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Accueil > Colloques, journées d’étude > 50. Projet ANR Just-India (2009-2012)

Religion and the Courts (India, Nepal)

International Workshop : Religion and the Courts
18 & 19 June, room 638, 6th Floor, 192-198 Avenue de France, Paris 13th Arrondissement

With the support of the Centre for South Asian Studies (EHESS-CNRS)
The Just-India programme is hosted by the Centre for Himalayan Studies

While the Indian Constitution provides the framework for total secularism, it is not without some contradictions inherited from the nation’s history. For instance, a sizeable number of Hindu temples are directly managed by regional federal states ; the legal status of Hindu idols is recognized ; courts are regularly asked to decide on the proper management of the resources of religious bodies, decisions which often have a far-reaching impact on rituals and on religious specialists ; the state provides support to religious minorities, subsidizing for instance their educational institutions ; etc. The state is directly involved in various ways in the direct administration of different religious institutions. Indeed, the Constitution recognizes a plurality of personal codes, according to religious affiliation. Moreover, the need to define what a religious minority is, what “religion” is, and in particular what “Hinduism” is, has proved to be rather contentious. In this overall context, courts regularly have to rule on matters concerning religious rights, affiliation, and the very definition of what a religious group is.

By focusing on the courts’ action and decisions, on the arguments, on the vocabulary in which they are couched, on the legal strategies used by the parties concerned and by the Court, on pressure from society, on the social and political stakes involved in the decisions, or on the long-term consequences of rulings, the aim of this workshop is to reach a more comprehensive understanding of the role of the judiciary in the effective implementation of the Constitution’s secular ideal.

Thus, the workshop will not deal so much with the politics of secularism in general, but with how courts deal with religion, in practice. Though, or precisely because, such practices are “ordinary”, they may be seen as fundamental to the progressive social and political transformation of religion in Indian society.

Conveners : Daniela BERTI, Gilles TARABOUT, Raphaël VOIX


Session 1 : Ascetics and the Law

Discussant : Monika BOEHM-TETTELBACH (SAI, University of Heidelberg)

Speaker : France BHATTACHARYA (Emeritus Professor INALCO, Centre for South Asian Studies), British Colonial Justice and the Lustful Mohunt.

In 1873, in Tarakeshwar, a famous Saiva pilgrim place in West Bengal, a young married woman was killed by her husband for having had sexual relations with Madhava Giri, the Mohunt, head of the Tarakeshwar math. The husband was condemned by the Hooghly Sessions Court to transportation for life. But he brought legal action against the Mohunt for having seduced his wife. There was a first trial, and the Mohunt was condemned to three years in jail and the payment of a fine. He made an appeal to the High Court. There, the two British judges confirmed the sentence and justified their judgment by detailed arguments, showing their appreciation of what should be the behaviour of a religious personality and, possibly, responding to the expectations of the various sections of the Bengali public.

Speaker : Raphaël VOIX (ANR Just-India / Centre for South Asian Studies), Defining and Reforming Hinduism through Court Jurisdiction. Understanding the Tandava Case in its Context (1979-2004).

On 10 August 1979, disciples of Ananda Marga –a Hindu sect founded in 1955 by a Bengali civil servant– led a procession in the city of Kolkata during which they performed a dance with skulls and daggers, which they call ‘Tāṇḍava’ in imitation of Śiva’s mythological dance. A long lawsuit followed about the right to perform this dance in public, in which the sect’s General Secretary was opposed to Kolkata’s Police commissioner. By analysing the trial’s proceedings, the sect’s in-house literature and interviews with the main protagonists, this paper sets out to explain this case in the broader political and religious context of West Bengal during the 1980s. It shows how legal adjudication was used by both parties to serve their own purpose : for the former, to symbolically assert itself in the broader realm of the Hindu public sphere, and, for the latter, to ban practises regarded as “religious excesses from the dark ages”. Eventually, I argue that the Tandava case has indeed clearly contributed to shaping Ananda Marga’s own religious identity.

Speaker : Catherine CLEMENTIN-OJHA (EHESS, Centre for South Asian Studies), Does the Habit make the Monk ? The Juridical Definition of the Religious State in a Judgment of the District Court of Allahabad in 1968 Concerning Devolution of Shebaitship.

Among Hindus the succession law applicable to householders’ property does not apply to renouncers’ property and vice-versa. The subject of my paper is how a judgment passed by the District court of Allahabad in 1968 took this difference into account to settle a dispute among the hereditary administrators (shebait) of the property of the temple of Govindadeva in Vrindaban. I’ll confront this modern case with earlier judicial and administrative documents to show that what was at stake was whether or not the habit makes the monk.

Speaker : Malavika KASTURI (University of Toronto), ‘This Land is Mine’ : Mahants, Devotional ‘Publics’ and Civil Courts in 20th Century North India.

This paper examines how civil courts and law in late colonial north India (United Provinces) regulated and mediated disputes over property belonging to temples, maths and related charities. Such land and wealth was treated as non-secular and subject to different proprietary rules and claims. The litigants participating in these court cases drew upon the Religious and Charitable Endowments Act of 1890. This legislation allowed concerned devotees, and other interested parties to take legal action against trustees misusing and appropriating ‘public’ religious property. In particular, the paper looks at civil cases brought against mahants in their capacity as heads of ascetic orders and socio-religious sampradayas to understand the competing claims to socio-religious property made by ascetic orders and devotional ‘publics’, including orthodox Hindu (sanatana dharma sabha) institutions and reformers. Further, it argues that these legal disputes were shaped by public sphere agitations led by Sanatanis against corrupt and licentious mahants before 1947. Most notable in this regard was the multi-pronged movement launched against Mahant Paras Ram of the Bharatji Mandir in Rishikesh. The paper suggests that the debates and concerns colouring my court cases continue to dominate postcolonial legal discourses on ‘sacred’ properties until today. It draws upon Allahabad High Court files, published court cases, police and archival records and Hindi print culture.

Session 2 :How Personal is Personal Law ?

Discussants : Pratiksha BAXI (JNU) & Jeff REDDING (Saint-Louis University School of Law)

Speaker : Srimati BASU (University of Kentucky), Unfair Advantage ? : Polygyny and Adultery in Indian Personal Law.

If Personal Law is one of the most contested sites for debating the religious or secular nature of the Indian State, perhaps no issue draws as much political ire as Muslim men’s right to polygyny versus the mo nogamy of other Personal Laws. In this paper, I examine plural marriage in a number of Hindu and Muslim Personal Law cases, drawing from my fieldwork archive of mediation and Family Court adjudications. I contrast majoritarian political anxieties around Muslim men’s polygyny with the problems articulated in cases which come before legal and quasi-legal authorities : questions of patriarchal authority and racialized demographics define the former scenario, while economic issues of marriage and the impact of domestic violence dominate the latter. Religious difference is much less salient in negotiations of marital resources, though it may guide the form of resolutions which turn to law. This paper thus questions “problems” of adultery and polygyny along axes of law and religion, and proffers a consideration of the materialities of marriage.

Speaker : Jean Louis HALPÉRIN (École Normale Supérieure, Paris), Recent Evolutions in Case Law Concerning Hindu Marriage.

As it is well known, Hindu marriages are submitted, according the system of personal laws, to the 1955 Hindu Marriage Act, what means a State law (amended in 1976 concerning divorce) supposed in the same time to consolidate and to reform the Hindu tradition. Since Marc Galanter’s studies (from the 1960s) about marriage law and its links with judges’ conceptions about Hinduism, one can ask if there are significant evolutions in the case law in the past two decades.

In some decisions, the Supreme Court seems to have noticed that Hindu marriage was less and less a sacrament and more and more a contract based on the free consent of a man and a woman fallen in love. Even the traditional discrimination about illegitimate children has been criticized. This kind of analysis of a quick change in matrimonial habits has been also used to support divorce founded on an irretrievable breakdown of the couple (beyond the strict application of the Hindu Marriage Act).

On the other hand, these evolutions towards a more secularized marriage are contradicted by decisions invalidating mixed marriages and conversions or more restrictive judgments about divorce. Furthermore, judges had to deal with actions against “inter gotra marriage”. In order to condemn “barbarous and feudal” murders, the Supreme Court has been obliged to defend the validity of marriages inside the same sub-caste, what can be deemed contradictory with other decisions encouraging exogamy.

Speakers : Marc GALANTER (University of Wisconsin & LSE) & Alexander FISCHER (School of Law, SOAS), Caste, Courts and the De-Sanskritization of Hindu Law.

As a paradigmatic marker of modern Indian law, the Hindu Code controversy is much more than a legal realist report on the difficulties, successes, and failures of legal reform. With the inauguration of a republican constitution in 1950, the ascendancy of universal suffrage, and the consolidation of a unitary legislative power, the legal reforms undertaken not only implied a change in normative contents but above all a revolution of Hindu law’s religious institutional premise in terms of popular sovereignty. For the first time, the modern institutions of mass democracy would claim a pivotal role in the administration of justice and as India held her first general election in 1951, the idea of Hindu law inevitably became captive to the ultimate primacy of the legislature and the mobilizing power of competitive elections. The imaginative potency of self-government and democracy thus constituted a deep revolutionary rupture that brought about the displacement – not disappearance – of traditional and religious normative orders (Galanter 1968 ; 1972). Nothing signaled the symbolic, institutional and ideological discontinuities as clearly as the appointment of Bhimrao Ramji Ambedkar, a Dalit, as chairman of the Constitution Drafting Committee and Law Minister in the first government of Independent India. Democracy, “the single most remarkable fact about post-1947 India” (Khilnani), placed Hindu law in the hands of an “untouchable”, quickened reforms, undermined the attraction of “dharmic rule” (Lingat) and dislodged shastric discourses, which used to be central in the earlier Hindu Code debates. For Ambedkar, the questions raised, e.g. with respect to divorce, widow remarriage, marriage solemnisation, was simply one of electoral propriety : “whether we are going to have the law of the 90 percent of the people as the general law of this country ; or whether we are going to have the law of the 10 per cent of the people being imposed upon the 90 per cent” (Ambedkar, 1949). However, courts – as non-majoritarian institutions – continued to impose the unifying conceptions and misunderstandings of colonial, Anglo-Hindu law on all Indians (not without irony), one foot uncomfortably located in Sanskritic legislative idioms, the other unstably located in the modernization aspirations of India’s legislatures. Our paper explores these themes in relation to case law dealing with caste customs in the realm of Hindu personal laws. In particular, we focus on strict judicial demands for fully ritualised marriage solemnisation ceremonies (priests, fires and Sanskritic rituals) for all Hindus, irrespective of caste customs ; even Mahar neo-Buddhists from Maharasthra saw their marriages declared invalid by the Supreme Court until the mid-60s, and Tamil Nadu’s legislature passed the Hindu Marriage Madras Amendment Act, 1967, to overcome judicial hostility towards self-respecter marriage rituals. Based on this, we then try to illustrate how litigants learned to assert local caste customs in courts, how changing judicial attitudes towards caste customs emerge in the 1980s – and how courts thus learn to respond to India’s silent revolution.

Session 3 : Gods’ Affairs
Tuesday 19 June, Morning (9.30 a.m. – 1.00 p.m.)
Discussant : Christopher J. FULLER (LSE)

Speaker : Daniela BERTI (CNRS, Centre for Himalayan Studies), Filing Religion. The Judicialisation of a Religious Conflict in Himachal Pradesh.

High Court judges are commonly called upon to decide on matters put to them by villagers who are worried about the welfare of their local deities. Writ petitions are frequently lodged by villagers against the promoters of public works (hydroelectric projects, dams, tourist resorts, etc.) which are considered to disturb or to destroy a place that is believed to belong to a village deity. A writ petition can also be lodged by the deity itself who, endowed with a juridical personality, can sue and be sued—even though, being a god and "perpetual minor", it is represented by its temple manager. In this paper I discuss a case where a village deity actually becomes the main petitioner of a case lodged before Himachal Pradesh High Court against the state administration and other local authorities. The case concerns a long-standing conflict between the devotees of two village gods over the attribution of a honorific position to the palanquin of their respective deity during the annual Dashera festival. The case shows how a local conflict with multiple ritual and political implications, and mobilizing a number of local authorities (gods’ mediums, temple managers, local deputies, police officers, deputy commissioner, etc.) that had failed to settle it over the years, ends up before a court of law. More specifically, I shall look at the arguments put forward by the petitioners’ legal representative in order to prove the god’s traditional right to the honorific position as well as the reasoning put forward by the judge in his ruling. By relying both on the legal file and on ethnographic material I show, on the one hand, how the notion of legal evidence is adjusted by the legal professionals in order to include a number of "documents" that are not normally included in a court case and, on the other hand, how a "traditional" ritual procedure is presented before the court as an issue involving constitutional and human rights.

Speaker : Deepa DAS ACEVEDO (University of Chicago), Divine Bachelors, Female Devotees, and Constitutional Protections at Sabarimala, 2006-2011.

In 2006 controversy erupted over a possible breach of ritual practice at a prominent Hindu temple in Sabarimala, Kerala. For the next five years public discussion about the event and the ritual standards that had ostensibly been compromised surfaced regularly in Kerala and even in the national media. At the centre of these discussions was a dilemma that has perplexed Indian citizens and lawmakers since independence : how does a secular democratic nation committed to the equality of persons balance these interests with its commitment to group rights and the religion’s important place in public life ? Scholars and jurists have argued that India solves this dilemma via a unique interpretation of secular governance, which emphasizes non-establishment but not the separation of religion and state. In this view, the Indian state approaches religion—all religions—with what has been called “celebratory neutrality” and “reformatory justice,” thereby solving ideologically, if not practically, the puzzle of its seemingly conflicting tasks. This paper is part of a larger project that argues, to the contrary, that India’s approach to religion-state relations manifests an underlying ideological tension about the locus and nature of sovereignty. Using the Sabarimala temple controversy as a case study, I show how judicial solutions to the problem of competing interests suggest the development of a striking coping strategy that seems more in keeping with an irresolvable tension than with ideological certitude of the kind implied by the idea of “Indian secularism.” That is, rather than struggling with the quotidian realization of a settled political ideal, judicial responses to the Sabarimala case appear more like strategic responses to a manageable but unsolvable challenge.

Speaker : Ute HÜSKEN (University of Oslo), Slaves and Sons : The Court Dynamics of a Religious Dispute in South India.

Brahmanic Vaiṣṇava temples in Tamil Nadu follow either the Pāñcarātra or the Vaikhānasa mode of worship. Especially in more popular South Indian Vaiṣṇava temples, for a number of centuries there has been a struggle over the question as to which of the two groups of priests (arcaka) is eligible to perform the rituals. There are and were a number of groups involved in these conflicts on the local levels, e.g. the arcakas, other temple employees, hereditary trustees, the descendents of the founders of the temples, and other interested parties. The main stone of contention throughout the sectarian literature is the question whether the priests have to undergo an initiation including a branding of their upper arms (Pāñcarātra), or whether their right to perform the worship results from their birth in a specific family belonging to a specific Vedic branch (Vaikhānasa). Taking a court case which started in 1837 and continued into the 1980s as my case study, I will show how the Vaikhānasas’ presentation of their cause gradually changed from "local custom" to "textual authority" as a result of the publication activities initiated by one prominent member of their group.

Speaker : Gilles TARABOUT (CNRS, Laboratoire d’Ethnologie et de Sociologie Comparative), Birth vs. Merit : Courts and Changes in Temple Practice.

Decisions taken regarding the management of a Hindu temple often lead to changes in its ritual organization. The policy of providing a “proper and better administration” may for instance legitimate the setting up of an appointed or elected Board, in place of its hereditary trustees, to run it. Using similar arguments, various temple specialists may be selected on “merit” without taking into account the possible qualification (or disqualification) that would formerly have followed from birth.

Starting with a Kerala High Court case in 2008 concerning Guruvayur temple, which was sparked off by the discovery of a cigarette butt in a cake that was given as an offering, and by the ensuing suspension of several assistant priests by the Administrator of the Board, this paper explores how Courts negotiate the transformation of religious specialists into employees. In all the cases studied, the notion that specific religious capacities are linked to gender, lineage, or caste, which is so important for many Hindu rituals, is discussed in detail before the Court. Where hereditary rights, for instance, give way to contractual relationships, far-reaching changes in the social setting of temple practice, if not in the religious definition of personhood, emerge.

Session 4 : Implementing Secularism

Discussant : Christophe JAFFRELOT (CNRS, Centre d’Études et de Relations Internationales)

Speaker : Chiara LETIZIA (Università degli Studi di Milano-Bicocca), Defining Nepali Secularism through the Judiciary : Two Case Studies from the Nepal Supreme Court.

The Interim Constitution of 2007 put an end to the two-century-old Hindu Kingdom and declared Nepal a secular state, without specifying a model of secularism. Fieldwork showed that secularism was a multivocal and sensitive concept taking shape through campaigns and incidents resulting from the disconnection of political power from Hinduism brought about by the Maoists. Some of these incidents gave rise to PILs before the Supreme Court, while a growing judicial activism challenged laws and practices as inconsistent with human rights. This has given the judges the opportunity to rule on the relation between State and religion, and help defining the fluid notion of secularism.

The “Pashupatinath case” concerns a petition seeking to invalidate a decision of the Maoist Prime Minister to appoint Nepali priests in Pashupatinath temple, instead of the traditional South Indian priests. This petition argued the principle of secularism as a means to defend religious traditions from an atheist government. The “Kumari case” concerns a petition challenging the tradition of the living goddess Kumari in the name of child rights. The Court affirmed the primacy of human rights over religious traditions, making it a landmark case for secularism. A distinctive form of secularism unfolds, involving the state in both supporting and reforming religion.

These cases illustrate the directions that Nepali secularism is taking and the tensions underlying it. In both cases, the Court appointed committees of experts and stakeholders to recommend reforms, showing the Court’s potentially constructive role in providing a forum for negotiating reform and identify pragmatic solutions.

Speaker : Justin JONES, (University of Exeter), Courts Outside the State – the Debate on Dar-ul-qaza’s in Modern India.

While this workshop focuses on the management of religious affairs within the state courts, a powerful counterweight to this story is the intense public debate within India about the role of non-state courts in Indian society. This paper, based on provisional research, hopes to investigate the idea of the dar-ul-qaza – the non-state Islamic court – as it has developed in modern India. The last three decades have seen a growing range of efforts toward the establishment of such courts, staffed by trained ‘ulama and functioning outside of state jurisdiction.

Based primarily on a number of writings about Islamic law and the dar-ul-qaza published by the All India Muslim Personal Law Board and other clerical organisations, as well as debates in the modern public-political sphere, this paper seeks to investigate these proposed courts. It examines the justifications for their foundation, and the mechanics of the adjudication imparted therein. In particular, this paper will engage the central question of the relationship between these dar-ul-qazas and the official state courts. The formation of dar-ul-qazas has often been framed as a challenge to the legal authority of the state. However, an alternative argument is that, at particular points, these dar-ul-qazas have articulated their purpose as concomitant both with the state courts and with existing constitutional legislation relating to personal laws. In discussing in depth these levels of both competition and coexistence between alternative structures of jurisdiction over Muslim communities, this paper will allow for deeper reflection upon the realities of personal law adjudication in modern India.

Speaker : Marc GALANTER, (University of Wisconsin & LSE) & Alexander FISCHER (School of Law, SOAS), Compensatory Discrimination Policies and the Identification of Beneficiaries : Religious, Required and Forbidden Categories in Indian Courts.

For more than sixty years India has pursued policies of compensatory discrimination designed to benefit historically disadvantaged sections of the population through the reservation of seats in legislatures, differential criteria of selection in respect of such matters as university admissions, government and public-sector jobs, as well as loans, scholarships, and other special economic programmes. Disputes over the selection of disadvantaged groups and the identification of individual beneficiaries of these policies have arisen regularly, forcing Indian judges to recognise and de-recognise group distinctions as well as to construct the boundaries of group membership. Would a high-caste spouse be allowed to claim Scheduled Caste status on the basis of marriage to a member of the latter group ? Could the child of an inter-caste couple seek election to a reserved seat if only the mother belonged to the beneficiary group ? Could a Dalit, after conversion to Buddhism or Christianity, still apply to university as a Scheduled Caste candidate ? Why are courts apprehensive about direct, religion-based quotas, yet favorable to targeted redistribution for the benefit of Muslims through backward classes categories ? In this paper we examine recent Supreme Court cases dealing with these dilemmas of recognition, illustrating how disputes relating to the identity of beneficiary groups and individuals thrive on the conflicts generated by the autochthonous category systems used to administer compensatory discrimination policies within the architecture of a modern, secular, constitutional state. Our theoretical framework derives from the sacral, organic, sectarian, associational model developed by Galanter in the 1960s. The 1968 article surveys judicial responses to caste during the first two decades of Independence, compares them with earlier responses, and speculates about the trends that could then be observed. In the present paper, we look at comparable judicial responses during the most recent 20 years to see if these trends have continued or reversed or have been replaced by something entirely different. How can we account for the continuity or change that is observed ? What are the broader implications of these trends ? Revisiting this topic after forty years, we suspect that the juridification and judicialisation of these elusive category systems have resolved little, producing a world of inconclusive litigation, categorical confusion and increasing complexity.