Wednesday, January 27, 2010

Taking the cue from Sri Aurobindo, Ramaswamy constructs a different notion of religion

The Indian Supreme Court and the quest for a 'rational' Hinduism
Ronojoy Sen (The Times of India, New Delhi)
South Asian History and Culture, Volume 1, Issue 1  January 2010, pages 86 – 104 - informaworld.com view references (19)

Another significant effect has been the marked disinclination of the Court to accept more recent religious groups as a 'proper' religion or even religious denomination. Consequently, the religious practices of these groups have not been able to pass the essential practices test. Of course, given the all-encompassing definition of Hinduism in Yagnapurushdasji it is unlikely that any sect within Hinduism is ever going to get the court's approval as a separate religion. This was quite clearly illustrated in the case of Ramakrishna Mission, which was accorded a 'religious minority', that is, separate religion status by Calcutta High Court only to have it changed to a religious denomination status by the Supreme Court.

Before looking at regulation of religious institutions I will briefly touch on two cases from the 1980s where the Court had to make a decision on the claim of an established group for a religious denomination status, and second, the Court had to decide whether a religious practice was essential or not. The first case involved the followers of Sri Aurobindo and the second concerned the group known as Ananda Margis.69 In S.P. Mittal v. Union of India,70 the legitimacy of the Auroville71 (Emergency Provisions Act) Act of 1980 was challenged. One of the questions before the Court was whether the Aurobindo Society qualified as a religious denomination and hence came under the protection of Article 26. After discussing the meaning of religion and quoting extensively from Aurobindo's writings as well as secondary sources, Justice R.B. Misra, writing for the majority, ruled 'there is no room for doubt that neither the Society nor Auroville constitutes a religious denomination and the teachings of Sri Aurobindo only his philosophy and not a religion'.72

The inconsistency of the majority position was pointed out by Justice O. Chinnappa Reddy in his dissenting opinion. Reddy argued that religion cannot be 'confined to the traditional, established, well-known or popular religions like Hinduism, Mohammedanism, Buddhism and Christianity'.73 According to Reddy, religion and religious denomination must be interpreted in a 'liberal, expansive way'. He referred to Shirur Mutt where it was stated that the different sects under Hinduism could be designated as religious denominations. In keeping with this view, Reddy wrote, 'But this fact stands out prominently that whatever else he was, he truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice.'74 However, Reddy maintained that Auroville was not a place of worship but a township.

A year after the Supreme Court ruled that Aurobindo was not a religious teacher, the Court decided that the Ananda Margis were a religious denomination. However, in Jagadishwaranand v. Police Commissioner, Calcutta,75 the Court refused to accept the tandavadance as an essential practice of the Ananda Margis. […]

In A.S. Narayana Deekshitulu v. State of A.P.,84 the petitioner was a chief priest (archaka) of Thirumala Tirupathi, one of the richest temples in India. The petitioner contended that the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act of 1987, by abolishing hereditary succession among archakas, prescribing regulations for appointment of archakas and taking away their right to a share of offerings made to the deity infringed Articles 25 and 26 of the Constitution. The Court dismissed the petition and upheld the Act with a few minor qualifications. However, in the course of the judgement Ramaswamy (like Mukherjea in Shirur Mutt and Gajendragadkar in Yagnapurushdasji) went in for an elaborate discussion on the nature of religion in the Indian context. Quoting from texts such as the Vedas, Upanishads and the Gita and using modern thinkers and writers such as Aurobindo, Vivekananda, Radhakrishnan, Shankar Dayal Sharma and even Richard Dawkins, Ramaswamy attempted to construct a notion of religion significantly different from Shirur Mutt.

Taking the cue from Aurobindo's distinction between 'true religion', which is spiritual, and 'religionism', which is narrow and focused on ceremonies, Ramaswamy proposed:

The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed …. It is essential that the value of law must be tested by its certainty in reiterating the Core of Religious Experience and if a law seeks to separate the non-essential from the essential so that the essential can have a greater focus of attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat missionary.85
Ramaswamy drew a parallel between a 'higher' or 'core' religion and the concept of dharma. According to him, it is dharma rather than conventional religion that is protected by the Constitution. How then is dharma to be understood in terms of the Constitution? 'Dharmais that which approves oneself or good consciousness or springs from due deliberation for one's own happiness and also for welfare of all beings free from fear, desire, cherishing good feelings and sense of brotherhood, unity and friendship for integration of Bharat. This is the core religion which the Constitution accords protection'.86 This extraordinary position was supported by Justice B.L. Hansaria, the other judge on the Bench, in a separate judgement: 'The word religion, as presently understood, is comprised of rituals, customs, and dogmas surviving on the basis of fear and blind faith; whereas dharma encapsulates those great laws and disciplines that uphold, sustain, and ultimately lead humanity to the sublime heights of worldly and spiritual glory'.87

The idea of a higher religion, according to Ramaswamy, was fundamental to the essential practices doctrine and the secular Constitution. He stated:

In secularizing the matters of religion which are not essentially and integral parts of religion, secularism, therefore, consciously denounces all forms of super-naturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute to some degree to the process of secularization of the matters of religion or religious practices.88

Ramaswamy found congruence between the 'secularization' of religion and the religious freedom guaranteed by the Constitution: 'The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order.'89

The unusual redefinition of religion and religious freedom in Narayana was far removed from what Mukherjea in 1954 had proposed inShirur Mutt. The distinction between 'essential' religion and 'superstition' had been articulated by Gajendragadkar. But the conception of religion as dharma which can foster an egalitarian society and a unified nation was certainly a novel position so far as the Supreme Court was concerned. The introduction of dharma could represent, following the suggestion of a legal scholar, a move towards the creation of 'postmodern Hindu laws'.90 Indeed, the Court's conception of the role of dharma had striking similarities with the idea ofdharma as articulated by Deen Dayal Upadhyaya (1916-1965), whose Integral Humanism is considered to be the 'guiding philosophy' of the BJP:

Nowadays the word 'secular state' is being used as opposed to theocratic state. The adoption of this word is mere imitation of the western thought pattern. We had no need to import it …. There is some misunderstanding arising out of this. Religion was equated with Dharma and then secular state was meant not be a state without Dharma. Some said ours is a state (without Dharma), whereas others trying to find a better sounding word called Dharmanikshepa (indifferent to Dharma state). But all these words are fundamentally erroneous. For a state can neither be without Dharma nor can it be indifferent [to] dharma ….91

Popular religion versus high religion 
The foregoing discussion of the case law on the definition of religion and the essential practices doctrine enables us to make a few hypotheses about the nature of the Court's intervention in the place of religion in the public sphere. The post-colonial court is at the vanguard of the state's project to reform and rationalize religion. The essential practices doctrine can plausibly be traced to B.R. Ambedkar's famous statement in the Constituent Assembly during debates on the proposed codification of Hindu law: 'The religious conceptions in this country are so vast that they cover every aspect of life from birth to death …. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious' (italics added).92 With the adoption of the essential practices doctrine, the Supreme Court seems to have taken up this project in right earnest. Though appropriation of the role of interpreter of religious doctrine is most unusual for courts in secular constitutional polities, in the Indian context this role has been facilitated by the lack of a unitary ecclesiastical organization for Hinduism. This has given the opportunity, as Galanter points out, to the judiciary to embark on an 'active reformulation of Hinduism under government auspices in the name of secularism and progress'.93This leads the Court, especially the more activist judges, to insist on religion without what the Court in its wisdom designates as superstition and irrationality. This attitude comes through even in cases not strictly related to the freedom of religion clauses such asZiyauddin Bukhari v. Ramdass Mehra,94 a case involving the application of Representation of People Act.

However, it is important to note that while Amebdkar was an outspoken critic of traditional Hinduism, many of the Supreme Court judges approach Hinduism and indeed religion from a different angle. Many of the judges, unlike Ambedkar, were inspired by a Vedic rationalist Hinduism, a Hinduism purged of its alleged 'irrational' rituals and practices. This is apparent from the authorities that are cited in the Court's construction of Hinduism and Hindu practices. Some of the names that figure prominently in the judicial discourse are Vivekananda and Radhakrishnan - namely personalities identified with a reformist and universal Hinduism. Vivekananda's distaste for popular Hindu practices finds an echo in the Court rulings. For instance, this was what Vivekananda had to say about Hindu practices: 'The fact is that we have many superstitions, many bad spots and sores on our body - these have to excised, cut off, and destroyed - but these do not destroy our religion, our national life, our spirituality. Every principle of religion is safe, and the sooner these black spots are purged away, the better the principles will shine, the more gloriously.'95 The use of sacred texts by the Court to ascertain the legitimacy of a practice is similarly skewed towards the canonical and rationalist versions of high-culture texts such as the Vedas and Upanishads.

The dominant figures of the Hindu reformation also played a key role in the agenda of temple reform. Admittedly, corruption, embezzlement of funds and mismanagement of property were major factors prompting state intervention in temple management. In addition, the experience during British rule of devolving temple management in the hands of semi-autonomous temple committees in Tamil Nadu had not been a happy one. But there is no reason to believe that the state would be any better at running temples. As Pratap Bhanu Mehta points out, 'State takeover of temples violates the freedom of communities to manage their affairs. It is also an imprudent policy. Having politicians and civil servants sit on the board of these temples is not a recipe for either healthy politics or healthy religion. It is often claimed that religious endowments are corrupt and need regulation. But it is not clear that the state will be any less corrupt.'96 Notwithstanding such administrative concerns, however, judges like Gajendragadkar and Ramaswamy spoke a language very similar to Sarvepalli Radhakrishnan and his idea of 'pure' Hinduism. According to Radhakrishnan, 'At the moment, however, temples present an air of dull acquiescence and tedious routine. To attempt to abolish temples, which are so passionately loved and affectionately revered, is vain. But we must improve the tone and the atmosphere …. Worship in temples must be of the purest form.'97 Many of the court judgements echoed Radhakrishnan.

If figures like Vivekananda and Radhakrishnan made frequent appearances in Court judgements, there were also some notable absences. This is perhaps best illustrated in the marginalization of Vivekananda's teacher and guru, Ramakrishna Paramahansa. Ramakrishna, who can be located in the Bhakti tradition and was characterized by mysticism and unreason (pagalami), was a sharp contrast to his disciple Vivekananda, who established a Hindu monastic order to achieve social and religious reform. The contrast between these two figures is vividly expressed, as Sumit Sarkar has noted, in the disparities between the Dakshineswar temple (where Ramakrishna lived for over 30 years) and the Belur Math founded by Vivekananda. Sarkar writes, 'The temple [Dakshineswar], like any major Hindu sacred site, is thronged with crowds which cut across class divides, noisy, colorful, not over-sensitive to dirt …. Belur Math is much more of an upper middle class devotional-cum-tourist spot: almost aggressively hygienic, it is full of guards and notices warning visitors from bathing in the river or spoiling the lawns.'98

This study in contrast in a way admirably captures the approach of the Supreme Court and its essential practices doctrine. The essential practices doctrine can then be seen as the Court's attempt to discipline and cleanse religion or religious practices that are seen as unruly, irrational and backward by putting the state in charge of places of religious worship. But as Dhavan and Nariman point out, 'Religious faiths have to be run by their followers and not by bureaucrats. The followers have to emerge from the faith and not be appointed by the State or statute.'99 The Court has systematically appealed for legitimation to authoritative figures associated with Vedic rationalism as well as privileged canonical texts that are located within this tradition. By doing so the Court has not only narrowed the 'institutional space for personal faith'100 but also marginalized popular religion by, in Ashis Nandy's words, treating it as 'parts of an enormous structure of irrationality and self-deceit, and as sure markers of an atavistic, regressive way of life'.101

The essential practices doctrine, as developed by Gajendragadkar, sought to cleanse religion of superstition and irrationalities. It was based on the premise that the state must protect only the 'essential and integral part' of religion. While it was certainly desirable that the state play a role in passing laws that abolished social practices such as untouchability and the bar on the entry of the lower castes into temples, the Supreme Court permitted the state to become deeply involved in administering religious institutions and even regulating rituals and modes of worship. Beginning with Durgah Committee, the Court gave sanction for an elaborate regulatory apparatus for religious institutions. The involvement of the state in religious institutions flew in the face of the Nehruvian assumption that the domain of religion would gradually shrink. Instead of religion disappearing from the public sphere, the state became the principal agent of Hindu reform. The court rulings have, thus, furthered the reformist agenda of the Indian state at the expense of religious freedom and neutrality. The Court has also become an ally - often inadvertently - of the Hindu nationalists in their aggressive demands for homogenization and uniformity. [Another version of this chapter has appeared in Articles of Faith: Religion, Secularism, and the Indian Supreme Court (Delhi: OUP, 2010).] Bibliography
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