Courting the Divine: Hindu Deities and Legal Personhood in India

The flimsy boundaries of Constitutional Secularism make it a highly contested principle in the Indian Courts of Law. While the letter of law dictates equality of all religions before the State, the reality has always been different. The Post-Colonial ‘Secular’ State, despite being a theological novice has stepped into boundaries beyond its domain in a host of different issues. At times the Court has acted as the litigant, counsel and judge, all rolled into one, as it decided that a Hindu ceremony to mark construction on a High Court premises was not against the secular values of the Constitution (2011). At other times, it has stepped into the shoes of a religious teacher dictating and blurring boundaries between different sampradayas or/and traditions. A prominent one among them was when the Court decreed that the Swaminarayan tradition lacked distinction from Hinduism and should not be treated as a separate religious faith (1966).

Irrespective of the number of actual pronouncements on religion or core religious practices by the Indian judiciary, there was never any enunciation or breakdown of religious principles that the judiciary borrowed from time to time to deliver these judgments. An interesting case in point is that of the jurisprudence surrounding the image of the Hindu deity in modern India. The contemporary legal landscape has witnessed the likes of the infant Lord Ram (Ram lalla) and the found image of Shiva, legally known as Syamambhu Jyotirlinga Bhagwan Vishwesvar litigating their claims before the courts of law. The Babri Masjid demolition dispute and the ongoing dispute regarding the Gyanvapi mosque/Kashi Vishwanath temple both have the legal status of these deities as crucial factors in the adjudication of the claim. Thus one sees that the Hindu image or deity stands at the crossroads of legal fiction, human emotion and societal deference, making it an important part of law and society. The image considered to be a legal person has all rights vested in a human litigant in everyday life. It can buy and sell, it can sue and be sued and most notably, it can acquire and cede property and territory. The author through the length of this paper traces the birth and journey of the Hindu image, from its inception in English colonial jurisprudence to its hasty and irregular application in post-colonial India. Through a tactful use of ancient Hindu texts, colonial legislations, practices and case laws, this paper argues that the image of the Hindu deity occupies a unique position in Indian society, such that it is unfit to belong or be justified by any of the western theories of legal personhood. It is the hasty, colonial application of these theories and its subsequent development that has today created a phenomenon that can no longer be justified by the contours of law.