Guest post by RAHUL GOVIND

Gyan Vyapi Mosque and Kashi Vishwanath  Temple (Image courtesy Indian Express)

The present controversy over several religious sites threatens to tread yet again the path that led to the communal mobilization, riots and destruction of the Babri Masjid. The popular press also repeats several legal arguments without always analysing their import. In the present cases, just like in Ayodhya, a key point that we hear time and again is that when it comes to the Hindu deity’s property, such property is perpetual and therefore even if a temple was destroyed centuries ago, the legality of the Hindu deity’s property remains unimpeded, thereby becoming the basis of a reclamation. It is therefore important to understand the legal concept of the Hindu deity’s juristic personality.

1. There is a scholarly consensus on the fact that the idea of the Hindu deity as a juristic person is unambiguously a result of colonial jurisprudence and has no basis in traditional Hindu law prior to the coming of the British; initial references are given below. It then became part of colonial Hindu law, which followed principles that were very different from the Hindu law or jurisprudence which was theorized and practiced in the pre-colonial period.
2. As scholarship has well established, the concept of the Hindu deity as juristic person emerged in the context of the differences and disputes over the right to the immovable and movable property of the temple, which included the offerings and gifts to the temple/deity. In the traditional (pre-colonial) Hindu mimamsa conception, Hindu deities could not hold property and the shebaits (temple managers) had a proprietary right over the properties over the temple. In the colonial period, particularly during the 19^th century many legal disputes arose regarding questions such as whether the shebait could alienate/rent properties of the temple. It was in this context of the contests over the specific rights of the shebait and others involved in the temple management that we see the evolution of the idea of the deity as juristic person. In attempts to regulate the properties of the temple, and prevent what they saw as the mismanagement and corruption of temple properties, colonial Hindu jurisprudence evolved the idea of the juristic person of the deity. The characteristic feature of the deity as juristic person was that through this legal concept, properties of the temple was now vested in the deity and not the shebait. The religious and charitable purpose of the original endowment/temple was conceptualized by colonial Hindu law as the basis of the Hindu deity, who now became the legal owner of the property. This also enabled the worshipping Hindu community to have a claim on the management of the properties of the temple which became subject to a specific legal regulatory framework. The key judgment in this context, Manohar Ganesh Tambekar v Lakhmiram Govindram 1887, was specifically formulated in response to the competing proprietary rights over temple property (including the offering of the devotees) made by different individuals and groups associated within the temple. As Derret in the article cited below shows, the evolution of such a legal framework, including statutory intervention regarding Devadasis, was necessitated in the colonial and early years of Independent India by cases where shebaits were found to have sold temples, idols and sold and ‘pawned’ their rights as shebaits. (‘Hindu Religious Endowments’, 324-5)
3. Pre-colonial traditional Hindu jurisprudence did not allow for such claims of a public or a worshipping community at large and it vested proprietary rights with the shebait. When Hindu scriptures are cited to prove that the properties of the temple are perpetual and do not suffer from adverse possession and limitation, this refers to the proprietary rights of the shebait and/or Brahmin priests. And the entire Hindu scriptural legal literature has varna as its framework. The scriptures when speaking of temples and temple properties do not refer to the rights of a worshiping Hindu community at large and do not have a concept of a juristic personality, which would have enabled the exercise of the rights of this community at a court of law. This is also clear from the fact that Hindu scriptural literature does not have any reference to the “next friend” who can represent the Hindu deity (as a juristic person) in a court, as has been happening at the current conjuncture. All these elements can only be traced to colonial jurisprudence which itself has its basis in developments in English and Roman law.
4. The importance of varna for the institution of the temple continued well into the colonial period. The fact that one witnessed temple-entry movements in the late colonial period testifies to the fact that prior to the promulgation of our Constitution, discrimination existed on the basis of varna. One only has to read about Ambedkar’s Mahad satyagraha among several other campaigns which were required because temples prohibited entry for various castes. While some campaigns were underlined by religious motivations others had their purpose the exercise of civil rights based on the premise that the very temples which were built by the so-called lower castes, ironically, excluded them. The fact that Article 25 2(b) of the Constitution specifically empowered the state for “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus” testifies to the discriminatory practices that have historically characterised temple worship, in the colonial and pre-colonial periods. The fact that reservations on the basis of caste can only be claimed by Hindus is yet another legal and jurisprudential affirmation of caste discrimination that has characterized Hindu society.
5. The concept of the juristic personality of the deity was built on the idea of an original endowment which had religious and charitable “purpose”, which became the basis of the proprietary rights of the deity (not the shebait). Without a legal original endowment the concept of the Hindu deity as juristic person appears unintelligible. The legality of the original endowment with a religious and charitable ‘purpose’ therefore enables the (perpetual) rights of the Hindu deity, so as to place the temple within a clear legal framework.
6. All of the above regarding the function and meaning of the juristic personality of the Hindu deity and its legal development was affirmed in the 2019 Supreme Court judgment in Ayodhya (M Siddiq v Suresh Das; https://www.sci.gov.in/pdf/JUD_2.pdf). In the words of the judgment, “the recognition of juristic personality was devised by the courts to give legal effect to the Hindu practice of dedicating property for a religious or ‘pious’ purposes”. It further held that “by conferring legal personality, the court gave legal effect to the dedication by creating an entity to receive properties so dedicated. By stating that the artificial person created is in fact the owner of the dedicated properties, the court guarded against maladministration by the shebait” (161-2; https://www.sci.gov.in/pdf/JUD_2.pdf). As the Court explained the concept, “In the case of an endowment, courts have recognized the charitable or religious purpose situated in the institution as a basis for conferring juristic personality on the institution. (193. Ibid.). And thereafter, “Once the faith and belief of the devotees had been established, it was an express deed of dedication that resulted in the conferral of juridical personality of the idol”. (198. Ibid. ).
7. In the Ayodhya case there were two plaintiffs in Suit 5, Ramlalla and Janmasthan. The Supreme Court did not recognize the legal personality of the latter, holding that to do so would nullify all proprietary claims to land. The Court held that if Janmasthan was to be construed as having juristic personality, it could lead to the argument that any piece of land was sacred and claims could thereby be made on the same, leading to a situation that was not legally tenable. The Court stated that “There is therefore no merit in the argument that faith and belief, and the protection of faith and belief alone may necessitate the conferral of legal personality on the second plaintiff”. It further held that, “the purpose for which juristic personality is conferred cannot be ‘evolved’ into a Trojan horse that permits, on the basis of religious faith and belief, the extinguishing of all competing proprietary claims over property as well stripping the property itself of the essential characteristics of immoveable property”. (220-2 ibid. ).
8. However, the Supreme Court recognized the juristic personality of Ramlalla even though there existed no evidence of an original deed of endowment. By doing so the Supreme Court appeared to be contradicting its own lucid clarification of the concept of the juristic personality of the Hindu deity, which required a (legal) deed and an endowment. On the other hand, the Court affirmed the illegality of both the placement of the idols under the central domes of the Babri Masjid in 1949 as well as its “desecration” in 1992 (755 ibid.).
9. The complete doing away with the requirement of the legality of an original title deed/endowment in the recognition of the juristic personality of Ramlala by the Supreme Court in the Ayodhya judgment has become the basis for the reiteration of more current claims in various places including Kashi, Mathura, the Qutub Minar complex and many other sites. The Supreme Court judgment is cited regarding the perpetual rights of the deity, without taking into the cognizance the other essential features required of the juristic personality of the deity i.e. “purpose” in the form of an endowment. It is ironic that juristic personality which was a judicial devise evolved to protect temple property from the internal mismanagement of the shebait and others has now been turned into a mode for appropriating the religious places of worship of other communities, which have an undisputed legal standing. The Supreme Court must re-affirm the requirement of an original ‘purpose’ and title deed for a religious endowment/temple. And even in such a context, it must clarify whether events that are centuries old can be justiciable today. Surely this cannot be accepted on either legal or moral grounds as will be explained.
10. The concept of juristic personality has been deployed in the Ayodhya and current cases to circumvent the legal requirements of limitation that ordinarily takes place. But to circumvent limitation the legality of an original deed/endowment is a requirement. The common sense argument that centuries old disputes should not be made the basis of current conflict may be correct as a broad moral principle. But the more pertinent point in the current context is the fact that it is neither legally, morally nor intellectually tenable to map the current Hindu population as the legal heirs to an imagined Hindu community of the pre-colonial past; imagined simply because there is no legal equivalent in this past to the contemporary category of Hindu.
11. Our Constitution stands as a watershed moment not only in relationship to the colonial period, but to the entire pre-colonial past, because it inaugurates an era where the entire national community is given fundamental rights and exercises political self-representation. These two features neither characterize the colonial or the pre-colonial period. The political unity embodied in territorial terms in Independent India also has no equivalent in either the colonial or pre-colonial period. There are those who harp on a cultural or civilizational unity sans political unity to make the argument about the long historical continuities of the Indian nation-state. They need only be asked whether in the name of such cultural unity they would allow for political independence of regions, as was clearly the case historically. Such arguments ironically challenge the territorial unity of the country which can only be expressed in political terms, in terms of citizenship rights, and not something as broad as ‘culture’ or ‘civilization’.
12. A temple may well be or become the symbol of the Hindu community. But this was certainly not the case in the colonial and pre-colonial past. This undisputed historical fact cannot be deflected by false claims of historical persecution. No doubt persecutions of all kinds existed in the past, but it is completely untenable to think that there are legal heirs today who can prosecute — and courts which can adjudicate — such matters. Such views informed a politics which led to mass scale riots and ultimately partition. Such tendencies ought not to become the politics of today. Independent India chose a constitutional scheme which was unprecedented. Vague allusions to popular sovereignty and assemblies can no doubt be found but nothing like the essential features of the our constitutional scheme such as the principles of universal franchise and fundamental rights as well as the institutional expressions of the constitution, courts and representative assemblies. In the face of this historic break, it is meaningless to mine history for legal disputes, with the purpose of mobilization and prosecution.
13. To insist on an unprecedented concept of the Hindu deity as juristic person which does not need to provide any evidence of an original title would lead to litigation and conflict. It would mean that no evidence of any material sort whether practice or deed would be required since a deity’s rights would be seen as perpetual and literally any object that is considered or construed to be a deity by a group of individuals can become the basis of proprietorial claims (and the undermining of claims of others). As said earlier even if such deeds from the past were to be provided – which do not exist for the cases in dispute — no moral or legal grounds exist for the prosecution of centuries old claims. Taking the legal and moral principles embodied in our Constitution such a situation cannot be entertained.

The above is based on my published paper and its references 

Rahul Govind “On the Deity as Juristic Personality” NLSIR 33 (1) 

However I am also providing some additional scholarly references on the above arguments.

The works of B R Ambedkar on Hindu scripture and Varna [Among others, Annihilation of Caste and Revolution and Counter–Revolution]

RS Sharma, Sudras in Ancient India: A Social History of the Lower Order Down to Circa AD 600 (Motilal Banarsidass, Third Revised Edition, Delhi, 1990; Reprint, Delhi, 2002) [On the relationship between the Hindu Scriptural legal literature and Varna]

SC Bagchi, Juristic Personalities on Hindu Deities (University of Calcutta 1933) [On the juristic person of the Hindu deity and the fundamental difference between pre-colonial and colonial Hindu jurisprudence]

JDM Derrett, ‘The Reform of Hindu Religious Endowments’ in DE Smith (eds), (Princeton University Press 1966) [On the juristic person of the Hindu deity and the fundamental differences between pre-colonial and colonial Hindu jurisprudence]

Ritu Birla, Stages of Capital: Law, Culture, and Market Governance in Late Colonial India (Duke University Press 2009), 80-87 [On the juristic person of the Hindu deity and the fundamental difference between pre-colonial and colonial Hindu jurisprudence]

Anupama Rao, The Caste Question (University of California Press 2009) 81-118 [On temple entry movements]