Religion and the law: India
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The legal personality of God and idols
God is not a juristic person, but idol is: SC, 2019
Dhananjay Mahapatra, Nov 21, 2019: The Times of India
God or ‘Supreme Being’ may be omnipresent, omniscient and omnipotent but has no juristic personality, but an idol, worshipped by believers as a physical incarnation of God, is a juristic personality, the Supreme Court has said.
“Legal personality is not conferred on the Supreme Being. The Supreme Being has no physical presence for it is understood to be omnipresent — the very ground of being itself. The court does not confer legal personality on divinity,” ruled a bench of then CJI Ranjan Gogoi and Justices S A Bobde (now CJI), D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer in its landmark judgment settling the 70-year-old Ayodhya land dispute.
“Divinity in Hindu philosophy is seamless, universal and infinite. Divinity pervades every aspect of the universe. The attributes of divinity defy description and furnish the fundamental basis for not defining it with reference to boundaries — physical or legal. For this reason that it is omnipresent, it would be impossible to distinguish where one legal entity ends and the next begins,” the bench said.
The SC said in contrast, an idol was identifiable by its physical form and hence could have juristic personality. “The idea of a legal person is premised on the need to ‘identify the subjects’ of the legal system. An omnipresent (God or Supreme Being) being is incapable of being identified or delineated in any manner meaningful to the law and no identifiable legal subject could emerge,” it added.
“In Hinduism, physical manifestation of the Supreme Being exists in the form of idols to allow worshippers to experience a shapeless being. The idol is the representation of the Supreme Being. The idol, by possessing physical form, is identifiable,” it said.
The SC said the Hindu practice of dedicating properties to temples and idols had to be adjudicated upon by courts for the first time in the late 19th century.
“To provide courts with a conceptual framework within which they could analyse and practically adjudicate upon disputes involving competing claims over endowed properties, courts recognised legal personality of the Hindu idol. It was a legal innovation necessitated by historical circumstances, the gap in the existing law and by considering convenience,” the SC said.
Idols have an Indestructible Legal Persona
Dhananjay Mahapatra, Nov 21, 2019: The Times of India
Within the landmark Ayodhya verdict, the Supreme Court ruled that Hindu idols have an indestructible legal persona and that an idol’s destruction does not end its rights over properties dedicated to it by devotees, worshippers and believers.
“The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. Destruction of the idol does not result in termination of the pious purpose and consequently the endowment,” a bench of then CJI Ranjan Gogoi and Justices S A Bobde (now CJI), D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer said in its Ayodhya judgment. “The idol as an embodiment of a pious or benevolent purpose is recognised by the law as a juristic entity. The state will therefore protect property which stands vested in the idol even absent the establishment of a specific or express trust,” it added.
In what could encourage religious bodies, which exercise authority over temple endowment properties, to dig into the past to find whether invasions had led to destruction of idols and consequent confiscation of endowed properties, the SC said, “Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist.”
The court was referring to properties attached to temples without idols, or the funds raised in the name of various puja committees across India, which according to the festivals worship Ganesh, Durga and other idols and then immerse them in water.
“In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled,” the bench said.
“A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases, the pious purpose on which legal personality is conferred continues to subsist,” it said.
“Upon making an endowment, the donor relinquishes all claims to the endowed property. The property now vests in the pious purpose at the heart of endowment, which is recognised as a legal person. The idol forms the material manifestation of the pious purpose and the consequent centre of jural relations,” it added.
Public display of religious practices, rituals
SC, HC orders
Dhananjay Mahapatra, February 10, 2022: The Times of India
New Delhi: Since the 1950s, the Supreme Court and the high courts have attached cardinality to the commencing words “subject to public order” in Article 25 of the Constitution and used them as swivel to restrict or reject any denomination’s claim to an indefeasible fundamental right for public display of religious practices or rituals. Article 25(1) provides: 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. Ananda Margis, a religious order of the Shaivite denomination established in 1955, were refused twice by the Supreme Court, in 1984 and in 2004, to carry out processions which included performance of Tandava dance carrying skulls and tridents in exercise of their fundamental rights under Article 25. The SC had said the Tandava dance was originally not mandatory for Ananda Margis but was made an essential religious practice by the sect’s founder Ananda Murti in 1966. In 1984, the SC had said: “Ananda Marga as a religious order is of recent origin and Tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances Tandava dance can be taken as an essential religious rite of the Ananda Margis. ” In 2004, the SC again refused Ananda Margis to perform Tandava in public. The SC in the Gulam Abbas vs Uttar Pradesh judgment in 1984 had dealt with over a century-old dispute between Sunni and Shia sects over a graveyard and ruled: “Exercise of fundamental rights under Articles 25 and 26 is not absolute but must yield to give way to maintenance of public order and the impugned suggestion was mooted by the court and has now been found to be feasible by the chairman of the committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of religious ceremonies by members of both sects. . . ”
Is ‘hijab, which is behind the spiralling protests in Karnataka schools, an essential religious practice? This question was examined by a Madras HC bench headed by then Chief Justice A P Shahin 2006 in the context of a challenge to the photo voter ID cards made mandatory by the Election Commission in 2006 to Tamil Nadu. A Muslim man had filed the petition saying this hurt the community’s religious sentiments as the Quran prohibits photos of a woman without hijab/purdah on voter ID as these can be seen by strangers.
The HC in its judgment noted: “A noted Sudanese scholar Dr Hassan al-Turabi, in his trace . . . states that the verses of the Quran ordained that the wives of the Prophetdraw a curtain (to ensure privacy in the Prophet’s room which naturally attracted many visitors of all sorts), and that they dress up completely without showing any part of their bodies including face and hands to any man; though all other Muslim women were exempted from these restrictions. ”
“Canadian writers Syed Mumtaz Ali and Rabia Mills in their essay explain: “One must realise and appreciate that the commandment in the Quran in Chapter 33, verse 53, with respect to the Hijab, applies only to the ‘Mothers of the believers’ (the wives of the Holy Prophet, pbuh) whereas the wording of the Quran in Chapter 33 verse 55, applies to all Muslim women. No screen or Hijab (Purdah) is mentioned in this verse; it prescribes only a veil to cover the bosom and modesty in dress, hence the unlawfulness of the practice of the Indian-style system of Purdah (full face veiling). ”
The HC had said, “Even assuming that the Purdah is an essential ingredient of the Muslim religion, Article 25 itself makes it clear that this right is subject to public order, morality or health and also to the other provisions of Part III of the Constitution. . . we have no hesitation in holding that the direction of the Election Commission (for mandatory photo Voter IDs) is not violative of Article 25. ”
