Chapter One

The Impossibility of Regulating Religion in India

1.1

Regulating Religion in India: Judicial Preoccupations

In 1983, a writ petition was filed against the Commissioner of Police, Calcutta by a monk of
the Ananda Marga sect against restraints under the Criminal Procedure Code which
prohibited members of a procession from carrying knives, tridents, or skulls on the grounds
of offence and harm to the public. It was contended that one of the prescriptions of the
religious rites of the Ananda Marga was the Tandava dance which was to be performed with
a skull, a small symbolic knife, a trishul, certain rhythms and ornaments. This dance which
was an essential religious practice was required to be performed in public places during
processions that were taken out at intervals. As this was an essential religious rite it was
further reiterated that the Tandava Dance was an essential part of the religious rites of
Ananda Margis and that they were entitled to practice the same both in private and public
places, and interference in this practice would amount to violating their religious freedom
guaranteed under the Constitution.
In dismissing this writ petition the Supreme Court held that the Anand Marga was not a
religion but a religious denomination.1 The rationale behind this is that the writings of the
founder of the Ananda Marga are essentially founded upon the essence of the Hindu
philosophy and that the Anand Margis were Saivites which is a sect of the Hindu religion. Its
justification of the Anand Marga being part of the Hindu religion was by quoting another
case Sastri Yagnapurushdasji v Muldas 2 (hereinafter referred to as the Swaminarayan case):

Acharya Jagdishwaranand Avadhuta v Commissioner of Police, Calcutta AIR 1984 SC 512 .

AIR 1966 SC 1119.

a cursory study of the growth and development of Hindu religion through the ages shows that
whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting
irrational or corrupt practices which had crept into it, a sect was born which was governed by its own
tenets, but which basically subscribed to the fundamental notions of Hindu religion and Hindu
philosophy

It held that the history of the Ananda Marga showed that the tandava dance was of recent
origin not being prescribed as a religious rite when the Ananda Marga order was first
established. There was also no justification in any of the writings of Shri Ananda Murti that
the tandava dance must be performed in public. Therefore it could not be considered an
essential religious rite of the Anand Marga.
This was not the Anand Margiss first tussle with the law. An earlier writ petition filed by
them was rejected by the Calcutta High Court in 1980 on the ground that religious practice
must not be inconsistent with the susceptibility or sensibility or fairness or public order and
the brandishing of skulls and knives violates such sensibilities. Another petition was
dismissed in 1982 by the Calcutta High Court which led to the petition that was filed before
the Supreme Court. Not surprisingly this saga did not end, and the matter found itself once
again in the Calcutta High Court. In May 1987, an application was made by the Ananda
Marga Pracaraka Sangha to the Police Authorities for permission to hold a "public procession
with Tandava Dance" which was refused. A writ petition was filed once again in the Supreme
Court which then directed the Calcutta High Court to examine the case.

This time, fresh evidence was produced in the form of a revised edition of the precepts of
Anand Murti published in 1986 after the Supreme Court decision. These contained directions
that the Tandava dance was to be performed in public. It was contended by the Commissioner
of Police that the Supreme Court had already resolved this matter and therefore the High

Court could not once again adjudicate on this issue. The High Court3 however held that it
appeared that the Supreme Court had, in arriving at its finding that the Tandava Dance was
not an essential part of the Ananda-marga religion, taken into consideration the fact that there
was no document to show that the Tandava Dance was to be performed in public. No finding
however was arrived at by the Supreme Court that by reason of the recentness of the practice
the same could not form part of religion or be a matter of religion.

The Court further held that Ananda Murtiji was considered by the Ananda Margis as their
religious preceptor or guru. Any direction given by him was a mandate which could not be
disobeyed. Therefore the rites and rituals which would be prescribed by Ananda Murtiji
would form an integral part of their religion. On the contention that that the Tandava dance
was a secular activity and not a religious one, the court held that festivals referred to at which
the Tandava Dance has to be performed are religious.

...the original Tandava Dance of Siva forms part of the Hindu religion. It is said to represent the
threefold processes of creation, preservation and destruction. The rhythm, postures, ornaments
(including the skull) and the weapons used in the dance are said to be symbols of religious significance
(vide the chapter entitled "The significance of Sivas dance from Natraja in Art, Thought and Literature
by C. Sivaramamurthi). Although the Tandava Dance may be performed for social or other temporal
purposes, its performance with a view to propagating the concepts represented by the dance cannot be
termed as secular.

The Anand Marga case raises significant questions about the nature of the legal regulation of
religion. It raises the question of how one could demarcate the religious from the secular and
in that process also asks the question as to what is religion. I would like to suggest that the
3

Commissioner of Police v Acharya Jagdishwarananda AIR 1991 Cal 263.

questions and quandaries that have been thrown up in this case characterise legal discourse.
i.e. namely judicial inability to demarcate between the religious and the secular and an
inability to decide what is religion. In this context it becomes important to look into these two
aspects that have formed the basis of this judgement and the questions that have been raised,
as these continue to be reflective of how judicial decisions on these matters are decided.
The demarcation between the religious and the secular made in this case and by most courts
in these matters is based on the reasoning known as the essential practices test laid down in a
key judicial decision known as The Commissioner, Hindu Religious Endowments, Madras v
Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt4. In this case it was held that the
essential part of a religion should be ascertained in relation to its doctrines.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and Jainism which do not believe in God or in
any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines
which are regarded by those who profess that religion as conducive to their spiritual well being, but it
would not be correct to say that religion is nothing else, but a (1) Vide Davie v. Benson 133 U.S 333 at
342. doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion and these forms and observances might extend even to matters of
food and dress.

It further elaborates that:

In the first place,what constitutes the essential part of a religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus
prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical
ceremonies should be performed in a certain way at certain periods of the year or that there should be
daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of
4

AIR1954 SC 282.

religion and the mere fact that they involve expenditure of money or employment of priests and
servants or the use of marketable commodities would not make them secular activities partaking of
a commercial or economic character; all of them are religious practices and should be regarded as
matters of religion............

Such reasoning was followed in other cases5 such as that of Tilkayat Shri Govindlalji
Maharaj v The State Of Rajasthan And Others 6 wherein it was held that one needed to
inquire whether the tenets of the Vallabh denomination and its religious practices require that
the worship by the devotees should be performed at the private temples. A contrary position
was taken in Shri Jagannath Temple Puri Management Committee Represented Through Its
Administrator And Another V. Chintamani Khuntia And Others, Respondents. State Of
Orissa, Appellant;v Chintamani Khuntia And Others 7 wherein it was held that duties
performed by sevaks ( temple servants) in the Temple are of a secular nature and the payment
made to them is remuneration.
Rajeev Dhawan (1987) provides a detailed account of the judicial impasse on this question
detailing the problems that Indian courts face. These include whether the followers of Kabir
are Hindus, how many daggers can Sikhs carry and whether dress and diet can be invoked as
religious requirements. In settling these matters courts have emphasised common sense
mediating acceptable compromises through judicial pronouncements. An example is the case
of the litigation questioning the governments celebration of Lord Mahaviras birthday which
was dismissed by the court for being mischievous. The rationale of the court is however

In Venkataramana Devaru v, State of Mysore AIR 1958 SC 255 a similar position was taken regarding the

management of the affairs of a religious denomination on matters of religion. It was held that practices which
are regarded by the community as part of its religion and under the ceremonial law pertaining to temples, who
are entitled to enter into them for worship and where they are entitled to stand for worship and how the worship
is to be conducted are all matters of religion."
6

AIR 1963 SC 1638.

8SCC 1997 422.

relevant here, the judge stating that a secular way of celebrating Lord Mahavirs birthday is
called for so that there is a common cultural activity that everyone can celebrate. Dhawan
stresses that the courts predicament was complex as it would have run the risk of offending
the sentiments of a number of Jains. He then elaborates the problems with the essential
practices test asking the following questions:
So, how is the Court to determine what an essential practice is? Should it rely on religious leaders?
Should it call for evidence? Should judges pursue these questions on the basis of their own research?
Should the judge interpret the tradition through the techniques available to a common law judge?
And if- as has been suggested-the judge should enter that tradition to ascertain its own internal rules
and techniques, its method of assessing the relative importance of its various elements and the
admissibility of innovations, can he wholly avoid creative interpretation or ignore social discontent
(223)?

Dhawan expresses discontent with the manner in which this essential practices test has been
applied by the courts. He mentions that there has been no precise manner in which the courts
have interpreted this doctrine
There are no indicators as to what kind of evidence should be considered authoritative, no rules of
interpretation, no emphasis on detailed research, and no requirement to consult authoritative exponents
and material (223).

Dhawan suggests further that some judges have adopted a reformist perspective as
demonstrated in Sastri Yagnapurushdasji v Muldas 8 ( hereinafter called the Swami Narayan
case) wherein judges have described the Swami Narayan sect as Hindu in order to enable
public access including access by all classes of Hindus including untouchables. According to
him such a reformist agenda lacks sensitivity and conviction and lays the path open for an
unmanageable jurisprudence of religious freedoms.
8

Supra n.2.

Dhawan s contention appears to be that there had been an inadequate explication of the
essential practices test by the courts and therefore that has been the reason for the
unintelligible nature of the legal discourse itself which fails to describe religion in any
coherent manner. His further contention that a reformist perspective limits coherence in the
law deserves investigation, as he does not question why a reformist perspective should be
applied at all. In this context one requires to understand why the courts are using the
perspective of reform. On an analysis of the Swaminarayan case it becomes apparent that this
has to do with the quandaries that courts face over the definition of religion, particularly the
definition of Hinduism.
In the Swami Narayan case the applicability of temple entry legislation9 was the main
question before the court. The followers of the Swaminarayan sect contended that they were
not part of the Hindu religion and therefore the enactment was not applicable to them. The
Supreme Court affirmed the High Court discussion that the Swaminarayan sect was not
distinct from the Hindu religion using the following reasoning.
The development of Hindu religion and philosophy shows that from time to time saints and religious
reformers attempted to remove from the Hindu thought and practices, elements of corruption and
superstition and that led to the formation of different sects ........... If we study the teachings of
these saints and religious reformers, we would notice a certain amount of divergence in their
respective views; but underneath that divergence , there is a kind of subtle indescribable unity which
keeps them within the sweep of broad and progressive Hindu religion.
There are some remarkable features of the teachings of these saints and religious reformers. All of
them revolted against the dominance of rituals and the power of the priestly class with which it came
to be associated; and all of them proclaimed their teachings not in Sanskrit, which was the monopoly

The particular legislation that was referred to was the Bombay Harijans Act which was enacted to allow all
sections of Hindu society to enter places of worship.

of the priestly class, but in the languages spoken by the ordinary mass of people in their respective
regions.

The Court further went on to comment that Swaminarayan was a follower of Ramanuja and
the essence of his teachings is acceptance of the Vedas. His recognition of the path of bhakti
and insistence on devotion to Lord Krishna showed determination to remove corruption in the
practice of religion. This reformist perspective as we have seen has influenced other cases
particularly the Anand Marga case that has been discussed. Such an approach is flawed not
only for the innumerable questions that could arise on the nature of religious freedom (as
pointed out) but also for its inconsistency10 . More importantly it does not tell us what
constitutes reform, the philosophy of Ramakrishna11 being considered as evidence of this
reform.
Robert Baird (2005a) however sees the problem of the demarcation between the religious and
the secular differently. As mentioned earlier the category of the religious and the secular
emerged in India as a mechanism of dealing with religious conflict and had its roots in the
Constitution. There were many judicial difficulties in applying these categories, the Supreme
Court suggesting that practices, religious and secular are inextricably mixed up(Baird
2005a, 18) . He then tries to theorise the courts interpretation on these issues on the ground
of reification i.e. the tendency of the court to interrogate the content of religion through
sacred texts and historical processes when the categories of the religious and the secular are
inadequate. Therefore for him reform becomes a historical fact. This becomes apparent in a
separate piece (Baird 2005b) where he discusses the definition of religion. He suggests that
with the emergence of secular India and the coming into being of the Constitution, a
10

A different approach was taken in Commissioner for Hindu Religious and Charitable Endowments, Mysore v
Ratnavarma Heggade AIR 1977 SC 1848 where it was held in the supplementary statement that supported the
judgment that stated since the term Hindu stands for Indians in general , it could also apply to Jains.
11

Brahmachari Sidheshwar Shai v State of West Bengal AIR 1995 SC 2089.

distinction begins to be made between the Hindu religion and Hinduism as a legal category.
As a legal category, Hinduism includes religions such as Buddhism, Jainism and Sikhism. 12
As Baird remarks it is possible to be atheist, reject caste laws and the Vedas and still be
Hindu. Members of the Prarthana Samaj, the Arya Samaj, Lingayats etc. are considered to be
Hindus and the burden of proof rests on them to show that they are not Hindus. According to
Baird this is evidence of the elasticity of Hinduism and the lack of legal recognition of
religions such as Buddhism and Jainism does not exclude them from constitutional
protection. 13 Baird makes the further suggestion that the judicial approach of formulating an
abstract model of Hinduism to include various mutually exclusive religious beliefs and
practices is due to such elasticity.
Bairds approach of understanding the formation of the legal category of Hinduism in the
form of a historical narrative is based on the assumption that there is a certain historical
process wherein the category of the secular emerges. In calling the courts interpretation
reification he appears to suggest that the categories of the religious and the secular need to be
concretely brought into being in order to resolve the mixed up character of the practices. He
does not however question why such an approach is needed to resolve the problem. As
mentioned earlier such a narrative accepts the story of secularisation across societies.
Dhawans viewpoint that law is inadequate also reflects this story as he accepts law as an
independent self-contained discourse. He assumes that law is inherently capable of describing

12

Baird refers to Article 25 of the Constitution of India that provides Buddhists, Sikhs and Jains are to be
considered Hindus for the purpose of the application of temple entry laws.
13

However this is something that can be contested as many human rights lawyers would suggest that laws
inability to recognise certain social groups as being religious communities leads to an inability to protect
customs and practices of such communities. The classification of Jains and Buddhists as Hindus and therefore
does not allow for the protection of customs and practices that can be considered specific to Jainism and
Buddhism.

religion. This assumes that law not only characterises secularisation but provides the
impetus for such secularisation due to its inherent capability to objectively regulate social
phenomena. Therefore if it is unable to do so it shows the inadequacy of secularisation and
Bairds comment that the categories of the religious and the secular need to be brought into
being reflects such inadequacy.
Instead of understanding this problem as that of inadequate law or inadequate legal
interpretation as Baird and Dhawan have done, I would like to suggest that there is a
definitional problem that courts face when confronted with religion as a concept. It is only
within such a definition that the court can build a historical narrative and use a reformist
perspective. This is apparent in the Swaminarayan case where the court tries to arrive at a
definition of religion by saying that :
............it would be inappropriate to apply the traditional tests in determining the extent of the
jurisdiction of Hindu religion. It can be safely described as a way of life based on certain basic
concepts to which we have already referred............ Said Tilak : "Acceptance of the Vedas with
reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of
the truth that the number of gods to be worshipped is large, that indeed is the distinguishing
feature of Hindu religion".......This definition brings out succinctly the broad distinctive features of
Hindu religion.............Says Toynbee ...... Hinduism has the same outlook as the pre-Christian and preMuslim religions and philosophies of the Western half of the old world. Like them, Hinduism takes it
for granted that there is more than one valid approach to truth and to salvation and that these different
approaches are not only compatible with each other, but are complementary............

The references to various scholars views on religion show the courts quandary in trying to
establish what religion is. The difficulties involved in this become apparent in another case
i.e. S.P. Mittal v Union of India 14 where the problem of the definition of religion was
discussed. It was mentioned that religion undefined by the Constitution was incapable of
14

1983 SCC (1) 51.

precise judicial definition. One of the reasons for this appear to be problems with the
concept itself as some religions are easily identifiable as religious, some are easily
identifiable as not religious. It was also the case that there are many in the penumbral
region which instinctively appear to some as religion and to others as not religions. Judicial
definitions were only explanatory and not definitive. In stating this, the judge clearly lays
down his limitations in deciding the content of religion as a category within legal discourse.
1.2

Elaborating the Problem

Baird suggests that the problem of the unintelligibility of religion within legal discourse only
arises with the Constitution wherein the categories of the religious and the secular are forced
to come into being. He comments that the problem did not arise prior to independent India.
However on examining Indological discourse on law it appears that the unintelligibility still
exists, religion being indistinguishable from law, making both categories superfluous.15
How does Indological discourse deal with this problem? Duncan Derrett (1999) points out
that the dharmasastra does not possess distinctions between religious and legal commands.
All commands found in the sastra were equally binding and no command which is
enforceable in the Western sense of the term lacked the character of being religious. He
suggests a more useful distinction between what is binding in conscience and what was
capable of being enforced by the king and his officers in judicial proceedings. Derrett
suggests that one needs different categories to understand law and religion in India. He
proceeds to see the Dharmasastras as consisting of 1) injunctions unenforceable by nature 2)

15

A recent work on law and religion (Lubin, Davis and Krishnan 2010, 3-5) disagrees on the ground that
Hinduism is identified as a set of traditions with family resemblances, including devotional practices, existence
of divine beings etc. It also suggests that the various forms of law that are found in the West such as divine
commandments, acts of state institutions, and custom can be found in Hindu India. Such claims rely on
descriptions of law and religion and generate more descriptions and not theories. Such an approach does not
help us identify a problem let alone resolve it.

injunctions enforceable by a caste tribunal 3) enforceable injunctions 4) expedients to

circumvent the written text and 5) conflicts between enforceable rules. The latter is specified
as obligations which are binding in conscience and not binding in law, obligations which are
binding in law but not binding in conscience and obligations binding in law which may be
opposed to obligations binding in conscience.
Derrett suggests that the distinction between law and religion is not a useful one as they are
western imports, but he then uses a number of western categories such as conscience,
enforceability and authority. In making a distinction between conscience and enforceability
he seems to be trying to locate a sovereign authority responsible for enforcement. Therefore
the distinction between conscience and law becomes akin to a distinction between law and
morality. His classification of law as being found in four sources namely dharma
(righteousness), vyavahara (practice),caritra (actual usage in the sense of custom )and rajasasana (royal decree) ((1999 ,149) also seem to be patterned on to classifications of law in
the western context wherein the sources of law are 1) rule 2) precedent 3) custom 4) equity
.Derretts contention that the categories of law and religion are insufficient to describe the
dharmasastra may be correct but his own classifications do not tell us what the dharmasastra
is. Although Derrett suggests that the distinction between law and religion is not useful, he
does not question why such a distinction requires to be made in the first instance. Such a
distinction cannot be made without the story of secularisation which assumes that law is a
self contained discourse.
A sharper critique of the efforts to demarcate law and religion comes from Werner Menski
(2003). He remarks that the belief that the Hindu law is rooted in religion and ultimately
based upon some divine revelation has led to scholarly assumptions that as a religious law,
Hindu law could be modernised, secularised and ultimately deconstructed as a thing of the
past ( Menski 2003, 38). Unlike Islam with its doctrinal belief in Allah, Hindu law is not

based on a monotheistic core belief nor on the resultant need to obey Gods law (2003, 43).
Orientalist legal scholarship has presented dharma as law suggesting that Hindu legal rules
could be found in the form of codes. As he eloquently observes:
......the official equation of dharma with law secularised the understanding of Hindu legal processes and
marginalised the inherent link of all individual actions with the cosmic system of righteousness as the
ultimate arbiter of what was the right thing to do at any given moment (75)

Menski appears to suggest that there can be no equivalent for dharma16 within the Western
conceptual framework. Therefore the question of their demarcation into law and religion does
not arise. The distinction that Hindu law textbook writers make between religious and moral
obligation is insignificant and irrelevant if Hindu law is understood as a self-controlled order
seeking to achieve a harmony of life and law which made formal law superfluous.
Thus the problem is quite different from the manner in which it has been articulated by Baird.
If law and religion as Western concepts are unintelligible to Indian forms of governance and
order prior to colonial intervention in the form of the modern Indian legal system, the
narrative of secularisation has deeper roots and cannot merely begin with the Indian
Constitution. It appears that secularisation at a conceptual level must be questioned if
religious itself is unintelligible
How does one resolve such a problem? I suggest that one look at a site where the
unintelligibility of religion within legal discourse comes to the fore. In the contemporary
context, this is the site of the religious place( very often referred to as the place of worship in
legal discourse) These sites have become prominent due to the peculiar phenomenon of
syncretism where the question of what is religion and what are its features comes to the
16

In this context Menski does not provide us with a theory of dharma but merely provides indicators. He
suggests that Hindu law needs to be understood as a process originating with the rta/dharma complex( the preexistent order and the self controlled order) in Vedic times leading to the concept of assisted self control in late
classical law (dharrna)with the threat of retribution (danda) and processes of negotiation or dispute settlement
(vyavahara).

fore.17 Places of worship frequented by both Hindus and Muslims are seen as shared religious
places and evidence of the phenomenon called syncretism. They are also seen as evidence of
communal amity despite being sites of conflict particularly in the legal arena by both Hindus
and Muslims.
Yoginder Sikand ( 2004) provides us with an account of one such conflict over the
Bababudangiri dargah in Chikmagalur, Karnataka. The controversy over the ownership of
the dargah began with the Wakf Board, the administrative body for the regulation of Islamic
places of worship claiming the rights over the dargah which was under the aegis of the
Muzrai Department(the administrative body which regulates Hindu shrines). Sikand suggests
that both these regulatory bodies could not deal with the shrines liminality requiring clear
definitions of it being Hindu or Muslim. Such quandaries were also faced by the court18
who was forced to decide on whether the shrine was Muslim or Hindu. Based on various
facts including the nature of the rituals the court decided that it could not be an Islamic wakf
but belonged to both Hindus and Muslims.
It is in this context that the definitional problem becomes most acute. In studies around these
shared places of worship, scholars are unable to provide a coherent description of the
religion behind these places. Dominique Sila-Khan(2004)s study of the contested Pirana
shrine shows us the limits of a definitional approach . She characterises the Pirana shrine
which is a shrine in Gujarat belonging to the Satpanth sect( which has both Hindu and
Muslim members) as a clash between liminality and legality and reprimands the court for
trying to classify the sect and its practices as Hindu or Muslim. She details its failure to

17

An extensive of study of these places and the conflicts surrounding some of them has been done by Yoginder
Sikander (2003).
18

Karnataka Board of Wakfs, Bangalore v B.C. Nagaraja Rao and Others AIR 1991 Kant 400.

consider the complex historical reality of the Satpanth and to examine in detail the various
versions of its sacred literature (227). She further acknowledges that:
this failure itself results from the legal definition of religious identities within the secular State of
India a definition that is the product of a long process initially started by the colonial power more
than one hundred years ago (227).

While acknowledging the colonial contribution to post-colonial understanding of religious

identities, Sila-Khan does not engage with the processes that constitute the legal definition
of religion. Why is it important to identify sacred literature in determining whether a
practice is Hindu or Muslim? What determines the criteria for members of the Satpanth sect
being classified as Hindu or Muslim? She thus succeeds in acquiescing to the very legal
definition of religion that she condemns.
Such an interpretation brings forth further questions. What is it that allows law to see religion
the way it does? Would identifying various scriptures, founders of sects, and doctrines allow
one to identify religion? Would recognising a phenomenon that has these components as
religion solve the problem of the inexplicable manner in which law has the potential to
produce every situation and action as religious? Would recognising a place of worship as any
set of geographical boundaries that carries out activities that can be described as being related
to this phenomenon be satisfactory in resolving this question?
These questions illustrate the problem of laws inability to produce any kind of coherent
description of religion, the consequence being that every object can potentially be religion or
religious. As one has pointed out, the incoherence of religion as a legal category carries with
it the assumption that there is a certain narrative of secularisation across societies and that
such secularisation has occurred inadequately. I would like to suggest that one needs to
challenge this narrative. What is obvious about such a narrative is that it depends on the
existence of religion. Religion is required to be present in order for secularisation to occur.

This assumes that there is an entity called religion in every society and it has certain
properties that allow it to function in a particular manner.
There has been a body of work that has challenged the assumption of religion being a cultural
universal (Fitzgerald 2000; Asad 1993). However such work has sought to locate religion in
terms of its emergence as a universally valid category in the context of its history and the
institutions that frame it. This does not provide us with a theory of religion. A theory of
religion is required to specify the nature of religion in the context of its properties. Such a
theory allows us to identify religion through its properties. S.N. Balagangadhara (1994)
provides us with such a theory suggesting that it is Christianity that can be identified as
religion, and the properties of Christianity are the properties of religion. Balagangadhara
further argues that if culture can be understood as a configuration of learning, religion is what
generates such learning in the West. This leads to the compulsion to see religion in all
cultures.
There are many implications that arise from this theory in the context of secularisation and
the secular state. As shown in one such study (De Roover 2006) the neutral secular state rests
on the assumption that there has to be a separation between the domains of religion and
politics in order to treat all religions equally. In the Indian context one is unable to identify
what religion is. Therefore the secular state is incapable of being neutral as the Semitic
religions and Hinduism are different phenomena, and it is not possible to treat them equally.
If one takes De Roovers findings seriously the problem of the legal regulation of religion
assumes a different form. The courts are compelled to treat Hinduism and the Semitic
religions equally when they cannot do so. Recognising this compulsion allows us to generate
a fresh approach to resolve the impossibility of regulating religion and the assumptions that
structure the problem such as the narrative of secularisation. Therefore if religion does not

exist in India, the narrative of secularisation cannot hold and the problem of the legal
regulation of religion needs to be resolved differently.

1.3

Resolving the Problem: The Theoretical Framework, the Question and the

Method
The resolution of the problem can only be initiated by understanding the making of law in
India. The Indian legal system has colonial origins and is the direct successor to the legal
system instituted by the British colonisers. Therefore many of the concepts and categories
that it uses are inherited from its predecessor.19 Therefore it becomes necessary to analyse the
conceptual framework that forms the basis for the recognition of legal concepts and
categories within Indian law. To understand this conceptual framework one has to be
conscious of the fact that a Western epistemic framework is used to study law and culture in
the non- Western world.
This framework was first discovered by Edward Said who in his landmark work explained
and illustrated this particular way of speaking about the East that was characteristic of
Western discourse. He named this framework Orientalism and described it as a kind of
intellectual power; a library or archive of information which was bound by a family of ideas
and a set of values which explained it as a phenomenon (Said 2001, 41-42). The nature of
Orientalism is further elaborated by Balagangadhara and Keppens (2009) who suggest that
knowledge about the Orient is a report of the western cultural experience and that such
knowledge embodies the structure of that experience. Therefore one needs to understand

19

A lucid analysis of the colonial nature of the Indian legal system is provided by Baxi (1982).

Orientalism ..... as a set of constraints upon and limitations of thought than it is simply a
positive doctrine( Said 2001, 42 )20.
British colonialism is an illustration of this particular manner of speaking within Western
discourse. Its transformation of Indian culture has been pointed out by Bernard Cohn (1997)
in his landmark essay on the census and social objectification. He shows how social reform
movements in the nineteenth century looked upon their own culture as an object to be
reformed in order to be consonant with European ideals of rationality. Such objectification
could be traced to the census operations carried out by British officials themselves, who
conducted such operations on the basis of widely held beliefs about Indians i.e. one such
belief being that caste and religion are sociological keys in understanding the Indian people.
Cohn (1997) also shows the role of Orientalists in creating Hindu law from various texts by
analogizing it with Muslim law in another essay. This was done, by creating the Dayabhaga
and Mitakshara schools as analogous to Sunni and Shia law. However, he does not let us
know what lies behind the making of these colonial categories, particularly how the category
of religion was created through law, although he mentions the identification of texts as being
part of this process. Cohns account is illuminating being the first of its kind in understanding
how law looks at religion. However the making of a legal category has to be understood in
the context of the legal rationality and the conceptual reasoning that allows for the content of
such a category to come into existence.
For an understanding of colonial legal rationality and its conceptual reasoning, one needs to
inquire into the content and creation of modern legal systems in India which have been
inherited from the British Indian legal system. Upendra Baxi (1986) suggests that Indian legal
understanding is different from Western law and mentions how the sastric law was given
20

In understanding Orientalism in this manner, one significantly departs from the position that is invoked by
the post-colonialists on Orientalism being characterised by structures of power and knowledge.

prominence over custom in the colonial period, although both were antithetical to Western
law. He then details the differences between Western and Indian law. English law
emphasised the value of the individual over artificial groups whereas traditional Indian law
emphasised natural associations such as family and caste over individuals. More importantly
western legal systems are distinguished by adversary proceedings with winners and losers
whereas the traditional Indian system of dispute settlement relied on consensus.
Baxi comments that this had important consequences on the legal system including the rise
of litigiousness and the prevalence of false witnesses. Therefore as Baxi (1982) himself has
elucidated, the problem with legal categories and concepts that have been inherited from the
British Indian legal system is not that the categories themselves are colonial or western or
different, or that they are a method of domination and subjugation, but that they produce a
distortion in the modes of dispute resolution in India.
Therefore the resolution of the research problem turns around this insight that a Western
epistemic framework is used to understand law and culture in India. This is due to the history
of colonialism in India and the categories and concepts that have been inherited from the
West which are present in the modern Indian legal system. Therefore one has to approach the
problem on how law makes the religious place with this insight in mind. In this context, and
in light of the problem, it becomes important to interrogate the archaeology of western
discourse (particularly legal discourse on religion) which produces this unintelligibility of
religion within law and the production of the place of worship as a legal category.
In doing an archaeology of western legal discourse, I broadly rely on Foucaults archaeology
of knowledge. Foucault (1972) specifically makes the point that methodologically archeology
has nothing to do with history. Discourse about any particular object cannot be based on the
existence of the object but the interplay of rules that make the appearance of the object

possible. What is important in an archeology is to see the conditions that allow for the
emergence of these objects, concepts and thematic choices. These are the rules of formation
that dictate the coexistence, maintenance, modification and disappearance of the various
elements in this domain. Therefore one tries to understand how such archaeology allows
British colonialism to experience both law and religion in India.
How does this archaeology work in practical terms and what does it mean to do an
archaeology of legal discourse? Such analysis does not involve understanding the specific
events that have transpired in individual cases or the judicial reasoning that is employed in
each individual case. It involves understanding the conditions that allow for the emergence of
such reasoning and how facts or events in such cases are described to fit the rules that frame
the discourse and the conceptual frameworks that come into being.
Such an analysis rejects traditional modes of analysis that have been employed in legal
scholarship so far. This involves the legal positivist understanding which locates law as the
command of the sovereign or sees law as primarily made by the State. The legal positivist
approach employs a black letter understanding of law. Law is seen as interpretation or
definition. In such an approach the argument would be that the problem of the
unintelligibility of religion within law can be resolved by a better legal definition of religion.
However a definition of religion does not provide us with any coherent referents21 and merely
succeeds as multiplying religion as an object, thus creating various descriptions of religion.
In defining religion as a phenomenon with a founder, scriptures and doctrines one can
multiply the number of religions available but it does not resolve the problem of the potential
of law to render every situation and action religious. One can also argue as Rajeev Dhawan
has done that there must be adequate parameters for the assessment of what is religious and

21

This is also elaborated in the discussion on the research problem.

what is secular. However artificial definitions would be subject to the same problem of
generating several descriptions and would also not resolve the dispute as a superimposed
description of the religious and the secular would not take away the conceptual framework
within which the dispute has arisen. An illustration would be that the payment of
remuneration to temple servants be made secular. If the payment of remuneration is related to
the ritual of the temple it would be difficult for courts to resolve the dispute without deciding
on the nature of ritual which is a religious matter. One can develop a legal standard that all
temple servants irrespective of the nature of the ritual should be paid the minimum wage.
This sidesteps the problem altogether and does not deal with the conceptual question
involved.
One can also resort to the line of reasoning that there has been inadequate interpretation of
the law (in the context of statutes, judicial decisions, and other sources of law). Whereas this
may be perfectly correct, it does not take into account the fact that there are limits to
interpretation and a better or a different interpretation will generate more descriptions and
will not solve the problem. An example would be the Tandava Dance case or the case of the
Satpanth sect (outlined in the earlier section) wherein it can be contended that the courts have
failed in their duty to interpret the literature adequately thus denying these sects their rights.
Such an approach takes for granted the nature of the legal concepts and categories that
provide the basis for such interpretation and their potential in generating several descriptions
of religion. This also takes the religious and the secular to be already existing available
concepts.
Another approach is to understand law as the product of social biases. Judicial reasoning in
such scholarship is seen as subject to the inherent biases in society against various social
groups. Law is thus transformed into ideology and politics. A typical argument from this
school of thought is that the various judicial decisions on the subject have denied the

internal diversity of Hinduism thus transforming it into a homogenous category. This is

due to the majoritarian nature of the Indian polity (which the judiciary is part of) that seeks to
build a uniform Hindu community. Due to this, judicial decision making is also influenced by
social antagonism against minority communities (such as the Muslim community), and thus
exhibits a bias against them. Such an explanation lacks conceptual rigour as it does not deal
with what makes anything into Hinduism or Islam. It also denies the nature of legal
rationality by attributing inherent biases within law and the judicial decision making process
that flows from it. Whereas it may be true that judges (like all other human beings) may be
antagonistic against certain social groups and have individual motivations which favour
certain cultural and social norms, it does not take away the limits and conditions that the
production of legal discourse is subject to. For instance as I show later in this thesis in order
to decide whether a particular place is a temple the judge requires to deal with the legal
framework on idols and cannot refuse to deal with that framework. Similarly to decide
whether a particular act is murder the judge is required to determine whether there has been
intention.
My approach is to understand how legal categories and concepts are recognised and
produced. What are the conditions and limits that allow for the unintelligibility of religion
within law? Similarly how is the legal category of the place of worship produced? What are
the conceptual and thematic frameworks that allow for the production of the place of
worship? One does not accept the descriptions of the events themselves in terms of their self
descriptions or their psychological characterisations. One tries to establish a set of relations
that are not internal to the discourse. One does not try to question the meaning or semantic
field or the opposition of the content of certain terms which happens if one has to understand
law as interpretation. The objective in this study is to understand legal discourse at a macro

level and not at a micro level. It does not attempt to theorise discontinuities in legal discourse
itself.
1.4

The Structure of the Argument

The claim in this thesis is that the legal category of religion is the product of a process of
theologisation.22 It challenges the existing understanding that law as a secular institution is
internally adequate to regulate religion. It proves that the legal category of religion is not the
product of definitions i.e. it does not require the mere identification of a founder, a creator
god and scriptures for religion to be brought into being within legal discourse. By doing so
it calls into question the story of secularisation as the transition from the religious to the
secular as a universal narrative across societies.
The mechanism of theologisation which identifies religion in legal discourse is
structurally similar to the mechanism of secularisation in the West. Theologisation is
the process by which law tries to bring about the conceptual conditions required for the
existence of religion as the West understands it. These conditions involve the concept
of God in the Christian context, an authority to interpret his will for mankind and the
public and the private which allows each individual believer to fulfil Gods Will on her
own terms. The production of such conceptual conditions is subject to the themes that
support it. In the case of the legal category of the religious place charity is the thematic
framework that supports such conceptual conditions. These conceptual conditions seek
to bring into being the application of doctrine. Theologisation results in a certain
dissonance because law is ineffective in actually creating these conceptual conditions

22

I would like to thank Dr.Vivek Dhareshwar for helping me come up with this term.

which are necessary for the application of doctrines. Such a process however occurs
because of the compulsion of the West to see religion in all cultures.23
The process of inquiry in this thesis is twofold. Its first question is to inquire into the
emergence of the object religion in legal discourse.24 This is by analysing the dynamic of
law and religion in the colonial period. This analysis shows that the colonial inquiry into the
forms of governance in India necessitated an interrogation of religion (as they perceived it)
being the source of law. This led to the process of the making of Hindu law and the
consolidation of Islamic law. This has been commonly understood as a process of
codification, particularly the codification of custom (Bhattacharya 1996) and the beginnings
of secular law. However, the approach of understanding religion within the Western
epistemic framework yields more cohesive explanations. In tracing the emergence of
Christianity in the West and the manner in which it has spread, I identify the mechanisms of
secularisation. Relying on the work of Markus (1990; 2006) and Balagangadhara (1994) I
argue that there is a dynamic of theologisation that is behind the process of the making of
Hindu law. The mechanism of theologisation that creates the category of religion within
legal discourse is structurally similar to the mechanism of secularisation that has allowed
Christianity to spread in the West.
I then show that similar mechanisms of transforming practice also exist within Islam. Such a
mechanism can be identified from the manner in which Islam spread in the pagan Arab world
and the manner in which it transformed practice. The advent of Islam in India led to a similar
transformation of practice. However such transformation was incomplete, being arrested by
contact with the cultural forms that were prevalent at that particular period of time. This
23

24

For an explication of this argument, refer to Balagangadhara ( 1994).

In doing so, one seeks to critically examine why such an object is called religion in light of evidence that
religion does not exist in India ( Balagangadhara 1994).

resulted in unique traditions unlike Islam in the Arab world. When the colonisers encountered
these traditions, they were puzzled as they could not place such traditions within their
classifications of religion. Their attempts to classify these traditions along with other Islamic
institutions in India and other factors such as the rival theologies of the Semitic religions led
to a certain process called Islamicisation.
The second question is to inquire into the elements of such theologisation which is crucial for
the emergence of religion within legal discourse. This is done by looking at a specific legal
category which is the place of worship. I show that the place of worship as a legal category
has come into being as a legal entity through a gradual shift from the nineteenth century up to
the second and third decade of the twentieth century (which also saw the consolidation of the
legal category of religion itself). The conditions that have constituted the emergence of the
place of worship as a legal category are that the religious can also be described as the
charitable.
This leads us to interrogate charity as a concept and how it emerges in legal structures. Such
an investigation shows that charity as a concept is peculiar to the West and is related to other
concepts such as property and sovereignty. To understand its emergence within legal
structures, one analyses it as a thematic framework and shows how as a theological principle
it has become secularised in the form of the legal structures of trust and equity.
In the constitution of the legal category of the place of worship these secularised legal
structures that are transplanted in the Indian legal order, shape theologisation as a process.
Such theologisation is made possible through a set of relations between dedication to God,
authority and the public and the private. Such theologisation provides an impetus for
Islamicization in the case of the wakf which is the Islamic legal category of the place of
worship.

What explanations does the process of theologisation provide? In the conclusion I show how
one can learn from the insights provided by the conceptual inchorence surrounding the legal
regulation of religion.