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Colonial regimes leave a lasting impact on the afterlives of their colonies, often by blowing away or fundamentally altering the very foundations of indigenous civilisations. To make matters worse, The Places of Worship Act, 1991, has further rendered the indigenous people of Bharat and their deities toothless. The Act ignores the traumatic history of invasions and barbarism and offers little scope to put back the traditional worship and ritualistic fabric in its original place. By cutting off the umbilical linkage between the deities and their ‘sacred spaces’, the Act has made the deities inaccessible to their devotees. Moreover, the Act does not concede any grounds for throwing a challenge by placing itself outside the scope of judicial review. The indigenous people and their deities are thus left with no choice but to work out legitimate arguments within the given legal framework and attempt to device plausible legal grounds that may help the deities reclaim their lost spaces.
In a recent development, a public interest litigation (Writ Petition (Civil) No. 1246 of 2020) has been listed before a 3-judge bench (comprising of the CJI Justice U.U. Lalit, Justice S. Ravindra Bhatt and Justice P.S. Narasimha) of the Hon’ble Supreme Court of India challenging the constitutionality of the Places of Worship Act, 1991, on various grounds including arguing that Sections 2,3 and 4 of the legislation are violative of Articles 14, 15, 21, 25, 26 and 29 of the Indian Constitution. Of particular interest is one of the arguments put forth in the petition regarding the property rights of Hindu deities. The petition states that the above-mentioned statutes of the legislation violate the right to religious freedom guaranteed under Articles 25 and 26 of the Constitution because as per Hindu law the deity’s existence is of a permanent nature and hence it can never be “divested from its property”, implying that the property always belongs to the deity and its devotees have a fundamental right to worship the deity at the particular property itself. Further, an intervention filed in the matter by advocate J. Sai Deepak, on behalf of the current titular head of the royal family of Kashi, makes similar arguments about the “juristic and eternal character of a Deity once consecrated at a Kshetra”. It also demands the restoration of traditional shebait rights of the royal family, besides the reclamation of original Vishvanath Mandir (now Razia mosque), Bindu Madhav Mandir (now Dhaurahra mosque) in Varanasi and Kapaleeshwara Temple (now St. Thomas Basilica) in Chennai.
A dive into Indian jurisprudence around the rights of Hindu deities, both colonial and post-Independence, reveals the presence of substantial legal backing for the arguments stated above. In one of the earliest judgements of the British Privy Council delivered in Maharanee Shibessouree Debia v. Mothooranath Acharjo ((1869-70) 13 Moo IA, p. 273) on the issue of deities as juristic persons, it was held that property “dedicated to the religious services” of the deity would be regarded as the deity’s legal property and that the shebait would be vested only with the right to manage the religious endowment. As early as 1925, the doctrine of deities as juristic entities/persons was considered as “firmly established” with a long precedence of authority (Pramatha Nath Mullick v. Pradyumna Kumar Mallick, 552 IA 245, 250). In Prosunno Kumari Debya v. Golab Chand Baboo ((1874-75) 2 IA 150), it was observed that as per Hindu law, “property given for the maintenance of religious worship and of charities connected with it is inalienable”. The reverential treatment of deities as living beings in the Hindu lebenswelt has found a resonance in the jurisprudence evolved by Indian courts too. In Rambrahma Chatterjee v. Kedar Nath Banerjee ((1922) 36 C.L.J. 478, 483), the judgment observed:
“We need not describe here in detail the normal type of continued worship of a consecrated image… It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessities and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest.”
As the quoted portion of the judgment above indicates, Courts have penned down, on various occasions, their understanding of the deities on the basis of the devotees’ perception of the deities. A striking observation was made about the nature of debutter (deities’) property by a 5-Judge bench of the Hon’ble Supreme Court of India in Mahant Ram Saroop Dasji v. S.P. Sahi. The judgment stated that it was hard to imagine the failure of a Hindu private debutter claim due to the immortal nature of the deity, and that even in the case of loss of the idol of deity due to a variety of reasons, “another image may be consecrated and it cannot be said that the original object has ceased to exist” (AIR 1959 SC 951 ¶ 10). In the landmark Ram Janmbhoomi judgment ((2020) 1 SCC 1 ¶ 148), it was held that the destruction, intermittent presence or total absence of the idol in which the juristic personality is vested, does not automatically result in the “termination of the pious purpose and consequently the endowment,” and that the legal personality of the deity and its endowment “continues to subsist”.
A perusal of these judgments indicates the acceptance of the immortal nature of Hindu deities, and the inalienable nature of their endowments, as an established matter of fact and a settled question of law. The Places of Worship Act, which actively creates a hindrance in the restoration of Hindu religious endowments to the legal entitlement of concerned deities, flies in the face of Indian jurisprudence on the subject. It may be noted here that since the endowments are meant for fulfilling the pious and religious purposes of Hindu deities, the non-restoration of such properties leads to the violation of the right to religious freedom of the concerned devotees, thus posing a serious challenge to the constitutionality of the impugned sections of the Act. The jurisprudence traced here also indicates that in cases where the destruction of Hindu temples and subsequent construction of Abrahamic structures as symbols of colonialism over their properties are well-recorded sections of Indian history, the proprietary claims in relation to such structures do not stand. This is so because in such instances, proprietary rights relating to the colonial structures do not get created in the first place and the Hindu deities continue to own the religious endowments which is originally and rightfully theirs. The question of whether the religious character of these properties is disputed, shouldn’t be much of a problem once the original proprietary rights of the Hindu deities are established.
The petition has placed powerful and persuasive arguments before the apex court, and now it is left to the wisdom of the court to decide upon the petition in consonance with its evolved jurisprudence. It’s for our apex court to deal with the marks of colonial barbarism while our indigenous deities wait patiently outside their doors, awaiting to have their dignity and homes restored.
Very well-written article. Kudos to you Sh. Yashowardhan Ji for coming up with such a wonderful and important piece.