Religion and the law: India
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The legal personality of God and idols
God is not a juristic person, but idol is: SC, 2019
Dhananjay Mahapatra, Nov 21, 2019: The Times of India
God or ‘Supreme Being’ may be omnipresent, omniscient and omnipotent but has no juristic personality, but an idol, worshipped by believers as a physical incarnation of God, is a juristic personality, the Supreme Court has said.
“Legal personality is not conferred on the Supreme Being. The Supreme Being has no physical presence for it is understood to be omnipresent — the very ground of being itself. The court does not confer legal personality on divinity,” ruled a bench of then CJI Ranjan Gogoi and Justices S A Bobde (now CJI), D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer in its landmark judgment settling the 70-year-old Ayodhya land dispute.
“Divinity in Hindu philosophy is seamless, universal and infinite. Divinity pervades every aspect of the universe. The attributes of divinity defy description and furnish the fundamental basis for not defining it with reference to boundaries — physical or legal. For this reason that it is omnipresent, it would be impossible to distinguish where one legal entity ends and the next begins,” the bench said.
The SC said in contrast, an idol was identifiable by its physical form and hence could have juristic personality. “The idea of a legal person is premised on the need to ‘identify the subjects’ of the legal system. An omnipresent (God or Supreme Being) being is incapable of being identified or delineated in any manner meaningful to the law and no identifiable legal subject could emerge,” it added.
“In Hinduism, physical manifestation of the Supreme Being exists in the form of idols to allow worshippers to experience a shapeless being. The idol is the representation of the Supreme Being. The idol, by possessing physical form, is identifiable,” it said.
The SC said the Hindu practice of dedicating properties to temples and idols had to be adjudicated upon by courts for the first time in the late 19th century.
“To provide courts with a conceptual framework within which they could analyse and practically adjudicate upon disputes involving competing claims over endowed properties, courts recognised legal personality of the Hindu idol. It was a legal innovation necessitated by historical circumstances, the gap in the existing law and by considering convenience,” the SC said.
Idols have an Indestructible Legal Persona
Dhananjay Mahapatra, Nov 21, 2019: The Times of India
Within the landmark Ayodhya verdict, the Supreme Court ruled that Hindu idols have an indestructible legal persona and that an idol’s destruction does not end its rights over properties dedicated to it by devotees, worshippers and believers.
“The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. Destruction of the idol does not result in termination of the pious purpose and consequently the endowment,” a bench of then CJI Ranjan Gogoi and Justices S A Bobde (now CJI), D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer said in its Ayodhya judgment. “The idol as an embodiment of a pious or benevolent purpose is recognised by the law as a juristic entity. The state will therefore protect property which stands vested in the idol even absent the establishment of a specific or express trust,” it added.
In what could encourage religious bodies, which exercise authority over temple endowment properties, to dig into the past to find whether invasions had led to destruction of idols and consequent confiscation of endowed properties, the SC said, “Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist.”
The court was referring to properties attached to temples without idols, or the funds raised in the name of various puja committees across India, which according to the festivals worship Ganesh, Durga and other idols and then immerse them in water.
“In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled,” the bench said.
“A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases, the pious purpose on which legal personality is conferred continues to subsist,” it said.
“Upon making an endowment, the donor relinquishes all claims to the endowed property. The property now vests in the pious purpose at the heart of endowment, which is recognised as a legal person. The idol forms the material manifestation of the pious purpose and the consequent centre of jural relations,” it added.
Public display of religious practices, rituals
SC, HC orders
Dhananjay Mahapatra, February 10, 2022: The Times of India
New Delhi: Since the 1950s, the Supreme Court and the high courts have attached cardinality to the commencing words “subject to public order” in Article 25 of the Constitution and used them as swivel to restrict or reject any denomination’s claim to an indefeasible fundamental right for public display of religious practices or rituals. Article 25(1) provides: Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Ananda Margis, a religious order of the Shaivite denomination established in 1955, were refused twice by the Supreme Court, in 1984 and in 2004, to carry out processions which included performance of Tandava dance carrying skulls and tridents in exercise of their fundamental rights under Article 25. The SC had said the Tandava dance was originally not mandatory for Ananda Margis but was made an essential religious practice by the sect’s founder Ananda Murti in 1966. In 1984, the SC had said: “Ananda Marga as a religious order is of recent origin and Tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances Tandava dance can be taken as an essential religious rite of the Ananda Margis. ” In 2004, the SC again refused Ananda Margis to perform Tandava in public. The SC in the Gulam Abbas vs Uttar Pradesh judgment in 1984 had dealt with over a century-old dispute between Sunni and Shia sects over a graveyard and ruled: “Exercise of fundamental rights under Articles 25 and 26 is not absolute but must yield to give way to maintenance of public order and the impugned suggestion was mooted by the court and has now been found to be feasible by the chairman of the committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of religious ceremonies by members of both sects. . . ”
Is ‘hijab, which is behind the spiralling protests in Karnataka schools, an essential religious practice? This question was examined by a Madras HC bench headed by then Chief Justice A P Shahin 2006 in the context of a challenge to the photo voter ID cards made mandatory by the Election Commission in 2006 to Tamil Nadu. A Muslim man had filed the petition saying this hurt the community’s religious sentiments as the Quran prohibits photos of a woman without hijab/purdah on voter ID as these can be seen by strangers.
The HC in its judgment noted: “A noted Sudanese scholar Dr Hassan al-Turabi, in his trace . . . states that the verses of the Quran ordained that the wives of the Prophetdraw a curtain (to ensure privacy in the Prophet’s room which naturally attracted many visitors of all sorts), and that they dress up completely without showing any part of their bodies including face and hands to any man; though all other Muslim women were exempted from these restrictions. ”
“Canadian writers Syed Mumtaz Ali and Rabia Mills in their essay explain: “One must realise and appreciate that the commandment in the Quran in Chapter 33, verse 53, with respect to the Hijab, applies only to the ‘Mothers of the believers’ (the wives of the Holy Prophet, pbuh) whereas the wording of the Quran in Chapter 33 verse 55, applies to all Muslim women. No screen or Hijab (Purdah) is mentioned in this verse; it prescribes only a veil to cover the bosom and modesty in dress, hence the unlawfulness of the practice of the Indian-style system of Purdah (full face veiling). ”
The HC had said, “Even assuming that the Purdah is an essential ingredient of the Muslim religion, Article 25 itself makes it clear that this right is subject to public order, morality or health and also to the other provisions of Part III of the Constitution. . . we have no hesitation in holding that the direction of the Election Commission (for mandatory photo Voter IDs) is not violative of Article 25. ”
Regulation of religion by law
State of Bombay v Narasu Appa Mali, 1953
Sadaf Modak , Apurva Vishwanath, March 14, 2025: The Indian Express
Narasu Appa Mali had his wife’s permission to take a second wife. It was not uncommon in the 1940s for a man to take a second wife, especially when he did not have a son from his first marriage. What followed the second marriage of this modest man from Miraj, a small border town in south-western Maharashtra, was anything but common.
A few years before Mali remarried, the provincial government had passed the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. The Indian Penal Code, enacted in 1860, borrowing from English law dating back to 1603, had made bigamy an offence. However, this law was barely used since the offence was compoundable — a case could be initiated only on complaint by an aggrieved party and could also be withdrawn at their instance. Naturally, a woman would rarely go to court against her husband, especially when bigamy was a social norm. When the 1946 law was passed, the offence was made compoundable and carried serious consequences — a jail term up to seven years and a fine.
In 1954, Jayashri Raiji, a Member of Parliament from Bombay, had said in a speech that B R Ambedkar, the first law minister, had reportedly told the Parliament “that nearly 2,000 marriages were performed in contravention of the anti-bigamous Hindu Marriage Act in Bombay State in the first few months of the passing of that Act”, but “very few cases went to the court.”
On October 24, 1950, Mali and six others were convicted by magistrate R P Salve under the Act and sentenced to rigorous imprisonment of two months with a fine of Rs 75. However, just two months later, in January 1951, B D Nandkarni, the sessions judge in Sangli, heard Mali’s appeal and acquitted him. Then, the government moved the Bombay High Court, setting the stage to defend the law’s constitutional validity. This was no longer the coloniser’s attempt to interfere with local customs, but an independent India’s first attempt at social reform.
State of Bombay v Narasu Appa Mali was a crucial turning point in India’s constitutional history. It opened up an important question that the country, for over 75 years now, continues to debate: can religion be regulated by law?
On July 24, 1951, the Bombay High Court held that the law was constitutional. The Court refused two crucial arguments of the petitioners. First, that the institution of polygamy was a “necessity” for a Hindu man to “perpetuate his family by the birth of sons” and second, that the law discriminated on the grounds of religion since the law only applied to Hindus, while Muslim men were allowed to be polygamous.
Justice P B Gajendragadkar, one of the two judges who decided the case, said that “even from the strictly orthodox point of view, bigamy was never a matter of obligation; it was permissive and permissive under certain conditions”. For the necessity of having a son, the ruling pointed towards adoption, since adopted sons had the same rights under the Hindu law as biological sons.
For the second argument, then Chief Justice M C Chagla, in his autobiography, Roses in December, wrote that it had his “sympathies”.
“It was argued that it was discriminatory to place a restriction on the Hindu community alone, when the Muslim community could indulge in polygamy. All my sympathies were in favour of this argument. I always felt that the government had shown lack of courage in not passing a Monogamy Act which applied to all communities. With great reluctance, I had come to the conclusion that I could not strike down the law, as it was well-settled that a social reform measure need not apply to all sections and that reform could be brought about by stages. Government was therefore justified in introducing this social reform as a first step applicable only to the Hindu community,” Chagla wrote in his memoirs.
Justice Gajendragadkar said that the legislature may have thought that the Hindu community was “more ripe” for the reform. “Social reformers amongst the Hindus have agitated for this reform vehemently for many years past and the social conscience of the Hindus, according to the Legislature, may have been more in tune with the spirit of the proposed reform. Besides, amongst the Mahomedans (Muslims), divorce has always been permissible and marriage amongst them is a matter of contract. If the State Legislature acting on such considerations decided to enforce this reform in the first instance amongst the Hindus, it would be impossible in my opinion to hold that in confining the impugned Act to Hindus as defined by the Act it has violated the equality before law as guaranteed by Article 14,” he wrote.
The Court’s most significant finding, however, was on an issue that continues to be debated: can religious customs and practices be considered “law”? This is crucial since Article 13 of the Constitution states that “laws” that are violative of fundamental rights ought to be struck down by the court. The government had argued that polygamy as a social practice was unconstitutional and therefore, the 1946 law was valid.
Even as the Court upheld the validity of the 1946 Act, it did not agree with the government’s contention. The ruling held that personal law is immune from constitutional scrutiny, a finding that would be very consequential. This would essentially mean that personal laws, even when regressive, can be permissible. This 1951 judgment was never challenged in the Supreme Court.
“The ghost of Narasu Appa Mali”, as senior advocate Indira Jaising referred to in a 2018 article, could be summoned to save a discriminatory personal law practice. In 2017, the ruling was cited to defend the practice of triple talaq. However, without overruling the Bombay High Court verdict, the Supreme Court struck down the triple talaq practice, carving out a space for gender parity, even in personal law. Justice Rohinton Nariman, one of the five judges on the Bench, had, sidestepping the Narasu ruling, said that since the triple talaq practice was codified in the Shariat Act, it was no longer just a custom but a legislation.
Speaking to The Indian Express, Jaising said the ruling must be overruled on this point. “The urgency increases with every passing day. More and more reliance is placed on uncodified laws. How can they be beyond the reach of fundamental rights?” she says.
The Narasu ruling, even if not overruled, is significantly diluted. In 2018, another religious custom, barring the entry of menstruating women in the Sabarimala temple, was challenged as being discriminatory. Justice D Y Chandrachud, in the ruling, had said that the Narasu finding was based on “flawed premises”.
“The decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the Constitution. Carving out ‘custom or usage’ from constitutional scrutiny denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu is based on flawed premises. Custom or usage cannot be excluded from ‘laws in force’. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality,” the temple entry ruling stated.
“The Narasu Appa Mali judgment needed a re-reading, a reinterpretation, but that has not happened. I am not so sure in the current state of affairs whether anybody would like to touch it and open it up for debate because the whole debate has now become communal. In many cases, the courts have not applied Narasu Appa Mali, but found a way around it to speak of gender equity within personal laws, like the triple talaq judgment,” says Flavia Agnes, women’s rights lawyer and co-founder of Majlis, a legal centre for women.
With the Uniform Civil Code high on the BJP’s agenda, Uttarakhand, this year, became the first state to bring in a neutral civil code. When these are tested in courts, the “ghost of Narasu” will be summoned again, but it remains to be seen whether it will be exorcised.
As for Narasu himself, the Bombay High Court had reversed his acquittal. However, since he had “the consent and approval of his first wife”, the High Court did not think his jail term was justified. Paying a fine of Rs 100 in exchange for a month in prison, Narasu had perhaps moved on in life.
