HINDU GODS ARE IN A LITIGIOUS MOOD these days. Following the struggle by Ram Lalla—the Hindu deity’s infant form—to lay claim to the 2.77 acres of land where the Babri Masjid once stood, even minor gods are flexing their muscles. The temple idol in Sri Govind Dev Ji Mandir, a garden-variety temple in Eastern Rajasthan, has recently been deemed to be the sole owner of about 400 bighas of land. The yoga guru Ramdev, incidentally, was eyeing the same plot of land for his Patanjali empire. The Indian state, which routinely dispossesses its citizens in the name of large infrastructure projects, is quite helpless when it comes to the land rights of temple deities.
Idols have long enjoyed state patronage. In 1988, the Indian government represented the god Shiva in a British court to bring back the idol of Pathur Nataraja from the British Museum. An argument made during the legal proceedings was that “an idol remained a juristic person however long buried or damaged, since the deity and its juristic entity survive the total destruction of its earthly form.”
Having “juristic personhood” assigned to a non-human entity cannot be considered a human right, but a privilege. It is legal fiction. Depending upon their social usefulness, states and courts choose to treat some non-human entities as if they were endowed with the rights of a person. These entities are obviously not flesh-and-blood persons—juristic persons do not have bodies or souls; they cannot reason or feel; they do not get married or have children. Yet juristic persons have the right to own property, to enter into contracts and to sue. Idols of Hindu gods are deemed persons in this sense, although being an embodiment of the divine, they are ascribed a superhuman will.
Idols are to modern Hinduism what corporations are to the world of business. In a hyper-capitalist country like the United States, business corporations have been granted the rights of free speech and freedom of religion, which used to be reserved only for citizens. In a hyper-religious country such as India, temple idols have been granted the right to own and litigate property, a right normally reserved for citizens. Yet what may be forgotten in all this is that it is human and other sentient beings that are entitled to enjoy rights that stem from living in a society.
ON 22 DECEMBER 1949, militant Hindu activists broke into the Babri mosque and placed the idols of the Hindu deities Ram and Sita there. The installation of the idols would trigger a conflict that would change the political contours of the country in profound ways over the next fifty years. The events of the night would be retold in a mythical fashion. In 1987, the Rashtriya Swayamsevak Sangh journal, Observer, reported it as a “historic morning” in which the idols “miraculously appeared at the Janmasthan.” By the 1980s, the Ram Janmabhoomi—Ram’s birthplace—movement had acquired considerable steam. In September 1990, BJP leader LK Advani launched a rath yatra that was to traverse 10,000 kilometres through the country in a jeep designed like a chariot, with the rallying cry of “Mandir wahin banayenge”—the temple will only be built there. The yatra left a trail of communal clashes wherever it went. It came to a head with the demolition of the mosque by a 300,000-strong mob. The incident led to one of the worst outbreaks of communal violence in modern India. During the rath yatra, Advani declaimed: “Can a court decide if Ram was born here or not?”
Meanwhile, the legal case surrounding the idols drags on. The retired judge Deoki Nandan Agarwal collected revenue records and other documents to claim the land belonged to Ram before filing a writ petition before the Allahabad high court in 1989. In his suit, he appointed Bhagwan Sri Ram Virajman—Ram himself—as the lead plaintiff. He pronounced himself Ram Lalla’s “next friend”—a provision that would allow him to conduct legal battle on Ram’s behalf. In 2010, the high court in Allahabad ruled that one-third of the land would go to Ram Lalla, while the remaining would be split between the other two plaintiffs. The next year, the Supreme Court stayed the order on grounds that no party had wanted a three-way split.
In the judgment, Justice Sharma ruled that once consecrated, or worshipped long enough, “there is no difference” left “between idols and deities.” The stone statue, in other words, becomes the deity and acquires perpetual ownership rights, with no time limit, to all the properties vested in the deity by its devotees. As legal owners of property, idols—through their human next friends—have the right to move courts to secure their interests, regardless of whether the original idol is in existence or not. The Ayodhya judgment not only hinges upon this understanding of idols as juristic persons, it stretches it further: it finds not just Ram Lalla but also the Asthan Ram Janmabhoomi, the entire disputed site in Ayodhya, to be a juristic person as well.
Buttressing such legal arguments is the inescapable rhetoric of a timeless past. We are told that Hindus have believed that the idols of gods are the gods themselves in both recorded and unrecorded history. “Hindus since times immemorial and for many generations constantly hold in great esteem and reverence the Ram Janmabhoomi where they believe that Lord Ram was born,” the Ayodhya judgment states.
This is false. It is not the case that Hindus have always treated idols as the owners of temple properties. Idol worship actually emerged around the beginning of the Common Era. Far from being an “essential” practice, it was bitterly opposed by some Brahmins. There is a deep strain of scepticism, sometimes verging on contempt, for idol worship in a number of dharmashastras and influential schools of orthodox Hindu philosophy, most notably the Purva Mimamsa tradition. Over time, idol worship won in popularity to the point that what we call Hinduism today seems unthinkable without it. But the practice has remained at odds with elements of Hindu orthodoxy that never accepted the idea of gods as rights-bearing, human-like entities.
Likewise, the grounds for conferring legal personhood to idols are far from clear cut. It is because of a judgment handed down during the colonial era, and affirmed repeatedly by the Supreme Court in independent India, that legal and property rights have been granted to Hindu idols. But, as Bijan Kumar Mukherjea—a former chief justice of India and the author of the influential 1951 book, The Hindu Law of Religious and Charitable Trusts—argues, this notion that the “image itself develops into a legal person as soon as it is consecrated and vivified by prana pratishtha ceremony” is an “exploded theory.” According to Mukherjea, it is not the case that “the Supreme Being of which the idol is a symbol or image is the recipient or owner of the dedicated property.” Rather, when the law recognises the idol as a juristic person, it only recognises it as “representing and embodying the spiritual purpose of the donor.” He further argues, “The deity as owner represents nothing else but the intentions of the founder.”
But even if we follow Mukherjea’s logic and concede that it is the spiritual purposes of the devotees, and not the idol’s wishes, that decide the legal status of an idol, it begs the question: What happens when the devotees’ purposes are manifestly criminal? How did an idol illegally smuggled into a mosque come to be considered a holy embodiment of the divine?
Although many commentators take the juristic personhood of Hindu idols in the Ayodhya case as an undisputed legal principle, it has a contested legal history. There are influential Supreme Court judgments that emphasise human, rather than divine, intentions as grounds for juristic personhood. This demotion of an idol’s divine rights in favour of human purposes of the worshippers is not the result of imposing some “Western” secularist ideology, but of the sceptical strains present within Hindu philosophy itself. The legal history of idols’ personhood cannot be understood in isolation from the philosophical debates about the divine and the plausibility of its embodiment in idols within Indian theology.
IN 1925, THE QUESTION BEFORE the highest appellate court in the British Empire, the privy council of King George V, in Pramatha Nath Mullick vs Pradyumna Kumar Mullick was whether the custodian of an idol was entitled to move it from the family shrine to his own residence. The council rejected the request on the grounds that “the will of the idol in regard to location must be respected” and came up with this famous ruling:
A Hindu idol , according to long established authority founded upon the religious customs of the Hindus and recognition thereof by Courts or Law is a “juristic entity”. It has the juridical status, with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would… on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities, for this doctrine, thus simply stated, is firmly established.
This has become one of the most cited passages in Indian case law on matters related to temples and deities. The Ayodhya judgment practically stands on this conception of legal personhood not just for the idol, but for the site itself. Justice Sharma explicitly acknowledges the privy council judgment as the basis for his finding that the entire site belongs to Ram.
It is because of this precedent-setting judgment that the law can treat idols not as judicial fiction meant for purposes of taxation and other administrative purposes, but as real persons endowed with “will” and “interests.” Thus the judgment insisted that the shebait, or temple custodian-priest, must consult the idol in matters regarding the location and mode of worship because “it is open to an idol, acting through his guardian, to conduct its worship in its own way at its own place.” The idol, in other words, has preferences and predilections regarding how it “wants” to be worshipped. Because it cannot speak or act on its own—it is, after all, made of inorganic material—the shebait has a legal duty to act to safeguard its preferences. In case there is a conflict between the shebait and the idol, the court makes room for a “disinterested next friend” to step in. This provision of next friend, incidentally, has opened the door to political machinations in the ongoing Ayodhya dispute. Following the footsteps of Deoki Nandan Agarwal, the first “Ram sakha,” all subsequent “next friends” of Ram Lalla have been affiliated to the RSS or the Vishwa Hindu Parishad.
How did British jurists, with hardly any contact with India and its religious traditions, arrive at this momentous ruling and with such confidence that they found it “unnecessary to quote the authorities”? In fact, the Indian defendants in this case had argued that the idol was their private property and they could do with it what they pleased, “even throw it into the Ganges, if they wished to.” The privy council chided them for treating the idol as “mere movable chattel,” and invoked custom and unnamed religious authorities to decree the idol as an autonomous person. The learned judges clearly superimposed Anglo-American company law, developed in the nineteenth century, on their preconceived ideas about Hindu religious traditions whose complexities they did not understand.
England was the birthplace of the joint-stock company—the East Indian Company, chartered in 1600, being the prime example. By the early-twentieth century, such corporations were fully recognised by the British and American legal systems as “persons” vested with rights to own property, enter into contracts and litigate. The privy council judgment simply transposed the laws meant to regulate commerce to matters of faith.
The British jurists, moreover, were heirs to nearly two centuries of Orientalist policy, where India was ruled in accordance with the religious sentiments and customs of its natives. Until it was reversed in 1841 due to a hue and cry over “idolatry” among Christian missionaries, functionaries of the East India Company had actively involved themselves in temple affairs. As Richard Davis, professor of religion and Asian studies at Bard College, puts it in his 1997 book, Lives of Indian Images, they “collected and redistributed temple revenues, arbitrated disputes over ritual prerogatives, administered religious endowments, renovated decrepit structures, gave presents to the deity and participated publicly in major temple festivals. In short, they vigorously adopted the role of Indian sovereigns.” This hodgepodge is then festooned with Hindu customs and traditions supposedly so well-entrenched that it is “unnecessary to quote the authorities.” It is an irony of epic proportions that this colonial-era law has now become a cornerstone of Indian jurisprudence and that Hindu nationalists are exploiting it to the hilt.
There are crucial ways in which the personhood of Hindu idols is not analogous to corporations. Although both are non-human entities endowed with a quasi-human “personality” by law, there is a difference. Corporate agenda, unlike that of an idol, is not inscrutable to humans. Corporations, unlike idols, are ultimately accountable to real, flesh-and-blood shareholders.
THE TENSION BETWEEN POPULAR and philosophical Hinduism when it comes to divine landlordship has not been reconciled. It harks back to the very beginning of idol worship in recorded history and the bitter opposition it faced from the orthodox defenders of the Vedas.
As the German philologist Max Muller put it, “Religion of the Vedas knows of no idols.” In Vedic times, the gods were worshipped through yagnas, or sacrificial offerings, and mantras, or sacred utterances. This meant that ritual ceremonies could be conducted anywhere and the idea of the divine was a disembodied abstraction. The gods were expected to come down from their celestial abode, participate in the yagnas and enjoy the sacrificial food and drink.
Around the beginning of the Common Era, open-air Vedic altars began to give way to permanent structures with images and idols of gods that seemed more and more human-like. The devotees would now have to go visit the gods living permanently in their new earthly homes. The first recognisably Hindu idols date back to the second century. Slowly but surely, “temple Hinduism”—to use a term coined by Richard Davis—began to dominate over Vedic Hinduism. Scholars have offered many reasons for this, chief among them being the imitation of Buddhists and Jains who began to fabricate images of their founders, the reassertion of Dravidian or shudra gods and the doctrine of ahimsa are all cited as possible reasons for this remarkable shift.
Temple Hinduism, however, met with stiff resistance from those who had kept the sacrificial fires burning in the Vedic altars for centuries. Part of their opposition came from the threat the temples posed to their livelihood and prestige: if worshippers now had a direct line to the divine through idols, why would they bother to sponsor expensive Vedic rituals, or continue to invest in the ashrams and gurukuls where Vedic learning was kept alive? The very handsome dakshina given to those who used to conduct Vedic rituals was now going to the images installed in temples and the priests who looked after them. The Manusmriti lumps temple priests with doctors, butchers, actors, singers, gamblers, drunks, Buddhists and other nastiks—atheists—as all who must be shunned. Like those who live by shopkeeping, Manu complains, temple priests act for the sake of profit and not for dharma.
But much more was at stake than a mere competition for patronage. The orthodox Vaidikas, especially those trained in Purva-Mimamsa, saw the words of the Veda as self-sufficient. They believed that Vedic sacrifices, if accompanied by correctly enunciated mantras, generated an apurva—a physical potency—that was bound to bring about the desired earthly result. It was the ancient scholars of the Purva Mimamsa school—such as Jaimini in the third century and Sabara in the fifth century all the way to Medhatithi in the ninth century—who launched a radical attack on gods who could supposedly take bodily forms. It is these iconoclastic texts of Mimamsa that Indian jurists would rediscover in order to question and qualify the juristic personhood of idols.
Mimamsaks denied that gods have bodies, free will or the capacity to own property. The hymns of the Vedas refer to gods as if they are humans who enjoy what they eat and drink. Mimamsa, which specialised in the interpretation of texts, interpreted these verses as purely metaphorical. Thus, when a Vedic hymn says “O Indra, I take hold of your right hand,” Sabara insists that it only means that “We depend upon Indra.” Indra, according to Sabara, is a not a physical entity but only the sound (shabda) of his name. And if divinity is only formless sound, it cannot eat, drink or incarnate itself in an idol. Second, the will: if gods are mere allegories, then by definition they lack will. They are incapable of saying of anything that “it is mine.” Finally, ownership: according to Medhatithi, ownership is a relationship between the owner and an object. What is essential to this relationship is that “one could do as one likes” with the object in question. But, he argues, gods “do not use wealth according to pleasure, nor can they be seen as exerting themselves for the protection of the wealth.” Devotees may want to gift property to the gods in order to please them, but gods are simply not the kind of entities who can have a position as a proprietor with the property earmarked for them. Who does this unclaimed property belong to then, if not to the gods? Not surprisingly, being an orthodox Brahmin, Medhatithi ends up concluding that “things of the gods” are actually things that belong to the “highest class,” which included people like himself.
Many other commentators followed Medhatithi’s lead and argued vigorously against any equivalence between a primary sense of ownership (that comes with a subjective sense of rights and duties) and a secondary, or fictional, ownership by the gods. Yet, all these learned arguments failed to stem the tide of devotional religiosity of the masses who continue to this day to bring their hopes, prayers and gifts to the gods enshrined in the temples.
THE MIMAMSA SCEPTICISM experienced a renaissance in Indian jurisprudence in the twentieth century, thanks to the erudite polymath Ashutosh Mookerjee, who served as a judge of the Calcutta high court from 1904 to 1923. In the precedent-setting 1909 case Bhupati Nath Smrititirtha vs Ram Lal Maitra, Mookerjee called for caution in rushing headlong into declaring deities as juristic persons in any real sense of the word. He went back to the Dayabhaga system of Hindu laws of inheritance and revisited the old Mimamsa texts to zero in on why gifts to gods do not have the same legal standing as a gift to a person. His ruling in Bhupati Nath, in turn, prepared the grounds for another major Supreme Court ruling, Deoki Nandan vs Murlidhar, authored by Venkatarama Aiyyar in 1956.
According to the Dayabhaga legal school of thought, gift giving is a two-step process. The person who gives the gift has to renounce their ownership over it. The receiver has to take the next step and accept it. Unless and until the beneficiary of the gift accepts it as their own, the gift remains an ownerless object.
This is the nub of the problem for gifts intended for the deities. After ritually resolving (sankalpa) to dedicate his property to god, the donor renounces his rights in it (utsarga). But the other party—the deity or idol—cannot complete the process by coming forth and saying “Yes, I accept your gift and henceforth it is mine.” The deity cannot do this for the same reasons that troubled Sabara, Medhatithi and company: the deity is not a sentient being. This puts the gift intended for gods, as Ashutosh Mookerjee put it, in a rather “peculiar position,” for the simple reason that while “the owner is divested of his right,” it is a fact that “the deity cannot accept.”
This opens a whole new can of worms, insofar as the law is concerned. The question may be asked of who should own the assets set aside for the gods, since the gods are unable to claim them. The answer is clear: such ownerless property belongs to the state. In the Hindu legal tradition, as Mookerjee argues in Bhupati, protection of the devagriha, or the temple, is one of the primary duties of kings. In the modern-day democratic polity, the state becomes the custodian and protector of places of worship and runs them as public trusts.
And yet, if the courts accept the old Mimamsa scepticism, how do they respect the piety of the devotees, who earnestly believe that gods graciously accept and enjoy the gifts they bring to them? Protecting the religious freedoms of citizens is also a primary function of the Indian state. It has to be careful not to tread over the devotees’ sentiments. How, then, can the denial that religious donations belong to the gods be reconciled with the faith of the masses?
The breakthrough that Bhupati and Deoki Nandan make is this: The phala—spiritual benefit—of a donation lies in the act of relinquishing something of value for god; the daan itself is what is spiritually meritorious. The idol need not be the owner of the gifts that the devotees bring, but rather a symbol of their pious purposes. As Aiyyar ruled in Deoki Nandan:
Thus, according to texts such as Sabara’s Bhasya and Medhatithi’s commentary on Manu, the Gods have no beneficial enjoyment of the properties and they can only be described as their owners only in a figurative sense. The true purpose of a gift of properties to the idol is not to confer any benefit to God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.
This echoes the earlier Bhupati ruling that even though idols cannot be considered the owners, the pious purpose that motivated the devotees—obtaining spiritual merit—can accrue to them through the act of dedication itself. As Justice Lawrence Jenkins put it: “the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected.”
VAST NUMBERS OF INSCRIPTIONS from medieval temples indicate what presenting land, gold and jewels to idols meant to the devotee. The donors, based on these texts, clearly hoped that the deity would gracefully accept their gifts in earnest. To them, the deity was the intended lord and owner of their gifts. The gifts could be substantial. The temple in Tirupati, for example, was endowed with over a hundred villages and large sums of money by the Vijayanagar rulers between 1456 and 1570. Apart from kings, wealthy merchants, temple functionaries, pilgrims and ordinary devotees made generous donations. The primary purpose of the gifts was to earn spiritual merit, fulfil a wish or even to expiate sins. Contemporary evidence also indicates that most practising Hindus believe that what they lay at idols’ feet belonged to the gods. It is this popular sentiment that legal enactments such as the privy council judgment choose to protect when they declare idols to be juristic persons.
The problem with this legal largesse toward idols has two implications, one practical and the other theological. Making idols the legal owners of land—and making land a juristic person—opens the floodgates for all kinds of misappropriation and fraud, to say nothing of communal strife. The theological problem is that popular Hindu sentiment is contradicted by Hindu legal principles. The contradiction was evident to Indian jurists familiar with both Western and Hindu principles of jurisprudence. Landmark judgments have concluded that deities simply lack the capacity for establishing a proprietary relationship with donations made in their name, and are therefore juristic persons only in a Pickwickian sense. As SC Bagchi put it in his 1931 book, Juristic Personality of Hindu Deities, “the deity, despite his spiritual potency is juridically impotent… the idol is there, for religion demands it presence. But law courts will have none of it.” All that the law can protect is the pious intention and spiritual purpose of the donor who gifts her property to the idol, but not the landlordship of the idols.
But what if the devotees’ gifts were not actually owned by the deities, but were treated as symbols of sacrifice and the devotion of those who come to them seeking spiritual upliftment, peace of mind or whatever pious purpose that moves them? This would require us to change the lens through which we look at a god’s personhood, from that of a property owner to a symbol of the worshippers’ spiritual strivings. Because the deity’s “will” and “interests” are in principle not accessible to human beings, it makes sense to return focus to the intentions of devotees.
Such a change in perspective would not only liberate the gods from their entanglement in material stuff, it would also allow us to make a distinction between faith and political motives that masquerade as faith.
If idols are symbols of pious purposes, what is Ram Lalla a symbol of? It has been established beyond doubt that the installation of the Ram Lalla idol at the Babri mosque was the result of a well-planned conspiracy. The sadhus and magistrates who masterminded the break-in may have been pious men in their personal lives, but there was nothing pious about the conspiracy they hatched and the criminal means they used to carry it out. It is the same idol they smuggled into the mosque that the Ram-bhakts now want to install in the grand temple they want to build on the ruins of the mosque. Where is the piety or spirituality in all of this? Indeed, the Hindutva brigade has turned the idol of Ram Lalla into a symbol of their majoritarian political project.
The tragedy is that a flawed, corporate-style understanding of the personhood of gods has allowed this to come to pass.