By S.N.Balagangadhara

Only ‘Hinduism’, the majority religion, has no religious freedom in India. The Supreme Court of India just follows the State here: the latter should have absolute control over all ‘laukika’ matters regarding religion.

The erstwhile colonial masters of India, the British, had contempt and disgust for ‘Hinduism’, the so-called majority religion in India. During their rule, they did their best to destroy this religion, inter alia, by bringing it maximally under their control also through legislation. The Indian Constitution took over this attitude from the British and enslaved the Indian traditions to the whims, fancies and arbitrary wills of politicians and bureaucrats. Whether it is about employing Archakas or controlling the finances of temples, whether it is about performance of seva by the devotees or about the practicing of kinds of fasting, the Indian central and state governments have taken complete and total control of Indian traditions and justify this by considering all such issues as ‘laukika’ (translating this term as ‘secular’). From the local tahsildar to the state- and central-level IAS officers, bureaucrats control and direct Hindu religious activities: from defining the route of processions to lighting the firecrackers. State governments loot the wealth of temples after suitably lining the pockets of officials and politicians.

This type of rules and regulations applies only to the Hindu religions and traditions; the Christian, Muslim, Jewish, etc. religions enjoy autonomy, freedom and protection as ‘minority’ religions. Only ‘Hinduism’, the majority religion, has no religious freedom in India. The Supreme Court of India just follows the State here: the latter should have absolute control over all ‘laukika’ matters regarding religion.

The Sabarimala verdict is merely the latest episode in the saga authored by the British centuries ago and continued by Indian hands now. These Indians too believe that Hinduism is a barbaric religion, an affront to values like ‘equality’, ‘progress’, ‘democracy’ and so on. How true is this story recited by the ‘secular’ and ‘Marxist’ intellectuals of India for nearly 80 years now? What are the values in western jurisprudence (like ‘freedom’, ‘equality’, etc.), which allegedly stand in conflict with an Indian religion like ‘Hinduism’? Is the idea of religious freedom, as formulated in western legal traditions, compatible with the way in which the Indian law-giver has dealt with Hinduism? Do Hindus enjoy the same religious freedom in India that is being enjoyed by Muslims, Christians and Jews? How is it possible to put all temples under the control of bureaucrats and the State, when doing something similar to mosques, churches and synagogues is unthinkable and forbidden? These are only some of the questions that arise to anyone with some knowledge of the situation in India.

Prof. Balagangadhara (Balu, who has been doing scientific research into Indian culture and her traditions for the last 35 years) and his student prof. Jakob De Roover (a member of prof. Balu’s research group in Belgium) have recently begun guiding historical and jurisprudential research into these questions. The first result is a Master’s thesis in Law at Ghent University in Belgium submitted in September 2018. While we refer the reader to this thesis for details, its central question has once again been brought to the limelight by the Sabarimala case: How has the Indian State dealt with Hindu temples and traditions in the post-Independence period? Here, we see a state institution, the Supreme Court of India, intervene in the age-old traditions of a temple and ban a practice which is considered highly important by the Ayyappa devotees and pilgrims visiting the temple.

To large sections of the media and the intelligentsia, such cases establish the liberal credentials of the judges of India’s apex court and the fact that Hinduism remains in need of reform by the state. To most Hindus, however, they are typical instances of a system of political and bureaucratic intrusion into their temples and traditions. After all, this was not a one-off case. In the past decades, the Indian courts have allowed state governments to take over the management of tens of thousands of Hindu temples. Today, it has become self-evident that government officials have the authority to supervise all temples that are classified as ‘public’ by the state. This supervision not only pertains to the finances and everyday administration of the temples, but often extends to the organization of rituals and festivals. And the Indian courts endorse this government control of temples; even more, they explicitly grant the authority to the state bureaucracy to interfere in the traditional practices of the temples.

Along the way, the judges regularly tell the people that their practices are backward and based on irrational beliefs. They insist that the Hindus do not know their own religion and hold forth about the true nature of Hinduism. In the Sabarimala case, for instance, the Chief Justice of India told the Ayyappa devotees that their practice is mired in chauvinism and patriarchy and based on beliefs about the treatment of women as ‘chattel of man’. It is contrary to the true Hindu religion, he argued, since “it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity.” Therefore, this ‘exclusionary’ practice cannot have the status of “an essential practice of Hindu religion.”

In all such cases, the courts take over the task of teaching the people how to be good Hindus and of deciding which practices are essential to Hinduism and which are not. The government is then free to take control of all domains of traditional practice which are judged ‘non-essential’ to Hindu religion. They are supported here by the Indian constitution. And still, India is supposed to be a secular republic that guarantees the constitutional right to freedom of religion.

Attempts to Free the Temples

Today, more and more Indians feel that something is very wrong with this. In their experience, the government policies constitute unwelcome intrusion by an external authority that has no part in these temples and their traditions. Every day they face all kinds of regulations and obstacles put in place by the bureaucracy, if they wish to continue their rituals for the deities and their practices in the temples. At the same time, the laws have reduced the traditional heads of these temples to figurehead ‘trustees’ and made the pujaris into clerks, who are expected to function as the subordinates of IAS-officers and government-appointed committees.

This situation has inspired pujaris and practitioners to go to court to challenge the legislation and policies about the temples. They want to free the temples from this yoke imposed by the state-level governments. To do so, they draw upon the freedom of religion clauses of the Constitution, Articles 25 and 26, to question the constitutional validity of these laws and policies. Almost invariably, however, they have met with failure in the High Courts and Supreme Court. The judges keep on repeating the same set of claims: the management and practical organization of temples and their rituals are not religious practice but secular activity; the practices regulated by the state are not essential to Hindu religion; therefore, the state legislation and policies about temples do not violate the constitutional right to freedom of religion.

The result is perplexing: for the people involved in the temples and their ritual practices, the right to religious freedom entails that the judiciary not only sanctions government control of the temples’ administration and finances, but also legitimizes the systematic expansion of political and bureaucratic interferences into traditional practices. In any Western democracy, this would be rejected as a flagrant violation of the right to free exercise of religion. In India, however, it appears that government tyranny is being sold as religious freedom.

What is happening here? It is important to note that this is not a recent phenomenon. Building on colonial regulations, most of the temple legislation was created in the decades after Independence. Since then, the courts have become the stage for hundreds of conflicts about the control of temples. The same cycle has been going on in the Indian courts for more than six decades now.

The current political system (irrespective of which political party is in power at the state or central level) continues enslaving temples and traditions; the courts continue to pronounce judgements that enable the politicians and bureaucrats to extend their stranglehold on the Indian traditions and temples. Some people challenge the Supreme Court judgements in the streets and demonstrate violently against them. However, this not only undercuts the rule of law, but also encourages something equally pernicious: people can now take to the streets to protest against any decision that goes against their narrow preferences and sectional interests. The only way to remedy this situation in a reasonable way is to get clear insights into the real causes: what exactly is happening and how has this situation come into being? Only then can we develop alternative ways of addressing the issue of the temples in the courts and in politics.

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