How Judiciary's Cultural Illiteracy Is Working Against Hindu Interests

The Supreme Court’s order directing the Andhra Pradesh government not to bar non-Hindus from participating in auctions for shops or malls under Charitable and Hindu Religious Institutions and Endowments Act, 1987, is retrograde.

In Tamil Nadu, a college established under the Hindu Religious and Charitable Endowments Act, is facing a challenge in the Madras High Court for restricting the recruitments to Hindus only. The challenge is by a Muslim. While no decision has yet been made, one shudders to think about the consequences if the High Court takes its cue from the Supreme Court’s orders in the Andhra case.

Both cases should have been thrown out on arrival, for Hindu devotees are not obliged to bankroll jobs or business ventures of non-Hindus within the premises of institutions funded by their contributions. But the higher judiciary clearly does not think so. This indicates that the judiciary, informed as it is only by narrow constitutional issues, is doing damage to Hindus by additionally being culturally insensitive or ignorant.

This cultural illiteracy and anti-Hindu bias have been in play after the country tilted leftwards in the 1960s, and both judges and academic institutions favoured covert anti-Hindu stances.

Two issues in particular involve cultural illiteracy and bias.

The first is the distinction being made between religious and secular activities in Hindu institutions. While earlier judgements of the Supreme Court, especially judgements given before the country's politics turned leftwards in the 1960s, tended to agree that there is no clear way to separate religious from secular activities in temples, later judgements, including the latest one by a bench headed by Justice D Y Chandrachud in the Andhra Pradesh case, have tended to go with the idea that these two can indeed be separated. Justice Chandrachud will become Chief Justice later next year.

This mischief is the direct result of the Christian idea of secularism, which involves the separation of church and state, the spiritual from the temporal, born out of the European Christian historical experience of conflict between the institutions.

In India, such tensions have been rare, except under Muslim rule. Indian kings, even if their personal beliefs were Buddhist or Jain, have contributed generously to Hindu temples, Shaivite Kings to Vaishnavite temples, and vice versa. The idea of kings being benevolent towards all faiths is intrinsic to Indian thought, and there was never any need to separate the spiritual from the temporal from the point of view of the state. The Chanakyan mantra, Sukhasya Moolam Dharmah, Dharmasya Moolam Arthah, clearly suggests that Dharma cannot be divorced from economics and wealth.

If there is no clear way to separate purely religious activity from the non-religious parts, the decision that Hindu religious institutions must have a separate track for inducting non-Hindus to benefit from secular activities is violative of the constitutional spirit of allowing each religion the freedom to manage its own affairs.

Counter-factually, even if one can indeed separate religious from secular functions in a temple, commonsense should have informed the judiciary that once a non-Hindu is installed inside a Hindu institution, there is nothing to prevent him from clandestinely or openly spreading his own religious ideas. Will the courts, for example, intervene to stop a Christian show-owner from distributing pamphlets for church services nearby when he can claim that Article 25 gives him the right to propagate his religion? One cannot presume that the highest courts will not uphold such absurdities in future, given its past track record. And if Muslim show-owners decide to offer namaz on the premises of a Hindu institution, one presumes that cannot be stopped either in the name of freedom to practice one's religion. If Hindus object, they can be pilloried for being intolerant.

Secondly, the real damage may be coming from two constitutional provisions, Article 25(2) and Article 26.

Article 25, which guarantees “freedom of conscience and free profession, practice and propagation of religion”, adds in its second and third provisos.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law...(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) 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

Article 26 guarantees citizens “freedom…to every religious denomination or any section thereof…”(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

Since articles 25(2)(a) and (b) allow the state to regulate “any economic, financial, political or other secular activity which may be associated with religious practice”, in the case of Hindu institutions this gives the state a licence to not just regulate, but also control them. That over 100,000 temples in five southern states are directly under state control does not appear to have bothered either the secular state or the super-secular judiciary. The right to regulate has become the right to total control by the state. What a travesty.

Article 26, which should provide comfort to every Hindu sampradaya, has, in fact, been used specifically to deny Hindus the autonomy given to Christian and Muslim religious institutions since Indian temples do not fit the Christian meaning of the word “denomination”. In theory, sampradaya should have been seen as the equivalent of denomination for legal purposes, even though the two words convey radically different meanings.

However, the courts have seldom accepted sampradaya as equivalent to the word denomination. The five-judge bench that decided the Sabarimala case simply refused to see the issue as one involving a denomination, or that the celibate deity, Swami Ayyappa, as having any rights at all. The basic Hindu idea, of viewing the deity as a living entity after prana prathistha, is simply ignored by the judiciary.

In short, the sheer usage of Western/Christian theological terms to define Hindu institutions, compounded by the cultural illiteracy of the higher judiciary, has been used to deny Hindus their core rights.

The next time the judiciary takes up Hindu issues, Hindu petitioners should insist that they be assisted in their interpretations of Hindu rights under the law with the help of true practitioners from various sampradayas. Judicial cultural illiteracy cannot be eradicated otherwise.