Faith’s Lawless?

Published: November 8, 2010 - 16:15

'Ram Lalla', a Hindu deity, was party to a legal battle over a property dispute. Can this phenomenon stand the rigours of rationality, logic and justice?
Neha Rathi Delhi 

On the evening of September 30, 2010, as the whole country waited for the Ayodhya judgement with eyes glued to their television sets and ears cocked in trepidation, the verdict came out with silent aplomb. The decision of the Lucknow bench of the Allahabad High Court, trifurcating the disputed land at the site where the Babri Masjid once stood, ruffled many feathers. But the judgement did ensure peace, putting to rest the initial paranoia that had the whole nation huddled indoors, with offices declaring the day off.

It was perhaps to the credit of the placatory judgement that no buses were torched, no roads were blockaded and no hooliganism was reported anywhere. But, whether the verdict served the ends of justice in legal terms - which it was meant to do - is still an open-ended question. After all, much before justice is seen to be done, it needs to have been done.

As newspersons ran amok, trying to make sense of the three-page gist supplied to them, jumping from one lawyer to another (many 'Hindutva' lawyers pumping, thumping their chests), one view that emerged was that the judgement, instead of being a judicial one, was more of a 'political settlement' - one that might have serious trouble holding ground in the apex court (or any court that deals with logic, not faith, as others argue). The Sunni Wakf Board has already declared its intention to go for an appeal against the judgement. So, clearly, the last word on the issue is yet to be pronounced.

A significant facet of the judgement is that a deity was found eligible to be party to a lawsuit. The Other Original Suit 5 (OOS 5) of 1989 - undoubtedly the most consequential of all suits - was between Bhagwan Sri Rama Virajman & Others, as plaintiffs, versus Sri Rajendra Singh & Others, as the defendants. For many, imagining Lord Ram as a plaintiff in a legal battle has been quite befuddling.

In the words of Justice DV Sharma (excerpted from the judgement): "As in the case of minor a guardian is appointed, so in the case of idol, a Shebait or manager is appointed to act on its behalf. In that sense, relation between an idol and Shebait is akin to that of a minor and a guardian. As a minor cannot express himself, so the idol, but like a guardian, the Shebait and manager have limitations under which they have to act."

Girjesh Shukla, Associate Professor of Law, Delhi University, told Hardnews, "Under Indian jurisprudence, a deity can be represented through the trustees since most of the property concerning a religious place is always managed by the trust. This would mean that the title deed is in the name of the deity and hence it can be party to a suit. In the present case, the issues pertained to 'Ram Lalla', and since the deity was a minor it had to be represented by its guardian."

In adherence to Order XXXII of the Civil Procedure Code, the practice is for the courts to appoint a 'next friend' to represent a minor in a lawsuit. It was in accordance with this order that the court appointed a 'sakha' (friend) the day the petition was admitted. Since the deity is a perpetual minor, he has to be represented by the 'next friend'. The order reads: "Any person who has no interest prejudicial to the interest of the deity and is a Hindu worshipper of the Lord can apply for appointment in this capacity." 

The Ayodhya judgement of the three-judge Lucknow bench, running into 8,500 pages, holds that Ram Janmabhoomi is a juristic person. About the place of birth, the judgement reads: "The disputed site is the birth place of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Lord Rama as a child. Spirit of divine ever remains present every where at all times for any one to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also."(sic)

But who is a juristic person? A juristic person is defined as a being - real or imaginary - to whom the law attributes a personality by way of fiction when there is none in fact. This legal fiction enables the entity to sue and be sued in its name. According to the Supreme Court, in an earlier judgement: "A legal person is any entity other than human beings to which the law attributes a personality" (Som Prakash Rekhi vs Union of India, AIR 1981 SC 212). The words 'juristic person' connote the recognition of an entity to be a person in law which otherwise it is not.

According to Shukla, "Under Hindu Law, idols are recognised as juridical persons. The whole of law with regard to Hindus has been framed keeping in mind legal customs prevalent at the time. A judge is an impartial interpreter of law; the judgement cannot be rubbished because a few people do not agree with Hindu Law itself."

Indeed, Hindu Law is a part of the law of independent India as established by the Indian Constitution. It refers to the system of laws that applies to Hindus in India in matters of marriage, adoption, inheritance etc. The provenance of Hindu Law in Indian jurisprudence goes back to the late 18th century when Warren Hastings, the first governor-general of India under the East India Company, formally made it a part of the colonial legal system. The British drew from early translations of Sanskrit treatises on religious and legal duty - the Dharmashastras - which were then, for the first time, used as codes of law by a modern judicial apparatus.

Thus, it was in 1925, in the landmark case of Pramatha Nath Mullick vs Pradyumna Lumar Mullick (27 BOMLR 1064), that the Privy Council had settled the law with regard to Hindu idols by saying: "From the spiritual point of view, an idol is the very embodiment of the Supreme Being, but with this aspect of the matter law is not concerned, in fact it is beyond the reach of law. In law, neither god nor any supernatural being can be a person. But so far as the deity or idol stands as the representative and symbol of the particular purpose indicated by donor, it can figure as a legal person."

In the Ayodhya case, in the suit filed on behalf of Lord Ram, Bhagwan Sri Ram Virajman was the first plaintiff, the second was Asthan Sri Ram Janma Bhoomi, Ayodhya (the place known as Ram Janmabhoomi), and the third plaintiff was Deoki Nandan Agarwal. It was argued by the plaintiffs that as the place of Lord Ram's birth, the Asthan Sri Ram Janma Bhoomi (the place of birth situated within the disputed site), is by itself a divine place that Hindus consider no less than a deity. The place, thus, becomes a juristic person in its own right. No wonder Ram Lalla Virajman and Janmasthan were both held to be juridical persons, each having a separate legal personality in the eyes of law.

The Wakf Board had contended that the suit in the name of deities was not maintainable through Plaintiff No. 3 as their 'next friend'. However, relying on precedents set by the apex court, specially the law as laid down in the 1999 cases of Ram Janki Deity vs State of Bihar, Gokul Nath Ji Maharaj vs Nathji Bhogilal and Bishwanath & another vs Shri Thakur Radhabhallabhji & others, coupled with decisions of the Privy Council and of different high courts, the court struck down the objection.

Various activists and lawyers have decried the precedent-setting implications of the judgement. Senior advocate Prashant Bhushan said, "Now these Hindu hardliners will lay claim on places in Mathura and Varanasi on the ground that it is their faith. They will argue that this is a sacred spot for Hindus. Every Tom, Dick and Harry would build a temple in the middle of a road and say it is a sacred place for him. There is no such legal principle and setting such a precedent would create chaos."

Indeed, the verdict legitimises ownership on the basis of 'birth' and 'faith', which many fear will have a ripple effect if upheld by the Supreme Court. "If this becomes law, then it would imply that ownership of property can be granted on the basis that a piece of land is sacred to a number of people or because some deity was born there. This would spell the end of the rule of law," said Bhushan. 

"Suppose two groups of people lay claim to a sacred spot on the basis of their faith. Then how will the dispute be settled? Would the courts do a headcount to find out how many people on each side consider the place sacred and decide accordingly?" he asked.

Besides the legal tangle, the verdict is also being questioned for indirectly legitimising the arguments behind the Ram Janmabhoomi movement that led to the demolition of the Babri Masjid. As eminent historian Romila Thapar wrote in a recent article: "There is no mention in the summary of the verdict that this act of wanton destruction, and a crime against our heritage, should be condemned. The new temple will have its sanctum - the presumed birthplace of Rama - in the area of the debris of the mosque. Whereas the destruction of the supposed temple is condemned and becomes the justification for building a new temple, the destruction of the mosque is not, perhaps by placing it conveniently outside the purview of the case." (The Hindu, October 2, 2010)

By not condemning the demolition of Babri Masjid in the verdict, the high court does indeed seem to justify the act of Hindutva fanatics, who, flouting the order of the apex court, had brought down the ancient mosque on December 6, 1992. As Bhushan sums it up, "It is a recipe for chaos and rewards the communal elements who whipped up this kind of movement to reap political mileage."

‘Ram Lalla’, a Hindu deity, was party to a legal battle over a property dispute. Can this phenomenon stand the rigours of rationality, logic and justice?
Neha Rathi Delhi

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