1. Introduction
Religion and law have an intimate relation and there are obviously a variety of ways that this relationship is expressed. It may be the case that the prevailing system of law is itself based entirely on religion, as is the case in some countries. However, in ostensibly secular countries, the role of religion in society (and the economy) can be just as prominent as it is in a religiously oriented jurisdiction. In India, where secularism is constitutionally mandated but the constitution also allows confessional personal law to prevail, much of the academic as well as political discourse regarding law and religion engages with issues of matrimony and succession. By default, these concerns have an implicit connection to property, but one area of particular concern that is situated outside the straightforward realm of personal laws, is the set of legal relations that award juristic personhood to religious idols. This too is intimately connected with property and forms the subject matter of this article—I forefront this by looking at the legal issues that have surrounded the Ayodhya dispute.Footnote 1
1.1. Contextual background
Before I spell out the main themes of the article, it is important to begin by briefly providing the political background within which juristic personhood of the idol has taken on significance to merit this exploration. The key event in this regard is the Ayodhya dispute—the Ayodhya dispute represents a point of origin in the rise of Hindu nationalist politics that dominates present-day India. As is well known, based on the belief that the birthplace of Rama is located in Ayodhya, where a mosque referred to as the Babri Masjid was built, a large crowd tore down the mosque on 6 December 1992. Among other things, this action consolidated the politics of Hindu identity and translated it into votes that led to the formation of the Bhartiya Janata Party (BJP)-headed National Democratic Alliance (NDA) government in 1999. After serving a five-year term, there followed a hiatus of some years, but the BJP gained power again in 2014 and has held on to it. The party currently continues to govern India. While a Ram temple has now been constructed at Ayodhya, this could only be done once the various title and legal issues had been resolved—this took place with a Supreme Court judgment in 2019, which asked the government to set up a trust to govern the land on which the temple is to be built and complete control be handed to the trust once the temple is completed (hereafter referred to as the Ram Janmabhumi judgment).Footnote 2 In specifying the set of property rights to support this arrangement, the idea of the Hindu idol as a juristic person played a prominent role.
The full significance of the Hindu idol as a juristic person is not just in the consignation of property rights in this specific case of conflict but also in moves that seek to expand the rights of the idol well beyond standard notions of property rights. Apart from the Ram Janmabhumi judgment, a Public Interest Litigation (PIL) that aimed to remove a religious ban on women of menstruating age from accessing a shrine housing a celibate god has generated concerns around rights of deities (hereafter referred to as the Sabarimala judgment).Footnote 3 The particularly interesting dimension of this case lies in the move made by parties hostile to the PIL to ask for the expansion of the rights of the deity as a juristic person so as to grant the idol human rights; albeit this argument was unsuccessful, but a review of the case is pending in the Supreme Court.
1.2. Key themes
These attempts can be read as a bid to establish legal legitimacy to activities that further the political interests of an apparently “Hindu” public, overreaching the secular confines of the Indian Constitution. In this context, one can ask—how did a configuration of property rights to support this endeavour come to be? A portion of the article seeks to answer this question by exploring the judicial structures and arguments—the construct of the idol as a juristic person that made it possible to solve for property title in the Ram Janmabhumi. This exploration brings to mind yet further questions about the implications of such property rights, as well as questions around nascent moves (as in the Sabarimala case) to expand the rights of the idol beyond property rights. Stepping away from engaging with these issues as a straightforward political analysis of the law, the article attempts to highlight two kinds of effects. First, it underscores and comments on the juridical tensions between individual and group rights that surface when juristic personhood is produced and goes on to further reflect on this tension in view of a potential expansion of the rights of the idol that go well ahead of property rights. Second, the article tries to interpret the impact of property rights awarded to the idol on the economy—making the point that assigning property rights to the idol in the Ram Janmabhumi case ended up in creating a positional good—positional goods being a vital input in the production of ethno-nationalisms.
1.3. Plan of the article
To engage with these themes, the article is divided into four sections. The first section (titled section 2) starts by invoking Roman law that highlighted the legal distinction between persons and things. I point to some scholarship that says that there is nothing fixed or natural about the division between persons and things, and that a variety of such divisions are created circumstantially. Through this discussion, I aim to highlight the intimate connection between property and the juristic person, a connection which is manifest in the corporation as a juristic personality. In particular, I emphasise the point that awarding juristic personality to an artificial person is an exercise that assigns property rights to a collective group of natural persons behind the artificial person. The next section links this idea to the Hindu idol by looking at the judgments of colonial courts that awarded the idol with juristic personhood more or less around the time the corporation was given a juristic personality. Rather than tracing this in an extensive manner, I look closely at a much-cited case judged by the Privy Council that gave the Hindu deity juristic personhood so as to give property rights to the community of worshippers, a point which echoes in subsequent judgments and legal treatises.Footnote 4 This genre of Anglo-Hindu jurisprudenceFootnote 5 was a particularly important input into the Ram Janmabhumi judgment, which I turn to in the fourth section of the article. In this section, I first provide a chronology of events as perceived by the Ram Janmabhumi judgment. Turning next to the substantive dimensions of the judgment, it is first shown that the earlier inception of the idol as a juristic person that was aimed at the governance of Hindu Religious Establishments was repurposed in the Ram Janmabhumi judgment to adjudicate an inter-community religious dispute. Second, elaborating on this, it is shown that the juridical heart of the judgment works on the assertion that the very acceptance of the idol of Ram as a juristic being makes for sufficient evidence to award the title of the contested property to the idol. In the fifth section, which forms the consciously analytical part of the article, the effect or implications of this interpretation of the idol as a juristic being are explored. I begin by using an insight of the Italian jurist Sforza to argue that the recognition of the idol as a juristic person was an action by which law recognised an extra-state order. Such legal recognition of an extra-state order empowers a group—creating a social personality, so to speak. This, it is argued, creates tensions in relation to persons viewed as citizens (individuals). After considering this, I move on to focus on the Sabarimala case to address other tensions as moves are contemplated to widen the repertoire of rights of the idol. The second and perhaps bigger immediate significance of the Ram Janmabhumi judgment is its role in creating a property regime that enabled the Ram Temple as a positional good. By definition a positional good is a good that diminishes the already excluded yet further; thus, the article ends by suggesting that such positional goods are paramount in the production of an economy geared to ethno-nationalism.
2. Juristic personhood and property
The legal paradigm that distinguishes between persons and things can be said to be constitutive of the legal world or so at least was the view of Gaius—the Roman jurist whose work is understood as a definitive textbook of Roman law and therefore influential in defining what we understand to be the basic facets of Roman law (de Zulueta, Reference de Zulueta1953, p. 7). To quote Gaius “The whole of the law (ius) observed by us relates either to persons or to things or to actions” (de Zulueta, Reference de Zulueta1946, p. 5). In effect it is the case that any matter that is dealt with legally (which is not an action) ends up being a question as to whether the matter involves a thing or a person. Among other things, it is certainly the basis for constituting property law—in that the central constructs of property law follow from definitions of persons and things. A person comes to be defined by not being a thing and in the same breath, a thing is not a person. To animate this statement, let us turn to a crucial statement that Gaius makes regarding persons “The primary distinction in the law of persons is this, that all men are either free or slaves” (de Zulueta, Reference de Zulueta1946, p. 5). Once we realise that all slaves (unless fully manumitted) were classified as things (res mancipi) (de Zulueta, Reference de Zulueta1946, p. 69), we get a clear sense that persons commanded control over things because they had seized them by force to bring them into their possession. And, so with other things—land, animals, and other objects that, alongside slaves, belong to a person—a thing never is but belongs to someone, something someone has possession of, with possession being the foremost of the incidents that describes ownership (Honre, Reference Honre and Guest1961, p. 113). The command over things, whether over other human beings—gradations ranging from slaves to wives and children (the patria potestas) as well as acting as creditors over debtors, or objects like land, garments, animals, gold or silver, located one as a person in law. Of course, a person’s status in Roman law was not static, with the passage of time personhood either on account of death or old age moved one’s position and thus things travelled across generations as heirs became persons through an elaborate set of inheritance laws. I have invoked this fragment of Roman law not to read its immobile presence in governing persons and things but rather to say that as the law swivels around—the key thresholds constructed by the Roman ius have a continual bearing in the negotiations that accompany legal changes over time and jurisdiction.
It is the contention of some anthropologists who study the law that in practice there is a large fluidity between persons and things. While it is challenging to survey the literature that engages with this issue extensively, the set of essays in an influential volume edited by Pottage and Mundy on the subject have stimulating insights on the issue (Pottage and Mundy, Reference Pottage and Mundy2004). Summoning Roman law in the first instance that is comprehended as saying that persons (personae) are attached to things (res) by legal forms and transactions (actiones) that set out permissible combinations, it is suggested over the course of the volume that in contrast to this there is no natural division between persons and things (Pottage, Reference Pottage, Pottage and Mundy2004, p. 4). Rather, it is proposed that the division gets created afresh contingently and is not an embedded difference—the claim being that each legal form or transaction constitutes the person–thing dyad in its own way. While not all the essays deal with technological change, many of the essays invoke the destabilisation created by contemporary technological change that blur the person and the thing—human beings can be either person or thing or both person and thing with law taking on the burden to make the difference. The point is made that changing technology creates new potentialities “which are actualized in a new set of claims and attachments” (Pottage, Reference Pottage, Pottage and Mundy2004, p. 6). This worldview of law produced by these anthropologists is more diffuse than the pronouncements of legal scholars, allowing for the view that law is created between convention and invention—with tradition getting created on the site while it seems to be ostensibly carrying on tradition. This effectively means that “techniques of personification and reification are constitutive rather than declaratory of the ontology upon which they are based” (Pottage, Reference Pottage, Pottage and Mundy2004, p. 9).
If we hold on to the centrality of ownership in the person–thing construct—ownership is where capacities of persons in relation to things are often determined. Indeed, ownership is the setting in which the legal constitution of persons and things becomes the most subject to changes in society, technology (and the economy). To extract a statement from the anthropologist Marilyn Strathern, she tells us that often enough property law is asked to construct “claims for which no prior transactional idiom[exists]” (Strathern, Reference Strathern1996, p. 18).Footnote 6 This is indeed the tone with which one should approach the issue of the juristic personhood of the modern corporation. The narrative associated with the corporation tells us that the first corporations were started in the sixteenth century, set up by charters granting groups of individuals monopoly rights to trade, and that these groups of people clubbed their capital together to form joint-stock establishments to mitigate or rather spread risk. While this orientation provided legal leitmotifs of immunity for the latter-day corporation, it was insufficient to assist in the organisation of capital in synchrony with the large-scale production needed for the industrial revolution (Dewey, Reference Dewey1926). It is widely accepted that legal relations had to be adapted to create the modern corporation—there is a pointed and explicit literature that recognises that giving a corporation legal personhood fulfils important economic functions that are insufficiently performed by contract law.Footnote 7 I do not probe this point on the economic efficacy of constituting the corporation as a legal person here but rather look at the legal arguments that were made in the process of constituting the corporation in the last part of the nineteenth century and the early twentieth century. The contours for this articulation was the tension between the natural person and the fictitious person (persona ficta) and involved countering the insistence that law cannot “confound personality with capacity” (Geldart, Reference Geldart1911, p. 94). To understand this tension, let us turn our attention to the technique of creating the modern juristic personality—the first step was in invoking the Roman and mediaeval antecedents to the idea. It appears that the idea of having persona ficta came from mediaeval attempts (drawing on Roman law) to prevent the delicts of individual members coming to rest on ecclesiastical establishments (Dewey, Reference Dewey1926, p. 665). However, the persona ficta was, relatively speaking, a “hollow” juristic formation in that while it allowed groups to be captured by a single legal concept, it also denied some of the key rights and duties to the persona ficta because the fictitious person so visualised and constructed was absent a will. It is submitted that while developing the German Code in the nineteenth century, the persona ficta was transformed into the notion of the juristic person we are familiar with today (Deiser, Reference Deiser1908). Deiser spells out the key argument that seems to have enabled this:
A right is inconceivable without corresponding relations between some individual and the community to which he is subject. If we find a right, such as that of ownership, in existence, we must discover a subject for that right. If the right attach to a human being, he is the subject; if it attach to a name used to designate the collective will of a group of men, the name or collective will is the subject. By advanced abstractions, by reasoning a priori, jurists have reached the conclusion, that in relation to the quality of being a subject of law, the individual, and the group of individuals as such, occupy a like position. Personality is considered therefore, an attribute not only of men, but of groups of men, acting as a unit for the attainment of a common end. This person, which is not a human being, is called technically, a juristic person, a persomne morale to distinguish it from the physical personality of mankind… This juristic person, or collective will of the group, is not a creation of the law; the law does not create its personality, but finding a group engaged in some common pursuit, endows it with a definite legal capacity. It is capable of exercising rights, capable of committing wrongs; the former, it may vindicate; the latter it must atone for (Deiser, Reference Deiser1908, pp. 137–138).
I invoke Deiser here not only because he forefronts the idea that a juristic personality is given to some entity because certain groups of individuals can be said to form a subjective whole but also on account of his articulation that such a persona adheres because property is central while formulating the concept. As he goes on to say of the corporation as a group “The secret of personality, viewing the corporation as a form of collective property, is contained in the possession or absence of property” (Deiser, Reference Deiser1908, p. 140). Further he goes on to say that where there are no resources as such, where there is no question of a patrimony, there is no need for a personality. And thus, referencing to the French jurist Marcel Planiol, he states—“It is a question, therefore, not of personality, but of patrimony. Where there is property, there is personality. Where there is no property, there is no personality” (Deiser, Reference Deiser1908, p. 140).
It is important to set out explicitly how the techniques of personification and reification referred to earlier (Pottage, Reference Pottage, Pottage and Mundy2004, p. 9) are at work here. As we noted, since Roman antiquity, persons own things, and such ownership is located in a system of patrimony that governs the movement of property through inheritance in time as well as rights and obligations relating to property at a point in time. Now if a right of ownership is placed on a group “acting as a unit for the attainment of a common end,” then by this very ownership, they are embedded in the construct of a system of patrimony and on account of this patrimony, metaphorically speaking, the group has personality; since entities that can own things are persons, the legal ability to own property whether by men or groups of men is the essential requirement of personality. To reiterate, since a man is a person because he can own property, so syllogistically a grouping of men acting as a unit for the attainment of a common end is also a person if this grouping can be said to own property. Thus, and thereby the persona ficta is transformed into a juristic person, so that an entity like the corporation can function with a juristic personality.
3. Juristic personhood, property, and the idol
Though I have invoked a specific and small set of essays on the juristic person to explain the nexus between the juristic person, group interest, and property, variants of this constructions can be found in the legal discourse prevailing at the time. This is the legal thinking that appears to have informed judgments that awarded the Hindu deity or idol with juristic personhood around the same time. However, before we move to a discussion around the conferment of the personhood to the Hindu deity, it is important to get a quick sense of how a deity or idol was purportedly understood by traditional Hindu texts. The idol as a juristic person is not present as a concept in Hindu law. For instance, the Laws of Manu have very little to say about idols barring a few verses telling what you should do when you come upon an idol (The Laws of Manu, 1991, p. 86) or punishment to be meted out if an idol or temple is destroyed (The Laws of Manu, 1991, pp. 227–228). Similarly, other texts echo this attitude—there are instructions as to the treatment to be meted out to the idol, and there is naturally epigraphical evidence of committees instituted to govern the resources that flowed to deities (Sontheimer, Reference Sontheimer1965). However, by the mid-twentieth century, in addition to a law that involved governance of temples and other religious establishments centred around religious trusts and their interactions with state bodies, a law had emerged that saw the Hindu idol as a juristic person, which grew out of attempts to govern debutter property—a term coined by Anglo-Hindu law to refer to property associated with an idol, typically managed by a manager referred to as the shebait. Footnote 8
I do not attempt to trace the precise formation of debutter property or shebaitship here,Footnote 9 instead over this section, I spend time on the contents of a judgment of the Privy Council—the case of Pramatha Nath Mullick v. Pradyumna Kumar Mullick and Another. Footnote 10 I do so because this judgment congealed judicial thinking on the idol as a juristic being in Colonial India, and its presence can be felt in the legal developments of post-independence India.
3.1. The Pramatha Nath Mullick v. Pradyumna Kumar Mullick case
To get to the analytical contents of the case, it is useful to spell out the facts of the case. The starting point of the background is that one Mutty Lal Mullick installed a set of idols for family worship. After his death, as per his wishes, the idols were taken care by his widow Rangamoni, till his adopted son Jadulal reached the age of 20. A trust was also instituted to provide the resources for the upkeep of the idols, which was to be looked after by Rangamoni till Jadulal hit the age of 20. Over the period Jadulal was an active adult, he extensively expanded the structures in which the idols were housed and also executed a crucial deed of trust in 1888 that ascribed the location of the idols in the puja dolan (the structure where the idols were housed) as an important component of the trust document. Jadulal came to have three sons (and four daughters), and a time came for the three sons to take care of the family idols upon his death. Since Jadulal’s estate was divided among the three sons, so was the worship and attendance to the family gods. Jadulal’s will mentions worship by turns (pala) with reference to a family goddess but not specifically in relation to the idols that are involved in this case. Additionally, the thakur bari or puja dolan (the structure where the idols were housed) was declared to be joint property, with prohibitions to erect any other structure in the vicinity. Furthermore, in a suit that settled Rangamoni’s estate, a commission set out a scheme whereby each son was to install the deities in rotation on their premises. This practice was followed for a while, but at a point when the idols were to be moved to the second son Pramatha Nath Mullick, the first son Pradyumna Kumar Mullick (supported by the third sonFootnote 11) objected to this. On the basis of information available in the text of the case, it can be inferred that the arguments in the trial court invoked Mutty Lal Mullick’s will and interpreted it as saying that the idols were Mutty Lal Mullick’s personal property and that these items were left to his heir absolutely as secular property. On appeal, the Calcutta High Court rejected the contention that the idols were merely movable property but felt that it was not to the benefit of the idols if they were moved about and, on these grounds, supported the objection made by Pradyumna Kumar Mullick. The Privy Council made it its business to interrogate whether the objection raised “is well founded in law.”Footnote 12
First of all, the Privy Council emphatically rejected the idea that the idols can be treated as a standard object of property for the owner to do with them what he will. This effectively means that the judgment decided that the idol is categorically not a thing, and therefore it follows that the idol must be a person. Over the judgment, the idol as a person is constructed, giving effect to the juristic personality of the idol. This construction is achieved with a premise that is listed early on in the judgment and repeated later—that the Hindu idol “has a juridical status with the power of suing and being sued”Footnote 13 and that “(i)ts 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 be in such circumstances, on analogy, be given to the manager of the estate of an infant heir.”Footnote 14 These interests, described as the founding and caring for the deity, are found to be located in the person of the shebait and the judgment sees Mutty Lal Mullick as well as Jadulal as being such shebaits, with all the attendant concerns associated with shebaitship coming down the generations when Jadulal’s estate was divided among three sons. The interpretation of guardianship of a deity upon the division of the estate, in a sense, forms the crux of the problem that the judgment grapples with. The High Court, while recognising personhood of the idol, had interpreted the interest of the idol residing in it not being moved around, relying on details spelt out in the 1888 trust document created by Jadulal. This document records the dedication of premises to the idol and that it “may be located and worshipped in the said premises and to end for no other use or intent whatsoever.”Footnote 15 This arrangement, as per the deed, could not be disturbed except if Jadulal or his heirs provided and dedicated another “location and worship of the said Thakur another suitable thakur-bari of the same or greater value than the premises.”Footnote 16
In contrast to the interpretation by the High Court, the Privy Council understands the interest of the idol somewhat differently. They interpret the trust document as “not a dedication (o)f the idol as property, nor of the idol at all. It was a dedication of real estate in trust for the idol, recognized as a legal entity, to which such a dedication might be made.”Footnote 17 This interpretation converts the issue into a clarification of the wishes of the deity—as the Privy Council judgment proceeds to say “The true view of this is that the Will of the idol in regard to location must be respected. If in the course of a proper and unassailable administration of worship of the idol by the shebait, it be thought that a family idol should change its location the Will of the idol itself, expressed through his guardian, must be given effect to.”Footnote 18 (my italics) Since in this case, there is not one shebait, but three brothers who must act as shebaits, the judgment has to grapple with understanding or pronouncing on a situation where there are many shebaits or guardians or, to phrase it another way, a community of guardians. Before moving to its own statement, the judgment seeks support from earlier judgments—apart from those that have adjudicated joint right performing worship of an idol. It invokes the case of a household idol that was transferred to relatives because the endowment for the idol could no longer support it and such transfer was deemed to be in the interest of the idol. It is commented “It was a proper and pious act…The members of the family were thereby deprived of no right of worship. The interests of worshippers and idol were conserved.”Footnote 19 Building on this, the Privy Council goes on to say “A fortiori it is open to an idol acting through his guardian the shebait to conduct its worship in its own way at its own place always on the assumption that the acts of the shebait expressing its will are not inconsistent with the reverent and proper conduct of its worship by those members of the family who render service and pay homage to it.”Footnote 20 Thus, being a shebait is not confined to one person alone but rather it includes the piety of all those who worship the idol. This is emphatically brought out in the statement made by the judgment in relation to the bare facts of the case, with the Privy Council noting that while the “sole objection”Footnote 21 made by the respondent is to invoke the 1888 deed of dedication “it has to be pointed out that the idol is not otherwise represented in the proceedings though the result might conceivably vitally affect its interests. In that sense the contest has related to the establishment of individual rights as between contesting shebaits.”Footnote 22 The judgment goes on to expand the constituency of the idol by saying “The interests of the female members of the family, especially in view of the fact that they are excluded from the managership of the idols might need special protection.”Footnote 23 The final outcome of the case is thus stated as “Their Lordships are accordingly of opinion that it would be in the interests of all concerned that the idol should appear by a disinterested next friend appointed by the Court. The female members of the family should also be joined, and a scheme should be framed, for the regulation of the worship of the idols.”Footnote 24 The case was sent back to the High Court to be “dealt with in accordance with this report.”Footnote 25 Thus, the Privy Council took on itself to solve the conundrum of squabbling shebaits by appointing a “disinterested next friend” who would represent the interests of the community; I use the term “community” to mean the totality of all believers.
The case clearly creates and gives property rights to those who form the community of worshippers—all those who are the pious worshippers of the idol represent the interests and will of the idol. This allows for an adjudication of space associated with the idol—the space is not to be fixed by the will of an individual person but rather the full group of worshippers. Thus, the space of the idol is the property of the idol with the will governing the use, disposal, etc. of the property lying in the community of pious worshippers. In other words, ownership rights are granted to the devout to manage the property in a pious manner—if one may say, a right to piety was manufactured by the Privy Council judgment whose domain or reach is to administrate the space commanded by the idol.
Soon after the judgment, a scholarly article came out discussing the case, which offered an interesting commentary (Duff, Reference Duff1927). The article, among other things, looked to see other instances where a juristic personality has been awarded, noting in particular the corporation—“some of the language used of corporations would apply as well if not better to idols” (Duff, Reference Duff1927, p. 45). In this context, Duff identifies the interests and will of the idol—the interests are placed in those who worship the idol, and the will lies in the figure of the shebait. Next comes the identification of the rights and liabilities of the idol, and in this the thinking behind the corporation that the rights and liabilities are situated in the group residing behind the legal personality comes to the fore (to quote Deiser again as an echo “a group engaged in some common pursuit, endows it with a definite legal capacity…capable of exercising rights, capable of committing wrongs; the former, it may vindicate; the latter it must atone for” [Deiser, Reference Deiser1908, pp. 137–138]). But it is not in just making this comparison with the corporation that Duff has an important point to make—rather it is the insight that the legal rights and duties of such a group are constructed by the courts and the state keeping in mind social standards. He states this perspicuously when he says:
A realist will always be inclined to favour the attachment of legal to groups and associations; but he need not deny the power of the state either to destroy a group and forbid it to meet, or to treat it as a creature whose acts, like an animal’s, can create rights and duties only for others, or to give it rights and duties differing from those of the human being in any respects that may be deemed socially expedient (Duff,Reference Duff1927 p. 48). (my italics)
Thus, the important point that emerges from my invocation of the Privy Council judgment, is that it made it possible for a non-human thing to become a legal person. The idol was given legal capacity—the right to institute suit as well as the legal provision of a guardian to represent its interests, enabling the community of worshippers to govern the space associated with the idol. The judgment, of course, awarded a legal capacity to the idol to engage with the question at hand—specifically, where the idol can be located, but more importantly, by giving the idol legal capacity, the judgment also opened the door for subsequent enunciations on the expansion or limits of this legal capacity.
3.2. Post-independence developments
Such expansion of the legal capacity of the idol is one of the key themes endorsed in the Ram Janmabhumi judgment—however, before stepping into the contents of the judgment, it is useful to briefly note the nature of the movement of the law invoking the Hindu idol as a juristic person, once the Indian secular constitution came into place. In the aftermath of independence, an attempt was made to make the law relating to the governance of “Hindu Religious Establishments” subject to state supervision. Leaving the legal base provided by Anglo-Hindu law intact, changes were made both in terms of statues as well as judgments to make the religious trusts that administered temple endowments subject to state scrutiny (Dhawan, Reference Dhawan1978). Since the basic foundations of Anglo-Hindu law, for example the propriety rights to shebaits and mahants,Footnote 26 were not only upheld but consolidated further, it has been suggested that this attempt to refashion the law left many of the traditional interests undisturbed and entrenched (Dhawan, Reference Dhawan1978, pp. 101–102). Specifically, in relation to the invocation of the idol as a juristic person, the legal construct continued to help in the governance of property disputes associated with Hindu Religious Establishments. It is not possible, nor necessary, to provide a survey here, instead two recent examples (that found their way to the Supreme Court) communicate the nature of the role routinely played by the idol as a juristic person. One is a case where the shebait was misappropriating temple property—the court stepped in to say that the idol is represented by the shebait, but if the shebait does not act in the interests of the idol, then the community (in this case the trustees of the temple) has the right to look after the interests of the idol; the idol is looked after as one would a minor with proper guardianship.Footnote 27 This was a case involving a small temple and a few acres of misappropriated land. Turning to the second example, a contest between the State of Kerala and the erstwhile Royal Family of Travancore to administer the fabled resources of the Padmanabha Swamy Temple was also resolved using the juristic personality of the idol—the Supreme Court decreed that the erstwhile Royal Family of Travancore were shebaits of the idol and in this capacity, they had the right to manage the resources of the Temple.Footnote 28 As an aside it may also be noted that the grant of juristic personhoodFootnote 29 to the holy book of the Sikhs—the Guru Granth Sahib, played an important role in the strengthening and consolidating of collective property rights of the Sikh community (Singh and Waraich, Reference Singh, Waraich, Nagar and Thakkar2023). This grant of juristic personhood to the Sikh holy book drew on the jurisprudence that had given the Hindu deity a juristic personality.
4. Expanding juristic personhood
However, away from the governance of everyday resource disputes within a community, the most significant role played by the Hindu idol as a juristic person has been to provide a legal base by which Hindu nationalism has been able to consolidate itself—in this instance the adjudication of property rights was not an intra-community dispute or even a dispute with the state but between two religious communities. In the Ram Janmabhumi case, the Indian Supreme Court used the notion of an idol as a juristic person to award a contested space in favour of a group of Hindu nationalists.Footnote 30 As is widely known, the belief that a mosque, referred to as the Babri Masjid (associated with the Mughal Emperor Babur) was erected on the spot where the Hindu god Ram was born was used to generate a political movement that culminated in the destruction of the mosque by a mob in 1992. However, for the temple to be built and consecrated, the Indian Supreme Court was obliged to pronounce on the title of the property (The temple was completed and inaugurated by the Indian Prime Minister in January 2024). The Supreme Court built on and broadly ratified some of the legal formulations that were introduced and developed in an earlier Allahabad High Court judgmentFootnote 31, Footnote 32 while considering the multiple suits, though it overturned the awards of the High Court judgment. The Supreme Court judgment is many hundred pages long, with the decision made by a five-member bench consisting of Ranjan Gogoi (who was the Chief Justice at the time), S.A. Bobde, D.Y. Chandrachud (who soon after the judgment became Chief Justice but has since retired), Ashok Bhusan, and S. Abdul Nazeer. All the judges signed on the judgment, but in a move quite uncharacteristic of Indian judges, particularly in important judgments, no specific authorship is attributed to any of the judges. There is also an “addenda”Footnote 33 at the end of the judgment which is authored by one of the judges, who remains anonymous and is titled Whether the disputed structure is the holy birthplace of Lord Ram as per the faith, belief and trust of the Hindus?
It is a daunting task to read the judgment—it is after all a long and complex judgment engaging with myth, history, and archaeology to settle a property suit. To grapple with this, as a first step, it is useful to get a sense of the legal events as narrated in the Supreme Court judgment, not so much as an accurate historical account, but rather to gain an impression of the claims as perceived by the court. Thus, this section begins with a chronology of events that is entirely culled out of the narrative in the Ram Janmabhumi judgment. There is no attempt to gather any independent sources of information nor is there any question of evaluating the veracity of claims—any attempt in this direction would take us in a very different direction and involve a different research project. Instead, the narrative provided is entirely internal to the judgment, and is therefore directed towards the task of spelling out the contents and conclusions of the judgment. This section of the article is best viewed as an attempt to unpack the legal reasoning as the arguments take circuitous routes, often skirting issues, at times inventing, and in an overall sense constituting the conclusions of the judgment. With the contents of the judgment in hand, so to speak, I am able to turn to an “external” analytical apparatus in the next section of this article to analyse the judgment.Footnote 34 It needs to be emphasised that by listing a certain chronology of events is in no sense any acceptance of the veracity of the narrative, rather it is an attempt to summarise the narratives that are contained in the judgment, which act to buttresses and form the conclusions of the judgment.
4.1. Chronology of events as described in the Ram Janmabhumi Judgment
As per the judgment, it appears that over the nineteenth century, there were a number of attempts to place idols on the premises of the Babri Masjid, aiming to create rights of worship by various Hindu groups accompanied by attempts to counter these moves by the functionaries of the mosque. The narrative in the Supreme Court judgment mentions a riot between Hindus and Muslims that took place in the vicinity of the Babri Mosque in 1856–57 with the administrators of the day building a brick-grill wall in the premises of the mosque that divided it into an inner portion and an outer courtyard. Soon after this, a complaint was filed in 1858 by a functionary of the mosque reporting that a Nihang Sikh had forcefully placed a chabutra (platform) inside the Babri Masjid premises—installing a picture of an idol, lighting a fire, conducting puja, and writing “Ram Ram” on the walls of the mosque. The resulting order asked for the implanted flag to be removed and the Nihang Sikh to be ousted from the premises. Thereafter, over the nineteenth century there were a number of complaints, largely initiated by functionaries of the Babri Masjid and adjudicated by the local administration. These complaints reported incursions into the courtyard of the mosque, sometimes aiming to build structures and at other times exercising other ways of establishing rights. Briefly to provide a flavour of these events—in 1860 a platform was reported to have been built in the graveyard near the mosque as well as attempts were made to construct a house by a Hindu Mahant; in 1861, an application was filed to demolish a chabutra (platform) constructed by a Sikh as well as a hut that was occupied by a Hindu Mahant near the mosque; in 1866, an application was filed seeking the demolition of a structure near the mosque door, constructed by Bairagis—a Hindu militant sect also referred to as the Nirmohi Akhara, who had also placed idols in the structure with the application being consigned to records with no action; in 1868, accusations were made of encroachment by Hindus into the North-western corner of the mosque which remained unproven; in 1870, the Mutawalli Footnote 35 of the Babri Masjid filed a suit asking for the eviction of a Faquir (holy man) who was staying in the graveyard and partaking of the tamarind trees with the local court permitting the claim over the trees but decreeing that possession did not mean that the graveyard was private property; in 1873, Charan padukas (images of divine feet) were placed on the platform (chabutra)—referred to as the “platform of Janmasthan,” the image was ordered to be removed, but the orders were not followed; in 1877, the Mutawalli contested a move made by the Deputy Commissioner to open a new door to the outer wall, which was denied by the authorities and thus consolidated independent Hindu access to the area; in 1882, a suit was filed by the Mutawalli of the Babri Masjid seeking rent from the Mahant Raghubar Das (belonging to the Bairagi group of Hindu militants) for the use of the chabutra and takhat near the door of the mosque with the suit being dismissed by the judge; in 1883, yet another suit was initiated by the Mutawalli against Mahant Raghubar Das since he had obstructed the white washing of the mosque wall; in 1885, Mahant Raghubar Das instituted a suit seeking permission to build a temple on the Ramchabutra in the outer courtyard of the mosque, which was refused by the court, and this was followed in 1886 by the District Court also dismissing Hindu ownership of the chabutra. The important point to note about the bulk of these events is the involvement of the Bairagis, alternately referred to as Nirmohis, the militant Hindu sect, who have been present in some form or the other in the mosque premises over the nineteenth century and continued into the next century.
Over the first half of the twentieth century, the events of interest included damage to the dome of the mosque consequent to a communal skirmish in 1934 that was repaired at public expense, and a fine was imposed on the Bairagis. Other than that, there was a suit in 1941 that dealt with intra-Nirmohi/Bairagi property disputes and a suit in 1945 in which Shia Muslims said that the Babri Masjid was wrongly listed as a Sunni mosque—the claim was dismissed by the court. It was thereafter that the truly big events of the twentieth century started taking place—with the first one being the work of a group (Hindu Mahasabha, the Hindu nationalist political party of the time and a precursor to today’s BJP) who forcibly entered the inside of the mosque on the night of 22/23 December 1949 and placed idols of Ram under the main dome of the mosque. A First Information Report (FIR) was lodged, and proceedings under Section 145 of the Criminal Procedure Code (1898)Footnote 36 were ordered by the judge and subsequently access to the inner part of the mosque was limited. Thereafter a series of suits were instituted by various parties laying claim to the space in and around the Babri Masjid. Around 1950, the first such case instituted by Gopal Singh Varshad before a Civil Judge at Faizabad (referred to as Suit 1 in the Supreme Court judgmentFootnote 37) sought unobstructed worship of the idols inside the mosque structure. In 1959, the Nirmohi Akhara instituted a suit (referred to as Suit 3 in the Supreme Court judgment) stating that they were in charge and managed the structure at the disputed site, which was a “temple” until Section 145 of the Code of Criminal Procedure was imposed in 1949. In 1961, the Uttar Pradesh Sunni Central Board of Waqf Footnote 38 and some Muslim residents of Ayodhya filed a suit (referred to as Suit 4 in the Supreme Court judgment) asking for title to be declared in their favour. It was argued that even if an earlier temple existed since the Mosque has been used for Muslim worship for more than 400 years, the Muslims had title on account of adverse possession. In 1989, a suit (referred to as Suit 5 in the Supreme Court judgment) was introduced by a next friend on behalf of the deity “Bhagwan Shri Ram Virajman” and the birthplace of Ram—Asthan Shri Ram Janmabhumi, both situated as juristic persons, seeking a declaration of title to the disputed place as well as injunctions against any interference in constructing a temple. Following the destruction of the mosque in 1992, these suits along with their contentions and counter arguments were transferred to the Allahabad High Court. The resulting judgment pronounced in September 2010 came up with the verdict of splitting the disputed property with one part being awarded to the Muslims, one part to the Nirmohi Akhara, and one part in favour of the suit brought by the idol and the birthplace of Ram.Footnote 39 In effect, multiple parties were declared as joint title holders.
The Allahabad High Court judgment gave rise to multiple petitions and the matter moved to the Supreme Court in 2011. However, before we discuss the Supreme Court judgment, let us go over some of the key events that have bearing. In 1993, The Central Government enacted a legislation called the Acquisition of Certain Area at Ayodhya Act (1993) to acquire the contested area. This legislation had provisions that halted all cases related to the contested site and pending before the High Court. Acting upon a writ petition, a constitutional bench of the Supreme Court held such abatement of cases was unconstitutional and revived all the cases that were sought to be shut down, referred to as the Ismail Faruqi judgment.Footnote 40 Over the next 10 or so years, the Supreme Court gathered information and staved off attempts to revise the Ismail Faruqi judgment. In 2019, the Chief Justice of the Supreme Court constituted a five-judge bench to deal with the appeals and adjudicate on title. Initially, the Bench attempted a mediation of all parties, but this was not successful, and after hearing various parties, a judgment was pronounced on 9 November 2019.Footnote 41
4.1.1. The substance of the Supreme Court judgment
The first point to note about the Supreme Court judgment was that it overturned the Allahabad High Court decision. It was stated that the three-way partition of the High Court was incorrect because, among other things—“the High Court was not seized of a suit for partition.”Footnote 42 It is stated that while Suit 1 was “seeking the enforcement of the right to pray,”Footnote 43 the Nirmohi Akhara was “asserting shebaiti rights to the management and charge of the temple.”Footnote 44 It was only in relation to the Sunni Central Waqf Board and Muslims (Suit 4) and the Hindu Deities (Suit 5) that the High Court was “called upon to decide the question of title.”Footnote 45 By granting reliefs that were not asked—“which were not the subject matter of the prayers in the suits”Footnote 46—in other words the High Court “proceeded to assume the jurisdiction of a civil court in a suit for partition, which the suits before it were not.”Footnote 47 The Supreme Court also had problems with the fact that while the High Court had barred Suit 3 and Suit 4 by limitation, though relief was offered to them.
The Supreme Court’s own pronouncement on title is premised by stating that “The law provides us with parameters as clear but as profound as ownership and possession.” and that the “The court does not decide title on the basis of faith or belief but on the basis of evidence.”Footnote 48 The “evidence” is used to say that there is unimpeded Hindu presence in the outer courtyard of the mosque, even after the grill-brick wall was constructed in 1857. Turning to the inner courtyard, it is stated
there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.Footnote 49
While admitting to evidence that namaz being said after the 1857 wall was instituted, it is noted that subsequent to December 1949, Muslims were ousted (albeit unlawfully) and thereafter proceedings under Section 145 of Criminal Procedure Code (1898) were initiated and a receiver was appointed. It is further stated that during the pendency of the suits, the mosque was destroyed and that “The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.”Footnote 50 Having said this, the judgment goes to say, “Suit 5 has been held to be maintainable at the behest of the first plaintiff (the deity of Lord Ram) who is a juristic person.”Footnote 51 (my emphasis) After holding this, it is stated
The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.Footnote 52
To correct this harm, 5 acres were awarded to the Sunni Central Waqf Board. The suit of the Nirmohi Akhara was held barred by limitation and the claim of the Nirmohi Akhara to be shebaits rejected. However, taking note of the “the historical presence of Nirmohi Akhara at the disputed site and their role,”Footnote 53 they are to be given a role in the management of the temple that is to be created. The award or title to the idol of Ram was made operational by instructing the Central Government to set up a trust that would use the land to construct a temple.
It is important for us to see how the conclusion of the Supreme Court judgment holds that the evidence is in favour of the idol as against the evidence of the Muslim Waqf Board. This is a slow build-up over the judgment. Before we look at how the evidence is understood to be in favour of the idol—let us list why the claims and evidence of the Muslim Waqf Board is rejected. The key claim made by the Muslims was that since the time of Babar, the mosque has been in the possession of Muslims where continuous offering of prayers took place, and even if there was a temple there earlier, the Muslims have rights on account of adverse possession. The other contention of the Muslim Waqf Board was that the property was waqf by long usage. In addition to this, the Muslim Waqf Board invoked the doctrine of lost grant to establish title—continued and uninterpreted enjoyment of property with a grant expressed or presumed that is lost. In response to each of these claims, the Supreme Court reacts by saying that there is no evidence.
It is said, without evidence no conclusion can be drawn that namaz was offered prior to 1857—the evidence produced by the Muslim Waqf Board is the grants of the British government for the upkeep of the mosque—“but this would not amount to proving that the structure was used for the purpose of offering namaz.”Footnote 54 After the wall was built in 1857, in the view of the court, there was continuous presence of Hindus in the outer courtyard of the mosque (thus not in possession of the Muslims). While there is evidence of namaz and Muslim presence in the inner courtyard “there were obstructions which arose in the continued worship of the Muslims in the inner courtyard which is evidenced by numerous proceedings as well as by the riots of 1934.”Footnote 55 Thus the court notes, while offering an overall comment on the 1857–1949 period, “Though, the claim of the Muslims over the inner courtyard was not abandoned, yet as the evidence indicates, this was a matter of contestation and dispute.”Footnote 56 The absence of evidence of possession by Muslims is contrasted repeatedly with the presence of Hindus—“There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the Hindus.”Footnote 57
Since no possession is established, it is an easy job for the court to counter the other argument made by the Muslim Waqf Board namely adverse possession by again saying that there is no evidence for the claim as well
A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.Footnote 58
Furthermore, it is pointed out that the claim of adverse possession accepts that someone else has a title and “must establish both possession which is peaceful, open and continuous.”Footnote 59 It is said that these requirements for invoking adverse possession are not there in the pleadings.
Following from the general stance that there is no evidence of Muslim possession, the claim that the mosque was waqf property was also not sustained. It is said that there is no evidence of a dedication, nor can it be said that a claim can be made invoking waqf by use. It is felt that to establish a waqf by use requires a “high evidentiary threshold of continuous and longstanding religious worship”Footnote 60 It is instead the case that
The evidence adduced does not demonstrate that the entire disputed property was utilised by the resident Muslim community for public religious worship. It is evident that the outer courtyard was in fact used by and was in the possession of the devotees of Lord Ram.Footnote 61
The invocation of the doctrine of lost grant is also not accepted for lack of evidence “In the present case, absent any pleadings and of evidence on the basis of which a presumption could be raised of the application of the doctrine, it must necessarily follow that the doctrine of lost grant has no application.”Footnote 62 The judgment makes it a point to say that the lost grant invocation is in contradiction to adverse possession because the latter is a claim to title to someone who is not a grantee.
The very presence of the Hindus, whether in narratives of contest over the colonial period or as a presence in terms of accounts of eighteenth-century European travellers (who are ironically reported in the judgment to confuse Babar and AurangzebFootnote 63 but nevertheless deemed to be evidence worthy), is taken as tantamount to possession. However, the multiple narratives of Hindu presence are more to establish the point that Muslims did not possess the mosque. As admitted in the judgment, it cannot be said that there was no Muslim presence at the site (“There was no abandonment of the mosque by the Muslims”Footnote 64)—the heart of the judgment is, without saying it explicitly, the title is awarded to the idol of Ram by the very fact that it is a juristic being, and the recognition of the fact that it is a legitimate litigant is sufficient to grant title. This is perhaps best stated when the Supreme Court, under the heading “Conclusion on Title,” after summarising all claims and why these claims do not hold, tacitly goes on to say, “Suit 5 has been held to be maintainable at the behest of the first plaintiff (the deity of Lord Ram), who is a juristic person. The third plaintiff (next friend) has been held to be entitled to represent the first plaintiff.”Footnote 65 This is sufficient evidence—the very fact that the idol has been recognised as litigating for title, is cause to award title, for if the juristic personhood of the idol has been accepted, then so should one accept the community behind the juristic person—in a sense, the right to piety creates, by definition, evidence of possession by the community.
4.2. The juridical power of the idol as a juristic person
Indeed, a good part of the judgment is devoted to establishing Lord Ram as a juristic person. This begins with an extensive discussion on the juristic personality in general—how it is a legal construct where an artificial person is ascribed rights and duties, going on to invoking Salmond who points out that such rights and duties represent the rights and duties of natural persons; furthermore the examples of the corporation and the ship are discussed at length; and that a legal personality is constructed to overcome “shortcomings in the law and efficiently adjudicate claims.”Footnote 66 The court next turns to applying this understanding to Hindu idols. To set the tone (method of conferment and reasons for conferment of a legal personality on the Hindu idol), the judgment invokes the judgments as well as the book on Hindu law by Chief Justice B.K. Mukherjea,Footnote 67 that I have drawn on earlier to describe the law associated with the idol as a juristic person. A brief sketch of this invokes elements of the discussion we have had about the Hindu idol as a juristic person—that to govern the many exigencies associated with religious endowments, building on notions in Roman law, Anglo-Hindu law introduced the idea of the Hindu idol as a juristic person by making the idol the focus of piety or the pious purpose of the individual making the endowment. Thus, the idol receives offerings of movable an immovable property which vests in it, which in turn protects the endowment against maladministration by various agents.
The need to confer juristic personality arises out of the need for legal certainty as to who owns the dedicated property, as well as the need to protect the original intention of the dedicator and the future interests of the devotees.Footnote 68
With this broad statement and invocation of law in place, the judgment turns to the juristic personality of the first plaintiff.
As a first point, the judgment notes that oral and documentary evidence “shows that the Hindu devotees of Lord Ram hold a genuine, long standing and profound belief in the religious merit attained by offering prayer to Lord Ram at the site they believe to be his birthplace.”Footnote 69 The second point raised is that a legal personality is conferred for a purpose and here it is conferred “on the underlying pious purpose of the continued worship of the deity as incarnated in the idol.”Footnote 70 Apart from this it is also pointed out that “legal personality is conferred on Hindu idols to provide courts with a conceptual framework within which to practically adjudicate disputes involving competing claims over disputed property endowed to or appurtenant to Hindu idols.”Footnote 71 Having thus categorically identified the pious purpose behind the idol of Ram and stated the use of the idol as a juristic being in determining property claims, the judgment announces “To ensure the legal protection of the underlying purpose and practically adjudicate upon the dispute, the legal personality of the first plaintiff is recognised.”Footnote 72
It is noted over the judgment that the counsel for Suit 4 (the Muslim Waqf Board) admitted the juristic personality of the first plaintiff but contested the juristic personality of the second plaintiff namely the “Asthan Sri Ram Janam Bhoomi” the very land that is mythical birthplace of the god Ram. Following the chain of arguments, the Supreme Court did not accept the personhood of the land. To go over the matter briefly, it was pointed out that such juristic personhood is unviable because property as a juristic being cannot hold property—the very premises of property law are thrown into a conundrum, unsettling the stance of the judgment, which as noted, is geared to awarding title.
The big task performed in this judgment was that it was able to bring the legal concepts created to govern property relations of Hindu Religious Establishments, to bear on an inter-community property dispute. Accepting the Ram idol as a juristic being fixed the right of piety of all those behind the idol, and through the medium of the idol enabled this group to have rights of property, the possession, and title to the disputed land. To rephrase this more wholly, the significance of the judgment is rooted in the manner in which it uses the law pertaining to the juristic personality of the idol exemplified by the Pramatha Nath case described earlierFootnote 73—an idol can institute a suit, a guardian represents the interests of the idol and that the force behind the idol is the pious community, to award property rights to the group behind the idol. But unlike the Pramatha Nath case, it was not just a small socially constituted group but a large politically constituted group. The delivery of power to a small group of pious worshippers is very different from giving power to a set of ostensible worshippers that are a large political group and have a presence in an inter-community conflict. The award of title to a juristic personality is here a gesture by the court to give the political community behind the idol property rights and thereby empower them in relation to all other contestants.
This is viscerally evidentFootnote 74 in the “addenda” at the end of the judgment titled Whether the disputed structure is the holy birthplace of Lord Ram as per the faith, belief and trust of the Hindus? In this part of the judgment, the material discussed in the main judgment is repeated, but now with additions from Hindu texts that speak of the birth of the god Ram and even more interestingly point to the Hindu presence at the contested site not in terms of contest or forced entry but as
documentary evidence… of faith and belief of the Hindus that the Mosque was on the janamsthan of Lord Ram. Their protests, persistence and actions to worship within the Mosque is testimony of their continued faith and belief that premises of the Mosque is Janmasthan of Lord Ram.Footnote 75
With an explicit inclusion of those whose piety is recognised in the acts of contesting and fighting at the disputed site into the grouping of men acting as a unit for the attainment of a common end,Footnote 76 the legal legitimation and hence the power of the political community behind the idol in establishing property rights is clearly evident.
5. The juridical path of the idol: Some implications
How can we analyse such empowerment? At the most basic level, the judgment allowed the ideological aspirations and one of the major political rallying points of the Hindu right wing to be put into operation. In January 2024, the Ram Temple was consecrated with great fanfare but fell short of translating into an overwhelming electoral asset for the right-wing government. However, it is not in these immediate electoral political gains that we should look for the significance of the Ram Janmabhumi judgment, but rather in an analysis of the kind of rights that have been given in the judgment—sectional rights that give resources to certain communities.
One needs to understand the nature of these rights and the tensions that they create (in a legal sense) and thereby deliver a comment on the wider ramifications of such a configuration of rights.
5.1. The tension of a “law of private individuals”
I take a first step in this direction by suggesting that the provision of juristic personhood to the idol is an instance of the law of private individuals as sketched by the Italian legal theorist Cesarini Sforza (Sforza, Reference Sforza and Spano1929). He situated this category of law in the interstices of the conventional division between private and public law. This law of private individuals described as distinct from private law, is said to emerge from social relationships that create collectives consisting of a subset of some but not all individuals. In this imagination, the interests of the set of private individuals “relate not to themselves but to the community,” lying outside of state functions and entrenched in a specific community (Sforza, Reference Sforza and Spano1929, p. 105). Sforza’s own examples concretising his idea, refer to games’ enthusiasts and sport fans but the central idea that a legal status can reside with a generalised organisation that consists of a set of people that share specific patterns of behaviour but are indeterminate as individuals, can be extended conceptually to include the groups behind the personhood of the Hindu idol. This imagination allows an analytical handle to look at the dynamics of the law as one moves to the progression of the law concerning the Hindu idol as a juristic person.
While developing his idea, Sforza explores the relationship between such law and the state—at a point he says, once a social body is given personality, it means that the State has recognised an extra-state order (Sforza, Reference Sforza and Spano1929, pp. 60–71). These thoughts enable us to see immediately that the juridical recognition of the personhood of the Hindu idol was a recognition by the state of the property rights of socially formed pious worshippers. Moving on down the time line, when the Indian Supreme Court announced the juridical personhood of the Ram idol, while denying the claims of all other groups, it empowered a social group that formed a very large political group—group that the court believed represented piety towards the god Ram, undermining all other claims. This is, as may be recalled, a contrast to the fact that the Allahabad High Court judgment also recognised the idol of Ram as a juristic being, but other parties, the Muslims and the Nirmohi Akhara, got a share of the property, signifying that the court too recognised their claims as legitimate.Footnote 77 The fact that exclusive title was awarded by the Supreme Court to a particular group representing a particular form of Hinduism is clearly indicative that this was a juridical exercise to set the stage for the State to recognise a particular extra-state order. Following Sforza further, the grant of legal personality to the idol of Ram in this manner by the highest court in the land, is not only a recognition of a set of private persons, but is also a grant of social personality (Sforza, Reference Sforza and Spano1929, p. 62). Of course, a social order was acknowledged when the idol was recognised in the colonial era as a juristic person to govern intra-community property disputes, but with the Ram Janmabhumi judgment, the use of the juristic idol to determine inter-community property rights has larger and very different implications. Such recognition orders society in a very different manner than when the Privy Council pronounced on the personhood of the Hindu idol.
If a law of private individuals comes into place and if, through this, one group is empowered, then it falls to reason that some legal principle would have to govern this. In our case, this decision was taken by the Indian Supreme Court by giving the title to one group—the members of the social group consisting of the pious worshippers of the god Ram. The important point raised by Sforza in relation to this type of award is that while members of a group may have gained certain rights (and obligations) as members of the group, but as citizens they have very different relations with each other or with members outside the group (Sforza, Reference Sforza and Spano1929, p. 110). In light of this, an important concern is the relationship between the empowered group and public law, particularly constitutional law, taking cognizance of the fact that constitutional law is oriented to the individual and not the group. It may be noted here that the Ram Janmabhumi judgment does not explicitly address any constitutional questions—the framing or construction of the Ayodhya dispute as a property dispute allows it to skirt the issue, but there is a constitutional problem it generates. By giving a particular group the rights of piety, which includes a right to property or title, it is perhaps open for similar groups to put out similar challenges in locations where there can be interfaith tension over places of worship. In broad terms, this is clearly a challenge for a secular constitution in which concerns around religion are largely governed by Articles 25 and 26 of the Constitution, which give citizens the freedom of religion and the freedom to manage religious affairs.Footnote 78 In addition to this, the Preamble to the Indian Constitution 1950 mentions secularism as one of the central features of the Indian nation—which has been ratified to be a part of the basic structure Footnote 79 of the Constitution by the Supreme Court.Footnote 80 While nothing matching the scale and spectacle of the Ram Janmabhumi case has showed up in the courts yet,Footnote 81 as pointed out earlier, an interesting attempt to increase the reach of the idol as a juristic person was argued in the Supreme Court just before the Ram Janmabhumi award was announced. This case followed from a PIL filed by some citizens against the practice of disallowing women who are in the reproductive phase of their lives from worshipping at the Sabarimala temple in Kerala where the resident deity is celibate and does not want to be contaminated by menstruating women.Footnote 82 A 4:1 majority in the Supreme Court said that the temple’s practice of excluding women is unconstitutional, violating Article 25, Article 26, and Article 17 of the Indian Constitution 1950. The dissenting judgment felt that sects can practice as they wish to. I do not look at this judgment in any detail but invoke it because one of the respondent parties to the litigation said that exclusion of women is constitutionally permitted since the “right of the deity as a juristic person sitting as a Naishtika Brahmacharya Footnote 83 cannot be questioned.”Footnote 84 In fact, the arguments went a step further saying that the deity had “constitutional rights”Footnote 85— the deity has a right to “follow his Dharma”Footnote 86 that “flows from Article 25(1) and Article 26 of the Constitution and any alteration in the practice followed would have an adverse effect on the fundamental rights of the deity.”Footnote 87 Justice Chandrachud (now ex-Chief Justice), reacted to this by saying that the idol as juristic being has been recognised by law to “own property and can sue and be sued,”Footnote 88 and going on to say that “Merely because a deity has been granted limited rights as juristic persons under statutory law does not mean that the deity necessarily has constitutional rights.”Footnote 89 He points out that it is “(T)he individual who is the bearer of rights under Part III of the Constitution.”Footnote 90 To quote him further:
The deity may be a juristic person for the purposes of religious law and capable of asserting property rights. However, the deity is not a ‘person’ for the purpose of Part III of the Constitution. The legal fiction which has led to the recognition of a deity as a juristic person cannot be extended to the gamut of rights under Part III of the Constitution. In any case, the exclusion of women from the Sabarimala temple effects both, the religious and civic rights of the individual. The anti-exclusion principle would disallow a claim based on Article 25 and 26 which excludes women from the Sabarimala Temple and hampers their exercise of religious freedom. This is in keeping with over-arching liberal values of the Constitution and its vision of ensuring an equal citizenship.Footnote 91
It is important to note the contrast between the two judgments—the Ram Janmabhumi judgment and the Sabarimala judgment, and their juridical engagement with the idol as a juristic person. As can be seen the reach of the Hindu idol was sought to be expanded in the Sabarimala case, the court reacted by trumping the excessive claim on behalf of a deity with constitutionally guaranteed individual rights. In contrast, an excessive reading of property rights in the Ram Janmabhumi judgment led to the allocation of real as well as symbolic resources to a specific group, a move that sits somewhat uneasily with the spirit of the liberal constitution.
With the property rights of a particular group having been gained through the highest constitutional court, let us reflect a bit further on the nature of this gain. In his classic work on property, Morris Cohen points out that notwithstanding the conventional separation between property (dominium) and sovereignty (imperium), the dynamics of property always involve interpersonal power, so it is both—dominium over things and imperium over others (Cohen, Reference Cohen1927). Through the idol as a juristic being, there is a clear dominium of the land associated with the idol, and with the Ram Janmabhumi judgment, there is a simultaneous imperium over those who are not the pious devotees of Ram behind the idol of Ram. To articulate better, the type of control or power exercised by the award of title by the Ram Janmabhumi judgment on those who are not devotees, it needs to be realised that the title awarded converted the property into a positional good.
5.2. The judgment as a positional good
To explore the significance of the judgment along these lines, let us distinguish as to what is a positional good. The idea of positional goods was introduced by Hirsch in the 1970s—he spoke of a positional economy, distinguished from the material economy, where “the positional economy…relates to all aspects of goods, services, work positions, and other social relationships that are either (1) scarce in some absolute or socially imposed sense or (2) subject to congestion or crowding through more extensive use” (Hirsch, Reference Hirsch1976, p. 27). Playing on the broad idea that the benefits of these goods are only available to the very few, a variety of economists have expanded the meaning of positional goods—for instance Robert Frank emphasises the position of goods on a quality scale (particularly jobs) (Frank, Reference Frank1985a; Frank Reference Frank1985b).
A particular interpretation/definition of positional goods by Ugo Pagano has a direct relevance for us because he associates positional goods with power, prestige, and status (Pagano, Reference Pagano, Bowles, Franzini and Pagano1999). Perhaps the best way to communicate the sense of a positional good along these lines is to use an illustration from history (Pagano and Vatiero, Reference Pagano, Vatiero, Marciano and Ramello2019). San Gimignano—a Tuscan mediaeval town was a prominent business centre of mediaeval Europe, and wealthy families signified their wealth and prestige by building towers that had no other purpose than demonstrating their power and prestige. To expand more substantially, we can best understand positional goods of this kind if juxtaposed against private and public goods as they are defined in standard economics usage. A private good consumed by an individual means that good is unavailable to anyone else (others are excluded), whereas a pure public good is consumed by all, and no one is excluded. The consumption of a positional good by someone necessarily requires that others consume a negative amount of the good—in other words the act of consumption or use of the good to enhance a person’s power necessarily involves the diminution of the person over whom the power is being expressed. This means that this is a zero-sum game outcome. This is visible in the San Gimignano example—those who did not own a tower consumed a negative level of the good since the positive consumption of the positional good depended on those who were not able to build towers to feel belittled. Apparently, the scarcity of the towers was enhanced on account of how they were built—there was a very narrow gap between the towers, the size of a brick, and this kept the cost of construction high and denied easy building capability.
Pagano and others have suggested that jural relations too can be represented as positional goods on account of the adversarial relations inherent to the Hohfeldian scheme (Hohfeld, Reference Hohfeld1913)—those with claims, liberties, powers, and immunities result in unfavourable correlatives—duties, no rights, liabilities, and disabilities (Pagano and Vatiero, Reference Pagano, Vatiero, Marciano and Ramello2019). However, the degree to which jural relations lead to positional goods as such, is a matter of nuance—I follow through with an illustration advanced by Pagano, which makes things sharper (Pagano, Reference Pagano2000). Consider the case of liberty rights associated with property—such rights allow the owners to use their private property, often enough making Pareto improvements as the property is put to productive use. However, if the good is positional (joint consumption of a positive and negative quantity of the same good), Pagano goes on to say “the assignment of private property rights cannot ‘separate’ consumption decisions from the transactions with other individuals. An externality can be seen as the impossibility of private property rights to eliminate the interferences among the ‘liberties’ of the different individuals (Pagano, Reference Pagano2000, p. 464).”
This is indeed the externality visited on all those groups that lost once the idol of Ram was awarded title to the disputed property. The outcome of the Ram Janmabhumi judgment viewed as a positional good signals the increased power of the group behind the juristic presence of the Ram idol and, in the same gesture, symbolically diminishes both the Nirmohi Akhara as well as the Muslim Waqf Board. In contrast, the Allahabad High Court judgment divided the title across the three parties and thereby mitigated the positional good element in resolving the property dispute. In thinking about positional goods as power and prestige, we need to see that this does not happen suddenly but rather that this is a progression from what starts out as a device to govern religious endowments. It moves to empowering a group of ostensible believers for whom the symbolic value of the positional good empowers and dilates while simultaneously constricting other groups. To repeat, the intent behind the juristic person to govern Hindu religious endowments is very different from the attempt to use the juristic person to govern inter-community relations by using positional goods.
The positional good is very important in the production of ethno-nationalisms—a project which has many layers and involves fairly complex—here we have seen that the juridical construction of a positional good—the transition from governing community property to apportioning inter-community symbolic goods. Apart from its trajectory, the other interesting thing about this kind of positional good is the role it plays in the wider creation of ethno-nationalisms (Metzer and Engerman, Reference Metzer, Engerman, Engerman and Metzer2004). It complements the more obvious exclusions that prevent targeted groups from holding propertyFootnote 92—here such diminution is practiced by creating positional goods that not only exclude, but exclude twice—once in the usual sense associated with property rights and once more as a member of the group that is excluded and depreciated by the very presence of the positional good.
As of yet, citizens of India can own property (except in some states where there is protection of land for indigenous inhabitants), though there are many instances where either minority property is targeted to be demolished or minorities are socially excluded from owning property in certain areas.Footnote 93 The complementary exclusion generated by the Ram Janmabhumi judgment by producing non-material benefits—feelings of power and prestige in relation to minority groups, the core material of this article, adds to creating the promise of an economy and society in which being a member of the majority community will allow you to gain in relation to others—what has been described sometimes as formation of ethnic capital (Wintrobe, Reference Wintrobe, Breton, Gianluigi, Salmon and Wintrobe1995). This type of economy has many hazards, which I do not engage with hereFootnote 94 but instead point to an imminent threat that persists—it needs to be noted that the Sabarimala judgment was challenged and a review petitionFootnote 95 is still pending in the Indian Supreme Court, keeping alive the question as to whether the deity has fundamental rights.
6. Summary and concluding comment
The article began by discussing the formation of the juristic personality, exploring the basis on which an artificial person gets constructed. Notwithstanding other aspects, it was pointed out that there is an intimate connection between property and the juristic person. In particular, it was shown that the act of giving the corporation a juristic personality was an exercise to help assign property rights to a collective group of natural persons. The next section went on to connect this imagination to the Hindu idol, with colonial courts awarding the idol juristic personhood roughly in tandem with the corporation receiving juristic personhood. Instead of following a detailed development of how the notion of the idol as a juristic personality developed, I concentrated on providing details of a much-cited case judged by the Privy Council to get a sense of the judicial thinking that set the tone for cases pertaining to the idol as a juristic person. Broadly speaking, the case worked to give property rights to the community of worshippers—building a judicial base to allow adjudication of the space by a community of believers associated with the idol. Over the following section, I showed how this legacy provided an important input in the case associated with the Ayodhya dispute. Based on the belief that the birthplace of Rama is located where the Babri Masjid was built, a large crowd tore down the mosque on 6 December 1992. A Ram temple has now been constructed on the site where the mosque stood, but this could only be done once the various title and legal issues had been resolved. After a line of multiple judgments in the lower courts, the legal resolution conclusively took place with a Supreme Court judgment in 2019. In specifying the set of property rights to support the final arrangement, the idea of the Hindu idol as a juristic person played a prominent role. A detailed look at the judgment showed that the idol as a juristic person, which was conceived as a device to govern Hindu Religious Establishments, was converted as a device to establish the dominance of a community in an inter-community religious dispute. The contents of the judgment were presented in detail to highlight the point that the very acceptance of the idol of Ram as a juristic being enabled the domination of all the evidence by other parties, whether Muslim or Hindu—to phrase it differently, the belief of Hindus that the contested space is the birthplace of Ram was able to dominate all other evidence because it harnessed the juridical construct of the idol as a juristic person. The presence of an idol as a juristic person in a property dispute brings the rights, obligations, and the power/magnitude of the corporate group behind the idol to the surface—belief here was sufficient to gain title. In the next section, a couple of implications of this were discussed—first using some insights from the Italian jurist Sforza, it was suggested that the recognition of the idol as a juristic person was an action by which law recognised an extra-state order. This, it was argued, also meant that while members of a group may have gained certain rights as members of the group, but as citizens they had very different relations with each other or with members outside the group. In light of this, an important concern came to head, namely the relationship between the empowered group and public law, particularly constitutional law; taking cognizance of the fact that constitutional law is oriented to the individual and not the group. This tension comes to the front in the Sabarimala case which tilted in favour of individual rights in opposition to group rights. The second big significance of the Ram Janmabhumi judgment is its role as a positional good—a good that not only excludes but, in the process, also diminishes those who are excluded. In other words, positional goods are symbolic of the power over those excluded. Such positional goods are very important in the production of ethno-nationalisms.
In this light, I would like to bring to attention the contents of a recent article published in a popular newsmagazine as a representative fragment that perhaps communicates a sense of the whole. The article reported on an event that sought to highlight connections between “Indian Culture” and the economy (Chugh, Reference Chugh2024). The event was centred around the idea that religious activity (Hindu) in the form of worship and festivals—if correctly incorporated and connected to the economy—will boost and sustain the economy. In this, a set of statements are attributed to Nitin Gadkari, Minister of Road Transport and Highways as saying, “…it is important to eliminate poverty, hunger and unemployment …But prosperity must be powered by culture.” Next, the article continues saying what is quoted below, but since there are no quotation marks it is not clear if Gadkari is still speaking or it is a general observation, but whatever the case may be, it is an interesting statement.
Ayodhya is all about harnessing the cultural economy. It’s expected to play a vital role in Uttar Pradesh Chief Minister Yogi Adityanath’s goal to make the state a trillion-dollar economy. With an estimated annual footfall of over five crore visitors, the Ram temple city is India’s answer to Vatican City and Mecca.
Placed against the contents of this article, this quotation captures the metamorphosis of social power into political power (of course) but also into an economic power; sending out a positional claim competing with the purported positional status of the Vatican and Mecca.
Acknowledgements
While writing this paper, I received invaluable research assistance from Akanksha Singh, who helped unravel the many details of the cited judgments. I would also like to thank my colleague Prof. P. Puneeth, who patiently heard me a number of times and helped me to think through the problems posed by this article. I have also been given a patient hearing and inputs by Yasmeen Arif, who, as always, has shaped my understanding.
