The Ayodhya case, freedom of religion, and the making of modernist ‘Hinduism’

ABSTRACT

This article offers a close reading of the 2019 Supreme Court decision in the Ayodhya case supporting the construction of a temple dedicated to Rām, a central deity in the Hindu pantheon. It unpacks the implications of the ruling on the right to freedom of religion and the meaning of religion in juridical discourse. In awarding title over a disputed plot of land that had been the subject of decades of litigation to the ‘Hindu parties,’ the Court sanctioned the development of a narrow, nationalist and modernist understanding of the ‘Hindu’ faith to prevail. The analysis highlights the role of the court and juridical discourses in the formation of Hindu majoritarianism and the making of modernist ‘Hinduism’. The discussion is significant for understanding how Hindu nationalists have mobilized secular institutions, and quite specifically the right to freedom of religion, to pursue their own agenda of establishing India as a monolithic and homogenous Hindu state.

KEYWORDS:

• Freedom of religion
• modernist Hinduism
• secularism
• Ayodhya

Acknowledgments

I am grateful to Vera Lazzaretti and Knut Axel Jacobsen for their very helpful feedback and comments on an earlier version of this paper. I would also like to thank Dikshit Bhagabati, Priyam Mittal and Rohini Sen for their invaluable research assistance.

Disclosure statement

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 M. Siddiq v Mahant Suresh Das (2020) 1 SCC 1.

2 For example, the Nirmohi Akhāṛā filed one of the earliest cases in1885 in Faizabad seeking the construction of a Rām temple next to the then standing 16th century Babri mosque. The Akhāṛā claimed to be the exclusive guardians of the birthplace and statues. It distanced itself from the VHP and the Hindu Rights ideological agenda. The VHP intervened in the Ayodhya case in 1986 as a ‘friend’ of the idol seeking title and possession of the disputed property solely in favour of Rām. The move was intended to bring a political dimension to the case. The intervention partly reflected the VHP’s tension with, and lack of trust in the Akhāṛā. The political turn introduced by the VHP coincided with a time when the political climate in India had changed considerably as a mass – based agitation had been launched for the construction of the temple: The Hindu Right is riven with such factions and fissures. See also Contemporary South Asia, special issue, 26, no. 4, (2018).

3 The academic reference to Hindutva is distinct from its mass usage and understanding (Sarkar 2021)

4 See decision of Justice Agarwal in the Allahabad High Court stating: ‘The religious endowment in

the case in hand so far as Hindus are concerned, as they have pleaded in general, is a place of a peculiar and unique significance for them and there cannot be any other place like this. In case this place is allowed to extinguish/extinct [sic] by application of a provision of statutes, may be of limitation or otherwise, the fundamental right of practicing religion shall stand denied to the Hindus permanently since the very endowment or the place of religion will disappear for all times to come and this kind of place cannot be created elsewhere.’: Visharad v. Ahmad, O.O.S., No. 1 of 1989, All.H.C.4 (2010) at 2615 (Agarwal, J.Vol. 12).

5 Tiwary, Deeptiman. 2021. ‘Ram Temple Movement Bigger than Our Freedom Struggle: VHP Joint General Secretary.’ Indian Express, December 13. https://indianexpress.com/article/india/ram-temple-movement-bigger-than-freedom-struggle-vhp-7669357/

6 The historical legacies of these campaigns can be traced to the 1920s protests by Hindu revivalists against alleged abductions of Hindu women by Muslim men (Gupta 2009)

7 The existence of a Hindu idol as a juristic person capable of having rights and discharging duties through a ‘next friend,’ ‘best friend,’ or trustee was established in law as early as 1922. In the common law system, there are two types of persons – one natural and the other legal. A natural person is a human being, while legal persons (or juristic persons) are beings, things, or objects that are treated as persons by law, such as a company, which have the capacity for entering into legal relationships. This capacity includes holding property, suing as well as being sued in a court of law, as well as to address issues of taxation, allotment of land, and alienation of property. The treating of Hindu idols as juristic personalities requires a ‘next friend’ to represent the idol in any legal or other proceeding. See, e.g., Vidya Varuthi Thirthia Swamigal v. Baluswami Ayyar (1922) AIR 123 (holding that a Hindu deity is a juristic person); Sri Radhakhanta Deb v. Comm’r of Hindu Religious Endowments (1981) AIR 798 (where the Supreme Court recognized a Hindu deity as a juristic person); Shiromani Gurdwara Parbandhak Comm. Amritsar v. Som Nath Dass (2000) AIR 1421 (finding the mosque and Sikh scriptures to be juristic persons); Sri Adi Vi

sheshwara of Kashi Vishwanath Temple v. State of Uttar Pradesh (1997) 4 SCC 606 (where the court recognized the right of a deity to move the court in a case involving a challenge to the Kashi Temple Act of 1983).

8 A waqf is a gift or donation by a Muslim to a religious, educational, or charitable cause.

9 Siddiq (n 1) [6] (emphasis added).

10 Siddiq (n 1) [6].

11 Siddiq (n 1) [63] (emphasis added).

12 Siddiq (n 1) [63]–[69].

13 Siddiq (n 1) [756].

14 Siddiq (n 1) [756].

15 Siddiq (n 1) [815-837].

16 Siddiq (n 1) [1026] (addenda).

17 Siddiq (n 1) [596].

18 Siddiq (n 1) [1045] (addenda).

19 Siddiq (n 1) [994-995] (addenda).

20 Siddiq (n 1) [1045] (addenda).

21 Siddiq (n 1) [1045] (addenda).

22 Siddiq (n 1) [6].

23 Siddiq (n 1) [114] (emphasis added).

24 Siddiq (n 1) [115].

25 Siddiq (n 1) [115].

26 Siddiq (n 1) [166].

27 Siddiq (n 1) [165].

28 Siddiq (n 1) [164-164].

29 Siddiq (n 1) [223].

30 Siddiq (n 1) [223].

31 Gopal Singh Visharad v. Zahoor Ahmad (2010) All 1925 (Sharma J.) [286]

32 Visharad (n 28) (Sharma J.) [287]

33 Visharad (n 28) (Sharma J.) [203]

34 Visharad (n 28) (Sharma J.) [215]

35 Visharad (n 28) (Sharma J.) [121].

36 S.R. Bommai v Unoion of India (1994) AIR 1918.

37 Ismail Faruqui & Ors. vs. Union of India (1995) AIR 605.

38 The land at Ayodhya as well as the adjoining area was acquired by the central government under the Acquisition of Certain Area at Ayodhya Act, 1993 after the destruction of the mosque. The acquisition was justified in the interests of maintaining public order and communal harmony in wake of the destruction.

39 Faruqui (n 34) [634]

40 Faruqui (n 34) [641]

41 Manohar Joshi vs Nitin Bahurao Patil & Anr (1996) AIR 796; Dr. Prabhoo v Union of India, (1996) AIR 1113

42 Prabhoo (n 41) [1129]

43 Tilkayat Shri Govindlalji, vs The State of Rajasthan & Ors (1964) 1 SCR 561; See also C.J. Sinha’s dissent in Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay (1962) Supl. 2 SCR 496

44 Ajmer v. Syed Hussain Ali (1962) 1 SCR 383

45 Ajmer (n 41) [412]

46 Justice Gajendragadkar further reinforced this process of ‘rationalizing’ religion in Tilkayat Shri Govindlalji (n 40) [622–623]

47 Mohammad Haniif Quareshi & Ors. vs. The State of Bihar (1958) AIR 731

48 D.A.V. College Bhatinda, Etc vs. State of Punjab and Ors. (1971) AIR 1731

49 Saraswathi Ammal v. Rajagopal Ammal (1954) SCR 277, 288 ; see also Sri Venkataramana Devaru v. State of Mysore (1958) SCR 895 (validating a state law allowing Harijans (untouchables) unrestricted access to enter a temple that was founded by upper cast Brahmins, despite the right to determine who can enter temples, conduct the worship and how to conduct the worship being matters of religion, because Article 25 (2)(b), which deals with the State’s right to open public temples to all Hindus, took precedence over Article 26).

50 See Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya (1996) AIR 1119, where Justice Gajendragadkar referred to the Bhagwad Gita as a central Hindu text.

51 Shri A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Ors. (1996) AIR 1765.

52 Dahlab v. Switzerland ECHR 2001-V 449, 463; Refah Partisi v Turkey (2003) 87 ECHR 1, 29; Șahin v Turkey (2007) 44 ECHR 99, 137; Dogru v. France (2008) 49 ECHR 179, 197

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Ratna Kapur

Ratna Kapur has written and published extensively on issues of feminist and postcolonial theory in law. Her scholarship focusses on bringing these critical insights to the areas of international law, human rights and legal theory. Her most recent book is Gender, Alterity, and Human rights: Freedom in a Fishbowl, London: Edward Elgar Publishers, 2018.