6th October 2013
Why are Indian courts permitted to UNCONSTUTIONALLY allow God to own property and to litigate?
Fellow FTI member Supratim is not happy with my outright rejection of the idea of "God" contesting legal cases. In his view:
"Artificial constructs are allowed under law – and their status as legal entities. The HUF is as abstract a concept as god – it does not exist in the natural world or as a material being. Similar is the case with say, a Company or a Trust – they are material beings, in a manner of speaking but are not natural entities. So, under Indian law, there must be some case law or provision that allows hindu deities of temples as legal entities – they ARE “material” beings, even if they are not natural beings, and they are not god, in the sense you mean it (I think). A specific entity is the litigant here."
Well, I had pointed out a few links in my earlier post. Let me summarise from these links the reasons/ history of Indian gods being recognised as litigants:
In the Indian judicial system, deities have always been regarded as legal entities who can fight their case through the trustees or managing board in charge of the temple in which they are worshiped. The ancient Indian system of law recognized Gods as legal entities. The Supreme Court, in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi, vs State of UP [1997 (4) SCC 606 recognized, though not for the first time, the right of a Deity to move court and said, Properties of endowment vest in the Deity, Lord Sri Vishwanath. [Source]
In the eyes of the law, all deities are treated as perpetual minors. No suit filed on their behalf can be treated as time-barred and rejected on the question of limitation. Eminent Supreme Court lawyer Harshvir Pratap Sharma says: “The Indian judicial system treats deities as legal entities who could have a legal representation in courts through trustees or an in-charge of the temple in which they are worshipped.” According to him, Order 32 of the Civil Procedure Code recognises a ‘sitting deity' as an individual.
Can a presiding deity of a temple be treated on a par with normal litigants and can its petition be entertained by courts? Legal experts are unanimous that a Hindu idol, as per the long established authority and founded upon religious customs of the Hindus, is a ‘juristic entity,' and it has ‘juridical status' with power of suing and be sued. In 1983, Sri Adi Visheshwara of Kashi Vishwanath of Varanasi fought a legal battle in the Supreme Court when the Uttar Pradesh government enacted the Sri Kashi Vishwanath Temple Act, 1983, for better management of the ancient temple. The Supreme Court had ruled that a deity could move the court and said: “Properties of endowment vest in the deity Lord Sri Vishwanath.” Besides the Supreme Court, various High Courts had also recognised the fact that a temple deity would be a legal entity and even a devotee or a regular worshipper could move the court on behalf of the presiding deity, which will be considered a perpetual minor, says Mr. Sharma. [Source]
The existence of Hindu idol as juristic person capable of having rights and discharging duties through sevakars were established in the court of law as early as 1925. In Pramatha Nath Mullick v. Pradyumna Kumar Mullick'. The court observed that "One of the questions emerging at this point is as to nature of such an idol, and the services due thereto. A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a "juristic entity". It has a 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, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. From the very inception in Hindu Culture the Idols are considered as personification of deity itself and the image of the deity in the shape of idol which are often based on visualisation is bestowed with gifts and valuables by the worshippers. The gifts made to the idol are made in the same manner as made to a natural person. The rationale behind giving Hindu idols a juristic personality is best explained by Ganpathi lyer in his valuable treatise on "Hindu and Mahomedan Endownments". He had this to say in regard to the legal status of an idol in, Hindu law:
"The ascription of a legal personality to the deity supposed to be residing in the image meets with all, practical purposes. The deity can be said to possess property only in an ideal sense and the theory is, therefore, not complete unless that legal personality is linked to a natural person."
It would be correct to say that if we don't give idols a juristic personality then there would be lot of practical difficulties in the matters of taxation and allotment of land as well as on the subject to alienation of property. Further, we would be examining many case laws based on the practical realities on personifying Hindu Idols.
In the case of Bishwanath & Anr.Vs. Shri Thakur RADHABALLABHJI & ORS2.
The Manager of a temple alienated the idols property. A worshipper of the idol, who also assisted the Manager in his duties, filed a suit as next friend of the idol challenging the alienation. The reliefs sought were a declaration that the property belonged to the idol and recovery of possession. The trial court's decree in favour of the plaintiff was upheld by the High Court. The defendants came to this Court, with certificate. It was urged on behalf of the appellants that s. 92 of the Code of Civil procedure was a bar to the suit, and that no one but the Sheba it was entitled to file the suit and represent the deity.
The suit was filed by the idol for possession of its property from the person who was in illegal possession thereof and therefore it was a suit by the idol to enforce its private right. The suit also was for a declaration of the plaintiff's title and for possession thereof, and was not therefore a suit for one of the reliefs mentioned in s. 92. in either view this was a suit outside the purview of s. 92 of the Code and therefore the said section was not a bar to its maintainability.
It can be clearly inferred that the court recognised and accepted the principle of juristic personality of idol otherwise; the procedural difficulties would not have allowed the plaintiff to claim back the property, which was illegal in the possession of the person. The court in this case took the view and gives effect to the personification that as the property belonged to the idol and the suit was filed by idol to recover the property.
This is one of the aspects why courts have always recognised idol as a legal personality that is conferred with legal rights and bestowed with duties.
Through the various case laws following principles of laws have been settled. They are:-
1) An idol of a Hindu temple is a juridical person;
(2) When there is a Shebait, ordinarily no person other than the Shebait can represent the idol;
(3) Worshippers of an idol are its beneficiaries, though only in a spiritual sense.
In cases where the Shebait acts in a manner which is against his duty then a worshipper can bring up a case in the name of the idol. B.
K. Mukherjea summarises the legal proposition in the following manner in his book.
(1) An idol is a juristic person in whom the title to the properties of the endowment vests. However, it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might therefore be said, to be merged in that of the Shebait.
(2)Where, however, the Shebait refuses to act for the idol or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol then there must be some other agency, which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol.
Hindu Idols are also given juristic personality for other purposes such as taxation and other assessment requirements under various implementation plans. The case mentioned below will give a clear reason of personification of Hindu Idols for assessment purposes. [Source]
Well, I think I've had enough of this.
What seems to have happened is that somewhere in India's history, idols were given legal status IN THE ABSENCE OF ALTERNATIVE LEGAL VEHICLES LIKE TRUSTS.
What has happened is that law did not modernise and therefore all temples were not forced to register as trusts or other entities. As a result a vague, and in my view extremely dangerous legal concept is allowed to OFFICIALLY operate in an India where it is the constitutional duty of every citizen to promote the scientific temper.
All temples should be immediately required to register as trusts since this idea of having an IDOL/GOD (deity) recognised by the Indian law is beyond obnoxious. It is open declaration of war against science.
Now, I can also see why this provision has caused so much mischief in the case of the Ram Janmabhoomi case. Instead of thinking of market based solutions, people have been taking recourse to the MOST DEVIIOUS AND DEVILISH "legal" "solutions" to squeeze out property that had changed hands in some other country (not India, which did not exist) hundreds of years ago. Such properties can, and should, be reverted to the market, so those who care about them can buy them (under appropriate regulation).
I'm really sick of India in every way. No matter where you look we have the most sub-optimal institutions/ways of thinking. Why has no one challenged this nonsense on constitutional grounds, yet?
Sir, i wish to know whether IAS officers can join Indian external intelligence agency(RAW).I searched for it but could not get anything conclusive.Wikipedia states that a test is held after foundation course at LBSNAA for recruitment to RAW(ras cadre). Are ias also eligible for this test? Can they go for a mid career deputation to RAW like ips officers?
waiting for your reply…..
Great research, Sanjeev – thanks for culling these links together. That explains the background really well.
Again, as I mentioned I am not so perturbed about specific deities being accorded legal status as how they are considered to be permanent minors. That is the key problem of this juristic creation. Besides lifting the statute of limitations, being conferred minor status, and that too a permanent one, confers unfair advantages from a LEGAL standpoint on a deity.
I think this minor status part is completely UNCONSTITUTIONAL (equality before law is violated) and should be challenged in a SLP before the Supreme Court. Granting a deity legal status is probably NOT unconstitutional, in itself – I am unable to see which portion of the constitution is violated.
Well, we have got agreement on the key issue, then: that special status to a temple is unconstitutional. This is something that needs to be fixed immediately.
Second, the very fact that a deity is accorded legal status is, in my view, unconstitutional. The reason is simple: The constitution is a social contract among citizens. They can create organisations, societies, trusts, corporations, partnerships, etc. That’s all recognised in some form or shape on the basis that there are real people involved who are doing their “business”.
The idea of having God smuggled in quietly in the midst of humans, and according legal status is the same as smuggling a Dog or Cat and according the dog/cat legal status.
I have no problem with a temple trust/society/corporation. I have problems with alleged supernatural/non-human entities being equated with human organisations by a HUMAN constitution.
That this violates the fundamental duty of scientific temper is a problem, but doesn’t make it unconstitutional.
Hence I’m OK if temples are forced to convert into trusts/societies/corporations IN THE NAME OF THE IDOL. But for them to claim that the DEITY itself is being represented is nonsense of the extreme kind (in my view).