Dharmaśāstra and the legal personality of deities in the Ayodhya verdicts (2010 & 2019)

ABSTRACT

This article explores how Hindu deities and places of worship are understood as legal persons in the Supreme Court of India’s (2019) and the Allahabad High Court’s (2014) verdicts concerning the ‘Ayodhya Dispute’ – M. Siddiq v. Suresh Das. It discusses the Courts’ interpretations of a specific Sanskrit maxim attributed to the sixteenth Century Sanskrit jurist, Raghunandana Bhaṭṭācārya, in the specific context of their distinction between the juridical personality of the deities Rām Lalla Virajman (the infant form of Rāma worshipped at the Babri Masjid/Ram Janmabhumi site) and Asthan Rām Janmabhūmi (the deification of the contested site itself). The Allahabad High Court invoked Raghunandana to justify a faith-based application of Sanskrit jurisprudence (Dharmaśāstra) to expand the Hindu community’s constitutionally-protected rights to freedom of religion into a legal weapon with which to assert control over India’s contested geography. The Supreme Court, however, rejected this majoritarian ‘Trojan Horse’ by reframing Raghunandana’s maxim – as cited in a body of judicial precedent – to support the legal personality of Rām Virajman merely as the pious purpose of worship at Ayodhya. Legal debates about the juristic personality of Hindu deities are inseparable, I argue, from determinations about the ownership of some hotly-contested religious sites in India.

KEYWORDS:

• Ayodhya
• Babri Masjid
• Dharmaśāstra
• Supreme Court of India
• Raghunandana Bhaṭṭācārya
• Allahabad High Court

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No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Visharad v. Ahmad, O.O.S., No. 1 of 1989, All. H.C., 4 (2010) – hereafter ‘AHC.’ M. Siddiq v. Suresh Das 1 SCC 1 (2020) – hereafter ‘SC’.

2 SC ¶1–3, pp. 6–7.

3 Ibid., ¶805, pp. 925–926.

4 Ibid., ¶800, pp. 922–923.

5 Ibid., ¶801, p. 923. Also see ¶653–676, pp. 771–790 where the Court recounts ‘Justice Equity and Good Conscience’ as a juridical paradigm in India (from Regulation 60 of Warren Hastings’ 1781 Regulations for the Administration of Justice to Article 142(1) of Constitution). The Court relies on J. Duncan Derrett (1963a).

6 SC ¶432 p. 485.; & (Khan) pp. 9–20. Civil Appeal No. 27/1885.

See, for example, Roger Friedland, and Richard Hecht (1998); Sheetal Parikh (2005): Peter van der Veer 1994; and Sheldon Pollock (1993).

7 For a comprehensive summary of the Allahabad verdict, see, Aparna Chandra (2010); Kalyani Ramnath (2011); and Ratna Kapur (2014). Analyses of the 2019 verdict include: Shashank Rai, Shabarna Choudhury & Sai Snigdha Kantamneni (2020); Sarath N. Mathew (2020); and Amit Bindal (2020).

8 My current monograph project, under contract with Oxford University Press, Equity and Trusts in Sanskrit Jurisprudence aims to provide a standard work of reference of this somewhat abstruse branch of jurisprudence.

9 Richard Lariviere (1989, 757).

10 See Donald Davis (2020: pp. 656–657), where he discusses Karl Llewellyn (1959).

11 C.J. Fuller (1988:, 246).

12 For the essential practices test in relation to Hindu temples, see Deepa Das Acevedo (2018). An excellent overview of ‘religion’ as a legal category and its problematic role in colonial and post-colonial Anglo-Hindu and Anglo-Islamic jurisprudence, see Geetanjali Srikantan (2020). For the colonial legacy of the relationship between theology and property in the modern law of Hindu religious endowments, see Geetanjali Srikantan (2017).

13 The standard works of reference on the law of Hindu religious endowments are B.K. Mukherjea (2016); J. Duncan Derrett, (1963b); and Rajeev Dhavan (1978). For more recent, ethnographic studies of Hindu deities as juristic persons, see the work of Daniela Berti.

14 For constitutional questions involved in Supreme Court Decisions related to religious endowments, see Das Acevedo (2018, 2016b). Article 25 protects the freedom to worship, and Article 26 protects communities’ right to endow and to maintain religious institutions (temples, mosques, etc). https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2025; https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2026.

15 Justice Sharma and Agarwal endorsed this view, while Justice Khan’s judgment varies considerably from those of his colleagues on the question of Hindu trusts.

16 Article 25 protects the freedom to worship, and Article 26 protects communities’ right to endow and to maintain religious institutions (temples, mosques, etc). https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2025 https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2026 For the freedom of religion in post-colonial India, see N. A. Subramanian (1964).

17 SC, ¶201 p. 221.

18 SC ¶129 pp. 166–167.

19 For the history of the Nirmohi Akhara at Ayodhya, see Krishna Jha (2012).

20 SC ¶83, pp., 123–124. For the Act, see, https://www.indiacode.nic.in/bitstream/123456789/1922/1/a1991-42.pdf For the history of the Kṛṣṇajanmasthan Temple, Jñān Vāpi Mosque/ Kāśīviśvanātha Temple, and other contested former temple sites, see Sunil Kumar (2008); and Richard Eaton (2000). For contemporary cases involving the Kāśīviśvanātha Temple, see Vera Lazaretti (2023). For cases involving the Kṛṣṇajanmasthan Temple, see Nick Tackes (2023).

21 From the Devapratiṣṭhātattva, cited by Mukherjea in The Hindu Law of Religious and Charitable Trusts (2nd Edition), 27: cinmayasyādvitīyasya niṣkalasyāśarīriṇaḥ / upāsakānāṃ kāryārthaṃ brahmaṇo rūpakalpanā // See AHC (Agarwal) ¶1721 p. 1852 & (Sharma, on Suit 5) p. 50 of his judgement on suit 5. For idols (mūrtis) in classical Hindu theology, see Sthaneshwar Timalsina (2013). This verse also appears in Raghunandana’s Ekādaśītattva.

The phrase is lifted from the Rāmāyaṇatāpanīyopaniṣad (1.7), a Vaiṣṇava Upaniṣad on the Artharvaveda dated, variously, between the 11th and 16th Centuries, C.E. For the text, see Albrecht Weber (1864). Kamalākarabhaṭṭa (active 1610–1640) quotes a verse (1.13) from the same text in the Pūrtakamalāra (Bhandarkar Oriental Research Institute Ms. No 838) fol. 56a: rāmatāpanīye: sarvagasthasya devasya vigraho ya[n]trakalpanā // vinā maṅtreṇa cet pūjā devatā na prasīdati //

22 For a similar verse from the Viṣṇudharmottarapurāṇa, along with an analysis of the reception of image worship in brāhmaṇical treatises, see Phyllis Granoff (2006)

23 For an analysis of the evolution of the jurisprudence of the juridical personality of Hindu deities, see Ritu Birla (2009). For the role of Dharmaśāstra more generally in the creation of Anglo-Hindu law, see Christopher Fleming (2020), esp. chapter 4, ‘Anglo-Hindu Schools of Law.’

24 Bhupati Nath Smrititirtha v Ram Lal Maitra (ILR 1909 37 Cal 128): Mookerjee, ¶61.

25 Some of the authorities on the matter are, Yogendra Nath Naskar v CIT, Calcutta (1969) 1 SCC 555, Ram Janki Deity Vs. State of Bihar 1999 (5) SCC, Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu (2009) 4 CTC 801, Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP (1997) 4 SCC 606, and Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass (2000) 4 SCC 146 (in Shiromani, the court considered the juristic personality of the Guru Granth Sahib).

26 AHC (Sharma, Suit 5) p. 61.

27 SC ¶130 p. 167.

28 Ibid., ¶130 p. 167 See note 22, above.

29 SC ¶165 p. 195. (1999) 5 SCC 50 ¶17 (citing Mukherjea’s Hindu Law of Religious and Charitable Trusts, 5th ed.).

30 AHC (Sharma, Suit 5) 173.

31 Ibid., pp. 49–54, 73–75, 86–87, (Sharma cites G.C. Sarkar Sastri's, Hindu Law 8th ed.)

32 Ibid., 173.

33 Ibid., 174.

34 AHC (Agarwal) ¶1693 p.1807.

35 Ibid., ¶1710 p. 1843 & ¶1721 p. 1852.

36 Ibid., ¶1736–1748 pp. 1860–1864. Agarwal cites T.R.K. Ramaswami Servai Vs. H.R.E. Madras ILR 1950 Mad 799; Venkataramana Moorthy Vs. Sri Rama Mandhiram (1964) 2 An.WR 457; T.V. Durairajulu Naidu Vs. Commissioner; and Mukherjea's Hindu Law of Religious and Charitable Trusts.

37 Kapur (2014) p. 362. Despite her excellent analysis of the constitutional issues involved in the 2010 judgment, Kapur’s analysis of the plaintiff deities is limited to footnotes 3 & 141–142 (pp. 306–307, & 338). Kapur notes that Agarwal accepts the contention that faith is sufficient to deify a location (pp. 343–346) but she does not trace the logic whereby Agarwal and Sharma arrived at this conclusion. Also see Gopinath Arunima (2010). Arunima’s argument, that the 2010 judgment involves an ‘elision’ of devasthanam (a holy place) with a janmasthanam (a birthplace) is cited in Ramnath (2011), p. 11, fn 26 with the following gloss: ‘The former is a holy place which may be treated as a deity, but the latter being treated as a deity is unprecedented in Hindu law jurisprudence.’ Neither of these are legible categories in the jurisprudence of the Ayodhya dispute, where the issue is between treating land as a deity or treating the right to worship at a particular location as a deity.

38 See Saumya Saxena (2018). Also see Kapur (2023).

39 AHC (Agarwal) ¶1758 p. 1870 & ¶1802 p. 1904. See SC ¶165 p. 195 & (1999) 5 SCC 50 ¶16: ‘The observations of the Division Bench has been in our view true to the Shastras  … If the people believe in the temples’ religious efficacy no other requirement exists as regards other areas … Hindus have in Shastras ‘Agni’ Devta; ‘Vayu’ Devta these deities are shapeless and formless but for every ritual Hindus offer their oblations before the deity. The Ahuti to the deity is the ultimate … It is not a particular image which is a juridical person but it is a particular bent of mind which consecrate the image.’

40 AHC (Agarwal) ¶1889 p. 1975. The specific ‘belief’ in question was framed as: ‘that the fort of King Dashrath situated at Ayodhya included the part of the building wherein Lord Rama was born according to Hindu belief and the disputed area covered that house … ’.

41 Ibid., ¶1918 p. 2006.

42 Ibid., ¶2722 p. 2615. Agarwal makes the constitutional issue clear at ¶2714 pp. 2616–2617: ‘the Government will have the effect of depriving the worshippers their right of worship under Article 25 of the Constitution and such an acquisition even under the statutory provision cannot be permitted … This will be infringing the fundamental right under Article 25 of the Constitution.’

43 SC ¶129 p. 166. For a critique of this apparent contradiction in the Supreme Court’s decision to recognize the legal personality of Rām Lalla Virajman, see Rahul Govind (2021).

44 Ibid., ¶13 p. 12.

45 Ibid., ¶130 p. 167.

46 Ibid., ¶130 p. 167.

47 Ibid., ¶1301p.167. This finding would render the destruction of an earlier temple irrelevant: ‘Mr Vaidyanathan submitted that the disputed property, being a legal person, is res nullius. Since the disputed property is a juristic person, it is not alienable. It was contended that land which is res nullius or res extra commercium cannot be acquired by adverse possession. It was urged that even if the image of the idol is broken, a deity is immortal and thus, the construction of the mosque on the land did not take away from its character as a deity.’

48 Ibid., ¶161 p. 193.

49 Ibid., ¶136 p. 172.

50 Ibid., ¶137 p. 173.

51 Ibid., ¶185 pp. 210–211.

52 Ibid., ¶185 pp. 210–211.

53 Ibid., ¶174 p. 201.

54 Ibid., ¶174 p. 201.

55 Govind (2021), 174.

56 Ibid., ¶202 p. 222 For discussions of Indian Secularism in a legal context, see Deepa Das Acevedo (2013); and Ronojoy Sen (2020).

57 Ibid., ¶202 p. 222.

58 Ibid., ¶203–205 pp. 222–224.

59 AHC (Sharma, Suit 5) p. 11.

60 SC ¶126 p. 164.

61 Ibid., ¶129 p. 166.

62 Ibid., ¶215–216 pp. 242–244.

63 Ibid., ¶805 p. 927.

64 Ibid., ¶222 p. 249.

65 SC ¶78 p. 116. Section 5 of the act expressly exempts the Ayodhya dispute: Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya. https://theprint.in/opinion/politically-correct/did-modi-give-hindus-closure-a-pil-against-the-places-of-worship-act-will-decide-the-answer/621753/; https://timesofindia.indiatimes.com/india/sc-agrees-to-examine-validity-of-places-of-worship-act/articleshow/81463934.cms.

66 Civil Revision No. 02/2021 Bhagwan Shrikrishna Virajman etc. Vs. U.P. Sunni Central Waqf Board etc,.

67 https://theprint.in/judiciary/varanasi-court-orders-asi-probe-to-settle-kashi-vishwanath-temple-gyanvapi-mosque-dispute/636829/.

68 The case is ongoing. See, for example, https://www.firstpost.com/india/kashi-gyanvapi-dispute-case-next-friend-of-lord-vishweshwar-says-temple-was-destroyed-but-its-religious-character-didnt-change-10549441.html; https://www.livelaw.in/news-updates/vishweshwar-jyotirlinga-is-situated-below-gyanvapi-mosque-which-is-self-manifested-lords-next-friend-argues-in-allahabad-hc-199695; and https://www.livelaw.in/news-updates/gyanvapi-lord-vishweshwara-through-next-friend-move-varanasi-court-seeking-impleadment-in-suit-by-hindu-worshippers-200427.

Additional information

Funding

This work was supported by the British Academy.

Notes on contributors

Christopher T. Fleming

Christopher T. Fleming (DPhil, Balliol College, Oxford, 2018), is a law student at Harris Manchester College, and an Associate Member of the Faculty of Asian and Middle-Eastern Studies (AMES), Oxford. Previously, he was a British Academy Postdoctoral Fellow at AMES and the Bowra Junior Research Fellow at Wadham College, Oxford. Fleming’s research examines Indian Legal History (Property and Trusts), Sanskrit Jurisprudence (Dharmaśāstra), and the Mahābhārata. His publications include Ownership and Inheritance in Sanskrit Jurisprudence (OUP 2020), and Science and Society in the Sanskrit World (Brill 2023) – edited with Vishal Sharma, Toke Knudsen, and AJ Misra.