, and atheism; its practices
differed from place to place and tradition to tradition; most Hindus did not know the content
of the ‘scriptures’ of their own religion, including many of the Brahmin priests. In brief, since
this religion had no coherent structure, it was difficult to say what it looked like.73

Until the late 1980s, experts in the field argued that Hinduism did not have the
characteristics commonly expected of religion: “Hinduism can hardly be called a religion in
the popularly understood sense of the term”74 or it “displays few of the characteristics that
are generally expected of a religion” and it is therefore “difficult to categorize Hinduism as

73
For analysis, see J. DE ROOVER and S. CLAERHOUT, “The Colonial Construction of What?” in
Rethinking Religion in India, eds. E. BLOCH ea., London and New York, Routledge, 2010, 164-184.
74
R. N. DANDEKAR, "Hinduism," in Historia Religionum: Handbook for the History of Religions, Vol.
2: Religions of the Present, ed. E. JUOCO BLEEKER and G. WINDENGREN, Leiden, Brill, 1969, 237;
cited in S.N. BALAGANGADHARA and D. JHINGRAN, Do All Roads Lead to Jerusalem? The Making of
Indian Religions, New Delhi, Manohar, 2014, 20.
39
‘religion’ using normally accepted criteria.”75 Nevertheless, these authors tried to develop a
definition of ‘religion’ that would continue to allow them to approach Hinduism as a distinct
religious entity.

The resurfacing of these same issues at regular intervals gave rise to the question whether
Hinduism is a religion at all. The first signs of brewing trouble emerged in the writings of a
Dutch philosopher-cum-Indologist, the late Frits Staal. In a series of articles, he argued that,
to borrow one of his titles, “the religions of the East are not Eastern and not religions
either.”76 Staal developed a series of arguments showing that Hinduism, Buddhism, Jainism,
etc. were not ‘religions’ in any of the known senses of the term. This problem cannot be
solved by ‘extending’ the concept of religion so that it incorporates doctrine and belief,
ritual, mystical experience, meditation, etc. as so many different aspects of the phenomenon
of religion. If we take this route, Staal wrote, “we have a concept on our hands that has all
the characteristics of pathological, if not monstrous growth, tumorous with category
blunders. It is worse than a spider with a submarine, a burning bush, an expectation and a
human head.”77

Eventually, it was Balagangadhara who seriously investigated the possibility that India does
not have ‘native’ religions of any kind. He discovered that the assumption of the cultural
universality of religion—namely, all cultures in the world have one or another native
religion—is not the result of scientific theorizing or empirical research, but rather draws its
strength from the theologies of the Semitic religions. The idea that Indian culture consists of
a set of religions called ‘Hinduism’, ‘Buddhism’, ‘Jainism’… crystallized within such a
theological framework.78 In the three decades that followed the publication of
Balagangadhara’s work, a new consensus emerged, which complicates any discussion about
‘Hinduism’ in law.

75
S. WEIGHTMAN, "Hinduism," in A Handbook of Living Religions, ed. J.R. HINNELLS,
Harmondsworth, Penguin, 1984; cited in Ibid.
76
These articles were conveniently collected, translated into Dutch and published as a book in the
1980s: F. STAAL, Over zin en onzin in filosofie, religie en wetenschap, Amsterdam, Meulenhoff, 1986;
See STAAL, “De godsdiensten van het Oosten zijn niet Oosters en ook geen godsdiensten” in Een
Wijsgeer in Het Oosten, Amsterdam, Meulenhoff, 1988.
77
F. STAAL, Ritual and Mantras: Rules Without Meaning, Delhi, Motilal Banarsidass, 1996, 401.
78
S.N. BALAGANGADHARA, The Heathen in His Blindness…: Asia, the West and the Dynamic of
Religion, Leiden, Brill, 1994.
40
The Emerging Consensus
Today’s introductory works in the study of Hinduism confront the lay reader with a surprising
puzzle: they find it extremely difficult to answer the question “What is Hinduism?”79 Of
course, explaining what Christianity is can also be a challenging task, since such generic
questions require answers of great length. However, the difficulty here is of a different type:
it is that of determining about which phenomenon we are talking when we use the term
‘Hinduism’. Consider how Gavin Flood, Professor of Hindu Studies at Oxford University,
addresses the question:

A simple answer might be that Hinduism is a term which denotes the religions
of the majority of people in India and Nepal, and of some communities in other
continents, who refer to themselves as ‘Hindus’. The difficulties arise when we
try to understand precisely what this means, for the diversity of Hinduism is truly
vast and its history long and complex.

Some claim that “there is no such thing as Hinduism” to be found in this diversity, Flood
explains, while others continue to look for an “essence” which structures its manifestations.
In any case, the wide range of traditions and ideas encompassed by the term ‘Hindu’ is a
hindrance to finding a definition. Therefore, Flood takes the view that “‘Hinduism’ is not a
category in the classical sense – to which something either belongs or it does not – but more
in the sense of prototype theory.” Some category members are more prototypical than
others, without all members having properties in common that define the category in
question. ‘Hinduism’ is a category with “fuzzy edges,” Flood emphasizes. Which members
are more prototypical then? Here, we must turn to Hindu self-understandings and the
scholar’s understandings, but this poses another difficulty. According to Flood, Hinduism is
not the ancient religion of the Hindus but a recent formation: “It is important to bear in mind
that the formation of Hinduism, as the world religion we know today, has only occurred since
the nineteenth century, when the term was used by Hindu reformers and western
orientalists.”80

79
Some scholars still retain the old view about Hinduism as a religion, but they do so without
addressing the issues that spawned the debate. For instance, see K. K. KLOSTERMAIER, A Survey of
Hinduism, Albany, State University of New York Press, 2007
80
G. D. FLOOD, An Introduction to Hinduism, Cambridge, Cambridge University Press, 1996, 5-8.
41
Julius Lipner of the University of Cambridge proposes a similar way of handling the question
“What is Hinduism?” “A provocative response would be to say that there is no such ‘thing’.
The term itself is a Western abstraction of fairly recent coinage.” It does not refer to some
homogeneous system but is merely “an acceptable abbreviation for a family of culturally
related traditions.” As is the case among members of an extended family, some of these
traditions hold certain features in common, but others do not.81 As Eric Sharpe points out,
these have almost become clichés in the domain of study and “what custom has taught us
to call Hinduism is a network of phenomena as rich, complex, and varied as the land and life
of India itself.”82

In his Hinduism: Past and Present (2004), Axel Michaels points out how the images used to
explain Hinduism indicate that it can encompass more or less any practice or belief (and its
opposite):

As a matter of fact, Hinduism is not a homogeneous religion at all, but is rather

a potpourri of religions, doctrines and attitudes toward life, rites and cults,
moral and social norms. For every claim, the reader should be aware “that the
opposite could, more or less justifiably, be asserted.” Thus images chosen to
represent Hinduism are similar: an impenetrable jungle, an all absorbent
sponge, a net ensnaring everything, an upside-down banyan tree with countless
roots growing from the branches to the earth. … Nothing seems to be generally
accepted, not even the doctrine of Karma, of retribution through
reincarnation… One might almost say that religious postmodernism is realized
in India: Anything goes.83

As a result, Michaels notes, some scholars argue that Hinduism as a coherent religion is a
construct, which does not exist in Indian society but only in Western scholarship: “Today,
without wanting to admit it, we know that Hinduism is nothing but an orchid cultivated by

81
J. LIPNER, Hindus: Their Religious Beliefs and Practices London and New York: Routledge, 2010, 6-
7.
82
E. J. SHARPE, "The Study of Hinduism," in The Study of Hinduism, ed. A. SHARMA, Columbia, SC,
The University of South Carolina Press, 2003.
83
A. MICHAELS, Hinduism: Past and Present, Princeton: Princeton University Press, 2004, 3-4.
42
European scholarship. It is much too beautiful to be torn out, but it is a greenhouse plant: It
does not exist in nature.”84

The entry on ‘Hinduism’ in the Brill Dictionary of Religion (2006) agrees that “the concept of
Hinduism, introduced by Western scholars only in recent times, stands for a whole complex
of religious currents and social phenomena appearing on the Indian subcontinent, partly in
very diverse historical, socioeconomic, and geographical conditions, at various times over
the last two-and-one-half millennia.”85 Others characterize Hinduism as an ‘arc-culture’
“consisting of many traditions that weave in and out of each other through different
historical periods. It can be likened to a rope of cultural movements, woven from many
threads, some longer and some shorter, entering at different points in history.” This
interaction of traditions over the millennia can be designated as ‘Hinduism’.86

If ‘Hinduism’ stands for an interaction of traditions over millennia, rather than for the
majority religion of India, one could suggest that it should be viewed as a conglomerate of
religions. However, this route has its own pitfalls: not only is the concept of Hinduism
problematic, it can be “argued that to represent Hinduism as a religion is also a
misconception. There is no word in any of the Indian languages that is directly equivalent to
the English word ‘religion’. … Consequently, to label Hinduism as a religion misconstrues the
actual belief and practices of Hindus.” In fact, this author adds, it is not uncommon for
Hindus to deny that Hinduism is a religion87; moreover, questions like “Are you a Hindu?” or
“What is your religion?” do not make sense to many Indians.88

I leave the last word to Wendy Doniger, doyen of Hinduism studies. She points out that it
was the British who began to categorize communities strictly by religion in India; even today,
most people in the country would not define themselves by their religion: “There is, after
all, no Hindu canon; ideas about all the major issues of faith and lifestyle—vegetarianism,
nonviolence, belief in rebirth, even caste—are subjects of debate, not dogma.” While there

84
Cited in MICHAELS, Hinduism: Past and Present, 12.
85
S. STAPELFELDT, "Hinduism," ed. K. VON STUCKRAD, The Brill Dictionary of Religion Online, 2006.
86
J. FRAZIER, "Introduction: New Visions of Hinduism," in The Continuum Companion to Hindu
Studies, ed. J. FRAZIER, London and New York: Continuum, 2011, 2-3.
87
J. FRAZIER, Introduction: New Visions of Hinduism, 3.
88
For instance, see the interview cited in S.N. BALAGANGADHARA and D. JHINGRAN, Do All Roads
Lead to Jerusalem? The Making of Indian Religions, New Delhi, Manohar, 2014, 20.
43
are some ideas, practices and rituals that connect the diverse people generally called
‘Hindus’ today, it is not “a simple matter of listing things that ‘all Hindus’ believe or, even,
that ‘all Hindus’ do: there are no such things.” How can we know what Hinduism is then?

What we need instead of a definite list of shared factors, therefore, is something

rather more like a Venn diagram, a set of intersecting circles of concepts and
beliefs and practices, some of which are held and done by some Hindus, others
by other Hindus, and still others shared not only by Hindus but also by members
of other South Asian religions, such as Buddhism or Jainism…But since there is no
single central quality that all Hindus must have, the emptiness in the centre
suggests that the figure might better be named a Zen diagram, a Venn diagram
that has no central ring.89

One more image is added to the many metaphors: ‘Hinduism’ is a Venn-diagram or set of
intersecting circles of concepts, beliefs and practices. Since the centre where all the circles
intersect is empty, there is no distinct set of characteristics that makes some phenomenon
into Hinduism. It is not a static diagram: “The Venn-diagram of Hinduism is constantly in
motion.”90 Doniger’s proposal is a variation on the theme that shapes other scholarly
attempts to answer the question as to the referent of the term ‘Hinduism’. Across these
attempts, two claims keep recurring: One is that the concept of Hinduism was introduced by
Western scholars during the nineteenth century, along with the belief that this was the
religion of the majority of the Indian people. The other that in reality, ‘Hinduism’ does not
refer to any one religion, but to a network of phenomena as rich and diverse as India itself,
a complex of religious currents and social phenomena, a potpourri of doctrines, attitudes,
rites, and cults.

Hinduism: The Issues

The Indian Constitution not only compels the judiciary to deal with Hinduism as a religion,
but also invites it to determine which Hindu practices are religious as opposed to secular.
Now, the scholarly consensus shows that it is unclear about which phenomenon the Indian
legislator and judiciary should be deciding: there are no characteristics that define Hinduism
as a religion, but only a wide range of traditions with features that at times overlap but often

89
W. DONIGER, On Hinduism, Oxford and New York, Oxford University Press, 2014, 3-4.
90
Ibid, 9.
44
do not. To view ‘Hinduism’ as a distinct religion is a remnant of outdated Western
scholarship, according to this consensus. How then could lawmakers and judges address the
tasks that confront them?

The many metaphors, from jungle to banyan tree, seem convenient to explain how different
‘Hinduism’ is from religions like Christianity, but they do not help the Indian judiciary to
address the difficulties of deciding about this ‘religion’. Hinduism is characterized as a Venn-
diagram with an empty centre. But how can the judge decide which aspects of this Venn-
diagram in motion are secular and religious? If ‘Hinduism’ is not a category to which
something either belongs or does not belong, the judiciary cannot reasonably be expected
to determine what institutions and practices are Hindu and which among those are religious.
If the term serves merely as an acceptable abbreviation for a family of culturally related
traditions, should all traditions that belong to this extended family (and their ‘potpourri’ of
practices and beliefs) be counted as part of Hindu religion under the Constitution?

The new way of looking at Hinduism “makes no hard and fast separation from Buddhism,
Jainism, Sikhism, Parsi, Muslim, Christian, tribal and other religious cultures that exist in India
and Indian diaspora communities,” but instead “encourages us to use ‘Hindu’ as an adjective
for cultural features and for individuals, rather than to assume that the word refers to a
single continuous entity.”91 But how can this be reconciled with legislation that requires us
to use ‘Hinduism’ and ‘Hindu’ as terms that refer to a distinct religion rather than to cultural
features? Hinduism is an ‘arc-culture’, it is argued, an interaction of traditions that has been
going on for millennia on the Indian Subcontinent. Article 25, however, does not concern
the right to freedom of ‘arc-culture’ or of ‘interaction of traditions’ but that to freedom of
religion. If Hindus are to participate in this right, then Hinduism needs to be dealt with as
one of those religions.

In other words, once we enter the sphere of Indian legislation about religion, the emerging
consensus in the study of Hinduism generates insuperable difficulties. In such circumstances,
the obvious route left to the lawgiver and the judge is to take recourse to the common-sense
account about ‘Hindu religion’. In fact, this is what has happened in the past. It is here that
many qualms about the right to religious freedom in the Constituent Assembly originated.

91
J. FRAZIER, Introduction: New Visions of Hinduism, 2-3.
45
The large majority of the Assembly members were part of the colonial intelligentsia
educated in the late nineteenth and early twentieth century. In school or at university, in
the newspaper and townhall lecture, they had been taught the British discourse about India
as the truth about their own culture and society. From the eighteenth century, whenever
the British encountered a practice in Indian society which they considered immoral or
harmful, they raised the question as to whether it was ‘sanctioned by religion’. Both to
missionaries and to colonial officials, it was obvious that the religion of the Hindus
sanctioned all kinds of ‘evils’ in Indian society, from untouchability to the exploitation of
women. Especially after the 1820s, when initial fascination for Indian culture had subsided,
the British weaved a story about India that characterized its ‘religion’ as a collection of
irrational prejudices and practices.92 Educated along the lines of this story, the Indian
intelligentsia believed that it would be necessary for the state to ‘reform’ Hinduism by
banning the many backward practices ‘sanctioned by religion’.

Such facts would be of historical interest only, if this account of ‘Hindu religion’ had not been
inscribed into the Indian Constitution. Current scholarship now shows that the conception
of ‘Hinduism’ as a distinct religious entity is flawed, since the term refers to a family of
culturally related traditions. In that case, how can one make sense of the constitutional
provisions about religious freedom in India, in so far as these deal with Hinduism? If the
Constitution is indeed “a charter for the reform of Hinduism,” which phenomenon is its
object of reform? How can judges make consistent and reasonable claims about ‘Hindu
religion’, when this is either a non-existent entity or an abbreviation for a potpourri of
traditions, beliefs and practices?

2. The Freedom to Reform Hinduism?

To see how ‘Hinduism’ has been treated in post-Independence Indian constitutional law, we
can consult the limited body of academic literature. Two approaches are visible here. A first
set of scholars implicitly or explicitly accepts the standard account of Hinduism as an all-
encompassing religion that sanctions a variety of harmful practices. Consequently, they
present Indian constitution law as an attempt to balance freedom of religion against

92
For analysis of the British account of ‘Hinduism’, see R. INDEN, Imagining India, Oxford, Basil
Blackwell, 1990, 85-130.
46
concerns about social justice for lower castes and women.93 The second approach
problematizes the stance of Indian legislators and judges towards Hinduism. These scholars
suggest that the Supreme Court has arrogated the task of cleansing this religion from
‘superstitious’ and ‘harmful’ accretions to its essential core. Thus, rather than protect the
right to freely practise religion in the form preferred by practitioners, the secular judiciary
adopts the role of an institution with the authority to refashion this ‘religion’ in ways
acceptable to the modern Indian state. Along the way, Indian judges engage in discussions
about the essence of Hinduism, which often appear theological rather than jurisprudential.94

Ameliorating Hinduism?
In The Wheel of Law (2003), Gary Jacobsohn argues that the Indian Constitution embodies a
distinct model of secularism, which he calls “ameliorative secularism.” It “seeks an
amelioration of the social conditions of people long burdened by the inequities of religiously
based hierarchies, but also embodies a vision of intergroup comity whose fulfillment
necessitates cautious deliberation in the pursuit of abstract justice.” The Indian constitution-
makers, Jacobsohn explains, faced the problem of an all-pervading religion that penetrates

93
See G.J. JACOBSOHN, The Wheel of Law: India’s Secularism in Comparative Constitutional Context,
Princeton and Oxford, Princeton University Press, 2003 (hereafter: JACOBSOHN, The Wheel of Law).
See also V. DEPAIGNE, Legitimacy Gap: Secularism, Religion, and Culture in Comparative Perspective,
Oxford, Oxford University Press, 2017; G. MAHAJAN, “Religion and the Indian Constitution:
Questions of Separation and Equality,” in R. BHARGAVA ed., Politics and Ethics of the Indian
Constitution, New Delhi, Oxford University Press, 2008, 297-310; L. D. JENKINS, “Diversity and the
Constitution in India: What is Religious Freedom?” Drake Law Review, 2009, 57, no.4, 913-947, 916;
P.B. MEHTA, “Hinduism and Self-Rule,” in L. DIAMOND, M. F. PLATTNER and P. J. COSTOPOULOS,
eds., World Religions and Democracy, Baltimore and London, The Johns Hopkins University Press,
2005; T. MAHMOOD, “Religion, Law, and Judiciary in Modern India,” Brigham Young University Law
Review, 2006, 755-776.
94
R. SEN has developed this argument most extensively in a series of journal articles and a
monograph. See R. SEN, “The Indian Supreme Court and the Quest for a ‘Rational’ Hinduism,” South
Asian History and Culture, 2010, no. 1, 86-104; R. SEN, Articles of Faith: Religion, Secularism, and the
Indian Supreme Court, New Delhi, Oxford University Press, 2010; See also M. FAIZAN and J. SINGH
SOHI, “Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy,” Brigham
Young Law Review, 2017, 915-956; R. DHAVAN and F. NARIMAN, “The Supreme Court and Group
Life: Religious Freedom, Minority Groups, and Disadvantaged Communities,” in B.N. KIRPAL, ed.,
Supreme but not Infallible: Essays in Honour of the Supreme Court of India, New Delhi, Oxford
University Press, 2000; P. HEEHS, “‘Not a Question of Theology’? Religions, Religious Institutions,
and the Courts in India,” Comparative Legal History, 2013, 1, no. 2 , 243-261
47
social life and whose ‘rigidly determined’ and ‘religiously based’ hierarchies conflicted with
democratic values. Therefore, they put restrictions on the right to free practice of religion.95

While contemplating Article 25, Jacobsohn says: “With admirable clarity,…the document
guarantees all Indians a broad right to religious freedom, only to declare that this right is
subject to substantial possible limitation.” This textual arrangement “evinces a clear
founding purpose that seeks to reconcile the securing of religious freedoms included in the
document with the achievement of social justice.” The debates in the Constituent Assembly,
he adds, confirm the interpretation “that the constitutional undertaking of 1947 had as one
of its principal goals the major reform of Indian society.” Indian Supreme Court judges agree:
consider “for example, the observation by a reform-minded jurist that it should ‘always be
remembered that social justice is the main foundation of the democratic way of life
enshrined in the provisions of the Indian Constitution’.” To reformulate this basic idea,
Jacobsohn draws on Montesquieu’s ‘insight’ that “the most true and holy doctrines may be
attended with the very worst consequences, when they are not connected with the
principles of society.” To account for the Indian model of secularism, “we might say that the
democratic way of life takes precedence over religious practices; that the conformity of
these practices to beliefs that are deemed holy and true is no bar to their proscription
because of the bad consequences that flow from their failure to connect with the principles
of society.”96

This notion of ‘ameliorative secularism’ not only serves to justify the constitutional
restrictions placed on the right to religious freedom but also accounts for the state’s
systematic intervention in Hindu practices and institutions. However, this account of India’s
secularism comes at a price: it can only make sense if one endorses the standard conception
of Hinduism as an all-pervasive religion with internally intolerant and oppressive aspects. 97
Jacobsohn suggests that Hindu practices conform to ‘beliefs deemed holy and true’ but that
the state can nonetheless ban or modify these practices—in spite of its recognition of the
right to freedom of religion—because of their failure to connect with principles of social
justice. Yet, contemporary scholarship tells us that this characterization of Hinduism as a

95
JACOBSOHN, The Wheel of Law, 94, 120. For a reproduction of this argument, see DEPAIGNE,
Legitimacy Gap, ch. 5.
96
JACOBSOHN, The Wheel of Law, 32-4.
97
See JACOBSOHN: The Wheel of Law, 154.
48
religion built around beliefs ‘deemed holy and true’ by the Hindus is obsolete. Consequently,
‘Hindu religion’, which is supposed to be the object of ‘ameliorative’ secularism, does not
correspond to a distinct entity in Indian society but to an indeterminate range of traditions.
How does this affect the way in which the Indian state has dealt with ‘Hinduism’?

Pratap Bhanu Mehta, an important opinion maker, takes a different route to account for the
Indian state’s intrusion into Hindu practices and institutions. He points out certain
characteristics lacked by Hinduism:

As internal and external pressures for change mounted, Hindus had to face them
without any institution that had prima facie authority to direct the reforms:
Hinduism lacks not only a caliphate but a Vatican as well. What agency was
there, then, with the power and the legitimacy to undertake the overhaul of
religious traditions? What would be a credible representative and institutional
process through which a task of such magnitude and sensitivity could be carried
out? In postindependence India, the answer turned out to be obvious: Only the
modern state, with institutions legitimized by universal suffrage, could take up
the work of reforming Hinduism. The modern Indian state is secular in the
obvious sense of the term. It accords equal citizenship to people of all religious
descriptions... The state favors no establishment of religion. Yet the Indian
Constitution has been rightly called a charter for the social reform of Hinduism:
The secular, democratic government of this Hinduism-suffused society is the
authoritative vehicle for the reform of Hinduism.98

This is a remarkable statement: because Hinduism lacks a central religious authority, the
secular state in India had to become the authoritative institution that takes up the task of
reforming this religion. How a state that serves as an agency for religious reform could still
be considered secular “in the obvious sense of the term” is difficult to understand,
particularly when we consider the fact that its ‘reform’ is largely aimed at one specific
‘religion’ to the exclusion of others.

From a historical perspective, Mehta’s account is untenable. The authority to reform

Hinduism was not assigned to the Indian state by means of institutions legitimized by
universal suffrage. It happened through a Constituent Assembly consisting of members
elected from and by a very limited section of the Indian people. This group inscribed a

98
MEHTA, “Hinduism and Self-Rule,” 64.
49
particular account of ‘Hinduism’ into the Constitution, which serves as a legitimation for
government intervention in traditional practices. The large majority of Hindus never
endorsed the way in which the Constitution and the state deal with their traditions. As for
later elections, it is not as though voters ever gave a mandate to the government to ‘reform’
Hinduism and take control of its institutions.

As an explanation of the Indian form of ‘secular’ government, Mehta’s account is equally

problematic. How could the fact that state institutions are legitimized by universal suffrage
make it obvious that they could become “the authoritative vehicle for the reform of
Hinduism”? The census claims that the Indian population consists of about 80% Hindus, 14%
Muslims and 6% adherents of other religions. Can the adult Indian population then
legitimately vote to support reforms allegedly required by Hinduism? The situation gets
more complicated when we consider that the term ‘Hinduism’ refers to a variety of
traditions practiced by different communities. Since the Hindus do not make up a majority
community of adherents of one religion, they cannot possibly decide about the ‘reform’
required for this ‘religion’ and then vote on that basis. This would amount to imposing one
version of ‘Hinduism’ on the followers of various traditions and allowing the state to modify
their practices accordingly. The suggestion that secular government is the authoritative
vehicle for the reform of Hinduism will then have another consequence: it simply allows the
state to use its powers to intervene in any of these traditions and practices, whenever it
declares a need for reform of this ‘religion’. How could universal suffrage legitimize such a
policy in a constitutional secular democracy?

The Supreme Court’s Hinduism

Advocates of the second approach highlight the conflict between the principles of religious
freedom and secularism, on the one hand, and the Indian judiciary’s treatment of religion,
on the other hand. Two prominent Indian jurists sum up the situation:

With a power greater than that of a high priest, maulvi [expert in Islamic law] or
dharmashastri [‘Hindu law’ expert], judges have virtually assumed the
theological authority to determine which tenets of a faith are ‘essential’ to any
faith and emphatically underscored their constitutional power to strike down
those essential tenets of a faith that conflict with the dispensation of the
Constitution. Few religious pontiffs possess this kind of power and authority. …
Both the government and judiciary tend to overlook the simple fact that under

50
 the guise of regulatory control, religious endowments are, and have been,
nationalized on a massive scale . ... The nationalization of religious endowments,
temples and places of learning sits uneasily with both the guarantee of religious
freedom and secularism.99

This tells us more about the form taken by judicial intervention in religious practice under
the Constitution’s ‘charter for reform’. Even though these authors mention ‘faith’ in general,
the courts have assumed this kind of authority primarily vis-à-vis Hindu traditions. They have
decided on the ‘essentiality’ of certain tenets to Hinduism and enabled the state to modify
practices accordingly. Thus, the judiciary appears to have a power over Hinduism that
outstrips that of clerical authorities in other religions. That the state’s ‘authority’ to
intervene in religion goes much further than the ‘amelioration’ of Hinduism is clear from the
policy designated as “nationalization of religious endowments” here. Through an extensive
body of legislation, Indian governments have taken control of the management of temples
and other Hindu institutions; the Supreme Court has confirmed the constitutional validity of
such laws.

Noting these facts, Ronojoy Sen contrasts the Indian judiciary’s handling of religion with that
of the American judiciary: “American courts have usually tried to avoid sitting in judgement
on ‘religious error’ or ‘religious truth’. The Indian Supreme Court has travelled an opposite
path, seeking to cleanse Hinduism of what it reads as superstition and providing it with a
modernist and rationalist definition of religious error and religious truth.” Several
constitutional articles give the state a mandate to intervene in religious affairs; this is
extended further in religious endowments legislation. When petitioners challenge the
constitutionality of these laws, “the courts are frequently asked upon to decide what
constitutes an ‘essential part of religion’, thereby being off limits for state intervention, and
what is ‘extraneous or unessential’, thereby permissible for the state to interfere.” This has
been called the ‘essential practices’ doctrine:

The most striking aspect of the essential practices doctrine is the attempt by the
Court to fashion religion in the way a modern state would like it to be rather
than accept religion as represented by its practitioners. The essential practices
test has been used by the Court to decide a variety of cases. These can broadly

99
DHAVAN and NARIMAN, “The Supreme Court and Group Life,” 259-63.
51
 be classified under a few heads. First, the Court has taken recourse to this test
to decide which religious practices are eligible for constitutional protection.
Second, the Court has used the test to adjudicate the legitimacy of legislation
for managing religious institutions. Finally, the Court has employed this doctrine
to judge the extent of independence that can be enjoyed by religious
denominations.

Sen argues that the Supreme Court’s use of this doctrine has served as “a vehicle for
legitimating a rationalized form of high Hinduism and delegitimating usages of popular
Hinduism as superstition. This has resulted in the sanction for an extensive regulatory regime
for Hindu religious institutions and substantial limits on the independence of religious
denominations.”100 Other authors also emphasize that the Indian judiciary “has taken over
the role of clergy in determining what essential and non-essential practices are” and that it
has applied this ‘essentiality’ test in an inconsistent manner and thus seriously undermined
the freedom of religion.101

Some authors combine elements of the two approaches. In a recent analysis, Gautam Bhatia
emphasizes “the comprehensive transformative character of the Indian Constitution” and
accepts that the Supreme Court should give effect to the Constitution’s “transformative
purposes.” But, he argues, the Court should not get entangled in “knotty questions of
religious and theological doctrine.” Like Jacobsohn, Bhatia justifies the Constitution’s
abandoning of liberal neutrality for “explicitly ‘reformist’ intentions” by claiming that the
“‘thick’ role played by religion and religious groupings in Indian public life rules out a
traditional ‘liberal’ approach to the right to freedom of religion.” However, he has problems
with the Supreme Court’s handling of two key questions, namely, “what, precisely, does the
Constitution aim at reforming, and how ought the judiciary effectuate its reformist
intentions?” The Court has answered these questions by means of a test, “which allows it to
separate ‘essential’ from ‘inessential’ religious practices, and accord protection only to the
former.” Since the 1960s, it has withheld constitutional protection from practices “that seem
out of step with the Constitution’s progressive outlook,” by deeming those practices ‘non-
essential’. This approach, argues Bhatia, conflates two distinct questions in one ‘test’,

100
R. SEN, “The Indian Supreme Court and the Quest for a ‘Rational’ Hinduism,” 86-7. See also R.
SEN, Articles of Faith, 1-72, 158-91.
101
M. FAIZAN and J. SINGH SOHI, “Freedom of Religion in India,” 915.
52
namely “the distinction between the religious and the secular, which the Constitution itself
draws; and the distinction between the essential and the inessential, which it doesn’t.”102

‘Hinduism’ and the Judiciary: The Issues

Critics of the Indian judiciary’s handling of religion raise major concerns: How is the
constitutional right to religious freedom reconcilable with policies that allow the state to
systematically intervene in religious practices and institutions? How can a secular judiciary
decide on questions such as the ‘essentiality’ of religious practices and impose its preferred
version of Hinduism? Much like the advocates of ‘ameliorative secularism’, however, these
critics ignore some implications of the emerging scholarly consensus about Hinduism.

The situation is described as though the Indian judiciary has divided the realm of Hindu
institutions and practices into two partitions: one ‘secular’ and ‘non-essential’ where the
state can intervene without committing infringements of the right to religious freedom,
another ‘religious’ and ‘essential’ where it cannot. Critics disagree with the way in which
Supreme Court judges have done so, but they accept that this carving up of Hindu practice
into two partitions is what happens in the court cases concerning Hinduism. Indeed, the
language used in the relevant court decisions creates this impression. But could this really
be the case?

Western judges have faced similar questions about determining what is religious or essential
to a religion. In legal cases about religious freedom that involve Christians, Jews or Muslims,
they address such questions by consulting the scriptural and clerical authorities of these
religions, which can help determine what is religious and essential to this religion as opposed
to secular and non-essential. In the case of Christianity, this conceptual vocabulary is part of
its own doctrine. Yet, even in court cases involving Christians, addressing such questions has
turned out to be tricky. Here also, scholars argue that judges have given preference to
textual and clerical forms of religion and thus denied freedom to lived religion.103

In India, I think, a different type of issue is at stake. Judges are dealing with ‘Hinduism’, an
abbreviation for a variegated family of traditions without shared scriptures, doctrines, or

102
G. BHATIA, “Freedom From Community: Individual rights, group life, state authority and religious
freedom under the Indian Constitution,” Global Constitutionalism 2016, 5, no. 3, 351-382, 381.
103
See, for instance, W. F. SULLIVAN, The Impossibility of Religious Freedom, Princeton, Princeton
University Press, 2005.
53
authorities, subsumed under one term by nineteenth-century European scholars. About this
Hinduism, it is said, for every claim one makes, one should be aware “that the opposite
could, more or less justifiably, be asserted.”104 Moreover, this vocabulary—‘religious’ and
‘secular’, ‘essential’ and ‘non-essential’ to religion—is alien to these traditions. If this is true,
judges cannot even begin to determine which elements of Hinduism are truly religious or
which of its practices are essential to this ‘religion’. Instead, they will make a range of
inconsistent statements about ‘Hinduism’, each of which appears as valid as the other. The
results would be predictable: since judges are called upon to resolve these issues and decide
what is religious and essential, they will do so in inconsistent and indiscriminate ways.
Consequently, there would be no limits to the state’s interference in—and control of—Hindu
practices and institutions. In the following chapters of my thesis, I will examine whether this
is indeed the case.

104
MICHAELS, Hinduism: Past and Present, 3-4.
54
 Chapter III: The State Takes Over a Temple

In May 2011, the Supreme Court of India appointed a team of observers to open six hidden
vaults in a little known temple located in the south Indian state of Kerala. This was part of
the proceedings in a case concerning the control of this temple: should it come under the
Kerala Devaswom Boards, government-controlled bodies responsible for the management
of Hindu temples? Or should it remain under the care of a trust headed by the Maharaja of
Travancore, the temple’s traditional supervisor?105 The team was to carry out an inventory
of the temple’s valuables to assess whether these had been managed properly. When they
entered the vaults, they were awestruck: a treasure of massive proportions lay waiting,
consisting of golden coins, plates, chains, statuettes, and crowns, diamonds, and other
precious stones. Estimates of its total value amounted to 22 billion US dollars. Overnight,
the temple had not only turned world-famous, but also become one of India’s richest
temples: the assets found in these vaults alone would meet the country’s entire education
budget for two-and-a-half years. One of the chambers remains unopened; estimates based
on earlier inventories suggest that its contents will bring the temple’s possessions to a
staggering 1 trillion US dollars.106

While the scale of this discovery was unprecedented, it gives an indication of what is at stake
in the struggle over the legal control of temples in India. In the decades following 1947, the
state took over the administration of tens of thousands of Hindu temples and other
traditional institutions. State-level governments passed legal acts concerning “Hindu
religious and charitable endowments.” These provided for the creation of government-
controlled bodies responsible for supervising the administration of ‘public temples’. From
the start, these laws and policies met with opposition. They were challenged on various

105
J. HALPERN, "The Secret of the Temple," The New Yorker, no. April 30, 2012,
https://www.newyorker.com/magazine/2012/04/30/the-secret-of-the-temple ; D. DAS ACEVEDO,
"Divine Sovereignty, Indian Property Law, and the Dispute over the Padmanabhaswamy Temple,"
Modern Asian Studies, 2016, 50, no. 3; K. RAJAGOPAL, "SC for Opening 'B' Vault of
Padmanabhaswamy Temple," The Hindu, July 5 2017,
https://www.thehindu.com/news/national/kerala/sc-for-opening-b-vault-of-padmanabhaswamy-
temple/article19211539.ece
106
J. DOBSON, " A One Trillion Dollar Hidden Treasure Chamber is Discovered at India's Sree
Padmanabhaswamy Temple," Forbes, November 13, 2015,
https://www.forbes.com/sites/jimdobson/2015/11/13/a-one-trillion-dollar-hidden-treasure-
chamber-is-discovered-at-indias-sree-padmanabhaswam-temple/#496f6a1ba6a6
55
grounds, including the fact that they infringed the constitutional right to freedom of religion.
From the local courts to the Supreme Court, however, few of these petitions and appeals
were successful. Over time, a vast state apparatus was erected to supervise Hindu temples.

In recent years, the debate has intensified once again, as several organizations launched new
campaigns to challenge the government control of certain temples. Generally, these critics
draw upon the principles of the secular state to question the current state of affairs. In a
secular republic like India, they argue, the management of religious institutions like temples
should not lie within the scope of the state’s powers. Moreover, they continue, the Indian
government is guilty of discrimination on grounds of religion: it systematically targets Hindu
temples, while Christian churches and Muslim mosques have been left untouched. Some
also argue that politicians and officials are misusing temple assets and devotees’ donations
for ‘non-religious’ purposes and personal gain.107

From a legal perspective, the subject of state management of religious institutions in India
brings together a kaleidoscope of interrelated issues. In this chapter, I intend to analyse a
set of key cases, which focus on one of the most famous temples in India: the Jagannath
temple located in Puri in the state of Odisha (formerly Orissa). This pilgrimage centre
dedicated to Lord Jagannath, a form of Vishnu, draws millions of visitors from all over the
country. Its annual Rath Yatra or ‘chariot festival’ had a prominent place in European reports
about India and led to the coining of the English word ‘juggernaut’. For us, however, its
significance lies elsewhere: from the 1950s until today, the temple has been the focus of a
series of court cases, involving the central issues that recur in other cases.

1. The Jagannath Temple Legislation

In the years following Independence, the political leaders of the state of Orissa in Eastern
India decided it was time to reconsider the legal framework that regulates the management
of Hindu temples. In 1951, the government replaced the existing legislation, the Orissa Hindu
Religious Endowments Act of 1939, with a new Act of the same name, in order “to provide

107
S. BHAGWAT, "On Temples, Some Little Known Facts and a Story of "Secular" Loot," The Times of
India (2013), http://blogs.timesofindia.indiatimes.com/reclaiming-india/on-temples-some-little-
known-facts-a-story-of-secular-loot; Anonymous, "Govt. Control of Hindu Temples Questioned," The
Hindu, July 15 2013, https://www.thehindu.com/news/national/govt-control-of-hindu-temples-
questioned/article4916982.ece; S. SWAMY, "Freeing Temples from State Control," ibid., January 20
2014, https://www.thehindu.com/opinion/lead/freeing-temples-from-state-
control/article5594132.ece
56
for the better administration and governance of Hindu religious institutions and
endowments in the state of Orissa.” Soon after, it also created two acts for the management
of the Jagannath temple: the Puri Shri Jagannath Temple (Administration) Act, 1952 and the
Shri Jagannath Temple Act, 1955. These acts belong to a series of similar pieces of legislation
in post-Independence India, which supplanted the colonial laws concerning religious
endowments and aimed to bring the management of Hindu temples and other institutions
under government control.

Given its extraordinary status and vast assets, the Jagannath temple was bound to acquire a
special place. Since 1809, a local ruler, the Raja of Khurda (later called ‘Raja of Puri’) had
been superintendent of the temple—a role which traditionally belonged to him, according
to the British. He was responsible for the temple’s administration and maintenance and for
ensuring that the daily rituals or ‘nitis’ and annual ceremonies such as the Rath Yatra were
performed properly. However, the period just before and after Independence saw growing
concerns about the dismal state of the temple. In 1952, the Orissa Minister of Law explained
to the state’s Legislative Assembly the reasons behind a new bill:

In the absence of any guidance from the Raja and sufficient contribution from
him for the regular expenses of the Temple, the scheduled and disciplined
performance of the nitis has suffered beyond imagination and the Raja has
practically lost all control over the different sebakas [performers of rituals] and
other temple servants. Economic rivalry and moral degeneration of the servants
and sebakas has [sic] divested them of all sense of duty and co-operation.
Specific endowments are regularly misapplied and misappropriated. …The
lapses into unorthodoxy has [sic] resulted in extremely unhygienic conditions
inside the Temple and commission of heinous crimes even within the Temple
precincts is not rare, even the image of the deity has been at times defiled and
its precious jewellery removed, peace and solemnity inside the Temple has
given way to sheer goondaism and it is mainly the servants of the Temple that
make up the unruly elements responsible for such a lawless state of affairs.108

Therefore, as the full title of the 1952 Act stated, this law was needed to prevent further
“mismanagement of the temple and its endowments by consolidation of the rights and

108
The Orissa Gazette extraordinary, dated 21 June 1952, cited in State of Orissa V Chintamani
Khuntia, AIR 1997 SC 3839.
57
duties of sevaks, pujaris and such other persons connected with the seva puja and
management thereof.”

Over the years, politicians would often invoke mismanagement of temples as a reason for
the indispensability of state control. But the 1952 Act took a further step for ensuring a
“better administration” in the future. It provided for a special government officer who had
to prepare “a record of the rights and duties” of the different categories of persons involved
in the performance of rituals and the management of the Jagannath temple. By studying
documents and examining witnesses, this officer would collect all information required to
determine these rights and duties.

This exercise resulted in a four-volume Record of Rights of Sri Jagannath Temple (1953),
compiled by the special officer and published by the government. This describes the rituals
and festivals of the Jagannath temple in minute detail. It contains a series of tables that
explain each ritual and stipulate which sevaks are involved in it. For each ritual, it describes
what exactly each of these men has to do and also fixes the timing and chronological
sequence. It distinguishes between 118 ‘sevas’ or forms of ‘service’: that is, the rites and
other services rendered for the performance of the daily and periodical rituals of the temple.
The Record-of-Rights also provides a record of the categories of sevaks and the rights
appertaining to each of these categories.109

The importance of this Record-of-Rights becomes clear in the Shri Jagannath Temple Act,
1955. Its Preamble recites certain facts as a justification for the government control
established by this new legislation. In five ‘whereas’ statements, it first refers to the “unique
national importance” of this institution, “in which millions of Hindu devotees from regions
far and wide have reposed their faith and belief and have regarded it as the epitome of their
tradition and culture.” Next, it states that “long prior to and after the British conquest the
superintendence, control and management of the affairs of the Temple have been the direct
concern of successive Rulers, Governments and their officers and of the public exchequer.”
It then points out that Regulation IV of 1809 passed by the British Governor-General in
Council and later laws and regulations entrusted the Raja of Khurda (or Raja of Puri),
hereditarily “with the management of the affairs of the Temple and its properties as

109
M. MISHRA, Status and Role of Sevakas of Lord Jagannath Puri with Special Reference to
Navakalevar and Rathayatra Ritual Complexes, Unpublished doctoral dissertation, 1993, Utkal
University, 21, 77, 91, 170.
58
Superintendent subject to the control and supervision of the ruling power.” The government
had to intervene several times in the past because of serious irregularities and, today, the
administration under the superintendence of the Raja has deteriorated further. Therefore,
it is expedient “to reorganise the scheme of management of the affairs of the Temple and
its properties and provide better administration and governance therefor in supersession of
all previous laws, regulations and arrangements, having regard to the ancient customs and
usages and the unique and traditional nitis and rituals contained in the Record-of-Rights
prepared under the Puri Shri Jagannath Temple (Administration) Act, 1952…”

The Jagannath Act allowed the state government to take control of the temple and the
organization of its management and rituals, taking into account the “ancient customs and
usages” fixed by the Record-of-Rights. It created the Shri Jagannath Temple Managing
Committee, a body corporate constituted by the government, in which the administration
of the temple and its endowments would vest from then onwards. All members should
profess the Hindu religion. The Raja of Puri would serve as its Chairman and all other
members need to be nominated by the government or are ex officio members because of
their position as government officers.

Among other things, the Committee has the duty “to arrange for the proper performance of
Seva Pujah and of the daily and periodical Nitis of the Temple in accordance with the Record-
of-Rights,” “to ensure the safe custody of the funds, valuable securities and jewelleries and
for the preservation and management of the properties vested in the Temple,” “to ensure
that funds of the specific and religious endowments are spent according to the wishes, so
far as may be known, of the donors,” and “to do all such things as may be incidental and
conducive to the efficient management of the affairs of Temple and its endowments and the
convenience of the pilgrims.” Through the Shri Jagannath Temple Fund administered by the
Committee, the government controls the temple’s assets and it has to give its approval for
any selling, pledging or alienation of the temple’s jewellery and movable property of a value
more than one thousand rupees.

For the everyday management of the temple, the government appoints a Chief
Administrator, professing the Hindu religion and selected from the Indian Administrative
Service. His powers are extensive: he is not only “responsible for the custody of all records
and properties of the Temple” and for arranging “proper collections of offerings made in the
Temple,” but also has power to appoint all officers and employees of the Temple, to decide
59
various kinds of disputes between the temple employees, and “to require various Sevaks
and other persons to do their legitimate duties in time in accordance with the Record-of-
Rights.” Moreover, he has to prepare the annual budget estimate for the temple and a
schedule that explains the duties, designations and grades of temple employees and makes
proposals concerning the salaries and allowances payable to them (Art. 19-26). Under the
scope of general superintendence of the temple, the state government is given extensive
powers.

Analysis
1. The Jagannath temple acts are still in effect today. Given that India identifies itself as a
secular republic and recognizes the right to freedom of religion, these acts are puzzling. They
put in place a bureaucratic hierarchy that supervises the management, finances, and
practices of a major Hindu temple. Even though the legislation refers to the traditional role
of the Raja as superintendent of the temple, it transforms him into a figurehead Chairman
of the Committee. The real power lies elsewhere: with the majority of Committee members
(all of whom are either government servants or nominees), its Working Chairman, the
Administrator running the temple, and the state government in general. The different
categories of people performing the temple’s rituals become lower-level government
servants. And all of this is done by a secular state, in the name of preventing mismanagement
and abiding by “the ancient customs and usages.”110

These ‘ancient’ customs and rituals, however, had been fixed by another government officer
in 1952. From then onwards, this document would count as the legally enforceable
reference point for determining the proper performance of rituals and the rights of their
performers. But how can the government of a secular democracy possess the authority to
decide on the rituals performed at a temple and on the tasks of traditional temple servants?
The fact that this happens by means of a ‘record-of-rights’ cannot resolve the issue, since
this entails that a government official has the authority to permanently fix the rituals for a
temple and its community.

2. Another problem concerns the ratio legis. Let us assume that mismanagement was indeed
occurring at the temple. How does this show the need for legislation that has the state
permanently take control of the administration and rituals of this temple? The Indian Penal

110
Preamble, Shri Jagannath Temple Act, 1955.
60
Code has relevant sections on fraud; the government could have enacted legislation that
allows it to check abuse of endowment funds, similar to its charitable trusts laws. Potential
corruption in the temple’s management could be examined, punished, and ended by the
judiciary. Instead, the Orissa government acted on informal impressions about corruption
and chaos, and passed laws that brought the temple completely under state control, as
though this was necessary to prevent “mismanagement of the temple and its
endowments.”111

A useful contrast is provided by a comparable case in the United States, where the leaders
of a church were accused of fraud. In 1979, the State Attorney General’s office of California
temporarily appointed a receiver to control the financial management of the Worldwide
Church of God, so as “to prevent the defendants from using Church assets for their personal
benefit or selling off property at prices below market value, and preventing further
destruction of financial records,.”112 The Attorney General had argued that charitable funds,
including church funds, were “public funds,” and that the financial affairs of churches are
not protected by the First Amendment. This led to an outcry from legal scholars and experts
on religious freedom. The state, it was said, had lost its sense of restraint and ‘taken over’ a
church, thus violating the First Amendment’s religion clauses.113

In India, on the contrary, informal claims about mismanagement of temples provide the
rationale for legislation that brings these temples under permanent government control.
How can this serve as a ratio legis for laws that appear to be obvious violations of the
constitutional right to free practice of religion and the right of denominations to manage
their own religious affairs? The structure established by this Act simply transforms one of
India’s major Hindu temples into a branch of the state bureaucracy, which happens to deal
in rituals and ceremonies instead of land records or liquor licenses.

2. The Raja v. the State

Once the Hindu Religious Endowments Acts were put in place in post-Independence India,
they gave rise to legal disputes of various types. The Jagannath temple became a focal point:

111
Preamble to the Puri Shri Jagannath Temple (Administration) Act, 1952.
112
S. L. WORTHING, “The State Takes over a Church,” The Annals of the American Academy of
Political and Social Science, 1979, 46, 136-148, 137.
113
ibid.
61
between 1958 and 2018, no less than sixteen cases were fought out in the courts. I will focus
on the major disputes, which moved from the Orissa High Court to the Supreme Court over
the decades. The story begins with the case of Ram Chandra Deb vs. The State of Orissa.
When the Shri Jagannath Temple Act came into effect in 1955, the then Raja of Puri had
immediately filed a petition under Article 226 of the Constitution, which gives High Courts
the authority to enforce the fundamental rights conferred by Part III of the Constitution. In
the original petition, the Raja challenged the constitutional validity of the Act by arguing that
it infringed several constitutional rights. Soon after filing the petition, however, he passed
away and his son Bira Kishore Deb took his place as petitioner.

The Orissa High Court Decision

In the High Court judgment delivered on 30 April 1958, Chief Justice R.L. Narasimham begins
by noting that the original petition by Ram Chandra Deb made “extravagant claims to the
effect that the Temple of Lord Jagannath at Puri…was the private temple of his family, that
all its moveable and immovable properties were also his private properties” and “that by
passing the Act” the Orissa Legislature infringed a series of fundamental rights guaranteed
under the Constitution, including rights about private property.114

The question of private ownership of the temple was central to the original petition but
became a subsidiary point in the actual proceedings. This happened because the lawyer
appearing for Raja Bira Kishore Deb conceded that “the Temple was a public Temple and the
properties of the Temple were the properties of the Deity and not the private properties of
the Raja of Puri.” Consequently, Justice Narasimham claims, the dispute between the two
parties was much narrowed down and the main question now became whether the Act
violates the fundamental rights concerning religious freedom, guaranteed under Articles 25
and 26. Still, the issue about the rights of the Raja over the temple would have to be dealt
with.115

Before doing so, the judge goes into a long historical account about the temple and the
customs and regulations concerning its administration from the precolonial period until
1955. This account makes two central points. On the one hand, the Record-of-Rights created
under the Puri Shri Jagannath Temple (Administration) Act 1952 should be taken as the

114
Ram Chandra Deb V State of Orissa, AIR 1959 Ori 5, 6.
115
Ibid., 6-7.
62
authoritative source of information about the history of the temple, its connection with the
Rajas of Puri, its innumerable rituals and festivals, and other particulars. Both parties, the
judge emphasizes, consented to taking this document “as the main basis for the purpose of
examining the constitutional validity of the Act.”116

On the other hand, the judge intends to establish that the Rajas of Khurda or Puri were never
the temple’s owners, but hereditary superintendents who could be punished and removed
at will by the governing powers. His historical account tells us that an ancestor of the Raja
of Puri was placed in charge of the administration of the temple in 1590 by Raja Mansingh
of the Bhoi dynasty, to which both Rajas belonged. During the eighteenth century, he was
removed and the temple’s management was taken over, first by the new Muslim
conquerors, and later by the Mahrattas who defeated them. However, the judge’s central
reference point for determining the legitimate position of the Raja of Puri vis-à-vis the
temple is the arrangement established by the British colonial powers. After taking over the
temple in 1803, the East India Company tried to administer it by appointing three pundits,
but this system failed. Next, it handed over the superintendence and management of the
temple to the Raja of Khurda through Regulation IV of 1809.117 This regulation was part of a
British colonial policy towards Hindu temples which sought to ensure that its Board of
Revenue could gain control of the assets of the temples; it gave the government the
authority to remove the Raja when it could prove ‘misconduct’ on his part. In spite of its
colonial foundations, Justice Narasimham emphasizes the significance of this arrangement:

The aforesaid provisions of the Regulation thus show that though the then ruling
power conferred on the Raja of Khurda hereditary right of management and
superintendence of the Temple, that right was expressly made subject to the
supervision of the then Ruling power who could remove him from the post on
proof of misconduct.118

While the judge takes this as evidence of the subordinate position of the Raja, the British
government had divested itself of these powers a few decades later. However, he points
out, there had also been an instance in 1902 where the then Raja was accused of

116
Ibid., 7.
117
P. MUKHERJEE, Pilgrim Tax and Temple Scandals: A Critical Study of the Important Jagannath
Temple Records During British Rule, Bangkok, Orchid Press, 2000, 73.
118
Ram Chandra Deb V State of Orissa, AIR 1959 Ori 5, 7.
63
mismanagement of the temple and compelled to appoint a Deputy Magistrate in charge of
the management until 1926. This, the judge claims, shows that the government’s supervision
over the actions of the Raja was restored, albeit in modified form. From all this, he concludes
the following: “Hence, though by virtue of Regulation IV of 1809 the Raja of Puri can rightly
claim to be the hereditary Superintendent of the Temple, it is also correct to say that he is
subject to the supervision and control of the Ruling power, in the exercise of this right.”119
This right, the Chief Justice adds, should be carefully distinguished from the ritual duties and
special honours attributed to the Raja of Puri as “the Adya Sebak” of the temple. The Record-
of-Rights shows that ancient custom grants him certain rights and duties in the performance
of rituals. However, his rights and duties as superintendent of the temple “are derived solely
from the grant made by the ruling power by Regulation No. IV of 1809.”120

Why is this so important? Given the petition’s claims about the Raja’s private ownership of
the temple, the bench feels the need to examine whether the hereditary right of
‘Superintendentship’ is ‘property’ according to the meaning of the Constitution. Earlier
decisions of Indian courts had established a test for deciding whether the hereditary right to
a religious office in a temple is property or not: namely, one had to determine “whether the
holder of that office has any personal interest of a beneficial character in the properties of
the temple. If he has no such interest, it is not property at all.” According to the judge, the
facts show that the Raja has no beneficial or personal interest in the temple and its
endowments. For instance, in a deed of transfer that handed over an estate of temple lands
to the Raja of Puri in 1858, the document showed Sri Jagannath Mahaprabhu (Lord
Jagannath) as the name of the proprietor and the Raja as manager. In that case, it must be
held “that the position of the Raja of Puri so far as his right to Superintendentship of the
Temple is concerned, is merely that of a hereditary manager or trustee with no beneficial or
personal interest in the endowments.” Hence, the hereditary Superintendentship is not
“property” and the Raja cannot be considered the proprietor of the temple and its
endowments.

The essential feature of the Act, Justice Narasimham points out, “is the transfer of
management of the Temple which was formerly in the sole charge of the Raja of Puri, to a

119
Ibid., 7-8.
120
Ibid., 8.
64
Committee consisting of eleven persons, including the Raja as its Chairman.” He notes that
the government has very extensive powers of superintendence and control over the
Committee’s actions. All other members are either government servants or government-
nominated individuals and the government can remove members or even supersede or
dissolve the Committee.121

Raja Kishore Deb’s remaining objection to the Shri Jagannath Temple Act had to do with the
rights of religious denominations: the Act offends “clauses (b) and (d) of Article 26 of the
Constitution by interfering with the fundamental right of the institution to manage its own
affairs in matters of religion and to administer its property in accordance with law.” The
Raja’s lawyer drew upon a Supreme Court judgment in the case of Ratilal Panachand v. State
of Bombay, which had the following to say:

In regard to the affairs in matters of religion, the right of management given to

a religious body is a guaranteed fundamental right which no legislation can take
away. On the other hand, as regards the administration of property which a
religious denomination is entitled to own and acquire, it has undoubtedly a right
to administer such property but only in accordance with law. This means that
the State can regulate the administration of trust properties by means of laws
validly enacted. But here again it should be remembered that under Article
26(d) it is the religious denomination itself which has been given the right to
administer its properties in accordance with law which the State may validly
impose. A law which takes away the right of administration altogether from the
religious denomination and vests it in any other or secular authority would
amount to violation of the right which is guaranteed under Article 26(d) of the
Constitution.122

From these claims, it would indeed appear that the Act conflicts with the Constitution: it
infringes upon the right of a religious body to manage its own affairs in matters of religion,
since it gives a government-controlled Committee extensive powers over the performance
of the temple’s rituals. Moreover, the Act takes away the right of administration from the
religious denomination and vests it in a Committee controlled by the state government.

121
Ibid., 34-5.
122
Ratilal Panachand Gandhi V State of Bombay, AIR 1954 SC 388, 6-7.
65
Justice Narasimham, however, disagrees. First, he refers to the same Supreme Court
judgment and notes that Article 26 includes “not only the philosophical side of religion, but
also religious practices as laid down in the tenets of any religious sect.” The legislature is not
competent to alter the religious practices sanctioned by a particular denomination, which
should be “preserved inviolate,” “subject of course to certain limitations such as public
order, morality or health as specified in the Article itself.” However, the judge opines, “there
is no provision in the Act which interferes with the religious practices in the Temple.” On the
contrary, it compels the Committee to guarantee that its rituals are properly performed. And
there can be no ambiguity about these rituals, since the Committee is required to follow the
government’s Record-of-Rights which describes them in detail. This brings the judge to a
surprising claim:

Thus, far from interfering with the religious practices of the Temple the
Legislature has gone out of its way and made elaborate arrangements for the
very strict observance of the religious practices in the Temple, as recorded in
the ancient books like ‘Madala Panji’ and ‘Niladri Mohodaya’ and incorporated
in the record of rights prepared by the Special Officer.123

In other words, the fact that the state has fixed the observance of religious practices in the
temple confirms its respect for, rather than infringement of, freedom of religion.

The final point of the case revolves around the claim that the “worshippers of Lord Jagannath
of Puri constitute a distinct religious denomination within the meaning of Article 26.”
According to the Raja’s lawyer, this gives them the right to administer the Temple and its
endowments in accordance with law, under the superintendence of the Raja of Puri, who is
assisted by the sevaks. The scheme of the Act, however, “is to take away the administration
from the religious denomination known as the worshippers of Lord Jagannath and entrust it
to the nominees of the State Government, and hence there has been a contravention of the
fundamental right guaranteed by Article 26(d).” In an earlier case, the lawyer appearing for
one of the Jagannath temple’s sevaks had developed a similar argument, which said that the
Cult of Lord Jagannath of Puri, otherwise known as “Jagannath Dharma,” was a distinct cult
which formed a separate religious denomination. Both lawyers also emphasized that the fact
that the Committee members are required to be Hindus by religion “will not save the Act

123
Ram Chandra Deb V State of Orissa, AIR 1959 ORI 5, 39.
66
from this constitutional objection inasmuch as the followers of Jagannath Dharma, or the
worshippers of Sri Jagannath cannot be equated to the Hindu Public in general.”124

Justice Narasimham dismisses the lawyers’ claim that the worshippers of Lord Jagannath of
Puri form a separate religious denomination distinct from the Hindu public. Drawing on the
Preamble to the Act and on several colonial sources, he suggests that Hindus from all over
India, and even some Jains, come to the Temple to worship Jagannath. Hence, he takes the
view “that the worshippers of Jagannath or the followers of Jagannath Dharma are
indistinguishable from the general Hindu public and they cannot be said to have a common
faith or organization apart from that of the followers of the Hindu religion and hence they
do not form a religious denomination, separate from that of the Hindu general public.” The
significance of this conclusion does not lie in its denial that the worshippers of Jagannath
make up a distinct religious denomination, but in what the judge infers from this:

From this conclusion it necessarily follows that clause (d) of Article 26 will be
contravened only if the administration of the Temple is taken away from the
Hindus and entrusted to persons of other faiths. But so long as every member
of the Managing Committee is required by law to be a Hindu it cannot be said
that by taking away the administration from the sole hands of the Raja of Puri
and entrusting it to a Committee consisting of Hindus only (including the Raja of
Puri), the administration has been taken away from a religious denomination so
as to offend Article 26(d).

Citing another Supreme Court judgment, he concludes that it is only when the
administration of the Temple were to be handed over to some other body that the question
of infringement of fundamental rights would arise. However, if the law takes away the
administration from one individual and entrusts it to another individual out of the same
denomination, then Article 26 does not stand violated. After dealing with some subsidiary
points, Justice Narasimham then decides that the Shri Jagannath Temple Act is
constitutionally valid.

The Supreme Court Appeal

The Raja appealed against the High Court decision and raised the question of the
constitutionality of the Shri Jagannath Temple Act before the Supreme Court of India, which

124
Ibid., 44-6.
67
dismissed the appeal in 1964.125 In his judgment, Justice Wanchoo accepts most of the
arguments of the High Court but adds two points which are of interest.

The first has to do with the appellant’s claim that the Act infringed his rights as
Superintendent and Adya Sevak (’chief servant’) of the temple and violated the
constitutional articles concerning property. The judge argues that one should distinguish
between the rights held by the Raja as Superintendent and his rights and privileges as Adya
Sevak. The Act has indeed legitimately ended the Raja’s sole right of management of the
temple by appointing a Committee, but does not touch his rights as Adya Sevak. In the past,
the judge claims, the Raja held a dual position of Superintendent and Adya Sevak and,
because of this, there was “a mixup” of his rights flowing from these two positions.

However, the Raja’s rights as Adya Sevak have to do only with the performance of rituals
and ceremonies like the sevapuja. “These rights flow from his position as adya sevak, they
are religious in character and are referable to his status and obligations as sevak.” The rights
as Superintendent, on the contrary, are connected to the secular management of the
temple. “No provision in the Act has been pointed out to us, which expressly takes away his
rights, privileges and perquisites as adya sevak; on the other hand there are other provisions
which seem to indicate that even the rights and privileges of sevaks have not been affected
by the Act.”126 In other words, there is a clear distinction that the judge makes between
rights that are religious, which have to do with the Raja’s traditional role in the performance
of rituals, and those that are related to the secular activity of managing the temple.

The second point is closely related to the first. If the performance of sevapuja and other
rituals in the temple are so obviously religious, and distinct from secular management, then
Clause (1) of Section 15 of the Act, which provides that it is “the duty of the Committee to
arrange for the proper performance of sevapuja and of the daily and periodical nitis of the
Temple in accordance with the record-of-rights,” must surely be an infringement upon the
religious affairs of the Jagannath temple. The judge dismisses this claim as easily as the
previous one:

Sevapuja etc. have always two aspects. One aspect is the provision of materials
and so on for the purpose of the sevapuja. This is a secular function. The other

125
Raja Bira Kishore Deb V State of Orissa, AIR 1964 SC 1501.
126
Ibid., 8-9.
68
 aspect is that after materials etc. have been provided, the sevaks or other
persons who may be entitled to do so, perform the sevapuja and other rites as
required by the dictates of religion. Clause (1) of Section 15 has nothing to do
with the second aspect, which is the religious aspect of sevapuja; it deals with
the secular aspect of the sevapuja and enjoins upon the Committee the duty to
provide for the proper performance of sevapuja and that is also in accordance
with the record-of-rights.

Of course, he adds, the same clause provides that it is the Committee’s duty to see that
“those who are to carry out the religious parts of the duty do their duties properly,” but this
again is a secular function, which does not interfere with the performance of religious duties.
Hence, the attack on this provision of the Act fails, since it does not interfere with the
religious affairs of the temple.127

Analysis
1. A notable aspect of these decisions is the apparent ease with which the judges separate
religious from secular aspects of practices. Justice Wanchoo first argues that the rights of
the Raja in the performance of sevapuja and other rituals are clearly religious, since these
concern participation in religious practice. But then he distinguishes between secular and
religious aspects within those religious practices. Providing for the material conditions of the
practices is a secular function, which should simply allow persons to perform the rituals
according to the dictates of religion. However, even the second aspect of the practices is not
uniformly religious, according to him: seeing to it that those who perform these practices do
the religious parts of their duty properly is also a secular function. Therefore, representatives
of the state bureaucracy can legitimately perform these functions without interfering in
religion.

The judge’s casual usage of the terms ‘religious’ and ‘secular’ is striking. This distinction is
notoriously difficult to make: what is considered religious as opposed to secular varies from
religion to religion and from denomination to denomination; moreover, the distinction and
its conceptual vocabulary are alien to many traditions. Western courts are generally cautious
in addressing the question of distinguishing ‘the religious’ from that which is non-religious;

127
Ibid., 9.
69
a typical guideline is to interpret ‘religion’ non-restrictively.128 In contrast, this Indian judge
seems to have instant insight into which practices and rights are religious and which aspects
within religious practices nevertheless remain secular. The result is an extremely restrictive
‘interpretation’ of what counts as ‘religious practice’.

In many cases, it makes sense to distinguish between creating the preconditions for
performing a religious practice and the actual performing of that practice. Producing the
wafers that will be consecrated during the Eucharist is not part of performing the Eucharist.
But to argue that the duty to provide for ‘the proper performance’ of religious practice
belongs to the domain of secular activity (where the legislature can interfere) is a different
matter altogether. If this is the case, there should be no question of interference in religion
when a government servant is given the duty to check whether Catholic priests perform the
Mass correctly, in accordance with the liturgy of the Church. These should also be secular
functions, which can be taken up by government officials. But this would be considered
unacceptable in a secular democracy with religious freedom.

2. Equally remarkable is the High Court judge’s argument that, by enacting the Jagannath
temple legislation, the legislature has not interfered with the temple’s religious practices but
“has gone out of its way and made elaborate arrangements for the very strict observance of
the religious practices in the Temple.” Prima facie, the government’s arrangements
constitute an infringement upon the freedom of religious denominations to manage their
own affairs in matters of religion.

It is not because a secular government interferes in religious practices with the intention
that these practices should be observed very strictly, that this is any less of an infringement.
The strictness of observance of practices is an issue internal to a religious community and a
decision belonging to individual citizens. A secular state cannot have the authority to
determine how strictly its citizens should observe their religious practices. Imposing “very
strict observance” of religious practices on a part of the citizenry would violate their right to
religious freedom. This does not change because it concerns the management of a temple.

128
See ECtHR Research Division, Overview of the Court’s Case-Law on Freedom of Religion,
Strasbourg, Council of Europe, 2013, 6; For analysis, see K. GREENAWALT, Religion and the
Constitution, vol. 1: Exercise and Fairness, Princeton, Princeton University Press, 2006, 124-156; S.
D. SMITH, The Disenchantment of Secular Discourse, Cambridge, MA, Harvard University Press,
2010, 107-150; J. DE ROOVER, Europe, India, and the Limits of Secularism, New Delhi, Oxford
University Press, 2015, 13-44.
70
After all, a secular state cannot decide for the priests of some church how strictly he should
follow a set of liturgical rules; this is for the Church to determine. Doing so would inevitably
amount to the state’s arrogating of religious authority.

Moreover, the violation of the right to religious freedom is not cancelled out by the fact that
the government has ‘faithfully recorded’ the rituals and ceremonies of a temple. As is
generally the case for Hindu temples, the Jagannath temple saw major changes in its
practices over the centuries: new rituals were introduced, old rituals discontinued and
existing rituals modified.129 Consequently, when the government freezes these practices at
some particular point of time, and draws upon ancient texts and ritual experts to do so, this
does not imply that it simply enables the devotees to practice their religion. Even if it did so
adequately, this would entail that a secular government ends up determining what ‘the
religious practices’ of some citizens should permanently look like. If the Belgian government
were to pass legislation that imposes its recorded version of the celebration of the Eucharist
onto the Basilica of the Sacred Heart in Brussels, it would not be considered a state that
respects free exercise of religion. Still, this Indian judge sees things differently: to him, the
fact that the government makes “elaborate arrangements for the very strict observance of
religious practices” in a temple does not amount to government interference in religion;
rather it shows that the government has gone out of its way to support religious practice.

3. Another issue raised by the Raja concerned the fact that the temple’s funds will be under
the administrative control of the Committee. This may harm the performance of rituals and
thus cause interference with religious practice. For instance, the Committee might sanction
inadequate funds or even refuse to sanction any money for the performance of certain
rituals. The judge sees no grounds for this apprehension: “Doubtless, the Committee must
have some discretion as regards the amount of money that may have to be sanctioned for a
particular ritual, but the conferment of such discretion will not amount to interference with
religious practices.” He gives no further arguments, except citing a Supreme Court judgment
which concludes that such matters of administration of a religious denomination’s property
“can be controlled by secular authorities in accordance with any law laid down by a
competent Legislature, for it could not be the injunction of any religion to destroy the

129
MISHRA, 314-5.
71
institution and its endowments by incurring wasteful expenditure on rites and
ceremonies.”130

Indeed, even in secular states that grant the right to religious freedom, there are occasions
when government authorities would legitimately interfere in the administration of a church,
mosque, or temple—for instance, when its heads engage in fraud. There are generally
applicable and neutral laws that compel the authorities to do so. In such situations, they
legitimately invoke the protection of public order to put legal restrictions on the freedom of
religion. However, this is not the nature of the temple management legislation: it is neither
a neutral and generally valid law nor one that is necessary and proportionate to the goal of
protecting public order. In fact, these laws specifically enable the government to control the
finances of Hindu institutions and to do so in general and permanently, without any evidence
of fraud or other criminal violations.

4. More generally, the reasoning of these Indian judges reveals that they do not see any
basic problem in state interference in the practice of religion. To Justice Narasimham, it is
not at all obvious that the right to religious freedom should prevent government authorities
from controlling a temple’s management and performance of rituals. In fact, the reverse
appears self-evident to him: they are free to do so and the fact that the people in question
are government servants does not pose any distinct problem.

This is visible in his claim that the Act does not take away the administration of the Jagannath
temple from the relevant religious denomination and therefore does not violate Article 26,
since it is entrusted to “a Committee consisting of Hindus only.” The judge does not see any
issue in the fact that the Hindus in this case are all government servants and nominees. In
his eyes, the right of a religious denomination to manage its own affairs in matters of religion
is not a right that protects that denomination and its religious practices from government
interference. This fundamental right only guarantees that the temple’s management cannot
be handed over to members of other religions.

By analogy, no violation of the right to freedom of religion would occur when a government
servant is appointed to run a Christian church, including the organizing of its ceremonies,
just as long as this person professes the Christian religion. But in the jurisprudence about

130
Ram Chandra Deb V State of Orissa, Air 1959 Ori 5, 40-41.
72
the right to freedom of religion, the religious affiliation of a government representative
would not be considered the crucial factor in deciding about the legitimacy of his
interference in the religious practices of some community. What would be decisive is the
fact that he acts as a representative of the state and that, therefore, he has to stay away
from intervening in religious matters, unless public order, morality or health are at stake.
How is it possible that this Indian judge, in contrast, finds it obvious that government
representatives can control the administration of a temple and its rituals, just as long as they
are Hindus by religion?

5. A central issue in many of the temple management cases is that of the property rights
over the assets of Hindu temples. In the above High Court decision, the judge decides that
the Raja was not the owner of the temple but only a hereditary trustee and manager. Oddly,
he determines the Raja’s legal position vis-à-vis the temple by following a 150-year old
colonial regulation of the British, even though this had been repealed by the government
that issued it. Still, the judge’s conclusion about the Raja’s status leaves one crucial question
unanswered. If the latter is only a hereditary trustee and manager, who then is the
proprietor of the temple’s endowments and the beneficiary of the trust?

The legislation does not address this issue directly. The Orissa government cannot be the
owner of the temple endowments, since the Act merely transfers the superintendence of
the temple from Raja to government. Is it perhaps owned by the community of worshippers,
or by the Hindu public in general, who are also the beneficiaries of the ‘trust’? This is
implausible. A charitable trust may indeed be established for the general benefit of the
public, but this does not mean that the property rights vest in the public. Instead, the High
Court judgment gives some indications as to who holds the property rights over the temple
and its assets. Almost in passing, it mentions that the Raja’s lawyer had admitted that the
temple was public and that its properties were “the properties of the Deity.” Referring to a
nineteenth-century deed of transfer, the judge also remarks that this document names Lord
Jagannath as the proprietor of the temple lands. Are we to understand then that the
temple’s deity is the legal owner of its properties?

Clarifications cannot be found in the judgment and the relevant laws. Instead, we have to
turn to sixty year old jurisprudence, namely Mukherjea’s The Hindu Law of Religious and

73
Charitable Trusts.131 Even though it concerns the Hindu law of endowments and trusts, one
of the first things the author notes is the paucity of materials on this subject in traditional
texts. There is no statement of law on endowments to be found in the works of Hindu law:
“Stray passages having only an incidental bearing on the matter occur here and there in the
midst of dissertations on other topics, and no workable law could be constructed on the
basis of scanty materials like these.” Later authors appear to discuss the subject, “but what
they talk of is not law but religion and rituals and it is often difficult to extricate any legal
rule from a mass of religious rites and ceremonies.”132 Still, Mukherjea intends to extricate
such legal principles.

The law of Hindu religious and charitable trusts, he notes, is mainly a judge-made law, which
emerged from the colonial legal system. Colonial judges “brought their legal learning and
strong common sense to bear upon this delicate and somewhat abstruse branch of Hindu
law, and attempted to evolve out of the few cryptic writings of ancient Hindu sages, a
sufficiently well-developed body of rules and principles.” This “was influenced to a great
extent by the notions and principles of English law.”133 Importantly, the ‘trusts’ one finds in
Hindu law, according to Mukherjea, do not share the structure that trusts traditionally had
in English law. There, the trustee had a “legal estate” and was the owner of the trust
property, which involved a technical notion of dual ownership: the legal owner holds the
beneficial interest in the property on trust for the beneficial owner, who has a right to
economic benefits from the property. But the existence of dual ownership, Mukherjea
notes, “is not an essential ingredient in the conception of signifying a fiduciary relation under
which a person in possession of or having control over any property is bound to use that
property for the benefit of certain named persons, or specified objects. Obviously, there are
trusts in Hindu law in that sense.” Even though there is little to be found that could count as
a law of ‘trusts’ in Hindu law, he finds it crucial to note that the trustee is not the owner of
the trust property: “Whoever may be regarded as the beneficial owner in law, the trustee
who is in possession of the trust property, and is entrusted with the duty of applying it for

131
MUKHERJEA.
132
Ibid., 1.
133
Ibid., 3.
74
particular purposes, cannot be its owner, and the obligation can be enforced against him in
such manner as the law lays down.”134

However, if the owner has transferred the property and the trustee cannot be the new
owner, in whom does the property vest after its dedication to a temple? It could not become
res nullius and belong to nobody, Mukherjea emphasizes, since that would allow any person
to appropriate it. Could not the temple itself be treated as a juristic person capable of
holding property? No, he argues: in contrast to other Hindu institutions, Hindu temples are
not regarded as juristic persons. Instead, there is a system called ‘Debutter’ where the ‘idol’
of the temple becomes a juristic person in whom the property vests. In a typical statement,
Mukherjea explains this notion of Debutter:

What is personified here is not the entire property which is dedicated to the
deity but the deity itself which is the central part of the foundation and stands
as the material symbol and embodiment of the pious purpose which the
dedicator has in view. “The dedication to deity,” said Sir Lawrence Jenkins in
Bhupati v. Ramlal, “is nothing but a compendious expression of the pious
purpose for which the dedication is designed.” It is not only a compendious
expression but a material embodiment of the pious purpose and though there
is difficulty in holding that property can reside in the aim or purpose itself, it
would be quite consistent with sound principles of Jurisprudence to say that a
material object which represents or symbolises a particular purpose can be
given the status of a legal person, and regarded as the owner of the property
which is dedicated to it.135

Mukherjea does not clarify how this is “quite consistent” with sound principles of
jurisprudence, but he does find it important to emphasize that the juristic person in the idol
is not the material image. In fact, “it is an exploded theory that the image itself develops
into a legal person as soon as it is consecrated and vivified by the Pran Pratistha ceremony.”
It would also be mistaken to think that “the Supreme Being of which the idol is a symbol or
image is the recipient and owner of the dedicated property.” Instead, the idol “as

134
Ibid., 6.
135
Ibid., 36-8.
75
representing and embodying the spiritual purpose of the donor is the juristic person
recognised by law and in this juristic person the dedicated property vests.”136

At first sight, the notion of Debutter may seem an abstruse and antiquated religious
understanding of legal personhood and ownership. However, Mukherjea admits that he
does not get this idea from ancient traditional texts by the authors he calls ‘the Hindu jurists’.
Instead, it comes from the judges of British India: many decisions of the courts of India as
well as of the Privy Council have held uniformly that “the Hindu idol is a juristic person in
whom the dedicated property vests.”137 In 1925, this legal principle was summed up by the
Judicial Committee of the Privy Council, which served as the highest court of appeal for cases
from British India:

A Hindu idol is, according to long-established authority, founded upon the

religious customs of the Hindus, and the recognition thereof by courts of law, a
‘juristic entity’. It has a juridical status, with the power of suing and being sued.
Its interests are attended to by the person who has the deity in his charge and
who in law is its manager, with all the powers which would, in such
circumstances, on analogy, be given to the manager of the estate of an infant
heir. It is unnecessary to quote the authorities; for this doctrine, thus simply
stated, is firmly established.138

Led by Lord Shaw, this bench claims that long-established authority, based upon Hindu
customs, made the Hindu idol into a juristic entity with the power of suing and being sued,
but they see no need to quote the authorities in question. This supposedly is a firmly
established doctrine. Yet, Mukherjea claims that these principles are “nowhere expressly
discussed” by the relevant Hindu authorities. To characterize Debutter as “religious trusts in
favour of idols,” then, appears to be an inheritance from the colonial era.139

We can now turn back to the case of the Jagannath temple. Indeed, the claim is that the
legal owner of the property of this temple is the deity or, more specifically, the idol of Lord
Jagannath. The Raja in his role as the temple’s Superintendent is no more than a trustee. In

136
Ibid., 38.
137
Ibid.
138
Pramatha Nath Mullick V Pradyumna Kumar Mullick, Air 1925 PC 139.
139
MUKHERJEA, 147-8.
76
this case, the judge argues, the trustee does not even have a beneficial interest in the
endowments of the temple, so there is no question of him being the proprietor in any sense.

This question of ownership brings to the surface two problems in the legal foundations of
the government control of temples. If the traditional heads or overseers of the temples are
‘trustees’ in the legal sense of the term, then this should have implications as to the property
rights with regard to these ‘religious endowments’. But, legally, what does it mean for them
to be ‘trustees’? As Mukherjea notes, Indian law does not distinguish between legal and
beneficial ownership, so the trustee cannot be the legal owner who holds the property on
trust for a beneficial owner. Another form of structuring ‘trusts’ in law is to make the
trustees into the owners of the trust property, who hold the property rights, but to impose
certain legal obligations on them: for instance, they can only use the property for the
purposes stated in the trust document or according to the intent of the founders of the trust.
This is the basic structure of the ‘trust’ in the Indian Trusts Act of 1882 and similar
legislation.140 Clearly, this is not the legal position of the trustees of the Hindu ‘religious
endowments’ in India either: they emphatically do not hold the property rights over the
endowed property. What then is their legal position as trustees?

There appears to be complete lack of clarity as to this question. Under the legal structure of
Debutter, Mukherjea suggests, the administrators or managers of the religious endowments
should be seen as trustees in the general sense. In fact, “whoever may be the person in
whom the duty of administration is vested, whether it is the shebait or archaka of a temple
or the Mohant of a religious institution and whether or not such person is the heir of the
original founder, he must be deemed to be in the position of a trustee with regard to the
endowed property.”141 Again, the understanding of the position of a Shebait (or any person
in whom the duty of administration is traditionally vested) as a sort of trusteeship is
confusing. In 1951, Mukherjea delivered a judgement in the Supreme Court of India that
tried to clarify the legal position of the trustees of temple endowments:

The exact legal position of a shebait may not be capable of precise definition but
its implications are fairly well established… In a Hindu religious endowment…the

140
S. TOFARIS, “Trust Law Goes East: The Transplantation of Trust Law in India and Beyond.” In The
Journal of Legal History, 2015, 36, no. 3, 299-332.
141
Ibid., 40-41.
77
 entire ownership of the dedicated property is transferred to the deity or the
institution itself as a juristic person and the Shebait or Mahat is a mere manager.
But though a Shebait is a manager and not a trustee in the technical sense, it
would not be correct to describe the shebaitship as mere office. The Shebait has
not only duties to discharge in connection with the endowment, but he has a
beneficial interest in the debutter property…Even where no emoluments are
attached to the office of the Shebait, he enjoys some sort of right or interest in
the endowed property which partially at least has the character of a proprietary
right. Thus, in the conception of Shebaiti both the elements of office and
property, of duties and personal interest, are mixed up and blended together;
and one of the elements cannot be detached from the other.142

This illustrates the difficulties of making sense of the Hindu religious ‘endowments’ or
‘trusts’ and of the terms used to discuss them. The judge cannot ‘precisely define’ the legal
position of a Shebait but claims that its implications are ‘well established’. Yet, when he
explains these implications, there is more confusion than before. The Shebait does not have
the same relation to Debutter property that the trustee under English law has to trust
property, since he is not its legal owner. The ownership is transferred to the deity as a juristic
person. The Shebait can also not be the beneficial owner, since this would imply that the
deity holds the property on trust for him. He does have ‘a beneficial interest’ in the Debutter
property, but it is not clear which right or interest he has. He simply enjoys “some sort of
right or interest.” The Shebait cannot have the rights that come with ownership, since the
entire ownership of the dedicated property is transferred to the deity; yet this “some sort of
right or interest…partially at least has the character of a proprietary right.” Proprietary rights
are rights that come with ownership, so this seems to entail that the Shebait must have at
least partial ownership of the Debutter property. But this has just been denied. Finally,
rather than clarify what the rights of the Shebait are in the property, Mukherjea avoids this
question: even though he claims that the Shebait is “a mere manager” (and not an owner),
he says that this conception of ‘shebaiti’ blends together the elements of office and property
in such a way that they cannot be detached from each other.

A legal vacuum has been created by the lack of clarity as to what it means for the deity to
be the ‘owner’ of the temple endowments and for the traditional heads of temples to be the

142
Angurbala Mullick V Debabrata Mullick, Air 1951 SC 293.
78
‘trustees’. Here, the state steps in and begins to arrogate the rights of ownership: it needs
to give its approval for expenditure and the alienation of property; it has to endorse financial
plans and controls the uses of the temple’s assets; its bureaucracy transforms the temple
‘trustees’ into lower-level state servants. This brings us back to the question of freedom of
religion. If the temple endowments are indeed considered as the property of a deity, then
one would expect the handling of this property to be a religious matter par excellence. Yet,
Indian judges systematically insist that handling the deity’s possessions is a ‘secular activity’
where the state can take control. What they appear to be doing is to transform the deity
and his ‘idol’ into some sort of incapacitated human being (or ‘an infant heir’). Since they
cannot act for themselves, the deities need trustees to act on their behalf; however, since
the state considers these trustees as untrustworthy, it is compelled to take over and manage
the possessions of the deity.

3. The State v. the Sevaks

The creation of a Managing Committee and Administrator for the Jagannath temple
generated lasting conflicts. These government-controlled bodies intervened more and more
in the temple’s practices, especially in its financial arrangements and in the substantial
annual donations and offerings to the temple. The government began to engage in attempts
to gain control of the income that traditionally went to certain groups of people involved in
the temple practices. This led to clashes with the sevaks and pujaris, who play specific roles
in the performance of rituals. Over the years, several sevaks filed petitions to challenge
sections of the Shri Jagannath Temple Act or policy measures taken under its scope.143 This
section will focus on a case where two groups of sevaks challenged the constitutional validity
of new sections inserted by the Jagannath Temple (Amendment) Act, 1983. The Supreme
Court would take the final decision on the case only in 1997, but it had a long history.

The High Court Decisions

The case revolved around certain portions of the offerings made by pilgrims to Lord
Jagannath, of which a proportion traditionally went to sevaks in the temple who collected
the offerings. Allegedly to prevent pilfering and for the purpose of security, the
Administrator issued an order in 1962 to replace the open receptacles used by the sevaks

143
See, for instance, Bairagi Mekap V Sri Jagannath Temple Managing Committee, AIR 1972 ORI 10;
Kedarnath Guru Mohapatra V State of Orissa, AIR 1974 ORI 75.
79
with sealed boxes put at the relevant places of collection. Two associations of sevaks, the
Mekap Niyoga and Khuntia Niyoga, filed a suit against the Managing Committee, arguing
that their duties of collecting the offerings in these receptacles was a religious function
performed by them and recognised in the Record-of-Rights of the Jagannath temple. The
Managing Committee, however, dismissed this and said that providing receptacles for the
offerings “is purely secular in nature unconnected with the religious rites of the deity.”144 In
this case, the Orissa High Court concurred with the Managing Committee and argued that
these duties are of a purely secular nature, unconnected with religious rites.145

Decades later, representatives of the same associations of sevaks filed a petition questioning
the constitutional validity of the 1983 amendments. In the Orissa High Court judgment,
dated 5 October 1993, Additional Chief Justice P.C. Misra sums up the facts.146 The four
petitioners claimed to represent two associations of sevaks called Khuntia Niyoga and
Mekap Niyoga respectively. The rights and duties of these two associations were included in
the Record-of-Rights. “The petitioners claim that they are entitled to a portion of the
offerings called ‘Bheta’ and ‘Pindika’ collected in the premises of the temple which rights
stands [sic] recognised and recorded in the said record of rights.” ‘Bheta’, the judge explains,
means “presents given to the deity by pilgrims while paying darshan” and the word ‘Pindika’
means “the presents given to the deity at the pedestal while paying darshan to the deity”
(‘darshan’ refers to the act of seeing the temple deity here). Both of the Jagannath Temple
Acts protected the sevaks’ customary right to receive a portion of these offerings. However,
according to the petitioners, the 1983 amendments had taken away these rights and thus
violated several articles of the Constitution.147

The Record-of-Rights indeed states that the Mekap sevaks can collect these offerings and
that, along with the Khuntia sevaks, they can keep one anna out of every Rupee (one-
sixteenth of a Rupee). Originally, the offerings were collected in receptacles, but gradually
these were changed to wooden boxes and then to iron boxes at certain locations inside the
temple premises. Section 28-B introduced by the 1983 amendment provided for the

144
Bairagi Mekap V Sri Jagannath Temple Managing Committee, AIR 1972 ORI 10, 2.
145
Ibid., 10.
146
Chintamani Khuntia V State of Orissa, AIR 1994 ORI 46.
147
Ibid., 3.
80
installation of new receptacles called ‘Hundis’ and states that “No person shall, without
being authorised by the Administrator in that behalf, go near or interfere in any manner with
any Hundi installed in the Temple.” The section also determines that no sevak shall be
entitled to any share in the offerings placed in the Hundis, notwithstanding anything to the
contrary contained in any law, custom, usage or agreement or in the Record-of-Rights. It
provides for the creation of a “Foundation Fund” which shall consist “of all donations and
contributions of an amount exceeding five hundred rupees made by any person to the
Temple or in the name of any deity installed therein, other than those made for any specific
purpose, and such other amount as may be directed by the State Government.” This Fund
will be managed by a Committee consisting of a group of Orissa government Ministers and
Indian Administrative Service officers.148 Thus, the amendment is part of an attempt by the
government to extend its control over the offerings and donations to the Jagannath temple.
Justice Misra sums up the petitioners’ objections as follows:

The stand of the petitioners is that the offerings made by the devotees of Lord
Jagannath and collected at any place inside the temple constitute ‘Bheta’ and
‘Pindika’ irrespective of the change in the nomenclature of the receptacle and
they have got 1/16 the share therein. According to them, their share in the
offerings made by the pilgrims constitute ‘property’ and is an integral part of
the religious rite of performing the seva to the Lord which can neither be
separated from each other nor can be interfered with in the manner as has been
done in the 1983 Amendment Act. They also allege that interference with such
right is violative of Articles 25 & 26 of the Constitution of India.149

To this, the State of Orissa responded that the sevaks’ claim of a share in the offerings is
neither right nor ‘property’; it is merely a privilege given to them and legislation withdrawing
such privileges does not violate the Constitution. The state added that not all of the offerings
are Bheta or Pindika and that the Record-of-Rights does not create any enforceable legal
right in favour of the sevaks. Besides, the latter “were being given a portion of the offerings
as their remuneration for watching and guarding the receptacles which is a secular right
unconnected with religious performances which the petitioners are required to perform for
the sevapuja of the deity and the same can be taken away by the State for the benefit and

148
Ibid., 18.
149
Ibid., 5.
81
better management of the religious institution.” The Administrator of the temple added that
this part of the remuneration of the sevaks could be withdrawn, since it was granted by the
Record-of-Rights only for “the secular act of guarding the receptacles,” which was no longer
needed because of the introduction of the closed boxes called ‘Hundis’.150

While the petitioners argued that several constitution articles had been infringed, I will focus
on their claim that the 1983 amendment violates Articles 25 and 26 concerning the freedom
of religion and of religious denominations to manage their own affairs in religious matters.
Justice Misra first turns to the text of the Record-of-Rights to consider what is written there.
Khuntia Seva and Mekap Seva are described in some detail there and are considered
hereditary in nature. The text also specifies that Bheta and Pindika are offerings made to
Lord Jagannath within particular sections of the temple premises and it indeed mentions
clearly that the sevaks are entitled to one anna out of every Rupee. The disagreement
revolves around the question whether the right to receive a part of these offerings comes
under religion within the meaning of Articles 25 and 26. The counsel for the petitioners
argues that this right “is a part of the seva being the beneficial enjoyment for performance
of sevapuja” and “it is both as an emolument for the service as well as an honour attached
to seva which is not severable.” The opposing parties say that “at the most the act of
appropriation of a portion of the offerings to the deity by these two groups of sevaks is
secular in character which can be abolished by law.”151

The judge notes that, from the Record-of-Rights, one cannot infer which remunerations of
the sevaks are meant for which part of their service. Instead, it is a package of emoluments,
where none of the specific items in the sevas is linked to any item of the beneficial interests
granted to the sevaks. Drawing on old Privy Council and Supreme Court judgements, the
judge holds that, as is the case for Shebaits, the emoluments or beneficial interests attached
to the office of the Khuntias and Mekaps cannot be detached from that office, since they are
mixed up and blended together. The remunerations are part of the seva or ritual service
itself and, hence, cannot be severed from it.152

150
Ibid., 6-7.
151
Ibid., 9.
152
Ibid., 11.
82
Justice Misra refers to earlier case law to emphasize that “whether a particular ritual or
observance of a ceremony is an essential part of the religion and religious practices is a
question which cannot be decided without referring to the doctrine of a particular religion
including the practices which have been regarded by the community as a part of its religion.”
The protection offered by Articles 25 and 26 includes practices regarded by the community
as integral parts of its religion.153 Thus, matters of religion “may include matters like who are
entitled to enter into a temple for worship, where they are entitled to stand and worship
and how and in what manner the worship is to be conducted, and sequences of different
rituals are to be observed in the matter of worship.” In the earlier case, it had been held that
the collection of the offerings is a secular duty of the sevaks. However, a different question
is under examination in this case, namely, “whether the beneficial enjoyments attached to
the religious duties assigned to these sevaks are separable or integral parts of the
religion.”154

The judge’s answer is unambiguous: the sevaks’ appropriation of a portion of the offerings
is part of the honour, perquisites and remuneration attached to their office. “It is not a
secular activity which is associated with religious practices, but an integral part of the seva
which cannot be separated from seva itself.”155 Consequently, his decision is equally
straightforward: deprivation of these sevaks from appropriating a share in the offerings
“amounts to interference of religious practices and as such is hit by Article 25(1) of the
Constitution of India.” Hence, the Orissa High Court determined that the relevant section
introduced by the 1983 amendment to the Shri Jagannath Temple Act is “ultra vires the
Constitution of India” and directed that the sevaks should be paid their share in the offerings
as granted by the Record-of-Rights.156

The Supreme Court Appeal

The State of Orissa appealed against this judgment before the Supreme Court, which offered
a demonstration of how Indian judges commonly deal with such issues. In the judgment
delivered in 1997, Supreme Court Justice Suhas C. Sen comes straight to the point:

153
Ibid., 13.
154
Ibid., 16.
155
Ibid., 19.
156
Ibid., 31.
83
 The point that falls for consideration in this case is whether the right of the
temple attendants to get a portion of the offerings made to the deity in a temple
is a religious right or the manner of collecting and getting a share of the offerings
is a religious rite of the temple. The answer must be in the negative in both the
cases. Collection and distribution of monies start after the devotees had done
their worship and made their offerings to the deity. Offerings of fruit, flower and
money are made to the deity by the devotees. This is done as a token of
devotion of the pilgrims. But after the worship by the devotees is over,
sweeping, collecting and distribution of a portion of offerings to the temple staff
are not parts of any religious exercise. The manner of collection and distribution
of a portion of the offerings among the temple staff may have a history of long
usage but such usage cannot be part of religious practice or a religious
right…The religious practice ends with these offerings. Collection and
distribution of the offerings for maintenance and upkeep of the temple are
secular activities.157

To examine this appeal, Justice Sen finds it important to recount the history of the “tussle”
between the sevaks and the management of the Jagannath temple. “The Sevaks of various
kinds have tried to run the Temple to their advantage. Religious considerations have been
farthest to their thoughts and activities.” The evidence for this claim lies in the fact that both
the British colonial powers of the early 19th century and the Orissa government of the mid
20th century had reported that grave and serious irregularities were committed in the
administration of the Temple, “which led the Government to intervene on a number of
occasions.” Moreover, the recital of claims in the object clauses of the Jagannath Act of 1952
“goes to show the sevaks were not inspired by any religious fervor and were not running the
temple for religious purposes. The Raja had practically been robbed of all powers of control
and all sorts of evil practices were being carried out inside the Temple by the Sevaks and
other Servants of the temple.” Therefore, the legislature took steps “to curb the atrocities
that were going on in the name of religion” within the temple.158

After citing extensively from earlier decisions related to the Jagannath temple legislation,
Justice Sen turns back to the question whether the right of the sevaks to get a share of the
relevant offerings is “a religious right.” Many of the duties recorded in the Record-of-Rights,

157
State of Orissa V Chintamani Khuntia, AIR 1997 SC 3839
158
Ibid., 2-4.
84
he argues, are simple secular duties; that also goes for collecting money: “The Sevaks cannot
be said to be professing, practising or propagating religion by these acts of collection of
money for remuneration.” Moreover, the installation of Hundis does not prevent the
devotees from making offerings in the traditional way at or near the throne of the deity,
where the sevaks collect them. Hence, it is difficult to see how these Hundis amount to
interference with the religious rights of the sevaks or with the manner of worshipping inside
the temple. “It has to be borne in mind that offerings are made to the deities and not to the
sevaks. The Managing Committee has a right to decide how the monies which have been
given as offerings to the deities will be collected and distributed.” Therefore, “there cannot
be a question of violation of any religious right guaranteed by Articles 25 and 26 of the
Constitution.”159

The judge then considers the status and duties of the sevaks in the temple. His reference
point is the Shri Jagannath Temple Act, 1955, which makes them into subordinates of the
Administrator who appoints and disciplines the sevaks. “These provisions again go to show
that the sevaks are essentially servants of the temple.” The judge describes their duties in
some detail and decides: “These duties performed by the Sevaks are connected with Seva-
Puja but the actual Seva-Puja is not done by the Sevaks. The collection of offerings including
monies lying scattered inside the temple and also on the throne of the deities have nothing
to do with the Seva-Puja.” Such acts are performed after the ritual is completed and, of
course, every activity inside the temple “cannot be regarded as religious practice.” In fact,
the judge repeats, “collection of money starts when the religious practice ends” and there
“is nothing religious about this collection of money by Sevaks.” Moreover, sub-clause (2) of
Article 25 gives the state the right to make any law “regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice.”
In this case, the duties of the sevaks are “nothing but secular activities, whether associated
with religious practices or not.” So the state is free to frame laws about these activities and
to regulate the payment provided for the sevaks.160

A review of a series of Supreme Court judgments brings Justice Sen to the general conclusion
that Articles 25 and 26 do not prevent the state from passing any law for taking over the

159
Ibid., 10-12.
160
Ibid., 13-6.
85
management of a temple. Although “the State cannot interfere with freedom of a person to
profess, practise and propagate his religion,” it “can control the secular matters connected
with religion.”

All the activities in or connected with a temple are not religious activities. The
management of a temple or maintenance of discipline and order inside the
temple can be controlled by the State…The temple authority may also control
the activities of various servants of the temple. The disciplinary power over the
servants of the temple, including the priests, may be given to the Temple
Committee appointed by the state. The Temple Committee can decide the
quantum and manner of payment of remuneration to the servants. Merely
because a system of payment is prevalent for a number of years, is no ground
for holding that such system must continue for all times. The payment of
remuneration to the temple servants was not a religious act but was of purely
secular nature.161

Given these general principles, the decision in this case is obvious. There is no violation of
Articles 25 and 26 of the Constitution, since the amendment only concerns the way of
collecting offerings and the share of the offerings that the sevaks receive for their work.

Analysis
1. Perhaps the most significant aspect of the Supreme Court judgment is an absence:
namely, the number of questions that are never raised by Justice Sen, because it is self-
evident to him that the sevaks’ activities are secular. The entire case revolves around the
seva of the sevaks. But what is ‘seva’ or ‘service’ in this context of a temple and its traditions?
Is it simply the same kind of activity as an employee performing his tasks and duties, i.e., like
a ticket collector on a train collecting tickets? Is it the same type of service as that done by
a government clerk? Does this mean that the share of the offerings that the sevaks receive
is but a variant of the monthly salary that any employee receives? From the judge’s claims,
one would infer that ‘seva’ in the Jagannath temple is indeed just another job for which one
is paid a salary. But this clashes with the common intuitive understanding of seva in India.
Here, a status is attributed to seva that is very different from that of a job or employment.
In the context of a temple and performing seva for the deity, this is even more the case.

161
Ibid., 18.
86
Again, the situation becomes all the more peculiar when we consider the claim that offerings
to the deity become part of the Debutter property of which the deity or his idol is the legal
owner. Under this understanding of Debutter, once the devotees have dedicated money in
the Jagannath temple, its ownership is transferred to Lord Jagannath. So what the Mekap
and Khuntia sevaks are doing is collecting the offerings to, and possessions of, Lord
Jagannath; they receive a part of these offerings as a part of their ‘seva’. They also view this
as a part of the practice of sevapuja, which is not separable from the ritual itself. Prima facie,
such an activity would indeed seem to belong to the realm of religious practice. In any case,
it is an activity of a different kind than the job of a ticket collector of the railways for which
he receives his monthly salary. According to the judge’s view, however, it is obvious that all
of this—both the seva of the sevaks and the job of the ticket collector—constitutes secular
activity only and this ‘fact’ requires no further argument.

2. Again, the distinction between the secular and the religious plays a central role in the
state’s attempts to expand its control over a temple and its assets. It seems vital for the state
and its representatives to argue that certain practices are ‘secular’ and not ‘religious’, since
this excludes an entire range of practices (including their financial aspects) from
constitutional protection. This, in turn, is understood as a license for the government to
extensively interfere in the ‘secular’ affairs of the temples.

Nevertheless, in this case, the initial High Court decision gives the impression of a judiciary
seeking to protect a temple from a government that legitimizes its interference through
facile claims about the ‘secular’ character of practices. In the Supreme Court, however, the
judge takes a standpoint diametrically opposed to that of his colleague. Whereas the latter
insists that it is impossible to sever the collection and distribution of offerings from the ritual
or religious practice itself, the former finds its obvious that one can draw a line between the
religious and secular aspects of a ritual with such precision that that one can determine the
point in time where the sequence of religious actions ends and secular actions begin.

On the one hand, this again confirms the casual usage of the terms ‘religious’ and ‘secular’
and the omniscience claimed by the judges as to drawing the exact line where the religious
ends and the secular begins. In reality, however, the meaning of these terms is unclear to
the judges, so they effortlessly come to opposite conclusions as to how and where this line
should be drawn. No close analysis of earlier judgments and jurisprudence about these

87
issues is required; instead, it seems to be a matter of the personal opinion of the judge as to
the ‘secularity’ and ‘religiosity’ of practices.

On the other hand, this state of affairs reveals the absence of coherence and stability in the
legal doctrine about religious freedom in Indian constitutional law. Drawing upon earlier
Supreme Court decisions, one judge can conclude that it is obvious that the collection of
offerings belongs in the realm of religious practices, which should be free from state
infringement, since the community in question regards it as an integral part of its religion.
Another judge finds it equally obvious that the opposite is the case, also on the basis of
earlier Supreme Court judgments. Naturally, the problem is not that judges come to
opposite conclusions while deciding on the same case. This happens in any legal system. The
question is what allows these judges to do so without any close consideration of the legal
doctrine and its interpretation of the relevant constitutional clauses in similar cases.

3. Justice Sen’s account about the Jagannath temple is another instance of the claim that
government interference in the management of temples is necessary because corrupt
priests and servants would otherwise engage in “all sorts of evil practices,” as he puts it. In
the decision, however, reports of events from the early nineteenth century and from the
1950s are recounted by this judge as though they provide evidence for an assessment of the
character of the sevaks of the Jagannath temple in 1997. This is his proof for the ‘fact’ that
they generally run the temple to their own advantage, rather than for religious purposes.

Without further evidence, the dispute in this case is presented as a continuation of other
reported conflicts that had respectively taken place more than 40 years and about 190 years
earlier. This Supreme Court judge’s way of going about with facts is shockingly cavalier: there
is no recounting of facts, either in his own judgment about this case or in that of the Orissa
High Court, which goes to show that the relevant Jagannath temple sevaks had mismanaged
the temple or embezzled money. Still, Justice Sen refers to claims made in the early 1800s
and the 1950s as though they are the relevant ‘facts’ of this case and then insists that the
sevaks’ running of the temple for their own personal advantages needs to be stopped. Thus,
he creates the impression that the amendments under review were needed to put an end
to this.162

162
Ibid., 12.
88
As in the earlier cases, the outcome is that the state can reassert the necessity of its
controlling of the temple, now justified by the judiciary. The sevaks’ traditional share in the
offerings becomes a privilege awarded to them by the government bureaucracy, rather than
a part of their role in the temple’s ritual practices. The state can also withdraw such
privileges. Thus, it reinforces the new position of the sevaks in the structure created by the
Jagannath temple acts: lower-level government servants whose duty it happens to be to
provide assistance in the performing of rituals.

4. Conclusion

The court decisions concerning the Jagannath temple provide us with a first look into the
Indian judiciary’s handling of Hindu temples. These decisions have not ended the disputes
about the controlling of the temple and its endowments. When a new petition concerning
the Jagannath temple was filed before the Supreme Court in 2018, it issued an order where
it advises the temple management to consider “permitting every visitor irrespective of his
faith to offer respects and make offerings to the Deity.” The judges make this observation
“in view of the settled law,” which asserts that “Hinduism, as religion, incorporates all forms
of belief without mandating the selection or elimination of any one single belief.”163 Hence,
they reason, a Hindu temple and its worship of the deity should accommodate people of all
beliefs. The next step would be a decision by the Supreme Court that compels the temple
management to permit visitors of all religions to enter its confines and make offerings to the
deity. Again, an analogy throws new light on this order: imagine a Belgian court advising the
Grand Mosque in Brussels that it should allow non-Muslims to worship there or telling the
Roman-Catholic archbishopric that priests should give the sacramental bread to followers of
all faiths, since this corresponds to the true nature of Christianity.

The judges in the Jagannath cases behave as though they are the authorities about (and for)
‘Hindu religion’, who can determine what its true message is, which of its practices are
‘religious’ and ‘secular’, and how its temples and rituals should be organized. Along the way,
they regularly use the conceptual vocabulary related to ‘religion’ and its ‘freedom’ in
careless and inconsistent ways, which indicate a lack of command of the meaning of these
terms. Moreover, regulations, policies and descriptions of facts from the nineteenth-century

163
Supreme Court Order in the case of Mrinalini Padhi v. Union of India, decided on 5 July 2018.
89
colonial powers are invoked as though these are decisive to deciding legal cases in post-
Independence India.

The end result is perplexing: for the Jagannath temple and the people involved in its ritual
practice, the constitutional right to freedom of religion implies that the judiciary not only
sanctions government control of the temple’s administration, but also legitimizes the
systematic expansion of state interference into its many practices and rituals. Generally, the
distinction between ‘secular’ and ‘religious’ seem to play one central role: allowing for
maximal government control over the temple and its practices. Naturally, these court
decisions concern just one major Hindu temple in one state, so we now need to examine
whether this is but one manifestation of a general modus operandi of the Indian judiciary.

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 Chapter IV: The Supreme Court and the Temples

The Indian temple, much like the Judaic, Egyptian and ancient Roman counterparts from
which the term is borrowed, is typically viewed as the sacred ‘house of the deity’.
Traditionally, a temple is headed and run by a ‘pujari’ or another traditional figure like a
‘dharmakarta’ or ‘dharmadhikari’, positions determined by the structure of the temple’s
organization. The ‘pujaris’ perform the puja rituals to the ‘idol’ of the deity; since ‘puja’ was
translated as ‘worship’ by the British, they came to be seen as the people responsible for
the ‘worship’ of the deity. ‘Devotees’ come to the temple either to view the deity, to offer
their prayer or to have the pujaris perform some or another specific ritual to the deity. In
certain temples, some people are not allowed inside the temple or inside a distinct part of
the temple.

These widely accepted claims about the temples of the Hindu traditions are enough to serve
as the starting point for a review of some Supreme Court decisions concerning temple entry
and temple management cases. If the temple is indeed the house of the deity and a place of
divine worship, one would expect that a secular state leaves the organization of such
temples and their worship in the hands of religious institutions as much as possible. In India,
temples have their own traditional ways of organizing themselves, which are different from
location to location and tradition to tradition. There is no authoritative set of books or rules
that determine how Hindu temples and their rituals should be organized. Nor is there is any
traditional institution with the authority to regulate, evaluate, and correct the way in which
the hundreds of thousands of temples in the country are being run. How, then, could a
secular government take up the task of managing temples and their practices, without
simply introducing its own new-fangled set of rules and structures?

In 2015, in a case related to a temple in the south Indian state of Tamil Nadu, the Supreme
Court of India noted the following: “The Ecclesiastical jurisprudence in India, sans any specific
Ecclesiastical jurisdiction, revolves around the exposition of the constitutional guarantees
under Articles 25 and 26 as made from time to time.”164 The exposition of these
constitutional clauses, the Court pointed out, compelled it to take up the “delicate and
unenviable task of identifying essential religious beliefs and practices, sans which the

164
Adi Saiva Sivachariyargal v. Government of Tamil Nadu, AIR 2016 SC 209; emphasis added.
91
religion itself does not survive.” That is, according to its own interpretation of the
Constitution, the Supreme Court should strike down state legislation that infringes the
freedom of religion, only if this legislation would lead to the ‘death’ of the religion in
question by intruding upon beliefs and practices necessary to its survival. Consequently, the
Court appears to face the same challenge again and again: that of deciding which beliefs and
practices are ‘necessary to the survival of Hinduism’. Unfortunately, the judges noted, the
major body of texts from the Hindu traditions called the Agamas could not help create clarity
here, since these texts neither raise nor address this question. As the Supreme Court
judgment put it:

It is in the performance of this task that the absence of any exclusive ecclesiastical jurisdiction of
this Court, if not other shortcomings and adequacies, that [sic] can be felt. Moreover, there is
some amount of uncertainty with regard to the prescription contained in the Agamas. Coupled
with the above is the lack of easy availability of established works and the declining numbers of
acknowledged and undisputed scholars on the subject.165

This excerpt highlights the conflicts that plague the Indian legal reasoning on matters
concerning ‘Hinduism’. On the one hand, the judges recognize the absence of any ‘exclusive
ecclesiastical jurisdiction’ for the Court. On the other hand, they point to textual uncertainty
and disagreements and lack of scholarly authority as a justification for the Court to
nevertheless act as though it is the ‘exclusive ecclesiastical authority’. To paraphrase, the
Supreme Court of India concedes that it is not a recognized religious authority, but the
absence of any alternative forces it to act as one.

In reality, however, the issue is not whether the ecclesiastical jurisdiction of the Court is
exclusive or not. No secular court of law, if the word ‘secular’ is to have any meaning, can
have any kind of ‘ecclesiastical jurisdiction’ without also being an ecclesiastical entity. That
this simple fact escapes the Indian Supreme Court tells us something about the nature of
the problem: the judges do not even know what ‘ecclesia’ means and whether anyone can
have jurisdiction over such an ‘ecclesia’ or ‘community of believers’, without being an
ecclesiastical authority recognized by the ecclesia in question. Of course, a secular authority
can also have jurisdiction over an ecclesia (as the Roman emperor did) with regard to civil
and secular matters, but that is very different from having ‘ecclesiastical jurisdiction’. The

165
Adi Saiva Sivachariyargal v. Government of Tamil Nadu, AIR 2016 SC 209.
92
courts in India, including the Supreme Court, are not aware of this simple linguistic
consequence, since they aspire to have ‘ecclesiastical jurisdiction’ and thus feel authorized
to discuss and decide on the correct interpretation of ‘religious’ texts and doctrines.

This chapter offers some examples of case law where the Supreme Court of India has acted
as a self-designated ‘ecclesiastical’ authority, which produces ‘ecclesiastical jurisprudence’
about the nature of Hinduism and Hindu temples. Western courts of law are generally very
apprehensive of offering their own ‘theory of religion’ and certainly their own interpretation
as to the teachings of a specific religion166. As we shall see, no such apprehension can be
found in India, especially among the judges of its apex court. In fact, these judges show no
hesitation in giving their opinion on what they think Hinduism should mean and what they
think the real facts of Indian history are.

1. The Issue of Temple Entry

When the Constituent Assembly adopted the clause concerning the freedom of religion for
the first time in 1947, an amendment was moved which said: “The freedom of religious
practice guaranteed in this clause shall not debar the State from enacting laws…for throwing
open Hindu religious institutions of a public character to any class of or section of Hindus.”
The concern behind this addition was that Article 25 should not be construed as a protection
for practices that refuse entry to Hindu temples to people from certain caste groups.167

Adopted by the Constitution of 1950, this addition deals with a controversial issue, namely,
the claim that members of ‘lower’ castes were not allowed entry into some Hindu temples.
This question of ‘temple entry’ had originated in criticism of ‘Hindu religion’ by nineteenth-
century Christian missionaries, who argued that this religion banned the ‘untouchable’
castes from its temples. Thus, the Brahmin ‘temple priests’ allegedly denied access to
religious worship to these groups of people based on caste. These claims became the subject
of several debates and campaigns in colonial India. Eventually, they were translated into
temple entry legislation in several parts of India and in various forms.168 This characterization

166
K. GREENAWALT, “Religion as a Concept in Constitutional Law,” California Law Review, 1984, 72,
no. 5, 753-816.
167
Constituent Assembly Debates, vol. 3, 1 May 1947.
168
For example, Chapter III, article 24, of the ‘Tamil Nadu Hindu Religious and Charitable
Endowment Act, 1959’ describes a ‘power to enter religious institutions’ and discusses at length this
issue of entry into the temple with respect to government agents and even has a specific clause that
93
of ‘temple entry’ was embedded in a larger body of descriptions of Hinduism and caste
produced by Christian missionaries and European scholars. It should be noted, then, that
this idea of ‘the problem of temple entry’ was in no way the result of any systematic or
scientific research. Nonetheless, it generated a most unusual clause in the Constitution of
India: a clause which states that the freedom to profess, practise and propagate religion will
be guaranteed to all citizens, with a sub-clause stating that certain practices of one specific
religion should not be protected by this clause.

The Nature of the Temple Entry Cases

The judicial cases related to temple entry could take many forms. However, two striking facts
recur across the case law that I have looked at. The first is that most of these cases are not
so much about ‘temple entry’ but about a community’s resistance against state intrusion
into the organization and practices of the temples. It rarely happened that people who were
excluded from some temple went to the Courts to exercise their right as Hindus to be
allowed into any public Hindu temple. Even where this is the case, the disputes take a typical
form. The government and the courts act as though they are executing the Constitution’s
‘charter for the reform of Hinduism’. Along the way, however, they re-describe the practices
of the temples as expressions of certain doctrines that embody discrimination based on
caste or gender. More than the constitutional clauses alone, this re-description and moral
assessment of traditional practices serve as a justification for government interference in
the temple and its organization.

As a result, what appears to start out as a question of interpreting constitutional clauses and
assessing the constitutional validity of state legislation, moves into an attempt to establish
some interpretation of the doctrines and practices of Hinduism. This is the second fact that
we see in the temple entry cases. An apparent legal dispute about the practice of not
allowing everyone to enter a particular temple soon becomes a pretext for the judges to
embark on extensive exhortations about the doctrines and beliefs that are supposed to
underlie this practice. In the subsequent step, the Court then begins to putt forward the
correct and true interpretation of the teachings of Hinduism.

says “Nothing in this section shall be deemed to authorize any person who is not a Hindu to enter
the premises.”
94
One illustration is the recent Supreme Court order about the Jagannath temple, where the
Court advises the temple management to open the temple and the worship of its deity to
‘followers of all faiths’. As we saw, the judges justify this by referring to the Supreme Court’s
“settled law” concerning the correct interpretation of Hinduism. In fact, they cite the 2016
judgment in the case of Adi Saiva Sivachariyargal v. Government of Tamil Nadu, where
Justice Ranjan Gogoi opens his decision with the following statement:

Religion incorporates the particular belief(s) that a group of people subscribe to.
Hinduism, as a religion, incorporates all forms of belief without mandating the
selection or elimination of any one single belief. It is a religion that has no single
founder; no single scripture and no single set of teachings. It has been described
as Sanatan Dharma, namely, eternal faith, as it is the collective wisdom and
inspiration of the centuries that Hinduism seeks to preach and propagate.169

Since Hinduism incorporates all forms of belief, Hindu temples should give entry to people
of all religious beliefs, so the argument goes. Such statements about the true nature of
Hinduism, however, lead the Court into inconsistency. For instance, if the essence of
Hinduism as a religion is that it incorporates all forms of belief “without mandating the
selection or elimination of any one single belief,” how could one ever argue that only certain
beliefs and practices are essential to this religion? Unaware of these problems, the Supreme
Court in this case went on to take up the delicate task of “identifying essential religious
beliefs and practices, sans which the religion itself does not survive.”170

Another illustration is the Sabarimala temple case, which is currently pending in the
Supreme Court. In this case, a group of feminist activists filed a Public Interest Litigation
petition to the Supreme Court to demand access to this temple. Women between 10 and 51
of age are traditionally not allowed into the Sabarimala temple, an important pilgrimage
centre. The activists found this reprehensible and filed a petition to exercise their right to
access all public Hindu temples. The hearings in this important case are ongoing in the
Supreme Court and the judgment promises to provide more fascinating material for analysis.
As in the earlier cases, we should understand that the management of the temple sees the
entire case as a demand for basic infringement of its traditional practices: the devotees view

169
Adi Saiva Sivachariyargal v. Government of Tamil Nadu, AIR 2016 SC 209.
170
Ibid.
95
the deity as an ascetic who avoids any contact with women of a certain age as a part of his
renunciation of the objects of the senses. Among these devotees, this goes hand in hand
with a basic stance of respecting this typical character of the deity. The practice of not
allowing women to come near the deity is not rooted in gender-based discrimination in their
eyes, but merely a continuation of this age-old stance.

However, the Constitution Bench led by Chief Justice Dipak Misra has already given its own
interpretation of the true ‘doctrines’ behind this practice: according to them, the ban on
entry “is based on the ‘patriarchal’ belief that the dominant status of a man in society makes
him capable of performing austerity while a women, who is only a ‘chattel of man’ is
incapable of remaining pure for the 41 days of penance prior to the pilgrimage.” While the
Court has not yet come to a decision, it already indicated during the hearings that it cannot
accept a practice “mired in patriarchy and chauvinism.” The advocate of the defendants, the
Travancore Devaswom Board, pointed out the following during the hearings: “Prohibition is
not because of male chauvinism. It is linked to the penance and character of the deity.
Women accept the prohibition. It is not imposed on them.” Moreover, he added, if this
practice is ‘mired in patriarchy and chauvinism’, “then every religion is based on male
chauvinism.”171

Here, we see clearly how these temple entry cases are not just about the application of
constitutional clauses or testing the constitutional validity of legislation. Neither are they
about respecting the fundamental right to freedom of religion, which should give access to
all Hindus to all public Hindu temples. Instead, they take the form of disputes about the
identification of the beliefs and doctrines behind practices and about the correct
interpretation and evaluation of such ‘beliefs’ and ‘doctrines’ of the Hindus.

An Early Case
The consequences of temple entry legislation had already come to the surface in one the
first cases in post-Independence India that involved this issue, Sri Venkataramana Devaru v.
State of Mysore (1958). This case revolved around an alleged conflict between the two
articles in the Indian Constitution dealing with the right to freedom of religion: Article 26(b),

171
K. RAJAGOPAL, “Sabarimala entry ban on women mired in patriarchy: SC,” in The Hindu, 24 july
2018, https://www.thehindu.com/news/national/sabarimala-entry-ban-on-women-mired-in-
patriarchy-sc/article24504357.ece?homepage=true
96
the right of a religious denomination to manage its own affairs in ‘matters of religion’ and
Article 25(2)(b), which protects laws that “throw open Hindu public temples to all classes
and sections of Hindus.”172 The temple at issue here was the Sri Venkataramana temple
located in the village of Mannampady in the South Kanara district near Mysore. The people
managing the temple were a group called ‘Gowda Saraswatha Brahmins’ and the temple
belonged to that community as per a decree passed in 1915. The ‘general management’ was
in the hands of “members of that community,” but the ‘actual management’ was to be
carried out by an elected Board of Trustees from within the community. The chain of events
that led up to the conflict was set off by the Madras Temple Entry Authorization Act of 1947.
It had the following provision in section 3:

Notwithstanding any law, custom or usage to the contrary, persons belonging to the
excluded classes shall be entitled to enter any Hindu temple and offer worship therein in the
same manner and to the same extent as Hindus in general.173

Apparently afraid of state interference based on this provision, the trustees of the temple
sent a memorial to the Government of Madras saying they were a private temple; therefore,
the provisions of this Act were not applicable to them. In response, the Government passed
an order that the Sri Venkataramana temple was open to all Hindus generally and that the
Act was applicable to this temple. The order prompted the trustees to appeal to the courts
for help. They sought the court to declare that the temple did not come under the definition
of a ‘temple’ provided in section 2(2) of the Act. Before the case was even decided, however,
the legislature passed an amendment changing the definition in section 2(2).

By the time the trial judge concluded, the Indian Constitution had come into force. This
allowed the trustees to argue that even if they were a temple according to the revised
definition, they had the protection of Article 26(b) of the Constitution. The trial judge had
concluded that the issue at stake was not a “matter of religion” because that only concerned
religious beliefs and doctrines and not rituals and ceremonies.174 After an appeal, however,
the trustees were able to get the High Court to recognize that some ceremonies and rituals
were meant only for the Gowda Saraswatha Brahmins and that this was a right protected

172
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
173
Ibid.
174
Ibid.
97
by the Constitution. For the rest, the High Court ruled that Article 25(2)(b) prevailed and that
all classes of Hindus were entitled to enter the temple for worship, except for some specific
occasions. This led to an appeal in the Supreme Court.

The Supreme Court judgment formulates five different questions that are up for
adjudication:

(1) Is the Sri Venkataramana Temple at Moolky, a temple as defined in Section 2(2) of Madras
Act 5 of 1947? (2) If it is, is it a denominational temple? (3) If it is a denominational temple,
are the plaintiffs entitled to exclude all Hindus other than Gowda Saraswath Brahmins from
entering into it for worship, on the ground that it is a matter of religion within the protection
of Article 26(b) of the Constitution? (4) If so, is Section 3 of the Act valid on the ground that
it is a law protected by Article 25(2)(b), and that such a law prevails against the right
conferred by Article 26(b); and (5) If Section 3 of the Act is valid, are the modifications in
favour of the appellants made by the High Court legal and proper?175

Regarding the first two questions, the Court concludes swiftly that the temple is indeed a
public denominational temple. The arguments for these conclusions are vague and
confusing; they deal with issue as to whether the temple was founded for the ‘benefit of the
Hindu public in general’ or for ‘a particular community’. To prove that a temple was founded
for the ‘benefit of the Hindu public in general’, the Court provided evidence that all classes
of Hindus were taking part ‘freely in worship’ at the temple ‘as a matter of right’.

When answering question (3), the Court elaborates a bit more and it draws on the Supreme
Court’s earlier judgment in the important Shirur Mutt case to determine how far the right
to freedom of religion extends. It repeats the phrase that the constitutional protection
encompasses “not merely matters of doctrine and belief pertaining to the religion but also
the practice of it.”176 Tasked with finding out whether certain practices are part of a specific

175
Ibid.
176
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt AIR 1954 SC 282. Consider the following thought from the judgment: “Our Constitution
makers, however, have embodied the limitation which have been evolved by judicial
pronouncements in America or Australia in the Constitution itself and the language of Articles 25
and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to
what matters come within the purview of religion and what do not. As we have already indicated,
freedom of religion in our Constitution is not confined to religious beliefs only; it extends to
religious practices as well.”
98
religion, the Court sees only one route: the doctrines of that religion.177 The ‘ecclesiastical
jurisprudence’ in this case is limited to deciding which are the authoritative works for the
religious doctrines of Hinduism and an English description of their content (which consists
of ‘Hindu Ceremonial Law’, according to the Court) as well as a few historic claims about the
origins of temples and Agamas. In this case, these Agamas are the so-called treatises on
temples that were said to contain ‘rules regarding the temple’. Because the Court
interpreted some of these Agamas as prescribing rituals to be performed by the Archakas,
which it calls purification ceremonies, it claimed that they should be done after ‘defilement’
of the ‘image’ of the deity. This defilement happens when the rules contained in the Agamas
are violated, such as admitting people to the temple that are not ‘entitled to worship’
therein. Should there only be Article 26(b) and its recognition of the right of any religious
denomination to manage its own affairs in matters of religion, the Court concludes, the
disputed section of the Act would indeed be unconstitutional.178

This brings the Court to what it calls the main question for determination. Article 25(2)(b)
protects laws that ‘throw open temples to all classes and sections of Hindus’. Since the Court
has found that the temple in question is a ‘public denominational temple’, it concludes that
it falls under the application of this article. This leads the Court to conclude that there is a
conflict between two Articles of the Constitution of India. It reasons as follows to adjudicate
this issue: if the Supreme Court accepts that Article 26(b) prevents the legislator from
enacting laws that interfere with entry into a temple, it would make Article 25(2)(b)
redundant in that respect. This means that the Court cannot accept the argument that
Article 26(b) protects the temple against government interference in this case, since the
interference is also protected by the Constitution.

Analysis
1. The first important thing to note here is that this early case already took the same shape
as the later Supreme Court cases about access to temples. Even though the issue allegedly
was that of ‘temple entry’ and the question of whether the Gowda Saraswatha Brahmins
had a right to exclude other people from performing puja in that temple, at no point in this
case was there any party that had effectively been refused entry into the temple. The

177
Sri Venkataramana Devaru v. State of Mysore AIR 1958 SC 255
178
Ibid.
99
discussion was one between some people of the community in question and the
government. The government claimed this temple fell under the purview of its legislation,
while people from the community tried to find ways to escape these “enormous powers of
control and even management of institutions”179 that the state had claimed over Hindu
temples through various legislative documents, one of which was the Madras Temple Entry
Authorization Act.

It is important to note this, the classical account of caste-based discrimination, which sees
the refusal of temple entry as discrimination sanctioned by ‘religion’, plays a central role in
cases like these. The Subordinate Judge, for instance, is quoted as saying the following: “in
course of time public endowments came to be made to the temple and all classes of Hindus
were taking part freely in worship therein.”180 In other words, even though cases like that of
Sri Venkataramana Devaru are presented as though they concern disputes where the state
has to intervene to grant temple entry to lower castes, this is not what was really going on
here. Rather, the case reflects the struggle of a community to protect its temple from the
increasing encroachment by the government and its expanding legislative intervention in
traditional practices and institutions in the name of social justice.

2. In this Supreme Court judgment, the bench repeats a remark that would reappear again
and again in the later ‘doctrine’ concerning religious freedom: namely, that freedom of
religion is also about practices and not just doctrines. This is a rather inconsequential
statement, of which all too much has been made by the Supreme Court. For example,
consider an analogy with cases concerning the wearing of the hijab, which is regarded as an
issue that invokes Article 9 of the European Convention on Human Rights.181 This issue
becomes a matter for the European Court because the practice of wearing a hijab as a
religious garment, or overt sign of religion, can come into conflict with laws from the
government that try to regulate the wearing of such overt signs of religion by public officials
or in certain (public) spaces. Internationally, almost all the court cases where petitioners

179
Ibid.
180
Ibid.; emphasis added.
181
This article is considered the highest protection in Europe of the human right to ‘freedom of
religion’. In this sense, it is somewhat similar in position for all European Nations as it is compared
to the position articles 25 and 26 of the Constitution of India occupy in the Indian legal order. Both
are described as the highest sources of law for the right to freedom of religion in their respective
jurisdiction.
100
invoke the right to religious freedom concern practices rather than doctrines alone: ritual
slaughter, the use of drugs in religious ceremonies, the refusal of vaccines or medical
treatment, polygamy, etc. The wording of article 9 of the European Convention of Human
Rights even explicitly says that freedom of religion “includes the freedom…to manifest…in
worship, practice,…”182 and the first amendment of the American Constitution speaks of
‘free exercise’ of religion. In fact, the Indian Constitution itself mentions the right to free
practice of religion explicitly. What could the protection of ‘just doctrines’ then possibly
mean in the case of freedom of religion?

In many Supreme Court judgments that followed this case, the English statement that
freedom of religion also encompasses ‘practices’ is repeated as the law with respect to the
application of Articles 25 and 26 of the Constitution. This phrase in English, however, has
been given an Indian formulation. The judges say that the phrase means the following: “put,
in terms of Hindu theology, not merely Gnana but also its Bhakti and Karma Kandas.”183
These Sanskrit words indicate that ‘liberation’ (from suffering) is not merely a question of
knowing (Gnana means ‘knowledge’) but also of ‘devotion’ (Bhakti) and ‘action’ (Karma). Or
to rephrase this in classical Christian terms: one is not religious only because one believes
that God exists, but also because one believes in God and worships Him. Surely, judges in
the Western world are not ignorant about this: they are aware that freedom of religion is
not merely about granting the freedom to believe that God exists (or does not exist) but
should also involve the right to worship him freely (or refuse to do so).

This early temple entry judgment of the Supreme Court of India shows yet another tendency
that would become stronger and more explicit as years progressed. The Court begins to
interpret the Agamas and other Hindu texts in order to determine what these truly mean.
Therefore, it is questionable that the Court is genuinely granting to the citizens the freedom
to believe in the religious doctrines that one considers to be true, since it arrogates the
authority to tell the ‘Hindu believers’ what their doctrines mean and, consequently, what
they should truly believe in.

3. What is also clear from this case and the different court decisions is that there is confusion
in the Indian legal world regarding the nature of indigenous institutions. This is shown by

182
Article 9, European Convention on Human Rights
183
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
101
the many changes in the definition of ‘temple’ that complicated this case, as well as by the
standard of proof demanded that entrance into temples is done ‘as a matter of right’ as
opposed to being ‘permitted entrance’ by a member of a specific community. At an earlier
point in this case, the Subordinate Judge concluded that because public endowments were
made to the temple and all classes of Hindus were taking part freely in puja, it might be
presumed they did so as a matter of right. Thus, it was concluded, the temple is dedicated
to the ‘Hindu public generally’.

2. Teaching Hinduism to the Hindus

The most important of the temple entry cases is generally referred to as “the Satsangi case,”
which was decided by the Supreme Court in 1966. 184 It generated the following problems:
when a tradition or community argues that it represents a distinct and separate religious
sect unconnected with the Hindus and their religion, should it be free from laws that require
Hindu temples to give entry to all classes and sections of Hindus? How can judges decide
whether this group is Hindu? Do they have the capacity and authority to judge which
traditions are part of the Hindu religion? Which authorities or texts could they legitimately
draw upon to come to a decision?

The Satsangi case is of particular importance, because it is the first case in post-
Independence India where judges attempted to define Hinduism and the decision has been
quoted in later cases as the Court’s standing interpretation of the nature of Hinduism.185 It
is the prime example among many similar Indian judgments, where the judges fill pages and
pages with their views on almost everything under the sun, related to Hinduism and religion.
It is also important because Chief Justice Gajendragadkar, who delivered the judgment, is
today presented as one of the most important judges in giving shape to the Supreme Court
doctrine about the freedom of religion and the ‘essential practices’ of Hinduism.186 The
decision in this case is most famous for Gajendragadkar’s proclamation that Hindu religion
“does not appear to satisfy the narrow traditional features of any religion or creed. It may
broadly be described as a way of life and nothing more.” Since the case is so prototypical for

184
Sastri Yagnapurushdasji v Muldas Brudardas Vaishya, AIR 1966 SC 1119.
185
S.P. Mittal Etc. vs Union Of India And Others AIR 1983 SC 159; Bramchari Sidheshwar Shai v. State
of West Bengal, AIR 1995 SC 2089; Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath
Kunte AIR 1996 SC 1113; Adi Saiva Sivachariyargal v. Government of Tamil Nadu, AIR 2016 SC 209
186
See R. SEN Articles of Faith, 1-72, 158-91.
102
later court decisions, which also include long exhortations about Hinduism, I will provide
some details about the case and the content of the Chief Justice’s judgment.

The Satsangi Case

The case revolves around a temple called the Swaminarayan temple, used by the Satsangi
sect. Like other temple entry cases, it was unclear how the issue of entry had become the
subject of legal dispute, since there had never been a process of checking exactly who enters
this temple at any given time.187 However, the probable reason for the dispute was the
public proclamation of the president of the Maha Gujarat Dalit Sangh (hereafter:
respondent) that he and his followers would assert their right of entering temples, which led
some followers (hereafter: applicants) of what is called the Swaminarayan sect, also known
as the Satsangis, to bolt the doors of the temples.188 The applicants requested the Court to
provide them with an injunction restraining non-Satsangi ‘Harijans’ (the groups also referred
to as ‘Untouchables’, ‘Scheduled Castes’ or ‘Dalits’) from entering the Swaminarayan
Temple, while at the same time they sought a declaration that the Bombay Harijan Temple
Entry Act, 1947 did not apply to them because it was an Act applicable only to Hindu temples
and they were distinct and separate from that religion.189 Section 3 of this Act had provided,
inter alia, that every temple to which the Act applied shall be open to Harijans for worship
in the same manner and to the same extent as other Hindus. Importantly, the issue raised
by the applicants was not that they did not want to allow ‘Harijans’ or ‘Untouchables’ into
the temples; they only did not want to be compelled to open the temples to non-Satsangi
‘Harijans’.

After the trial judge ruled in favour of the applicants, the case went to the High Court. In the
meantime, the government had passed the new Bombay Hindu Places of Public Worship
(Entry Authorisation) Act of 1956, which replaced earlier legislation. The effect of the new
Entry Authorisation Act of 1956 was that, even though the nature of the dispute had not
changed, the material provisions on which the respondent grounded his claim of the right
of non-Satsangi Harijans to enter the temple had changed. The High Court sent the case back
to the trial court to get a fresh answer to the question “whether the Swaminarayan temple

187
Sastri Yagnapurushdasji v Muldas Brudardas Vaishya, AIR 1966 SC 1119, para 54.
188
Ibid.
189
Ibid., para 1.
103
at Ahmedabad and the temples subordinate thereto are Hindu religious institutions within
the meaning of Art. 25 (2) (b) of the Constitution.”190 The trial judge considered the evidence
adduced on the record by both the parties and concluded that the Swaminarayan temples
at Ahmedabad and the temples subordinate thereto were Hindu religious institutions within
the meaning of Article 25(2)(b) of the Constitution.

At first, there were two major issues in this case. Both can be formulated as broader
problems that come up when the courts need to apply the language that comes with the
right to freedom of religion so as to classify Indian institutions and phenomena. First, there
is the question of the nature of temples and the scope of the term when it is used in
legislation. Second, there is the question of the nature of a ‘Hindu’ and who it applies to
when this term is used in legislation. Where the issue of a temple is concerned, there seem
to be two things at odds with each other in this case. On the one hand, there is the lack of
evidence cited by the first trial judge that anyone other than the Satsangi-Harijans used or
visited this temple with any regularity whatsoever. On the other hand, there is the
conclusion reached by second trial judge that it is a public religious institution. It seems that
this judge did not come to this conclusion because of any evidence put forward, but rather
because it was no longer disputed by any of the parties. The only debate during the
proceedings before the second trial judge relates to the second issue, namely with respect
to the question whether the Swaminarayan sect was Hindu or not. The trial judge concluded
that the decision of the first trial judge with respect to this issue was not open to the parties
to contend and submitted those findings to the High Court.

During the proceedings before the High Court, the applicants conceded that in the event the
High Court finds the sect to be part of Hindu religion, their temples would be Hindu religious
institutions as meant by the Entry Authorisation Act. This implied that the question as to
whether the sect was part of Hinduism became the only major issue in this case. The
applicants conceded before the High Court that although the Satsangis who visit the
Swaminarayan temple might “be Hindus for cultural and social purposes,” “they are not
persons professing Hindu religion, and as such they do not form a section, class or sect or
denomination of Hindu religion” The High Court distinguished four different arguments put
forth by the applicants to support that claim.

190
Ibid., para 9.
104
The first argument was that “Swaminarayan, the founder of the sect, considered himself as
the Supreme God, and as such, the sect that believes in the divinity of Swaminarayan cannot
be assimilated to the followers of Hindu religion.”191 The second argument said that “the
temples in suit had been established for the worship of Swaminarayan himself and not for
the worship of the traditional Hindu idols.”192 The third argued that “the sect propagated
the ideal that worship of any God other than Swaminarayan would be a betrayal of his
faith.”193 And the final point was that “the Acharyas who had been appointed by
Swaminarayan adopted a procedure of ‘Initiation’ (diksha) which showed that on initiation,
the devotee became a Satsangi and assumed a distinct and separate character as a follower
of the sect.”194

The High Court claimed it had carefully examined these contentions considering the
teachings of Swaminarayan. The main reason given by the Court for its conclusion was that
the applicants identified themselves in the plaint as ‘Hindus’ and it was clear for the Court
they belong to Hindu religion, for “on the occasion of previous censuses prior to 1951 when
religion and community used to be indicated in distinct columns in, the treatment of census
data, the followers of the sect raised no objection to their being described as belonging to a
sect professing Hindu religion.”195 This resulted in the High Court reversing the outcome of
the trial court and revoking the injunctions and declarations. This High Court ruling was
appealed before the Supreme Court and referred to a five-judge bench, chaired by the then
Chief Justice Gajendragadkar.

The Supreme Court Judgment

In what follows, I will give special attention to the way the Chief Justice builds his arguments
and cite him extensively. I find this important because most Indian court judgments related
to the theme of this thesis exhibit a series of curious properties: the court routinely goes out
of its way to demonstrate its learned character, has no hesitations in taking up deeply
theological stances at the drop of a hat, exhibits a tendency to literally preach sermons from

191
Ibid, para 10.
192
Ibid.
193
Ibid.
194
Ibid.
195
Ibid, para 11.
105
the pulpit (the bench in this case), while being rather short on legal and jurisprudential
issues. In fact, oftentimes, the actual judgments hang as appendices to disquisitions about
all matters relating to religion, in which the court feels compelled to exhibit its depth of
knowledge. The courts do all of these things, without explaining the reasons for doing so.

Chief Justice Gajendragadkar took the opportunity to delve into the etymology of the word
‘Hindu’ and its historical origins.196 This part of the judgment is considered obiter dicta197
and therefore not binding, since the court was not adjudicating the nature of Hinduism itself,
but only had to determine whether the Satsangis were Hindu or not. Still, the impact of
Gajendragadkar’s reasoning on this aspect of the case had significant impact on the way the
Supreme Court would speak about and adjudicate cases involving Hinduism in the future. 198

Before dealing with this matter, the court first took on the question of constitutional validity
of the Act(s) in question. There had been rather significant legislative changes during this
litigation. The initial suit was filed two years before the Constitution came into force, while
the Supreme Court decision was delivered, so the court had to go through a variety of
different Acts. The approach the Court took in dealing with this question was one where
legislation on untouchability was viewed as the central theme. Article 17 of the constitution
abolished the ‘institution of untouchability’, and so the Court sees in this a constitutional
mandate for ‘combating the evil of untouchability’. It is within this context that the Court
viewed the legislation on temple entry. The Chief Justice found that the legislation’s object
was “removing the several disabilities from which Harijans suffered in regard to the
enjoyment of social, secular amenities of life.”199

After declaring that there are no unconstitutional provisions in the act and that the act in its
totality is constitutional as well, the Court proceeded with what is saw as “the main
controversy between the parties.” This refers to the question of whether the Satsangis are

196
Ibid, para 27.
197
An explanation given routinely in the Indian jurisprudence in response to questions regarding
some statements made by the Court in judgments and whether they are a ‘declaration of law’ as
per their powers described by the Constitution.
198
S.P Mittal v. Union of India, AIR 1983 SC 159; Bramchari Sidheshwar Shai v. State of West Bengal,
AIR 1995 SC 2089; Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte AIR 1996 SC
1113; see also R. SEN, Articles of Faith: Religion, Secularism, and the Indian Supreme Court, New
Delhi, Oxford University Press, 2010, 14.
199
Sastri Yagnapurushdasji v Muldas Brudardas Vaishya, AIR 1966 SC 1119, para 16.
106
part of Hindu religion or not. The first thing the Chief Justice does in this case, is acknowledge
that the question is “somewhat inappropriate within the limits of judicial enquiry in a court
of law,” because “appellants seek for reliefs in the present litigation on the ground that their
civil rights to manage their temples according to the religious tenets are contravened.”200
He describes the issue as “secular in character” and “very complex to determine” because
“its decision would depend on social, sociological, historical, religious and philosophical
consideration.”201

Despite this observation the Court nonetheless took it upon itself to write an essay spanning
over twenty pages, narrating some version of the history of India. Without any apparent
hesitation claim after claim about the intellectual and religious history of India is made,
consisting of citations from, and the paraphrasing of, a variety of authors, often colonial
scholars who had written their works many decades before the period of the Satsangi
case.202

The Court moves on to the central question: “Who are Hindus and what are the broad
features of Hindu religion?”203 These are the first two questions that it deems necessary to
ask, in order to arrive at an answer to the main question. The first stop of the Chief Justice
is the work of Monier Monier-Williams, which suggests that ‘Hindu’ originally referred to
people that settled near the river Sindhu, so it is nothing more than a word that signals the
geographic location of a people thousands of years ago. To affirm this viewpoint, reference
is also made to another go-to source, Dr. Sarvepalli Radhakrishnan, an Indian philosopher
and former president of India. This series of quotations about the history of Indian religion
resulted in the following, by now infamous, passage:

When we think of the Hindu religion, we find it difficult, if not impossible, to

define Hindu religion or even adequately describe it. Unlike other religions in
the world, the Hindu religion does not claim any one prophet; it does not
worship any one God; it does not subscribe to any one dogma; it does not
believe in any one philosophic concept; it does not follow any one set of

200
Ibid, para 26.
201
Ibid.
202
Sastri Yagnapurushdasji v Muldas Brudardas Vaishya, AIR 1966 SC 1119.
203
Ibid, para 27.
107
 religious rites or performances; in fact, it does not appear to satisfy the narrow
traditional features of any religion or creed. It may broadly be described as a
way of life and nothing more.204

This is why, according to the Chief Justice, foreigners were disturbed when Radhakrishnan
asked them the following question: “Is it (Hinduism) a museum of beliefs, a medley of rites,
or a mere map, a geographical expression?”205 The judge goes on to quote seemingly
random and especially vague sentences from Monier-Williams about how “the Hindu
religion is a reflection of the composite character of the Hindus, who are not one people but
many” and “it has first borne with and then, so to speak, swallowed, digested, and
assimilated something from all creeds.” Drawing upon these sentences, the judge reiterates
how “the usual tests which can be applied in relation to any recognized religion or religious
creed in the world turn out to be inadequate in dealing with the problem of Hindu
religion.”206

What are these ‘usual tests’? The Court seems to have found that recognized religions
“subscribe to a body of set philosophical concepts and theological beliefs.”207 In contrast
with other countries, ‘Hindu religion’ is unique in that “philosophy in ancient India was not
an auxiliary to any other science or art but always held a prominent position of
independence.”208 This supposedly distinct characteristic of philosophy in ancient India is
what would distinguish Hindu religion from others. However, is not this also a ‘subscription’
to a set of philosophical beliefs? Based on Radhakrishnan, the court affirms a series of
judgmental opinions on Indian thought starting with this claim about the quest of the Indian
mind: “The Indian mind has, consistently through the ages, been exercised over the problem
of the nature of godhead the problem that faces the spirit at the end of life, and, the
interrelation between the individual and the universal soul.”209 The Chief Justice then adds
his interpretation of the core of Hindu philosophy, which expresses itself in different forms:

204
Ibid, para 29.
205
Ibid, para 30.
206
Ibid, para 32.
207
Ibid.
208
Ibid.
209
Ibid.
108
 The monistic idealism which can be said to be the general distinguishing feature
of Hindu Philosophy has been expressed in four different forms : (1) Non-
dualism or Advitism; (2) Pure monism: (3) Modified monism; and (4) Implicit
monism. It is remarkable that these different forms of monistic idealism purport
to derive support from the same Vedic and Upanishadic texts.210

He also states that all these concepts and principles are bound together by “reverence for
the past” and acceptance of “the Vedas as the sole foundation of the Hindu philosophy.”
Drawing on Max Müller, the insight is articulated that “the first amongst these basic
concepts is the acceptance of the Veda as the highest authority in religious and philosophic
matters” and this “necessarily implies that all the systems claim to have drawn their
principles from a common reservoir of thought enshrined in the Veda.” This leads the judge
to another basic concept “common to the six systems of Hindu philosophy,” namely that “all
of them accept the view of the great world rhythm” and “believe in rebirth and pre-
existence.” Therefore, “it is clear that unlike other religions and religious creeds, Hindu
religion is not tied to any definite set of philosophic concepts as such.”

Thereafter, the judge synthesizes his view. He believes that

the development of Hindu religion and philosophy shows that from time to time
saints and religious reformers attempted to remove from the Hindu thought and
practices elements of corruption and superstition and that led to the formation
of different sects.

Underneath the divergence in the views of these saints and religious reformers, however,
“there is a kind of subtle indescribable unity which keeps them within the sweep of the broad
and progressive Hindu religion.”211

Finally, the Court decides on what the Swaminarayan sect is, once again by drawing upon
the nineteenth-century British Indologist Monier-Williams:

Acceptance of the Vedas with reverence, recognition of the fact that the path
of Bhakti or devotion leads to Moksha, and insistence on devotion to Lord
Krishna unambiguously and unequivocally proclaim that Swaminarayan was a
Hindu saint who was determined to remove the corrupt practices which had

210
Ibid, para 33.
211
Ibid, para 33-37.
109
 crept into the lives of the preachers and followers of Vallabhacharya, and who
wanted to restore the Hindu religion to its original glory and purity.212

The judge is ‘not impressed by (the) argument’ developed by the applicants to establish the
claim that the Swami Narayan sect was different and separate from Hinduism. He now
provides a historical lesson that should teach the Satsangi sect the truth about itself.
Bizarrely, Gajendragadkar even explains why Swami Narayan is worshipped as God and why
it is rather normal that such events occur. He draws upon his own interpretation of the
Bhagavad Gita, an alleged sacred scripture of Hinduism, to help in developing this theological
position:

The fact that Swaminarayan himself is worshipped in these temples is not

inconsistent with the belief which the teachings of Bhagvad Gita have
traditionally created in all Hindu minds. According to the Bhagvad Gita,
whenever religion is on the decline and irreligion is in the ascendance, God is
born to restore the balance of religion and guide the destiny of the human race
towards salvation.213

The Satsangis had argued that their practice of giving ‘initiation’ to people from different
religions showed the independence of their religion from Hinduism. However, the Court now
intends to show that this merely confirms that the Swami Narayan movement really belongs
to Hinduism. Again, the Gita helps the Court in developing its theological position.

In a sense, this attitude of the Satsang sect is consistent with the basic Hindu
religious and philosophic theory that many roads lead to God. Didn't the
Bhagavad Gita say: “even those who profess other religions and worship their
gods in the manner prescribed by their religion, ultimately worship me and
reach me.” Therefore, we have no hesitation in holding that the High Court was
right in coming to the conclusion that the Swaminarayan sect to which the
appellants belong is not a religion distinct and separate from Hindu religion….214

Finally, the Court shows its understanding for the applicants and expresses its sympathy.
Their apprehension about allowing non-Satsangi ‘Harijans’ into the temples, it notes, can

212
Ibid, para 50.
213
Ibid, para 52.
214
Ibid, para 53.
110
only be attributed to their ignorance and superstition. Armed with the succinct summary of
Monier-Wiliams, the Chief Justice tells the appellants—who, in contrast to the judge, belong
to the Swami Narayan sect—that they, unlike the court, have not understood the true
significance of the teachings of Swami Narayan. This is the Supreme Court’s eloquent
theological conclusion:

It may be conceded that the genesis of the suit is the genuine apprehension
entertained by the appellants; but as often happens in these matters, the said
apprehension is founded on superstition, ignorance and complete
misunderstanding of the true teachings of Hindu religion and of the real
significance of the tenets and philosophy taught by Swaminarayan himself.215

If the above summary of the long exhortation on Hinduism in Chief Justice Gajendragadkar’s
decision appears chaotic, this is because the text of the decision is indeed a chaotic collection
of citations and statements.

Analysis
1. The first dimension to consider in this Supreme Court decision is a difficulty that keeps
recurring in the body of case law about the entire issue of temple entry. Central to these
cases is the claim that the members of Scheduled Castes or Dalits suffer from social
disabilities and that not being allowed into certain temples is one such social disability.
Therefore, temple entry legislation is necessary and the constitutional clauses concerning
freedom of religion should not prevent the state from passing such legislation.

However, in the Satsangi case, this type of reasoning seems to be at odds with the Court’s
own finding that “if non-Satsangi Hindus including Harijans enter the temple quietly without
making any public announcement in advance, it would be difficult, if not impossible, to bar
their entry.”216 As said before, the Satsangis did not intend to prevent ‘Harijans’ or
‘Untouchables’ in general from entering the temples, but only those who were not members
of the Swami Narayan tradition. It is unclear which disability the ‘Harijans’ or ‘Dalits’ were
suffering from in this case, then, and the Court does not clarify this at all. At the very least it
is peculiar that a supposed ‘social disability’ of not being allowed to enter the temple did not

215
Ibid, para 55.
216
Ibid, para 54.
111
really exist in practice, until certain individuals publicly proclaimed they were non-Satsangi
Dalits and were going to assert their rights and enter the temple.

For the applicants, it must have been difficult to view this kind of ‘public proclamation’ as
having any other motive than provocation. If entry to the temple was so important to the
members of the Maha Gujarat Dalit Sangh, they could have quietly entered and it would
have impossible to stop them, as the Court acknowledged. This implies a clear lack of any
policy at the temple that actively prevented anyone from entering its premises. Thus, the
question remains, is it not a predictable reaction that when someone publicly proclaims they
are going to ‘assert their rights and enter the temple’, without having any connection to
Swami Narayan and the traditions of the Satsangi group, that people are apprehensive about
letting them in?

2. Whether the Satsangis and Satsangi Harijans are ‘Hindus’ is clearly the key question in this
case. Because of the consequences of being considered as ‘Hindu’ under Indian law, both
then and now, the answer to this question is indeed very important. Due to the amount of
legislation on Hindu matters, being declared ‘Hindu’ under Indian law means as much as
being subject to extensive government oversight and control. Significantly, similar cases on
the question of whether some community is ‘Christian’ or ‘Muslim’ do not exist in the Indian
legal canon.

Neither do we find long sermons about the true nature of Christianity and Islam. In contrast,
we find in this case one of the first examples of the Supreme Court of India going very deep
into what is considered ‘Hindu theology’ to settle a case. The Court here exhibits for the first
time what it would later aptly describe as the ‘ecclesiastical jurisprudence’ regarding
Hinduism that came to define the Courts’ dealing with all matters Hindu. To understand
what this case is about, one needs to keep in mind the specific story regarding ‘Hinduism’
and the unique ameliorative mission attributed to the Constitution of India.

When we look at some of the literature on this case, it also focuses on this question of what
Hinduism is. Ronojoy Sen deems it ‘noteworthy’ that the Court could equally have decided
the case without any “detailed exogenesis of Hinduism” at all, either by relying on previous
case law or the language of article 25(2)(b) of the Constitution of India. Yet apart from this
‘noteworthy fact’, Sen’s main description of this case is how it is an example of the “inclusive

112
Hinduism” propounded by Courts in India and how it would set the stage for many of the
future jurisprudence on Hinduism.217

The idea that ‘exclusive ecclesiastical jurisprudence’ by a state actor would be the antithesis
of a ‘secular state’ does not get much attention or analysis in the literature. Scholars
occasionally note the peculiar stance of the Supreme Court towards Hinduism, but they
rarely show the implications for the secular character of the Indian republic. For instance,
Sen mentions the Supreme Court’s Bommai judgment of 1994. Seven of the nine presiding
judges in this case gave their views on what they think ‘the Secular’ means and why they
believe secularism to be part of the ‘basic structure’ of the Constitution of India. However,
each of them came up with a different definition of ‘the Secular’ and one judge argued that
“the term ‘Secular’ has advisedly not been defined presumably because it is a very elastic
term not capable of precise definition and perhaps left best undefined.”218 To use the words
of Ronojoy Sen: “What emerges from the separate judgments is an unclear, and often
confusing, idea of secularism.”219 One can see why this Supreme Court judgment does not
get the attention one would expect.

However, the Bommai judgment does show why the Indian judiciary does not see the
legislation and judgments about Hindu temples as a violation of the principles of the secular
state. There cannot be any sort of idea, let alone consensus, on an antithesis to a ‘secular
state’, when there is this level of confusion and lack of clarity in the highest legal authority
of the land as to what it might mean for the Indian state to be a ‘secular’ state.

3. The modus operandi of Chief Justice Gajendragadkar raises a few more questions. Why
did the court need to rely on colonial British authors with respect to a matter that is so
deeply connected to its own millennia-old culture? What was the reason these foreign
authors were treated as the authoritative figures by this eminent Hindu judge? Was there
no other way for the Court to find an answer to the most basic and fundamental question
about Hinduism, namely what do Hindus believe and practice? When we think of Christianity
and ask if there is a belief that all Christians share, would it ever occur to anyone, let alone

217
R. SEN, Articles of Faith: Religion, Secularism, and the Indian Supreme Court, New Delhi, Oxford
University Press, 2010.
218
S.R. Bommai vs Union of India, AIR 1994 SC 1918, para 29.
219
R. SEN, Articles of Faith: Religion, Secularism, and the Indian Supreme Court, New Delhi, Oxford
University Press, 2010.
113
the highest court of law in the land, to find some obscure and antiquated Indian
anthropologist and treat them as the most credible authority on the matter?

The Chief Justice does explain why he chose the British Indologist Monier-Williams as the
authority on Hinduism: “It is hardly necessary to emphasize that Monier-Williams played a
very important role in explaining the religious thought and life in India to the English
speaking world outside India.”220 Again, that Gajendragadkar picks up a book on Indian
religion, written nearly seventy-five years earlier by a British philologist (not even a trained
ethnographer or anthropologist) as ‘the authoritative source’ is an astonishing fact on its
own. He also thinks that this work gives valuable information without telling us whether the
contemporary scholarship about Hinduism shared his opinion, which it did not, since
Monier-Williams’ work had become completely outdated by then. Even more striking, this
is supposed to be a judgment by an Indian court, created by the will of the Indian people to
adjudicate matters of dispute within the Indian nation. Why does it matter in such cases
what the “English speaking world outside India” thinks or how its scholars have explained
the religious thought and life of India? What is the connection between the English-speaking
world outside India and this particular case? The Court does not provide any answer to these
questions.

4. If we look at the arguments offered by the followers of the temple, what is striking is the
question of consistency: the basic premise, from which their arguments follow, has to do
with the claim that Swami Narayan, a human founder of the sect, claims to be the supreme
God. Clearly, since this man was born, aged and died later, to be ‘the supreme God’ is not
within his reach, if the word ‘God’ has any dictionary meaning whatsoever (among other
things, ‘God’ implies omnipotence and, thus, immortality). However, since the members of
the sect and the judges of the Supreme Court use this term in some systematic way, it must
also have a specific meaning to them. Here, we can only note that it is impossible that the
term ‘the Supreme God’ in the way in which they use it, could mean what the word means
in English or any other European language.

This also goes for other terms. For instance, in the Satsangi judgment, the Chief Justice
declares that Swami Narayan was “a saint” and also “God,” who at the same time
‘worshipped’ God in temples and “wanted to remove corrupt practices.” This is like saying:

220
Sastri Yagnapurushdasji v Muldas Brudardas Vaishya, AIR 1966 SC 1119, para 44.
114
“The Rabbi Moshe is a saint (canonized by the laity), none other than the Supreme God
Himself, who also worshipped God in the synagogues and wanted to remove corrupt
practices of the Jews.” If the previous sentence could make sense either to a Jew or to a
Christian, then the Indian Supreme Court makes sense as well when it is discussing ‘God’ and
‘saints’ and ‘worship’. Now, since the sentences about Rabbi Moshes cannot make sense in
English, we would have to conclude the same thing about the sentences of Chief Justice
Gajendragadkar.

The highest court in the land does not appear to have a higher level of logical consistency
than the members of the sect. On the one hand, it claims that there is a “basic Hindu religious
and philosophic theory” (‘theory’ in the singular), which it identifies as the claim that “many
roads lead to God.” On the other hand, the Supreme Court claims that Hinduism does not
“subscribe to…philosophical concepts and religious beliefs.” No philosophical concepts are
required for Hinduism but yet philosophy “always held a prominent position” in Indian
culture. The position of philosophy in a culture apparently makes Hindu religion “unique.”
What would be the reason? “The Hindu mind has, consistently through the ages, been
exercised over the problem of the nature of godhead…”221 Insofar as a solution has been
discovered by the said Indian mind, it should have some “definite” theological belief about
the nature of the godhead (if ‘theos’ is to mean anything at all here), but that is obviously
not the case. Even though “the interrelation between the individual and the universal soul”
allegedly occupied the Indian mind constantly, the resulting beliefs about that relationship
apparently do not entail subscribing to “religious beliefs.”

The many statements by Chief Justice Gajendragadkar show as many logical inconsistencies.
As a result, his discourse about Hinduism cannot make sense to any mind looking for
coherent reasoning. Strikingly, this corresponds exactly to the prediction made in the second
chapter about the Indian judiciary’s decisions concerning Hinduism: given the current
scholarly consensus about the nature of Hinduism, I said there, the judges will make a range
of inconsistent statements about ‘Hinduism’, each of which appears as valid as the other. In
other words, such inconsistency is acknowledged by the experts on Hinduism as a fact about
the world: “Every statement about Hinduism and its opposite is true”; or “anything goes,”
as Axel Michaels put it.222 Such an intellectual attitude, which characterizes these experts,

221
Ibid.
222
A. MICHAELS, Hinduism: Past and Present, 3-4.
115
leads to a legal and jurisprudential catastrophe, when it is ‘consistently pursued’ the way
the Indian Supreme Court does: obvious infringements of the freedom of religion become
identical to the defense of the right to religious freedom. What is shocking is to discover the
lack of interest on these issues of inconsistency in the limited body of Indian jurisprudence
about the right to religious freedom.

5. At this point, it is important to emphasize that the modes of argument of Chief Justice
Gajendragadkar are by no means an exception or a one-off issue. Consider another
important case, which came before the Supreme Court in 1996.223 When describing the
‘facts of the case’, the Indian Court presents us with the following statements:

“Religion is inspired by ceaseless quest for truth which has many facets to release and free
the soul from ceaseless cycle of birth and death to attain salvation.” “Hindus believe that
worship consists of four forms of which idol worship is one such form.” “Mode of worship
varies among persons of different faiths. It is an assimilation of the individual soul with the
infinite.” “Vaishnavas believe that God had manifested Himself in different incarnations.”
“Vaishnava believes in Deity Vishnu who has manifested Himself in 10 avataras.” “The
institution of temple should be in conformity with the Agamas co-existing with the institution
of temple worship.”224

There is no text that is referred to in support of these claims, nor any third party source,
testimony or any other form of substantial argument provided for these claims. From all that
we are told, this could very well simply be the opinion of the judge writing these sentences.

It is only much later in the judgment (after going through some of the arguments made by
the parties in the case) that we find out why the court considers these as facts of the case.
The Court tells us that the Indian thinker and spiritual leader Swami Vivekananda has
‘revealed’ these ‘truths’ about Hindu religious faith and practice and along with reading
another such author, Sri Aurobindo, we can understand how these are ‘facts’ in this case.
The Court provides us with some quotes (and this is only much later in the judgment) from
both authors, which state their opinion on religion, but it does not explain to us how this
helps us to know that these are indeed facts of this case.

223
Shri A.S. Narayana Deekshitulu vs State of Andhra Pradesh, 1996 AIR SC 1765 (no numbered
paragraphs).
224
Ibid.
116
What does this tell us about how these judges deal with facts? And what is the relationship
of these claims by some ‘Hindu mystics and philosophers’ with the case at hand? How do we
even read a judgment where the Court does not seem to distinguish between opinion and
fact and which is full of quotes that require an unrealistic amount of research to verify? In
fact, the entire judgment reads like one long opinion piece on what religion is, and which
activity is ‘religious activity’ and should therefore be ‘protected’.

Inspired by the judgment of the Court, one of the members of the bench, Justice Hansaria,
went even further. In a concurring note, he waxes eloquently on the difference between
‘religion’ and ‘dharma’. His two-page reflection ends on a clarion call:

…[I]f one were to ask “What are the signs and symptoms of dharma?,” the
answer is: that which has no room for narrow-mindedness, sectarianisms, blind
faith, and dogma…This is the core of our dharma, our psyche. Nothing further is
required to bring home the distinction between religion and dharma; and so I
say that the word “religion” in Articles 25 and 26 has to be understood not in a
narrow sectarian sense but encompassing our ethos…Let us strive to achieve
this; let us spread the message of our dharma by availing and taking advantage
of the freedom guaranteed by Articles 25 and 26 of our constitution.

These ways of holding forth are not exceptions but rather characteristic of the Indian
judiciary, when it has to decide on issues of religion. The difference between ‘religion’ and
‘dharma’ is a question that has been discussed by scholars in the study of Indian culture for
decades now. There is no scientific consensus at all on this issue and the judge sees no need
to even mention or examine these academic debates. Therefore, when the judge begins to
preach about ‘dharma’, one should literally read this as a sermon about his personal
‘theological’, ‘moral’, or ‘philosophical’ opinions on the nature of ‘religion’ and ‘dharma’. If
such passages were to be found in legal decisions written by judges of the U.S. Supreme
Court or the European Court of Human Rights, this would call for medical examination of the
mental sanity of the judge in question. In contrast, why is it that such sermons are common
practice in the apex court of India and that this is virtually ignored by practitioners of law
and legal scholarship both in India and internationally?

117
3. The Doctrine of Essential Practices

At this point, my thesis runs the risk of becoming all too repetitive. It is very difficult to
provide jurisprudential analysis of Supreme Court decisions that consist of page after page
of discoursing about the nature of Hinduism and religion. Therefore, l will end this chapter
with some brief remarks about other problems that are apparent in the legal decisions.

As we discovered in chapter two, one of the common criticisms of the Supreme Court’s
‘doctrine’ about freedom of religion has to with its claim that the protection of the
constitutional right to the free profession and practice of religion only extends to the
essential doctrines and practices of a religion. This has been baptized as ‘the doctrine of
essential practices’ and the Supreme Court judges are accused of invoking this doctrine to
impose a ‘rational Hinduism’ onto the Hindus.225 While this type of analysis makes sense at
a first glance, it does not really adequately characterize the state of affairs.

In the famous Shirur Mutt judgment, Supreme Court Justice Mukherjea intended to give a
‘wider’ definition of the term ‘religion’, as it is used in Articles 25 and 26 of the Constitution
of India. He argued: “Religious practices or performances of acts in pursuance of religious
beliefs are as much a part of religion as faith or belief in particular doctrines.” However, he
also suggested that “the language of Articles 25 and 26 is sufficiently clear to enable us to
determine without the aid of foreign authorities as to what matters come within the purview
of religion and what do not.”226 Namely, the language of these Articles shows that “the
essential part of a religion” is protected from interference by any outside authority. In this
judgment, Mukherjea appeared to be keen on providing constitutional protection of such
essential parts of a religion from any intrusion by the secular state. About religious practices,
he said the following: “No outside authority has any right to say that these are not essential
parts of religion and it is not open to the secular authority of the State to restrict or prohibit
them in any manner they like…” In other words, “what constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of that religion

225
See especially SEN, Articles of Faith, 40-72.
226
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri
Shirur Mutt, AIR 1954 SC 282. It is curious to note that the Court mentioned this after going through
opinions from two different foreign authorities, namely Court judgements from the US and
Australia.
118
itself.”227 However, as others have noted, these pronouncements are part of a decision that
in fact sanctions “an elaborate regulatory regime for religious institutions.”228

Therefore, the Supreme Court’s Shirur Mutt judgment was not as benign towards the
freedom of religion as it may seem. The decision that judges should ascertain what
constitutes ‘the essential part of a religion’ by referring to the doctrines of that religion
inevitably became the foundation for random and extensive government interference in
Hindu practices and institutions. Since Hinduism did not have any doctrines that clearly
stipulated what is essential in the practice of this religion, it was up to ‘outside authorities’
to determine which doctrines and practices were truly essential. And the authorities in this
case were the Courts of India led by its Supreme Court. From then onwards, this Court would
go on repeating the claims that Articles 25 and 26 protect the essential doctrines and
practices of a religion from state infringement and that the essential part should be
identified by means of the doctrines of the religion in question. After this declaration,
however, the judges themselves decided which doctrines and practices were essential, and
generally concluded that state legislation that intervened in Hindu practices was
constitutionally valid, because the practices in question were not essential but only
constituted ‘secular activity associated with religious practice’.

Another example of this is the case of Seshammal v State of Tamil Nadu, which focused on
the Saivite and Vaishnavite temples of the state of Tamil Nadu.229 At issue was the validity
of an Amendment Act of 1970 which changed the Tamil Nadu Hindu Religious and Charitable
Endowments Act of 1959, and contained the following changed provision: “(2) No person
shall be entitled to appointment to any vacancy merely on the ground that he is next in the
line of succession to the last holder of office.”230 The Amendment Act was described as a
“step towards social reform” and based on a recommendation from the Committee on
Untouchability, Economic and Educational Development of the Scheduled Castes which
found that “hereditary priesthood in the Hindu Society should be abolished and replaced.”
Where previously the trustee was directed by the legislation to respect the tradition of

227
Ibid.
228
SEN, Articles of Faith, 48-49; Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
229
Seshammal v State of Tamil Nadu, AIR 1972 SC 1586 (no numbered paragraphs).

230
Ibid.
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hereditary succession, this was ‘abolished’ in the legislation by this Amendment. As many as
twelve writ petitions were filed against this Amendment in Tamil Nadu.

One of the problems raised by the petitioners is familiar by now: “It is the complaint of the
petitioners that by purporting to introduce social reform in the matter of appointment of
Archakas and Pujaris, the State has really interfered with the religious practices of Saivite
and Vaishnavite temples.”231 The Court starts with an equally familiar refrain that
summarizes the “position in law” regarding the protection offered by the Constitutional
articles 25 and 26 in two principles:

The first is that the protection of these articles is not limited to matters of doctrine or belief they
extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals
and observances, ceremonies and modes of worship which are integral parts of religion. The
second is that what constitutes an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion and include practices
which are regarded by the community as a part of its religion.

After going through the positions of both parties, the Court mentions the following question:
“It is true that a priest or an Archaka when appointed has to perform some religious
functions but the question is whether the appointment of a priest is by itself a secular
function or a religious practice.” In this case however, these Archakas or ‘priests’ are already
appointed by the trustees, which is a government appointed role. Therefore, the Court
concludes that “the act of his appointment by the trustee is essentially secular. He owes his
appointment to a secular authority. Any lay founder of a temple may appoint the Archaka.
The Shebaits and Managers of temples exercise essentially a secular function in choosing
and appointing the Archaka.” And that “after his appointment the Archaka performs worship
is no ground for holding that the appointment is either a religious practice or a matter of
religion.” In turn, this leads to the conclusion that “the legislation in this respect, as we have
shown, does not interfere with any religious practice or matter of religion and, therefore, is
not invalid.”232

The first principle suggests that religious doctrine and practices are two separate legal
issues. If we look at the original discussion in the Shirur Mutt case, we find that this principle

231
Ibid.
232
Ibid.
120
was used with reference to American and Australian jurisprudence, which compared the
legal protection of religion in these countries. The Supreme Court of India argued then that
the legal protection in India needed to be different because it should extend ‘also to acts’
instead of merely applicable to ‘beliefs’ and ‘doctrines’. However, this then came to be
understood as a principle that was formulated to protect only the ‘integral parts of religion’.

When the focus becomes on protecting only the ‘essential parts’ of religion, the next
question has to be how to find out which parts are ‘essential’. To do that, the second
principle tells us that this is no different from these Australian and American discussions
after all and the Court needs references to doctrine. Only in this case, the Court must
‘decide’, instead of appealing to religious authorities like their Western counterparts. The
explanation for this is easy: there seems to be a vacuum as far as recognized religious
authority for Hinduism. These two ‘principles’ according to the Court are used as explanation
and legal justification for why the Court has to ‘understand Hinduism’.

Again, this instantiates the same pattern we find across the Indian judiciary when ruling on
cases involving Hinduism. First, a long story is expounded about the history of Indian religion;
a conclusion is drawn based on reasoning that has no relation to this story. Further, the use
of previous case law on Hinduism bears no relation to the decision in the case. Hereditary
succession as a condition of appointment by the trustee simply limits the options for the
trustee, it is not a ‘religious action’ in the way that it is a sacrament described in the Bible as
it is in Christianity. However, the Court here does not argue that way at all. It does not refer
to any doctrine about the ‘appointment of priests’ in Hinduism. It simply states that because
an Archaka is ‘controlled’ by section 56 of the Tamil Nadu Act, the appointment is ‘essentially
secular’ because he owes his appointment to a ‘secular authority’. The Court concludes that
it is secular because the government is secular. In that case, the same question keeps
returning: Can an authority that distributes ‘ecclesiastical jurisprudence’ really be a secular
authority?233

My conclusion is that the Supreme Court has not at all invoked the doctrine of essential
practices to impose ‘a rational Hinduism’ on the practitioners of this religion. Instead, this
doctrine serves as a pretext to decide ad hoc which parts of a religion do not deserve

233
All the same issues return in the recent Supreme Court judgment in Adi Saiva Sivachariyargal v.
State of Tamil Nadu, AIR 2016 SC 209.
121
constitutional protection and can therefore be regulated by the state. The fact that the
question of ‘essentiality’ of doctrines and practices is alien to the Hindu traditions has
created the space for judges to step in. However, they possess neither the conceptual tools
nor the intellectual means to resolve this ‘legal question’. Their decisions look random but
there is ‘logic’ in this apparent ‘madness’: namely, the realm of ‘essential doctrines and
practices’ of Hinduism should remain as restricted as possible, so as to allow for maximal
state regulation of Hindu institutions and practices.

In the end, this leads to the absurdity with which this chapter started: the Supreme Court
argues that it cannot but take up the ecclesiastical jurisdiction for Hinduism and that it faces
‘the delicate task’ of determining which practices are ‘necessary for the survival’ of a
religion. Today, no specialist or expert would be able to say on reasonable grounds which
practices are necessary for the survival of ‘Hinduism’. Since scholars have concluded that it
is a family of culturally related traditions, and a vast network of beliefs and practices, there
are no standards to find out which of these is more essential to ‘Hinduism’ than the other.
However, guided by the personal theological opinions and preferences of its judges, the
Supreme Court of India continues to adjudicate these issues and thus legitimize a massive
bureaucratic take-over of Hindu temples and other traditional institutions.

122
 Conclusion

In the past seven decades, the Constitution and Supreme Court of India have not provided
adequate protection against state infringement of the free exercise of religion. On the
contrary, the constitutional provisions concerning the right to religious freedom served as a
justification for policies and laws that substantially interfere in ‘religious’ institutions and
practices. The language and structure of the relevant clauses generated the space for this:
clause 25(2), which states the exceptions on the exercise of this right, is more extensive than
the main clause that guarantees the right. It contains elements that were bound to cause
problems: a distinction between ‘religious practice’ and ‘secular activity associated with
religious practice’, and a license for the state to intrude upon Hindu institutions for the sake
of ‘social welfare and reform’. As a consequence, the clause has allowed for legislation that
does not live up to the conditions and tests usually imposed on legal restrictions on the right
to religious freedom. In the case of the legislation about Hindu temples and ‘religious
endowments’, the restrictions are not determined by a narrowly tailored law; the legitimacy
of their aim is tenuous; they are neither appropriate nor necessary to achieve a specific
ground; they are discriminatory and destructive of guaranteed rights.

In the course of this thesis, we saw how the religion clauses in the Constitution of India
emerged from the colonial intelligentsia’s concerns about ‘social legislation’—laws that
should allow for the banning of harmful practices and anti-social customs ‘sanctioned by
religion’. This inspired the creation of what has been called a ‘charter for the reform of
Hinduism’: a constitutional framework for state intervention in the institutions and practices
of Hindus. The process of drafting this ‘charter’ had a disturbing dimension. The language
use in the Constituent Assembly indicates that its members often lacked understanding of
the concepts and objects under discussion. They spoke of ‘religion’, ‘the secular’, ‘the
constitution’, ‘rights’, and ‘worship’ in incoherent and unreasonable ways, but these debates
were nevertheless decisive to the drafting of the clauses. The end result? A constitution-
making body elected by a small minority declared it to be ‘the will of the people’ that the
state should become an agency for the reform of Hinduism, the religion of the majority.

Today’s scholarship in religious studies complicates this state of affairs, since it argues that
‘Hinduism’ is not identifiable as a distinct religion, but only serves as an acceptable
123
abbreviation for a family of culturally related traditions, encompassing a ‘potpourri’ of
beliefs and practices. In chapter two, I anticipated that the Indian judiciary would face
substantial difficulties in coming to coherent decisions about ‘Hinduism’ and religious
freedom. The Constitution expects the judges to determine which practices of the Hindus
are truly religious, as opposed to secular, and where the state can legitimately interfere in
Hindu institutions and practices. However, if ‘Hinduism’ is the type of concept that
contemporary scholarship claims it is, these tasks become unfeasible. It would be up to the
judge’s opinion to stipulate what is truly Hindu or what is religious in ‘Hinduism’ and what
not.

Indeed, the secondary literature confirmed that Supreme Court judges have taken it upon
themselves to separate the religious and essential aspects of Hinduism from its secular and
non-essential aspects. Thus, scholars argue, they arrogate the role of a religious authority
with extensive powers and impose their own preferred version of this ‘religion’ onto the
people. However, I predicted a more fundamental problem. Since ‘Hinduism’ refers to an
extended family of traditions, which can accommodate more or less any belief and practice
(and its opposite), judges are bound to make a range of inconsistent statements about this
‘religion’, each of which may appear as valid as the other. As a result, they will distinguish
between the religious and the secular, or the essential and the non-essential, in
indiscriminate and incoherent ways. If this were true, I pointed out, the judiciary would not
be able to put any reasonable limits on state intrusion into Hindu institutions and practices.

My investigation into the post-Independence legislation and court decisions concerning

Hindu temples not only proved this prediction to be true, but also showed that the state and
the judiciary had gone further than anticipated. The state invokes allegations and rumours
about mismanagement as a rationale for legislation that establishes permanent government
control over Hindu temples and other institutions, including supervision of the performance
of rituals. The shaky foundation of such legislation does not prevent judges from speaking
as though they are the authorities for and about ‘Hinduism’. They frequently arrogate this
role in cases related to temple management and temple entry. Apparently, they should
decide what this religion truly stands for, what its essence is all about, and where its religious
practice ends and its secular activity begins. While doing so, the judges use the vocabulary
concerning ‘religion’, ‘property’, ‘freedom of religion’ in incoherent (and sometimes
nonsensical) ways, much like the members of the Constituent Assembly. Moreover, they go

124
into sermons about religion, Hinduism, dharma, and morality, which have no place in the
decisions of a secular judiciary.

Taken together, all of this creates the impression of a concerted effort to cancel out the right
to freedom of religion and take control of traditional institutions and practices, under the
guise of social justice and reform. However, simply accusing Indian legislators and judges of
bad faith is neither convincing nor fruitful as an explanation to account for their ways of
handling Hindu institutions. We are confronting a very different phenomenon here. The
problems in the reasoning about religious freedom and Hinduism are far too systematic and
widespread to attribute them to the moral or intellectual frailties of a group of magistrates
and lawmakers. Their causes must lie elsewhere.

It seems to me that the issues in the legal treatment of Hindu temples are part of a much
larger puzzle. Contemporary legislation and court decisions about religion in India suffer
from basic flaws, ranging from the use of legal language and terminology, through the
statements of fact and the structure of texts, to the communicating of the content of legal
norms and the reasoning about rights and legal questions. Many of these observations have
left me baffled as a student of law. I hope I have been able to share this sense of surprise
and shock with the reader in the course of the previous chapters.

Potential Routes
Now, how could we go on to describe and explain this set of puzzles in the Indian legal
system and its legislation and judgments about religion? How can we make sense of the
reasoning of judges and legislators about the right to religious freedom and Hindu
institutions, when their utterances do not appear to make sense at all? These questions are
not yet well-formulated and I cannot even begin to tackle them within the confines of this
thesis. However, I would like to conclude with a brief remark about potential routes for
future research, which could lead to a better understanding of the problem situation.

1. The first route is one that I have already started exploring. While the previous chapters
highlighted problems in the reasoning of the Indian judges concerning a specific theme,
there are deeper issues with respect to the role and understanding of ‘law’ in India. When I
was reading Indian legislation during the work for my thesis, it became clear to me that it is
not so straightforward what it means for a text to contain law. Primarily, a text contains law
when the language in it communicates content of norms, rules, standards, doctrines and

125
mandates.234 Apart from that, it matters how the language in the document made it into law
and whether the required procedures have been followed. But first and foremost, legal
communication (communication of law) involves the communication of the content of ‘legal
norms’.235

When comparing two different documents said to contain law, one needs to compare the
language in the documents and the context in which it acquires meaning. In the study of
Indian law, this type of comparison would be of great help to understand the crucial
differences between India and Western jurisdictions. One such possible comparison, which
I started working on but could no longer fit in the scope of this thesis, is that between the
Belgian legislative document called Decreet van 7 mei 2004 betreffende de materiële
organisatie en de werking van de erkende erediensten (“Decree of 7 May 2004 concerning
the material organization and operation of recognized religion”) and the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959. Both these documents are considered ‘acts
of Parliament’ and are produced by regional state institutions in a federal union; both were
voted on in an institution called the ‘Parliament’ and presented to us as ‘legislation’. And
beyond these seemingly similar properties, the subject matter of the document also seems
to be similar. As far as the content goes, both these documents claim to deal with law about
the relationship between religion and the state.

However, once we examine these two pieces of legislation comparatively the differences
between them are striking. For instance, the title of the Indian Act already presents us with
several problems that its Belgian counterpart does not. From the title of the decree we
already know who (recognized religion) and what (material organization and operation) it is
going to be about; from the Indian act we just know that it is about ‘endowments’ that are
‘religious’ and ‘charitable’. This is important information because we are dealing with a legal
document, which means that the content of this document will consist of the
communication of legal norms. These norms will have legal effects, namely the
consequences of applying the norm in question onto the subject. In other words, describing
the legal content of a document is to provide the content of the norms that shape the

234
L.B. SOLUM, Communicative content and Legal content, Notre Dame Law Review, 2013, 479-520.
235
Ibid.
126
behaviour of the subjects in the case. 236 Therefore, it is of primary importance to know the
subjects of our norm before we can proceed further.

In the case of the decree, we do not need any definition of the word ‘religion’ to know which
religions are officially recognized by the Belgian Government (a simple search will give you
a very specific answer). The title shows this piece of legislation is about officially state-
recognized religion and its institutions and their material organization. There is and can be
no confusion in the law possible here. Either a religion is legally recognized by the state or it
is not. In contrast, in the case of the Tamil Nadu Act, we do need to find out when an
‘endowment’ is ‘religious’ and ‘Hindu’ to be able to develop any legal certainty as to which
specific entities are referred to by the words ‘Hindu religious and charitable endowments’
(and, hence, who or what this act is about). Indeed, the first article of the Act tells us that “it
applies to all Hindu public religious institutions and endowments.”237 But, in the past seventy
years, there have been numerous cases in Tamil Nadu alone, which involved disputes about
the kind of institutions to which this legislation applies. This is testament to the fact that it
is anything but clear in India which institutions and endowments these laws are about. It
completely depends on the interpretation of the words ‘Hindu’, ‘public’ and ‘religious’.
Given the lack of clarity as to the meaning of these terms, some cases went on for decades
simply about the issue of whether some particular temple or other Hindu institution is
‘public’ or ‘private’.238

When I noted such issues in the text of the Tamil Nadu Act, it struck me that a close
comparative reading of these two pieces of legislation, one Indian and another European,
would help a great deal in understanding the nature of the Indian court decisions. The Indian
legal acts themselves contain the seeds of the problems that keep on growing in the
decisions of the judges: they seem to have their roots in the basic use of legal language and
the resulting communication of legal norms in Indian law.

2. The second potential route for future research has to do with the cultural background of
the Indian judges and legislators. One of the striking aspects of the legal decisions about

236
Ibid.
237
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
238
Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi, AIR 1960 SC 100; Gurpur Guni
Venkataraya v. B.G. Achia, AIR 1977 SC 1192; Radhakanta Deb & Anr vs Commissioner, AIR 1981, SC
798.
127
Hindu temples is what could be called ‘the systematicity of their incoherence’. For instance,
they all seem to find it self-evident that freedom of religion should not prevent the state
from intervening in the organization of a temple and its rituals, since these things belong to
the realm of the secular rather than that of religion. How can we account for the reasoning
of these judges? They seem to share some ‘intuitive’ background understanding of the
distinction between ‘the religious’ and ‘the secular’, which gives shape to their thinking
about the temple cases.

Now, some research has already been done about the systematic character of the
inconsistencies in the contemporary Indian reasoning about ‘religion’ and ‘secularism’. It
turns out that certain clusters of ideas are so widespread and self-evident in Indian culture
that they constitute the implicit framework within which Indian intellectuals make sense of
English-language terms and concepts coming from the West.239 This must also be the case
for Indian legislators and judges. They were raised in a cultural environment which has its
own conceptions of human beings and social life (however fragmentary these may be today).
The language use in the Indian vernaculars reflects such shared ideas as to what human
beings and societies are like, much like language use in European vernaculars does. Now,
what happens when these persons learn a European language and are compelled to use its
legal terms in their everyday functioning as judges and legislators? To answer this question,
we will need to examine the process whereby English-language legal terminology and
concepts were mapped onto terms from the Indian languages. As is the case for the
distinction between ‘the religious’ and ‘the secular’, the clusters of ideas about ‘rights’,
‘religion’, ‘freedom’, etc. may very well have been interpreted in terms of different clusters
of ideas common to the cultural world of India.

3. Several times in the course of this thesis, we discovered that the legislating and reasoning
about Hindu institutions and practices in post-Independence India have their origins in
British colonial rule. Here lies a third promising route for future research. The ‘social
legislation’ of the British and their discourse about ‘Hinduism’ inspired the Constituent
Assembly members to draft the constitutional religion clauses in this particular way. Long

239
See S. CLAERHOUT, “Gandhi, Conversion, and the Equality of Religions: More Experiments with
Truth,” In Numen-international Review for the History of Religions, 2014, 61 (1), 53–82; J. DE
ROOVER, S. CLAERHOUT, S. N. BALAGANGADHARA, “Liberal Political Theory and the Cultural
Migration of Ideas” in Political Theory, 2011, Vol 39, issue 5, 571-599,
https://doi.org/10.1177/0090591711413545.
128
before the Constitution of India of 1950, the British had implemented legal regulations about
religion, Hindu practices and temples, and the freedom of religion. Their government
developed policies and their courts took decisions about these subjects. The legislation and
court decisions of post-Independence India, including its constitutional framework, built
upon the earlier colonial laws and judgments. To this day, landmark decisions of the Privy
Council of British India are referred to as precedents in cases about the management of
Hindu temples.

For more than 150 years, the Indian subjects learnt from their colonial rulers how to
legislate, how to come to judicial decisions, how to speak about ‘rights’ and ‘freedoms’, and
how to cope with ‘Hinduism’ and its practices and institutions. If we find systematic
problems in the ways in which the Indian lawmakers and judiciary deal with religion, which
have kept recurring from 1947 until today, then it is more than likely that the origin of these
problems lies (at least partially) in the colonial era. For instance, it was nineteenth-century
British judges who came to the decision that the temple deity or idol should be regarded as
a juristic entity, which holds the property rights over the endowments of the temple. Though
these judges attributed this view to ‘traditional’ Hindu law, later commentators admitted
that no clear doctrine about this issue is to be found in the Dharmashastra literature. British
legislators and judges appear to have created the legal vacuum as to the ownership of the
temple endowments. It designated the traditional heads of the temples as ‘trustees’ without
clarifying their legal status and considered the temple deity as the equivalent of an ‘infant
heir’, whose possessions should be managed by a guardian. If even such exotic looking legal
‘doctrines’ came from the British, it becomes necessary to examine how many of the
problems discussed in the above chapters find their origin in the colonial legal and political
system.

4. To begin to explore these research routes, however, we first need to acknowledge that
there are substantial problems in the Indian Constitution and in the judiciary’s way of dealing
with the right to freedom of religion. In this thesis, I have provided critical analyses of Indian
legal opinions; however, I have not criticized them because they do not track Western legal
norms. The point is both different and important enough to reiterate: some sentences (in
natural languages) are considered legal sentences (laws, legal opinions, judgements of legal
courts, etc.) because of some set of properties they have. We might not be able to
enumerate these properties or account for them in a satisfactory manner. However, this

129
does not prevent us from recognizing them for what they are and distinguishing a legal
sentence from a theorem in mathematics or a formulation of a physical or chemical law. In
this sense, these could be called cognitive properties of legal sentences, thus distinguishing
them from legal norms. The facts that I have discovered in the course of this thesis can now
be put simply: regarding Articles 25 and 26 of the Indian constitution, what passes for a legal
sentence does not appear to have any analogues with any known legal sentences in the
West. Any jurisprudence on Indian law that ignores or denies this fact (in the name of some
or another version of legal positivism) is intellectually indefensible. It is my hope that this
thesis has succeeded at convincing the reader that this is the case. Only thus can we avoid
the trap of justifying legislation and policies, which we would regard as unjustifiable
violations of fundamental rights in our own countries, simply because they happen to occur
in a different culture and a far-away country.

130
 Bibliography

India:

Court opinions:

- Adi Saiva Sivachariyargal v. Government of Tamil Nadu, AIR 2016 SC 209

- Angurbala Mullick V Debabrata Mullick, AIR 1951 SC 293
- A.S. Narayana Deekshitulu v. State of Andra Pradesh, AIR 1996 SC 1765
- Bairagi Mekap V Sri Jagannath Temple Managing Committee, AIR 1972 ORI 10
- Bramchari Sidheshwar Shai v. State of West Bengal, AIR 1995 SC 2089
- Chintamani Khuntia V State of Orissa, AIR 1994 ORI 46
- Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha
Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
- Dayal Singh and Others v Union of India and Others, AIR 2003 SC 593
- Durgah Committee v. Hussain Ali, AIR 1961 SC 1402
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- Jagdishwarand v. Police Commissioner, Cal., AIR 1984 SC 51
- Kedarnath Guru Mohapatra V State of Orissa, AIR 1974 ORI 75
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
- M.H. Qureshi v. State of Bihar AIR 1958 SC 731
- Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi, AIR 1960 SC 100
- Pramatha Nath Mullick V Pradyumna Kumar Mullick, AIR 1925 PC 139
- Radhakanta Deb & Anr vs Commissioner, AIR 1981, SC 798
- Raja Bira Kishore Deb V State of Orissa, AIR 1964 SC 1501
- Ram Chandra Deb V State of Orissa, AIR 1959 Ori 5
- Ratilal Panachand Gandhi V State of Bombay, AIR 1954 SC 388
- R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1124
- S.P Mittal v. Union of India, AIR 1983 SC 159

131
 - Sastri Yagnapurushdasji v. Muldas Bhundardas, AIR 1966 SC 1119
- Shah Bano, AIR 1985 SC 945
- S.R. Bommai vs Union of India, AIR 1994 SC 1918
- Sri Venkataramana Davaru v. State of Mysore, AIR 1958 SC 255
- State of Orissa V Chintamani Khuntia, AIR 1997 SC 3839

Legislation:

- Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act,
1987
- Constitution of India, 1950
- Puri Shri Jagannath Temple (Administration) Act, 1952
- Shri Jagannath Temple Act, 1955
- Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
- The Government of India Act, 1935

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Experiments with Truth.” In Numen: International Review for the History of
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 Nederlandse samenvatting

Overeenkomstig artikel 3.2.3 van Reglement Masterproef opleiding rechten 2017-2018

Deze thesis begon met de vraag naar wat het recht op ’religieuze vrijheid’ in India betekent
en hoe men in de rechtspraak met dit recht omgaat. Al snel bleek dat een dergelijk
onderzoek geen standaard juridisch werk zou worden zoals ik tijdens mijn opleiding in de
Rechten gewoon was geworden. Onder meer door het gebrek aan kwantiteit alsook de
bedroevende kwaliteit van de juridische geschriften in India, zoals ik die gewoon was over
de juridische vraagstukken in de Belgische rechtsleer. Naast deze praktische problemen
doken ook enkele fundamentele conceptuele problemen op. Langs de ene kant werd erop
gewezen dat men geen stelling kon gaan innemen over de juiste betekenis van ‘seculier‘,
‘religie‘ en soortgelijke begrippen maar langs de andere kant kwam ik juridische uitspraken
en wetgeving tegen in India die alle standaarden van bij ons betreffende scheiding Kerk en
Staat en het recht op religieuze vrijheid met de voeten lijken te treden.

Vooral in rechtspraak betreffende het ‘Hindoeïsme‘ doken opvallend vreemde uitspraken

en absurd lijkende wetgeving op. In verschillende uitspraken van het hoogste gerechtshof
speelden rechters de rol van prekers van ‘Hindoeïsme‘ en leken hun uitspraken eerder op
theologische werkstukken dan juridische opinies. Dit leidde tot de structuur van de thesis
zoals ze nu is, waarbij ik vooral de oorspronkelijke bronnen gebruikt heb. Ik hield rekening
met een lezer die een beperkte kennis heeft van het huidige India, waardoor ik eerst
aandacht heb besteed aan een zeer beknopt historisch overzicht van de totstandkoming van
de Indische Grondwet.

Omwille van de specfieke problemen die opdoken bij een analyse van de rechtspraak over
‘Hindoeïsme‘ heb ik ook een apart hoofdstuk toegevoegd dat een overzicht geeft van de
bestaande consensus binnen de academische wereld van de studies van deze religie en de
gevolgen die deze consensus heeft voor discussies binnen de rechtspraak in India.
Vervolgens heb ik eerst de focus gelegd op een van de grootste tempels in India, namelijke
de ‘Jagannath‘ tempel in Puri. Omwille van de jarenlange discussies en talloze juridische
uitspraken die met deze tempel verband houden heb ik deze tempel genomen om de serie
aan problemen die opduiken in de rechtspraak weer te geven. Daarna heb ik verschillende

139
andere uitspraken over andere tempels besproken, dan specifiek deze die het hadden over
toegang tot tempels en het benoemen van bepaalde functionarissen binnen de tempels om
verder duidelijk te maken welke inconsistenties en problemen de Indische rechtspraak over
het ‘recht op vrijheid van religie‘ betreffende ‘Hindoeïsme‘ karateriseren.

Mijn conclusie is dan ook dat deze thesis maar een aanzet kan geven voor een
wetenschappelijke studie over de rechtspraak over het ‘recht op religieuze vrijheid‘ in India,
in die zin dat er een richting wordt gesuggereerd die dit soort onderzoek in de toekomst
moet gaan nemen om een antwoord te formuleren op de vele vragen die opduiken bij een
dergelijke onderneming. De problemen zijn van zo’n complexe aard dat een masterproef
onmogelijk antwoorden kan gaan formuleren over hoe men uit deze problemen geraakt,
aangezien zelfs over de aard van de problemen geen duidelijkheid bestaat en er een totaal
leemte is aan bruikbare bronnen die deze problemen op een consistente, coherente en
toegankelijke wijze bespreken.

140