Robert D. Baird, “Religion and Law in India: Adjusting to the Sacred as Secular,”

Robert D. Baird, “Religion and Law in India: Adjusting to the Sacred as Secular,” in Religion and Law in Independent India 2nd ed., Robert D. Baird, ed., 7-34 (New Delhi: Manohar, 2005).

SUMMARY: The goal of this paper is to look at the place of law and religion, examines “traditional views that frequently come into conflict with The Constitution of India and the laws that are enacted by Parliament intending to implement that Constitution. Discusses the historical use of Manusmriti (8-12), the difference between that and India’s Constitution (15-16), the Constitution’s conflict with religion—that they are both opposing ideologies (18-19). Looks at legal developments in Parliament’s legislation: the Hindu Code Bill (19), the implications of Article 44 (19-20), the different schools of religious law in 1947 (20), the Constituent Assembly debate over Article 44 (20-22), the history of the Hindu Law Committee (22-23), and the arguments for the Hindu Code (23-24). Looks at legal decisions in the courts: the problem with the definition of religion versus secular (24-26), ending the idea that gods can own (26-27), their rulings on archakas (27-28), on excommunication (28-30), their “reification” of religions (30-32), how it deals with the inherent contradictions in the Constitution (32-34). Baird concludes by saying that the Indian government uses “religion” to interpret other “religions” (34).

7-“In traditional societies such as India, what we term religion is not seen so much as one aspect of society, but rather basic to all of society.”

-“The Constitution of India is less a consensus document than a document that was forged by an educated elite, strongly influenced by the ideology of the Enlightenment, and guided by influential spokespersons such as B.R. Ambedkar and Jawaharlal Nehru. More traditional voices were heard, but with notable exceptions, it was the voice of the Enlightenment that emerged victorious. This voice sought to protect minority points of view and diverse religious traditions. But inherent in that attempt at protection was the need to compel traditional points of view to give up parts of their traditions in order to provide opportunities for previously disenfranchised people.”

-AIM: to look at the place of law and religion, examines “traditional views that frequently come into conflict with The Constitution of India and the (8) laws that are enacted by Parliament intending to implement that Constitution.”, and so “we will deal with some basic principles of Manusmrti, or The Laws of Manu, as it is commonly known.”

-Manusmriti: “It is unlikely that this text was ever implemented in its entirety. In fact, it contains principles, and then offers alternatives when those principles are violated. That is an acknowledgement that it was not fully implemented…Furthermore, Manusmriti embodies an attempt on the part of the Brahmans…to capture power from the kshatriyas…for themselves by making them the authority for legal and moral issues.”, and W. Doniger [in The Laws of Manu] says that “other ancient legal texts were more widely used in legal circles.”, but Derret and Lingat [Religion, Law and the State] “hold that during the British period, Manusmriti, in conjunction with the commentaries, was widely used by jurists.”, and Doniger says in colonial India, “’Hindu Law’, or dharma shastra, was applied to nearly 80 per cent of the population of colonial India in matters of marriage and divorce, legitimacy, guardianship, adoption, inheritance, religious endowments, and so on. And in present-day India, Manu remains the basis of the Hindu marriage code, as it defines itself vis-à-vis Muslim or secular (governmental) marriage law.” [Direct quote from Doniger]



9-according to the Manusmriti it is divinely sanctioned (as opposed to sanctioned through experience or discussion), and laws are “eternally binding upon humankind”, and so in it “religion and law are inextricably bound together”, and so the law is also divinely sanctioned—“In modern times this has been the primary obstacle to forming a uniform Civil Code as called for in Article 44 of The Constitution of India.”
10-in it, “justice is served when every person or group does his or her duty and is treated appropriately in the light of the way the universe inherently is. Manu’s universe is not one in which everyone is created with equal abilities or opportunities. Moreover, it is a universe that speaks to duties rather than rights [for each group]…When these duties are realized, justice is achieved.”

-“The four classes (varnas) emerge from the body of God, and are therefore part of the creative act and part of the world as it comes from the Creator.” [PROB: not, like medieval Xnty], (11) “Each person’s duty is matched with his or her creative nature and…If they fail to do so and if punishment is require, that also is applied unequally.”

12-“The doctrines of karma and rebirth permeate the history of Indian religion.” And so they are “connected to legal materials. They do not widely modify law and punishment, but they do supplement such matters by holding that punishments from one life to another argument punishments that kings are expected to impose for crimes committed.” [PROB: not, diff than xnty]



14-looks at legal developments in independent India in terms of the Constitution (enacted by the Constituent Assembly in 1949); (15) in it, “India maintained its intent to be a secular state and Muslims who remained in India were represented in the Assembly. Indian Muslims today constitute the second largest body of Muslims in the world, second only to Indonesia.”, in the Constitution, there is no prohibition on conversion though there was debate over it in the Assembly, because Muslims and Christians argued that it was part of what it meant to be Muslim and Christian [cf Smith India as a Secular State ch. 6]

15-“B.R. Ambedkar, a former untouchable, who was educated at Columbia University (U.S.), chaired the Assembly and exerted considerable influence over it. The Constitution of India is, with few exceptions, a modern human rights document…unlike Manusmriti, constitutional [sic] this justice is based on the principle of equality. This equality extends to all men irrespective of caste, and to women in the same way as to men…[and] makes special provisions for those who have been the objects of past discrimination in order to seek a level playing field for all Indians. Article 17 abolishes untouchability and Article 16 (4) provides for the possible reservation of positions for persons in ‘backward classes.’”; and “in contrast with Manusmriti, seeks justice in this life. The doctrines of karma and rebirth are not denied, nor are they affirmed…Moreover, whatever retribution is enacted for those who violate these principles has to be enacted by a duly elected Parliament and is not left to one’s karma for punishment.”, and “While Manusmriti dealt with dharma or duty, the Constitution deals with rights. One member of the Constituent Assembly pointed this out and suggested that in addition to a section of ‘Fundamental Rights” there be a section of “Fundamental Duties.” That was never included. Moreover, (16) while Manusmriti claims the divine for its authority, The Constitiution…does not mention that realm. Elsewhere, I identified the ultimate values whereby Jawaharlal Nehru legitimated his notion of the secular state. Those values were that his view was rational and scientific, Indian, and modern. [cf Baird Essays in the History of Religions v.11, p.133]…These principles were basic for Nehru in that they were not in need of justification, but rather were used to justify other decisions. In his speech moving the Objectives Resolution at the Constituent Assembly, he stated ‘…we adhere to certain fundamental propositions which are laid down in this Declaration. These fundamental propositions, I submit, are not controversial in any real sense of the word. Nobody challenges them in India and nobody ought to challenge them, well, we shall accept that challenge and hold our position.’ [direct quote from Nehru Independence and After, emphasis added by Baird]”; plus “The modern human rights orientation is asserted in the preamble to the Constitution.” --Eg: “We, the people of India…resolved…to secure all its citizens: justice…liberty…fraternity…”

18-the fact that there are “restrictions on the otherwise free exercise of ‘religion’ constitute an admission that a conflict exists. It suggests that the Constitution may well be in conflict with traditional religious practices…In cases where a conflict…arises, religious change becomes a necessity for religious survival. But survival can only be partial can only be partial, as the conflicting tradition is modified so as to ease the grounds for conflict.”; “one of the devices for handling religious conflict is through the categories of ‘religion’ and the ‘secular.’ According to the Constitution, life can be divided into these two all-encompassing categories. It is the category of ‘religion’ that is granted freedom. But over against ‘religion’ is the ‘secular’ for which the same degree of freedom is not provided. Sometimes the realms of ‘religion’ and the ‘secular’ are closely related or even overlap, but it is the view of the Constitution that they ought not be confused. The very used of these categories is strikingly modern, and it is modernity that necessitates religious change.” And neither Hindu nor Muslim traditions considered “’religion’ as a segment of existence. Even the Supreme Court recognizes this to have been the case…’Sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character.’ [direct quote from Shri Govindlalji v. State of Rajasthan 1963]

19-“Since the Constitution and the more traditional ways of looking at life are ideologies that involve ultimate values, they are both to that extent religious. [cf Baird Category Formation and the History of Religions] These categories, then, are not only a means for handling religious conflict and religious change, but are at the same time part of the religious system whose survival is constitutionally assured. Hence it is determined that religious conflict is handled through categories contained in one of the two conflicting ideologies. The categories of ‘religion’ and the ‘secular’ have become axiomatic, so that neither side of litigation is able to deny or question the categories themselves. The categories are given sanction as part of the ideology of the Constitution. Once the legitimacy of these two categories is no longer questioned, certain activities can be relegated to the ‘secular,’ thereby being cut off from the constitutional provisions for ‘religious’ freedom.”; “Law for the modern Indian state, then, departs rather significantly from Indian traditional thought. That departure is embodied in the Constitution. While the Constitution has been amended on numerous occasions by Parliament, it is that Constitution enacted into law and understood by the Supreme Court that is basic to understanding religion and law in independent India.”



-looks at legal developments in terms of “legislation by Parliament”; “During the years 1955-56, Parliament passed a number of laws that are referred to as the ‘Hindu Code Bill.’ The scope of this legislative endeavor as well as the discussion that surrounded it demonstrated that the overriding issue was the secularization of law. The religious sanction of personal law which is found in Manusmriti continues into the modern period. This results in the claim that personal laws are part of religious traditions, whether one is considering the majority Hindu tradition(s) or the India Muslim tradition(s).”

-“Article 44 of the Constitution reads: ‘The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.’ This article is included in Part IV of the Constitution titled ‘Directive Principles of State Policy.’ The articles in this Part are advisory for Parliament, but if not fulfilled, are not judiciable. Article 44 is based on the assumption that the Indian (20) secular state requires the secularization of law—that civil law should be the same for all Indians in order that nation building can continue and that all persons can be welded together equally into a modern Indian state. This requires that traditional religious expressions become modified so that they are more and more a matter of personal faith, and that the state mold a modern civil code based on justice in terms of equality…If Articles 25 and 26 secularized social reform, economics and politics, Article 44 necessitates the secularization of law.”

20-in 1947, laws in India concerning “marriage and divorce, inheritance, and join property” varied between religions and within Hindusim; “The Dhayabhaga School was dominant in Bengal and Assam, and the Mitakshara school, along with its four subdivisions prevailed throughout the rest of India. Likewise, Muslim law operated under irreconcilable diversity.” [cf Mahmood An Indian Civil Code and Islamic Law]

-All the 5 Muslims that spoke at the Constituent Assembly concerning Article 44 opposed it, that (21) these matters are religious and “must be regulated with the consent of the religious groups to which they apply” and though one of them acknowledged that for Muslims marriage is a contract and not a sacrament, it is still a religious tradition; but “K.M. Munshi finally spoke for the article and it was his point of view that carried the day. He reminded Muslim speakers that Articles 25 and 26 already regulated the secular activities associated with religious practice and made room for social welfare and reform. As he saw it, Article 44 merely adds the proposition that the personal law of the country should be united at such a time as Parliament thinks proper. As for the protection of minority rights, he throws back at the Muslim speakers the case of the khojas and Cuichi Memons. When the Shariat Act (1937) was passed, they followed certain ‘Hindu’ customs. But since they were Muslims, they were forced to abide by Shariat according to the will of the majority of the Muslims. Such codes, now as then, have to ask what is in the interest of the whole community, and a small segment cannot reasonably stand in the way of that. Singhvi continues by affirming that the intent of Article 44 is the separation of law from ‘religion.’ ‘We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession.” He holds that it is necessary to legislate in matters of personal law without actually interfering with ‘religion,’ even if that means a re-definition of ‘religion.’ [PROB: not, the implication of this is that ‘religion’ is no longer what secularism is not, it is only what secularism says it is] We are at a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so constructed as to cover the whole field of life, we have reached a point where we must put our (22) foot down and say that these matters are not religion, that they are purely matters for secular legislation. This is what is emphasized by this article.’”; but Muslim law has never been changed by Parliament, while “hindu” law has



22-“On January 2, 1944, the government appointed a Hindu Law Committee under the chairmanship of B.N. Rau ‘for the purpose of formulating a code of Hindu law which should be complete as far as possible.’ The Committee of four, including Dr. Dwarkanath Mitler, a former judge of the Calcutta High Court, formulated a Draft Code, and on the basis of this they traveled to the major population centers of India to hear witnesses both for and against the proposed code. To their surprise, most of the witnesses were opposed to the Code on the grounds that it interfered with Hindu religion, i.e. involved the secularization of personal aw.”; Nevertheless, “the draft Hindu Code Bill was introduced into the Old Central Assembly in 1947 prior to the partition of India, but received such opposition that it was temporarily dropped. The bill was again debated on the floor of the Constituent (23) Assembly (legislative), but again, as a result of intense reaction, was dropped in September of 1951. But a new Parliament in 1955 and 1956 passed the substance of the Code in the form of four separate bills: Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill, and Hindu Adoptions and Maintenance Bill. The debate that took place on these bills did not center on the secularization of law. By this time those who were opposed to codification because of the secularization of law saw that codification was inevitable so they attempted to effect what were to them desirable changes. As I argue in more detail elsewhere [“Gender Implications for a…” in Personal Laws in Modern India], most of the issues are issues that revolve around gender. They have to do with divorce, polygamy, the rights of widows to remarry, and the rights of women to inherit property. Throughout, the argument was offered that such changes in Hindu law merely gives to women the same rights that men already have.” And it outlawed polygamy

23-“The Hindu Code proposed to deal with all Hindus equally apart from caste. The division of society into four varnas, is in modern times ‘totally obsolete’ and highly objectionable. This was so obvious that no argument seemed necessary on its behalf. Law must be based on equality. Questions of monogamy, divorce, inheritance are treated as secular matters to be determined by the legislature in keeping with the principles of rationality, science, and social utility. While this is in principle true for Muslim law as well, political issues have forced Parliament to desist. Parliament has indicated it is open to codifying and reforming personal law for minority communities as well if it is asked to do so.”

-“It should come as no surprise to learn that these secular principles are affirmed by P.B. Gajendragadkar, a former chief justice of the Supreme Court of India. According to Gajendragadkar, the secular state aims at the implementation of Article 44, the introduction of a uniform civil code throughout all of India. The Hindu Code was merely a step in that direction, while the government prepared Muslim public opinion for the acceptance of the secularization of Muslim family law as well.”, (24) Gajendragadkar said these family matters are “’secular’ in character and are outside the legitimate domain of ‘religion’ as contemplated by Articles 25 and 26 of the Constitution” [direct quote from Gajendragadkar Secularism and the Constitution of India]

24-“in an earlier article, I showed that Nehru legitimated his view of the secular state on the unquestionable ground that [sic] is was modern, rational, scientific, and Indian. [cf “Religion and the Legitimation..” in Religion and the Legitimation of…] This is a continuation of the norms that appeared in the work of Hindu Law Committee. These values are also found in the ground for Gajendragadkar’s decision. The day is gone when one can appeal to ancient texts to settle legal matters. ‘It would be totally unscientific and unreasonable to go back to these ancient texts to find out how we should regulate our daily life today.’ [direct quote from Gajendragadkar The Hindu Code Bill]”; Gajendragadkar argues that the Hindu Code Bill should only be based on principles from the Constitution.; “In the end, then, the Hindu Code Bill was more than a systematic organization of Hindu law for all Hindus. It was also a reconfiguration of Hindu law on the principles of modernity.”



-looks at legal decisions in terms of Supreme Court decisions; (25) the definition is not in the Constitution and so “has been left to the courts, particularly the Supreme Court…if the Court says a certain practice is religious, then it is. Sometimes the ‘religious’ and the ‘secular’ are entwined as in the case of Mahant who by virtue of being the spiritual leader of a community exercises wide powers of property management. But here the Court did not hesitate to say that the administration of property is not religious but secular and therefore falls under potential government control.”

25-“The Supreme Court acknowledged that defining religion would be difficult if not impossible. [cf Commissioner, Hindu Religious Endowments, Madras V. Sirur Mutt, The Supreme Court Journal (S.C.J.) v. XXVI, 1954] But it was clear that the definition offered by the American Supreme Court in Davis v. Benson (13 U.S. 333@342) which centered on a Creator and the obligations that Creator imposed on his creation would not help in the Indian arena. To define ‘religion’ in a theistic manner would define Buddhists and Jains out of existence. Moreover, ‘religion’ is more than mere belief. ‘A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.’ [Direct quote from Madras v. Sirur Mutt]” ; in the Madras v. Sirur case, “the concept of ‘essentiality’ was introduced. The Court held that what was essential to a religion was to be determined ‘with reference to the doctrines of that religion itself.’ [direct quote] At first the Court seemed to say that it was the believers of a religion that would determine what was essential. Later it acknowledged that religions (26) are not usually monolithic and that the Court would have to make the determination. In the end the Court was unable to offer a definition of ‘religion’ and contended itself with determining whether specifications were religious as the circumstances demanded.”

26-“Although these categories have never been defined by the Courts, they are nevertheless used to resolve conflict. Sometimes a practice is considered unessential to a religion, while on other occasions the Court seems to act on its own advice in Panachand Gandhi v. State of Bombay [1954] that in difficult cases the ‘court should take a commonsense view and be actuated by considerations of practical necessity.’ [direct quote]”

-in Madras v. Sirur “it was held that the determination of what rituals were necessary in a temple was a ‘religious’ matter, but that the scale of expenses for the rituals was a ‘secular’ matter and could legitimately exist under governmental control.” [cf Digyadarshan R.R. Varu v. State of A.P. 1970], and when Sikhs contested this in Sardar Sarup Singh v. State of Punjab 1959] the Court upheld their view



-“In Bira Kishore Deb v. State of Orissa [1964], it was argued that the Shri Jajannath Temple Act of 1954 deprived the Raja of Puri of his personal property…The Court…maintained that the Act in no way limited the Raja in his ‘religious’ functions but only intended to regulate the ‘secular’ affairs of the temple. Section 15 (1) of the Act required that an appointed committee provide for the proper maintenance of worship in accord with the Record of Rights. The Court pointed out that there were two aspects to sevapuja. The one aspect has to do with the provision of the proper materials for the puja and (27) this is a ‘secular’ matter.”; “It seems clear that it is the committee that decides what is demanded by the Record of Rights and not the prest or servant…since this is intended as guarantee of ‘religious’ integrity, held the Court, it cannot be an interference with ‘religion.’ But what the adya sevak is left with is the performance of duties mandatory upon him as determined by the committee in the light of the Record of Rights. Hence the determination of duties which are ‘religious’ in accord with the Record of Rights is not itself a ‘religious’ determination…So the ‘secular’ management of the temple includes not only the financial matters but also the determination of the ‘religious’ rites demanded by the Record of Rights.”

27-“Several petitions representing Vaishnava and Saivite temples in Tamil Nadu contend that the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act (1970) infringed upon their ‘relgiious’ rights in doin away with the hereditary rights of succession to the office of archaka (pujari-priest) in their temples.” [cf Seshammal and others v. State of Tamil Nadu (1972)], they said it violated Article 26(b), and that hereditary succession was essential to their religion; the Court reviewed the Agamas and agreed that having someone from another denomination would defile the image, but the Court rejected the (28) idea that hereditary succession was essential. What was essential was that the image not be polluted.” And that the hereditary principle was not “religious,” but “common usage”, plus this was supported for the Court by the fact that “any lay founder of a temple can appoint a priest”, so even though “what the archaka did in the temple in his function as pujari was ‘religious,’ the appointment of archaka and the matter in which it was done was a ‘secular matter…”

28-in Saifuddin Saheb v. State of Bombay (1962), “The issue at stake was whether the Bombay Prevention of Excommunication Act (1949) was in conflict with Articles 25 and 26 of the Constitution…An earlier case [from 1948] had determined that it was within the power of the Dai [a Shia leader] to excommunicate. The petitioner argued that the practice of excommunication was essential, for without it the purity and continuity of the denomination could not be safeguarded by removing persons unsuitable for membership.”, (29) but some in the Court said it wasn’t essential, that it was “secular” and affected people’s civil rights; “In his minority judgment, Sinha, C.J., interprets the Act as the culmination of the history of social reform which began with provisions of the Bengal Code which were later incorporated in the Caste Disabilities Act of 1850…[He also] introduced a slightly different category. Instead of merely speaking of ‘religion’ and the ‘secular,’ he referred to excommunication as not being ‘purely religious’ or ‘wholly religious.’…When an Act is not ‘purely religious’ this means that there are civil consequences to the activity under consideration, not was he interested in distinguishing what they might be. He was responsible for making a judgment about actions touching on the civil rights of members of the community. Since excommunication treated the excommunicated much as a pariah, and since the Constitution abolished untouchability, the Act is valid.”, But even though this kept with the ideology of the Constitution, the Constitution also grants communities the right “to regulate themselves in matters of ‘religion.’ It was for this reason that the majority of the Court judged the Act unconstitutional.” And said excommunication was essential, and (30) one judge who has this view ignores the “civil rights” issu—“They are secondary and not his concern”—so both sides had to ignore the other side; the categories of “religious” and “secular” are “inadequate”



30-“one device used when the categories are inadequate to handle the conflict without assistance is what might be called reification. Reification is the treatment of an historical process characterized by diversity and change as a single objective entity. In the study of religion it is the treatment of ‘Hinduism,’ ‘Buddhism,’ and the like, as units of thought and practice. [cf Baird Category Formation and the History…] Where there exists a conflict between the religious claims of a community and the Constitutional ideology, the Court has used reification in aid of ‘religion’ and the ‘secular.’ This method is apparent in M.H. Quareshi v. State of Bihar [1958] contesting the constitutionality of three acts for the prevention of cow slaughter, the petitioners argued that their fundamental rights under Article 25 of the Constitution were abridged…The petitioners claimed that this was enjoined in the Holy Qur’an, but the Court contended that the verse referred to merely stipulated that people should pray and offer sacrifice. Operating under a reified concept of (31) Islam, the Court made a search for a scriptural statement making the sacrifice of a cow obligatory. A lack of obligatoriness would suggest that the practice was not essential to Muslim faith…their custom was not sufficient. By treating Islam as a reified entity and considering the petitioners as Muslims, their specific contemporary practices could be ignored…and since it was not essential it was not protected under Article 26 of the Constitution.”

31-“Another concept which takes the Court beyond the categories of ‘religion’ and ‘secular’ is superstition. Gajendragadkar, J., used this concept in Durgah Committee v. Hussain Ali [1961]. There he stated that an historical community might sincerely believe that a practice is essential to their religion when it is merely a superstitious accretion. In Yagnapurushdasji v. Muldas [1966], this concept plays a more decisive role in his decision. The issue was whether the temples of the Swaminarayan Sampradaya sect come under the Bombay Hindu Places of Public Worship Act (1956), since the appellants contended that they were not Hindus but a separate religion. At the end of a lengthy consideration of the nature of Hinduism and the tenets of the Swarminaryan Sampradaya sect it was concluded that they were Hindus. Of some importance was the fact that the sect had not objected to being so classified in Census reports… Gajendragadkar, J., held that although the contention of the sect began in sincerity, it was founded on…(33)’superstition, ignorance, and complete misunderstanding of the true teaching of Hindu religion and of the real significance of the tenets and philosophy thought by Swaminarayan himself.’[Direct quote]” –this was reification: “First, there was a determination of the essential tenets of Hinduism. Since the appellants contended they were not Hindus, it was also necessary to find out what the Swaminarayan sect ought to believe if it were true to its founder. The result of the Court’s research was that, although the appellants were sincere in their contention, they did not properly understand their own faith.” And this was equated with superstition and ignorance

32-“In Venkataramana Dvaru v. State of Mysore [1958], the Gowda Saraswat Brahman sect contended that the Madras Temple Entry Authrization Act (1947)…was a violation of Article 26(b)…They hel that who was entitled to participate in temple worship was a matter of ‘religion.’ Admitting the precedent that ‘religion’ includes practices as well as beliefs, the Court proceeded to determine whether exclusion of a person from a temple was a matter of ‘religion’ according to ‘Hindu ceremonial law.’ The Court observed that along with the growth of temple worship, there also grew up a body of literature called Agamas…One such text includes degrees of participation”, and (33) based on that text, the Court at first thought that this meant low castes could be within viewing distance, but it was brought up that “In a 1908 case, Sangkarakinga Nadam v. Raja Rajeswara Dorai, it was agreed by the Privy Council that trustees who agreed to admit persons into the temple whom the Agamas did not permit were guilty of breach of trust. The Court agreed that temple entry was a matter of ‘religion.’” But then the Court admitted this conflicted with Article 25(2)(b) (opening all Hindu institutions to all classes), “Appeal was made to the ‘rule of harmonious construction’ whereby two conflicting provisions are interpreted in such a manner as to give effect to both. The Court then agreed to the opening of the temple to all classes of Hindus. The right of the denomination to exclude members of the public from worshipping in the temple, although protected under Article 26(b), must give way to Article 25(2)(b). This does not mean that anyone can go into any part of the temple at anytime. Hence the denomination was permitted the right to exclude the general public from certain religious services. The Court felt that it had given effect to both provisions in as much as even after the exclusions from certain religious services, ‘What is left to the public of the right of worship is something substantial and not merely the husk of it.’ [direct quote”, (34) “The judgment said, in effect, that traditional practices could not be maintained in their entirety because Article 25(2)(b) denied such practices….This case, then, admits the existence of a conflict between tradition and the new ideology, and it implements religious change.”



34-“I have called this ideology which distinguishes ‘religion’ and the ‘secular’ a ‘New Great Tradition.’ [cf “Uniform Civil Code…” in Essays in the History of Religion] It is enshrined in the Constitution, embodied in legislation passed by Parliament, and enforced in the courts. Since independence there has been occasional opposition to it, none perhaps more threatening than the present opposition from the Hindu right. This segment of India is presently in power politically (2001), and some have called for a revision of the present Constitution. That proposal has itself been the object of considerable discussion. The argument is that under the existing Constitution, minorities have been favored over the majority community and that must charge.”—this is a “religious conflict” because “it is a conflict over the ultimate way one perceives the world.”, some see sacred as encompassing everything and some “seek to distinguish between ‘religion,’ and the ‘secular’ realms of the economy, society, politics, and law.”