ANR Programme 2009-2013
image of courtroom
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

3- Religion and the Courts

Section 3: Religion and the Courts

While the Indian Constitution provides the framework for a complete secularism, it is not without some contradictions inherited from the nation’s history. For instance a sizeable number of Hindu temples are directly managed by the regional states of the Federation; the legal status of Hindu idols is recognized; the state provides support to religious minorities, subsidizing for instance their educational institutions; etc. Thus, in various ways, the secular state is directly involved in the direct administration of different religious institutions. The Courts regularly have to rule on matters concerning religious rights, affiliation, and the very definition of what is a religious group.

The secularization process, as understood from the Courts’ action, needs to be analyzed beyond the judgment itself or the legislation involved. The arguments, the vocabulary in which they are couched, the legal strategies used by the parties and by the Court, the pressures from the society, the social and political stakes involved in the decisions, all these are crucial for a more comprehensive understanding of the role of Courts concerning the effective implementation of the Constitution’s secular ideal and framework.

This section concerns Gilles Tarabout (coordination), Catherine Clementin-Ojha, Djallal G. Heuzé, Chiara Letizia, Gérard Toffin, and Raphaël Voix

Detailed projects

>> Catherine Clémentin-Ojha

seeks to understand the Indian state governance of Hindu religious institutions through the judiciary. The research is essentially archival; it is based on court records and on commentaries in the press. There are two Hindu religious institutions recognized by the law in secular India, the temple and the monastery. The study concerns both and conducts a detailed analysis of two litigations. One which started in the twenties during the British colonial period concerns a monastery in Benares (U.P.), the other which started in the XIXth century during the Kachvaha monarchy concerns a temple in the city of Jaipur (Rajasthan).The study has two main objectives. One is to explain the content of the judicial decisions and their implications from a sociological, historical and religious perspective. The second objective is to use the judiciary records and their detailed case history to study the process of secularization that has affected the administration of the said religious institutions when their established tradition of religious celibacy (and contempt for married life) ceased to be an obligatory mode of life.

>> Gilles Tarabout

will work on litigations concerning temples and churches in Kerala. Some of them involve extremely important social stakes and claims of age-old private ritual rights. Many have been or still are the focus of prolonged litigations on which the High Court of Cochin has had to rule. The project aims at studying some of these litigations, in order to better understand the place of a secular Court in matters religious. The approach will be historical, relying on archives in Kerala and in the Indian Office Library in London, as well as ethnographical, with interviews of present-day protagonists.

>> Raphaël Voix

is studying a contemporary Hindu sect, Ananda Marga. During the last 25 years, it has been involved in two important legal battles. The first one, known as the “Tandava case”, opposed the group to the Commissioner of Police of West Bengal regarding the right to perform a public ritual involving the demonstration of skulls and knives in public. The second one opposed two factions fighting for the right to succeed to the guru-founder of the movement. The study will analyse these legal cases, with the aim to highlight how individual competence in legal proceedings has become an important feature of the religious authority within the movement.

>> Djallal G. Heuzé

will continue his approach on the Ganga Liberation Movement (Ganga Mukti Andolan). Though linked to environment, it is a religious and secularist issue and Hindu nationalists play a part in it. As India’s main river and one of its most important symbols, the Ganga has for a long time been entrusted to the care of various authorities, and there is a complex interference with the public jurisdiction. The project will focus on four kinds of actors, all of them confronted with the sphere of justice: the fishermen and boatmen living off the Ganga; the state and the legal apparatus; the Ganga Mukti Andolan; and the Hindu nationalists and the brand of NGOs associated with them.

>> Chiara Letizia & Gérard Toffin

Hinduism and Secularism in the newly-born Republic of Nepal through selected judicial cases: In May 2008, the Hindu monarchy of Nepal was abolished and replaced by a secular, democratic, federal republic. With a view to providing insights in the challenges facing the passage from Hindu to secular law and in the changing relation between religion and the state during a period of constitution making, C. Letizia and G. Toffin will examine the role of courts in shaping the notion of secularism and implementing it. To this end they will investigate judiciary cases regarding: 1. The ban on conversion and on propagation of religion (C. Letizia); 2. The crime of cow slaughtering (C. Letizia); 3. The tradition of the Kumari challenged by human rights (C. Letizia); 4. The interference of the State in religious matters: the case of Pashupatinath temple (C. Letizia and G. Toffin); 5. Funds for festivals: the case of the Indra Jatra (G. Toffin); 6. Secular laws related to women and their implementation in the courts (G. Toffin).