See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/276353122

The "Ayodhya" Case: Hindu Majoritarianism and the Right to Religious Liberty

Article · January 2014

CITATIONS
READS
0
14,968

1 author:

Ratna Kapur
Queen Mary, University of London
51 PUBLICATIONS 652 CITATIONS

Some of the authors of this publication are also working on these related projects:

Gender, Alterity, and Human Rights: Freedom in a Fishbowl View project

All content following this page was uploaded by Ratna Kapur on 16 May 2015.

The user has requested enhancement of the downloaded file.

Maryland Journal of
International Law
Volume 29 Article 14
Issue 1 Symposium: "The International Law and
Politics of External Intervention in Internal
Conflicts"
and Special Issue: "Politics of Religious Freedom"

fte “Ayodhya” Case: Hindu Majoritarianism and

the Right to Religious Liberty
Ratna Kapur

Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mjil

Recommended Citation
Ratna Kapur, The “Ayodhya” Case: Hindu Majoritarianism and the Right to Religious Liberty, 29 Md. J. Int'l L.
305 (2014). Available at: http://digitalcommons.law.umaryland.edu/mjil/vol29/iss1/14

ftis Special Issue: Articles is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has
been accepted for inclusion in Maryland Journal of International Law by an authorized administrator of DigitalCommons@UM Carey Law.
For more information, please contact smccarty@law.umaryland.edu.
 ARTICLE

The “Ayodhya” Case: Hindu Majoritarianism

and the Right to Religious Liberty
†
RATNA K APUR

INTRODUCTION
“Here is a small piece of land (1500 square yards) where angels fear
to tread . . . It is full of innumerable landmines.”
-Justice Sibghat Ullah Khan1
The long-standing contest over a 1500 square yard plot of land,
situated in the city of Ayodhya, located in the district of Faizabad in
the state of Uttar Pradesh in north India, has become a site where
religious groups, pilgrims, lawyers, and even gods are battling to
establish their claims of rightful ownership. The issue has been
simmering in independent India since its birth in 1947 and arose well
before that time. The courts have been called upon time and again to
adjudicate on this fraught issue, where their decisions are not only
defining the parameters of the right to freedom of religion, but are
implicated in the very construction of faith and belief.

† Professor of Law, Jindal Global Law School. This article draws on a shorter
earlier version published in South Atlantic Quarterly. See Ratna Kapur, A Leap of
Faith: The Construction of Hindu Majoritarianism Through Secular Law, 113 S.
ATLANTIC Q. 109 (2014). Earlier versions of this article were presented at the
Politics of Religious Freedom Workshop, supported by Henry R. Luce Foundation,
in December 2011 in Chiang Mai, Thailand; Jindal Global Law School; the NYU
Gallatin School; and Yale Law School. My thanks to all those who provided
feedback and comments on these occasions. I am grateful for the advice, comments,
and criticisms of Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, Vasuki
Nesiah, Rajeswari Sunder Rajan, and Winnifred Sullivan. Thanks to Adil Khan for
his invaluable research assistance. Thanks also to Mohsin Alam Bhatt, Aparna
Chandra, Latika Vashist, and Apurva Tripathi for their very able research support.
1. Visharad v. Ahmad, O.O.S., No. 1 of 1989, All. H.C., 4 (2010) (Khan, J.)
[hereinafter Ayodhya]. The Ayodhya Judgment is a consolidation of opinions from
1986 and 1989, and these consolidated opinions may sometimes be referred to as
the “Decision of Honorable Special Full Bench Hearing Ayodhya Matters.”

305
306 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

In this article, I examine how the right to freedom of religion has

emerged in law, focusing on the 125-year-old property dispute in
Ayodhya, which Hindu nationalist parties, amongst others, claim as
the birthplace of the Hindu god Ram. A sixteenth century mosque—
the Babri Masjid—was destroyed by hard-line Hindu activists on
December 6, 1992, on the grounds that the mosque had been
constructed by the Mughal Emperor Babur on the site of a twelfth
century Hindu temple that marked the birthplace of Ram. Various
legal challenges to the legal title and ownership over the disputed
land were eventually heard by the Allahabad High Court, the highest
court in the state of Uttar Pradesh, which delivered its decision on
September 30, 2010. The majority held that the property in question
be split three ways, with one portion going to the Muslims and two
portions going to two of the Hindu parties. More specifically, a one-
third share in the disputed land was given to the idols, which had
been placed under the central dome of the mosque when it was still
standing. The decision was based on the central claim put forward by
the Hindu parties that idols (and the birthplace) were juridical entities
who could be given legal title to the property and also that the
disputed site was a place of worship for Hindus and a core ingredient
of the Hindu faith. One-third share was also given to the Sunni Waqf
Board, which argued that it held full title to the land where the
mosque once stood,2 as well as to the Nirmohi Akhara (Group
without Attachment), which declared that it was the manager and
guardian of the birthplace of Ram as well as the idols.
Two of the judges, Justices S.U. Khan and Sudhir Agarwal, held
that the area where the central dome of the three-domed structure or
mosque once stood and where the idols were placed belonged to the
Hindus. Justice Dharam Veer Sharma, the dissenting judge, held that
the birthplace and the idols were juristic persons and that the disputed
land in its entirety belonged to both.3 The case raised issues of the

2. A waqf is a gift or donation by a Muslim to a religious, educational, or

charitable cause.
3. The existence of a Hindu idol as a juristic person capable of having rights
and discharging duties through a “next friend,” “best friend,” or trustee was
established in law as early as 1922. In the common law system, there are two types
of persons—one natural and the other legal. A natural person is a human being,
while legal persons (or juristic persons) are beings, things, or objects that are
treated as persons by law, such as a company, which have the capacity for entering
into legal relationships. This capacity includes holding property, suing as well as
being sued in a court of law, as well as to address issues of taxation, allotment of
land, and alienation of property. The treating of Hindu idols as juristic personalities
construction of the meaning of secularism and the right to freedom of
religion in Indian constitutional discourse and the construction of
religious identity, as well as the essential or core practices of both the
Hindu and Muslim faith in law. Given the centrality of the historicity
of the claims of all parties as well as the structures to the case, the
construction of the historical narrative was also implicated in the
decision.
I discuss how the reasoning of the Allahabad High Court
judgement partly resulted in reproducing and reinforcing Hindu
majoritarianism through its interpretation of the right to freedom of
religion and the broader implications of the decision on the meaning
and definition of secularism in Indian constitutional discourse. I also
underscore how the law and judicial discourse has played a central
role in enabling the Hindu Right, a right wing political and
ideological movement intent on establishing India as a Hindu State
and a key player in the Ayodhya dispute, to successfully pursue its
agenda through the right to freedom of religion. In making a
muscular and robust argument in favour of its own collective right to
worship at the spot in Ayodhya designated as the
“Ramjanmabhoomi,” or the place where god was born, based on the
idea that it is a core or essential ingredient of the Hindu faith, the
Hindu Right has been able to define the parameters of the Hindu faith
as monotheistic and institutionalised. They have also succeeded in
diminishing the rights of worship of the Muslim minority community.
Their interventions are justified in and through the discourse of
secularism in ways that seem reasonable, logical, and highly
persuasive, while at the same time based on Hindu majoritarianism.
My discussion illustrates how the enemies of religious pluralism
are increasingly and successfully waging their war not simply in
opposition to the rights of religious minorities, but in and through the
legal discourse of secularism, and quite specifically, the right to
freedom of religion. In the mammoth decision of the Allahabad High
Court, the right to freedom of religion became the court’s focus,

requires a “next friend” to represent the idol in any legal or other proceeding . See,
e.g., Vidya Varuthi Thirthia Swamigal v. Baluswami Ayyar, A.I.R 1922 P.C. 123
(India) (holding that a Hindu deity is a juristic person); Sri Radhakhanta Deb v.
Comm’r of Hindu Religious Endowments, A.I.R. 1981 S.C. 798 (India) (where the
Supreme Court recognized a Hindu deity as a juristic person); Shiromani Gurdwara
Parbandhak Comm. Amritsar v. Som Nath Dass, A.I.R. 2000 S.C. 1421 (India)
(finding the mosque and Sikh scriptures to be juristic persons); Sri Adi
Visheshwara of Kashi Vishwanath Temple v. State of Uttar Pradesh, (1997) 4
S.C.C. 606 (India) (where the court recognized the right of a deity to move the
court in a case involving a challenge to the Kashi Temple Act of 1983).
despite the fact that the case was primarily a dispute about title to
property and not a constitutional matter. I offer a detailed account of
the arguments presented by the respective parties in an effort to
unravel the ways in which the right to freedom of religion as
manifested in the Ayodhya case has long lasting implications on the
meaning of secularism in India as well as on the ways in which
religion itself is shaped and constructed through the discourse of
secularism and the right to freedom of religion.
The struggle over the meaning of the right to freedom of religion
has also involved a struggle over the contours and content of religion.
Quite specifically, it has involved a contest over the meaning of
Hinduism and a battle over what constitutes its core or essential
elements. A number of scholars have located the definition of
Hinduism within the colonial context, arguing that Hinduism is a
colonial construction adopted by the Europeans as a name for the
religions of India towards the end of the eighteenth century. 4 The
constructionists have argued that the attributes of Hinduism were
based on Christian understandings of what constituted religion, and
focused on those properties that were regarded as usually associated
with a religion, that is sacred texts, doctrines and priests. While these
features could be attributed to a Brahmanical tradition, they came to
be imagined as the beliefs and practices of the people of the
subcontinent and formed one pan-Indian religion.
Similarly, in the context of the late-nineteenth and early-
twentieth-century anti-colonial struggles, Hindu nationalists sought to
retrieve an authentic past based on Hindu traditions and practices as
the basis for constructing the identity of the newly emerging Indian

4. See, e.g., Richard King, Orientalism and the Modern Myth of ‘Hinduism,’
46 NUMEN 146, 146 (1999) (arguing that the construction of the concept of
“Hinduism” as a single religion was based on Christian presuppositions); See also
Gauri Viswanathan, Colonialism and the Construction of Hinduism, in THE
BLACKWELL COMPANION TO HINDUISM 1, 23-44 (Gavin Flood ed., 2003)
(cautioning against explaining the idea of Hinduism as a hegemonic religion
exclusively as an outcome of colonial intervention in tradition); David Ludden,
Ayodhya: A Window on the World, in CONTESTING THE NATION: RELIGION,
COMMUNITY, AND THE POLITICS OF DEMOCRACY IN INDIA, 1, 6–8 (David Ludden
ed.,1996) (“Under British rule, ‘Hindu’ became a category for people in India who
were not Muslims, Christians, Sikhs, Jains, Parsis, Buddhists, or others.”). See
generally RICHARD KING, ORIENTALISM AND RELIGION: POSTCOLONIAL
THEORY, INDIA AND “THE MYSTIC EAST” (1999); RETHINKING RELIGION IN
INDIA: THE COLONIAL CONSTRUCTION OF HINDUISM (Esther Bloch et al. eds.,
2011).
 nation-state.5 This move was in part an effort to counter the colonial
representation of India as a barbaric and civilizationally backward
society because of its beliefs, practices, and traditions, a move that
simultaneously served as a justification for the continuance of
colonial rule. While there was a Brahmanical collaboration with the
Hindu nationalist movement at the time of independence that led to
the sanskritization, textualization, and unification of so-called Hindu
traditions, what is significant is that this construction was thoroughly
modern in its genesis.6 These contests over the core or essential
ingredients of religion continue to play out doctrinally in law in the
contemporary period through the “essential practices” test.7
This paper is divided into three sections. In the first part, I set out
the constitutional jurisprudence on Indian secularism, briefly
summarizing three significant decisions of the Indian Supreme Court:
the Bommai decision,8 a cluster of decisions collectively described as

5. See generally VINAYAK DAMODAR S AVARKAR , HINDUTVA: WHO IS A

HINDU ? (1929); M ADHAV S ADASHIV GOLWALKAR , WE OR OUR N ATIONHOOD
DEFINED (1939); Christophe Jaffrelot, The Idea of the Hindu Race in the Writings
of Hindu Nationalist Ideologues in the 1920s and 1930s: A Concept Between Two
Cultures, in THE CONCEPT OF RACE IN SOUTH ASIA 327–54 (Peter Robb ed., 1995).
6. See generally GEOFFREY A. ODDIE , IMAGINED HINDUISM : BRITISH
PROTESTANT MISSIONARY CONSTRUCTIONS OF HINDUISM , 1793–1900 (2006);
WENDY DONIGER, THE HINDUS: AN ALTERNATIVE HISTORY (2009) (discussing
the wide range of texts and unwritten traditions that challenge the idea of a
monolithic tradition); LATA MANI, CONTENTIOUS TRADITIONS: THE DEBATE ON
SATI IN COLONIAL INDIA 2–7 (1998) (describing the effect colonialism had in
shaping the perception of India’s history).
7. See RONOJOY SEN, ARTICLES OF FAITH: RELIGION, SECULARISM, AND THE
INDIAN SUPREME COURT 40–72 (2010).
The historical basis for the “essential practices” test is found in the colonial era
where the colonial courts attempted to identify and define religious identities and in
the process augment their role in disciplining and managing each community. In
the process they also ended up constructing in law the very religious identities that
they were regulating. In the contemporary moment, the “essential practices” test
was largely developed by Justice P.B. Gajendragadkar, Chief Justice of India from
1964 to 1966, to expunge superstitious and irrational elements from different
religions and provide them with a rational basis. As discussed later in this paper, in
the context of Hinduism, this process resulted in producing a modern, monotheistic,
and institutionalized tradition in line with other Abrahamic traditions. In the
process of trying to demarcate the line between religion through the essential
practices test, as distinct from the secular functions of religious denominations in
which the State could interfere, the courts were drawn into inquiring into the
contents of religious beliefs and in the process to actually construct the tradition as
well as the religious identity.
8. S. R. Bommai v. Union of India, (1994) 3 S.C.C. 1 (India) (involving a
challenge to the validity of the presidential declaration dismissing the governments
in four states led by the Bhartiya Janata Party (BJP) (Indian People’s Party), the
310 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

the Hindutva cases,9 and Ismail Faruqui v. Union of India.10 In the

second part, I discuss the Ayodhya case, setting out the background to
the dispute and the competing legal claims of the respective parties.
In the third section, I discuss the reasoning and holdings of each of
the three judges in the decision of the Special Full Bench Hearing of
the Ayodhya property dispute, which consisted of four suits, by the
High Court of Allahabad in 2010.11 In the final part, I examine the
implications of the Ayodhya decision on the meaning of the right to
freedom of religion as well as its implications on the meaning of
secularism in India. While the Supreme Court of India has
subsequently stayed the decision of the Allahabad High Court,12 the

political wing of the Hindu Right, following the destruction of the Babri mosque at
Ayodhya in December 1992 and the ensuing communal riots). In Bommai, the
Constitutional Bench of the Supreme Court upheld the validity of the declaration,
and in so doing passed considerable comment on the meaning of secularism in
Indian constitutional life. Id.
9. The Hindutva cases involved a series of challenges to the election of Shiv
Sena (foot soldiers of Shiva) and BJP candidates in the December 1987 State
elections in Maharashtra on the grounds that the candidates had committed corrupt
practices in violation of section 123 of the Representation of the People Act, 1951.
Section 123(3) of the Act prohibits candidates from any appeal to his or her
religion, race, caste, community, or language to further his or her prospect for
election or for prejudicially affecting the election of any other candidate. The
collection of thirteen cases that came before the Supreme Court of India include
Manohar Joshi v. Nitin Bhaurao Pati, (1996) 1 S.C.C. 169 (India); Ramesh
Yashwant Prabhoo v. Prabhakar Kasinath Kunte, A.I.R. 1996 1 S.C. 1113 (India);
Bal Thackeray v. Prabhakar Kasinath Kunte, (1996) 1 S.C.C. 130 (India);
Ramchandra G. Kapse v. Haribansh Ramakbal Singh, (1996) 1 S.C.C. 206 (India);
Pramod Mahajan v. Haribansh Ramakbal Singh, (1996) 1 S.C.C. 206 (India);
Sadhvi Ritambhara v. Haribansh Ramakbal Singh, (1996) 1 S.C.C. 206 (India);
Ramakant Mayekar v. Smt. Celine D’Silva, (1996) 1 S.C.C. 399 (India); Chhagan
Bhujbal v. Smt. Celine D’Silva, 1 S.C.C. 399 (India); Pramod Mahajan v. Smt.
Celine D’Silva, 1 S.C.C. 399 (India); Balasaheb Thackeray v. Smt. Celine D’Silva,
1 S.C.C. 399 (India); Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar, (1996)
1 S.C.C. 394 (India); Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli,
(1996) 1 S.C.C. 378 (India); Shri Suryakant Venkatrao Mahadik v. Smt. Saroj
Sandesh Naik, (1996) 1 S.C.C. 384 (India).
10. A.I.R. 1995 S.C. 605 (India).
11. Gopal Singh Visharad v. Zahoor Ahmad, O.O.S., No. 1 of 1989, All. H.C.
(India); Nirmohi Akhara v. Baboo Priya Datt Ram, O.O.S., No. 3 of 1989, All.
H.C. (India); Sunni Central Board of Waqfs, U.P v. Gopal Singh Visharad, O.O.S.,
No. 4 of 1989, All. H.C. (India); Bhagwan Sri Ram Virajman v. Rajendra Singh,
O.O.S., No. 5 of 1989, All. H.C. (India). The judgment was delivered in the High
Court of Judicature at Allahabad (Lucknow Bench), on September 30, 2010.
12. Appeals against the High Court decision were filed by all sides of the case,
including Hindu and Muslim organizations, and the Court directed the parties to
decision remains relevant in terms of its ability to influence the
understanding and meaning of secularism in both judicial and popular
discourse.
I. THE JUDICIAL (RE)SHAPING OF INDIAN SECULARISM
Increasingly, the struggle over the meaning of secularism and the
place of religion has been fought out in the legal arena. This section
focuses on three significant Supreme Court decisions that highlight
this contest, including Bommai, the Hindutva cases, and Ismail
Faruqui v. Union of India. The increasing influence of the Hindu
Right, which has become a central player in defining the scope and
parameters of the various components of secularism in law in India,
has exposed how the discourse can be used to advance a majoritarian
political agenda. The Hindu Right consists of three primary actors,
including the Bharatiya Janata Party (BJP) (Indian Peoples Party),
which is responsible for formulating and pursuing the political
agenda of the movement; the Rashtriya Swayamsevak Sangh (RSS)
(National Volunteer Organization), which was established in 1925 to
build a strong Hindu community to counter British rule as well as
Muslim separatism and responsible for developing and expounding
the ideological doctrine of the Hindu Right; and the Vishwa Hindu
Parishad (VHP) (World Hindu Council), founded in 1964 to
popularize the Hindu Right’s religious doctrine and consolidate its
support at a grassroots level. 13 The VHP also includes a militant
youth wing, the Bajrang Dal (Hanuman gang) established in 1984.14
There are several other peripheral players associated with the Hindu
right parties, including the militant and virulently anti-Muslim Shiv
Sena (Foot soldiers of Shiva).15 The movement collectively promotes
the ideology of Hindutva—which posits Hinduism not simply as a
religion but as a nation and a race that is indigenous to India.16 This

maintain the status quo at the site, although it added that the Hindu prayers
currently being conducted at the makeshift temple on the dispute cite could continue
without interference. The stay was granted on the grounds that the High Court, in
partitioning the land, had granted a relief that no party had requested. The decision
is to be listed before a larger bench of the Supreme Court for arguments.
13. Ratna Kapur, Normalizing Violence: Transitional Justice and the Gujarat
Riots, 15 COLUM. J. GENDER & L. 885, 890–91 (2006).
14. Id.
15. Id.
16. See generally JYOTIRMAYA SHARMA, HINDUTVA: EXPLORING THE IDEA OF
HINDU NATIONALISM (2003). See also CHRISTOPHE JAFFRELOT, THE HINDU
NATIONALIST MOVEMENT IN INDIA 27 (1998) (discussing V.D. Savarkar’s
definition of Hindutva as “an ethnic community possessing a territory and sharing
the same racial and cultural characteristics”).
 312 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

logic has allowed the ideologues of the Hindu Right to construct

Muslims and Christians as foreigners, aliens, and invaders and their
religious presence in the country as a threat to the Hindu nation. 17
While the movement has been variously labeled as, inter alia, Hindu
fundamentalist, Hindu fascist, and Hindu nationalist, I use the term
“Hindu Right” to indicate the anti-Muslim, communal as well as
highly conservative nature of the movement’s agenda.18
A. Indian Secularism
The Ayodhya decision and the meaning ascribed to the right to
freedom of religion in India need to be understood against the
backdrop of competing understandings of secularism and the
emergence of the Hindu Right. The separation of religion from the
state, and state neutrality in the sphere of religion (sarva dharma
nirpekshtha), has not informed the dominant understanding of
secularism in India.19 The state neutrality model does not prohibit the
making of laws that protect the rights of religious minorities,
including, for example the regulation of free speech through hate
speech laws to prevent hatred and violence against religious and other

17. Supra note 5. V. D. Savarkar was the ideological leader of the Hindu
nationalists during the struggle for freedom from colonial rule. He later became
leader of the Hindu Mahasabha, a Hindu communalist party that was intensely
involved in the Independence struggle. His writings on Hindutva continue to
represent the ideological foundations of the contemporary Hindu Right. See
SAVARKAR, supra note 5, at 3–4, 92. Savarkar asserted that for Hindus the
fatherland (pitribhumi) and religious land (punyabhumi) are the same. Muslims on
the other hand have their religious fealties elsewhere, (i.e. Mecca) and hence are
not part of the same civilizational fabric. M.S. Golwalkar was an active member of
the RSS, the ideological wing of the Hindu Right. He became the second Supreme
Chief (Sarsangchalak) of the RSS from 1940-1973 and a major exponent of the
ideological doctrine to establish India as a Hindu State (Rashtra). See generally
GOLWALKAR, supra note 5; M.S. GOLWALKAR , BUNCH OF T HOUGHTS 130
(1966) (where he called upon the religious minorities to give up their “foreign
mental complexion and merge in the common stream of our national life.”).
18. See generally TAPAN BASU ET AL., KHAKI SHORTS AND S AFFRON
FLAGS (1993) (discussing the history and political thought of the Hindu Right).
19. The Resolution on Fundamental Rights and Economic and Social Change
was adopted in 1931 in Karachi, which provided: “The state shall observe
neutrality in regard to all religions.” See also Asghar Ali Engineer, Secularism in
India—Theory and Practice, in SECULARISM AND L IBERATION : PERSPECTIVES
AND STRATEGIES FOR INDIA TODAY 38, 44–45 (Rudolf C. Heredia & Edward
Mathias eds., 1995) (“The Indian state, hence could not remain indifferent to
religion, and in the Indian situation secularism would mean equal protection to all
religions so far as the state was concerned.”).
minorities or state support to state recognized religions. This liberal
democratic understanding of secularism does however prohibit state
involvement in the sphere of religion. This model is based on the
assumption that these protections emanate from a neutral state—it
does not acknowledge the presence of majoritarianism as structuring
secularism and thus the position of the state.20
In contrast, since independence, almost all debates on the subject
of secularism have been based on the idea of equal treatment of all
religions (sarva dharma sambhava) within both the public and
private spheres.21 Like the liberal democratic vision of secularism,

20. It is important to recognize that this dominant concept of secularism based

on the notion of separation from religion and state is a contested one that many
critics have questioned, challenged and rejected. See generally TALAL ASAD,
FORMATIONS OF THE SECULAR : C HRISTIANITY , ISLAM , MODERNITY 181–204
(2003) (examining secularism in reference to formation of modern nationalism);
ELIZABETH S HAKMAN HURD, THE P OLITICS OF S ECULARISM IN INTERNATIONAL
RELATIONS 13–14 (2007) (looking beyond the contemporary European view of
secularism as the separation of church and state); C RAIG CALHOUN ET AL.,
INTRODUCTION , IN RETHINKING S ECULARISM 1, 3– 27 (Craig Calhoun et al. eds.,
2011) (discussing how the assumptions about secularism have recently come
under scrutiny).
21. The argument that secularism in India does not mean a wall of separation
between religion and politics, but rather, the equal respect of all religions is
common throughout the legal literature. See Engineer, supra note 19, at 40.
Engineer argues that the western concept of secularism, which involves
indifference to religion, has never taken root in India. Id. According to Engineer,
“[t]he concept of secularism in India emerged, in the context of religious pluralism
as against religious authoritarianism in the west It was religious community,
rather than religious authority, which mattered in the Indian context.” Id. It is
important to recognize that this dominant understanding of Indian secularism also
remains. See also R.L. CHAUDHARI , THE CONCEPT OF SECULARISM IN I NDIAN
CONSTITUTION 169–70 (1987) (“[T]he absence of complete separation between
the State and the Religion is because of the character of Indian Society which is
basically religious Separation of the State from the religion is not the basis of
Indian Secularism, as it is in other countries. Indian Constitution does not reject
religion. On the contrary, it respects all religions.”); T.N. Madan, Whither Indian
Secularism, 27 MOD. ASIAN STUD. 667, 677 (1993) (stating that Indian secularism
“stands for equal respect for all religious faiths”); Sumit Ganguly, The Crisis of
Indian Secularism, 14 J. DEMOCRACY , OCT. 2003, at 11, 13 (stating that while the
constitution granted freedom of religion and provided rights to religious minorities,
the constitution was not religiously neutral). See also GARY JEFFREY JACOBSOHN,
THE WHEEL OF LAW: INDIA’S SECULARISM IN COMPARATIVE CONSTITUTIONAL
CONTEXT 91–121 (2003) (providing a comparative analysis and discussing the
difference between Indian secularism from the U.S. and Israeli models).
 the Indian model is based on equality and freedom of religion. 22
However, unlike the liberal model, the Indian model does not adopt a
position of state neutrality.23 The state can interfere to promote equal
treatment of all religions. This concept was propounded by Mahatma
Gandhi and has been the governing model of secularism in
postcolonial India.24
Within the context of Indian constitutional law and discourse,
discussions of secularism typically focus on the right to freedom of
religion and the right to equality. The literature typically highlights
the various provisions of the Constitution that are considered relevant
to the principle of the equal respect of all religions: Articles 14–15
guaranteeing the right to equality and non-discrimination;25 Articles
25–26 guaranteeing the right to freedom of religion and the right of
religious denominations to organize their own affairs;26 Article 30

22. Brenda Cossman & Ratna Kapur, Secularism’s Last Sigh?: The Hindu
Right, the Courts, and India’s Struggle for Democracy, 38 HARV. INT’L L. J. 113,
141 (1997).
23. See id. at 141–42 (discussing how India has adopted its own distinct
version of secularism which does not separate state and religion but rather respects
all religions).
24. Id. at 142. See generally DONALD EUGENE SMITH, INDIA AS A SECULAR
STATE (1963) (discussing the contested approaches to secularism in India).
25. Article 14 provides: “The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.” I NDIA
CONST., art. 14. Article 15 provides:
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them; (2) No citizen
shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with
regard to—(a) access to shops, public restaurants, hotels and palaces of
public entertainment; or (b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly or partly out of State funds
or dedicated to the use of the general public; (3) Nothing in this article
shall prevent the State from making any special provision for women and
children; (4) Nothing in this article or in clause (2) of Article 29 shall
prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
Id. art. 15.
26. Id. arts. 25–26. These constitutional guarantees contemplate both
individual and collective rights to freedom of religion that extend well beyond the
limited right to worship. Article 25 enshrines the right to individual freedom of
religion, but also permits the state to regulate the “economic, financial, political or
other secular activity which may be associated with religions practice” and to
specifically intervene in Hindu religious institutions. Id. art. 25. The right under
prohibiting religious instruction in state schools, or taxation in
support of any particular religion; 27 and Article 51A, prohibiting the
establishment of a state religion.28 The right to equality and the right
to freedom of religion are, within this vision, seen as fundamentally
interconnected—that is, all citizens must have the equal right to
freedom of religion and the State must not discriminate on the basis
of religion. Following from the dominant understanding of
secularism as equal treatment of all religions, the constitutional
discourse does not insist on a wall of separation between religion and
politics.29 Rather, discussions tend to emphasize the principle of
toleration—that is, the equal toleration of all religions, and Articles
30 and 51A are generally highlighted. 30 The constitutional guarantees
on equality and freedom of religion that are seen to frame this

Article 26(a) is a group right and available to every religious denomination. Article
26(b) guarantees every religious denomination the right “to manage its own affairs
in matters of religion.” Id. art. 26(b). “The expression ‘matters of religion’ includes
‘religious practices, rites and ceremonies essential for the practicing of religion.’”
Articles 25 and 26 accord primacy to public interest over religious claims and
hence provide a wide margin of appreciation for the State to sponsor reforms.
27. Article 30 provides:
(1) All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, referred to in clause (1), the State shall ensure that the amount
fixed by or determined under such law for the acquisition of such property
is such as would not restrict or abrogate the right guaranteed under that
clause.

(2) The State shall not, in granting aid to educational institutions,

discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or
language.
INDIA CONST., art. 30.
28. See id. art. 51(A)(e) (“It shall be the duty of every citizen of India to
promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities.”).
29. See, e.g., P.B. Gajendragadkar, Secularism: Its Implications for Law and
Life in India, in SECULARISM : ITS IMPLICATIONS FOR LAW AND LIFE IN INDIA
1, 4 (G.S. Sharma ed., 1966) (“The State does not owe loyalty to any particular
religion as such; it is not irreligious or anti-religion; it gives equal freedom for all
religions and holds that the religion of the citizen has nothing to do in the matter of
socio-economic problems.”).
30. See, e.g., S.P. Sathe, Secularism, Law and the Constitution of India, in
SECULARISM IN INDIA 39, 45–46 (M.S. Gore ed., 1991); see also Upendra Baxi,
The “Struggle” for the Redefinition of Secularism in India: Some Preliminary
Reflections, in SECULARISM AND LIBERATION, supra note 19, at 54, 61–62.
principle of equal toleration are also again highlighted. Secularism in
the constitution can then be seen to be characterized by three
principles: (1) freedom of religion; (2) equality and non-
discrimination; and (3) toleration. Toleration thus comes to displace
neutrality that is present in the model of secularism based on a
separation of religion and state as the third principle of secularism.
Although there are some echoes to the principle of neutrality within
constitutional discourse, these discussions tend to infuse the concept
of neutrality with the spirit of saarva dharma samabhava or equal
treatment of all religions. Neutrality to all religions tends not to be
associated with a wall of separation, as it is in the American or
French contexts, but rather with the idea that the State must not
discriminate against any religion. It is this subtle but important shift
from neutrality to toleration that captures the essence of the equal
treatment of all religions vision of secularism in post-colonial India
and its conceptualization of the appropriate relationship between
religion and state. In stark contrast to the liberal democratic model,
which insists that the relationship must be characterized by non-
intervention, the equal respect of all religions model allows for state
intervention in religion, provided that such intervention is in
accordance with the requirements of equality and freedom of
religion.31
The meaning to be given to secularism in India depends to a
large extent on the meaning given to each of these constituting
principles. To some extent, the meaning of secularism turns on the
meaning of equality. If equality is understood in the formal sense—
treating likes alike—then secularism will insist on treating India’s
various religious communities alike. By contrast, if equality is
understood in a more substantive sense—of addressing disadvantage
—then secularism will allow for an accommodation of difference
between religious groups and the rights of religious minorities. In
law, Indian secularism has, to a large extent, been based on a more
substantive approach to the principle of equal treatment and
toleration of all religions, which has allowed for the protection of
religious minority rights, including special provisions

31. SMITH , supra note 24, at 133. Smith has argued that the third principle of
liberal democratic secularism regarding the “[s]eparation of religion and state
includes two distinct principles: (1) the non-interference of the state and religious
organizations in each other’s affairs; (2) the absence of a legal connection between
the state and a particular religion. The Indian Constitution . . . does not subscribe to
the first principle; it does, however, uphold the second.” Id. at 132.
under the Constitution. Some of these provisions include the rights of
religious minorities to establish and administer their own educational
institutions,32 to personal status laws, as well as the special
autonomous status for the Muslim dominated state of Kashmir.33
B. The Role of the Hindu Right
The Hindu Right has increasingly been trying to cast itself as the
true inheritors of India’s secular tradition. Secularism in its vision
requires that all religious communities be treated the same. Any laws
that are designed to protect the rights of religious minorities are
attacked as “special treatment” and as a violation of the constitutional
mandate of equal treatment.34 The vision of secularism within the
discourse of the Hindu Right comes to equate secularism with a
Hindu state.35 This vision requires that religious minorities must be
treated the same as the Hindu majority (i.e., where those religious
minorities are effectively assimilated into the Hindu majority), and
that any protection of the rights of religious minorities amounts to
“appeasement,” and a violation of the “true spirit” of secularism. By
emphasizing the model of formal equality—that is, the formal equal
treatment of all religions—the Hindu Right’s vision of secularism
operates as an unmodified majoritarianism whereby the majority
Hindu community becomes the norm against which all others are to
be judged and treated.36 The result is that the project of secularism
becomes a project about assimilating religious minorities rather than
about the protection of the rights of religious minorities. Secularism
ends up as a powerful tool in the Hindu Right’s quest for discursive
political power.37 Armed with the ideology of Hindutva, the Hindu

32. INDIA CONST., art. 30.

33. Id. art. 370.
34. Ratna Kapur, The Fundamentalist Face of Secularism and Its Impact on
Women’s Rights in India, 47 CLEV. ST. L. REV. 323, 326 (1999) (“Any protection
of the rights of religious minorities is cast as ‘appeasement’ and a violation of the
‘true spirit’ of secularism.”).
35. Id. (“Religious minorities are to be treated the same as the majority. Within
this formal approach to equality, then, the majority becomes the norm against
which all others are judged. Secularism, then is no longer about the protection of
rights of religious minorities, but rather, becomes about the assimilation of
minorities.”).
36. See generally Cossman & Kapur, supra note 22 (discussing in detail the
Hindu Right’s pursuit of secularism in and through liberal rights discourse).
37. See, e.g., Balraj Madhok, Secularism: Genesis and Development, in
SECULARISM IN INDIA: DILEMMAS AND CHALLENGES 110 (M. M. Sankhdher ed.,
1992); Gyan Prakash, Secular Nationalism, Hindutva, and the Minority, in THE
CRISIS OF SECULARISM IN INDIA 177 (Anuradha Dingwaney Needham & Rajeswari
Right has argued that, unlike Christianity and Islam, Hinduism is the
only religion in India that is committed to the value of religious
tolerance because it does not aim to proselytize or gain converts.
According to this logic, since secularism is about toleration, and only
Hindus are tolerant, then only Hindus are truly secular. The principle
of protecting minorities virtually disappears.
The Supreme Court has been called upon to adjudicate on the
competing understandings of secularism being advanced by different
actors. In particular, it has been called upon to decide whether the
strategies of the Hindu Right violate previous instantiations of this
basic constitutional principle.
C. The Bommai Decision
Initially, the Supreme Court’s position on secularism differed
substantially from that promoted by the Hindu Right. The key
political moment that drew international attention to Ayodhya
occurred on December 6, 1992, when the self-described “foot-
soldiers” of the Hindu Right destroyed a sixteenth century mosque,
the Babri Masjid, on the grounds that it had been constructed on the
exact spot where Ram was born.38 The act of vandalism not only
resulted in the complete demolition of an historical edifice, but also
constituted a direct assault on the rights of religious minorities. 39 In
light of the resulting violence that followed the destruction of the
mosque and subsequent aggravation of religious tensions, presidential
rule was declared in four states ruled by the BJP.40 Presidential rule
allows the federal government to dismiss the state government when
there is a perceived breakdown or failure in the constitutional
functioning of a state.41 In a subsequent challenge to this decision, the

Sunder Rajan, eds., 2007); SHABNUM TEJANI, INDIAN SECULARISM: A SOCIAL AND
INTELLECTUAL HISTORY 1890-1950 10–11 (2008).
38. See THE BABRI MASJID QUESTION , 1528–2003: A MATTER OF
NATIONAL HONOUR 1–6 (A.G. Noorani ed., 2003) (describing the 1992
destruction of the Babri Masjid mosque); Nandini Rao & C. Rammanohar Reddy,
Ayodhya, the Print Media and Communalism, in DESTRUCTION AND
CONSERVATION OF CULTURAL PROPERTY 139, 147 (Robert Layton et al. eds.,
2001) (same).
39. Id.
40. See THE BABRI MASJID QUESTION, supra note 38, at 4 (stating that the
state was brought under presidential rule).
41. INDIA CONST., art. 356. Under presidential rule, the central government
rules the state through the governor of the state, the official representative of the
president at the state level.
Supreme Court in 1994 upheld the declaration of presidential rule in
all four states.42
In the Bommai decision the full constitutional bench of the
Supreme Court declared the integral importance of the place of
secularism in the Constitution.43 In the course of lauding the
importance of secularism based on religious tolerance and equal
treatment of all religious groups, the Supreme Court also strongly
condemned the political forces committed to undermining a more
pluralistic instantiation of this constitutional ideal. 44 The Court
remarked on the distinctness of the concept of secularism in India—
that is, the equal treatment of all religions and tolerance. 45 For
example, Justice Sawant echoed the common view that in India
secularism does not involve a complete separation of religion and the
state, but rather the notion of treating all religions equally:
[T]he ideal of a secular State in the sense of a State
which treats all religions alike and displays
benevolence towards them is in a way more suited to
the Indian environment and climate than that of a truly
secular State by which [is] meant a state which creates
complete separation between religion and the State.46

42. See S. R. Bommai v. Union of India, (1994) 2 S.C.C. 1 (India)

(establishing a significant precedent on the limits of Article 356 and stipulating the
circumstances under which presidential rule could be declared). See Praveen
Swami, Protecting Secularism and Federal Fair Play, F RONTLINE, Nov. 14, 1997,
(Magazine), available at http://www.frontline.in/static/html/fl1422/14220170.htm.
43. Bommai, (1994) 2 S.C.C. 1.
44. Id.
45. The opinions in Bommai were delivered by Justice Sawant, with Justices
Kuldip and Singh concurring; Justice Jeevan Reddy, with Justices Agrawal and
Pandian concurring; and Justice Ramaswamy.
46. Bommai, (1994) 2 S.C.C. at 146 (Sawant, J.). Justice Sawant further wrote:
[S]ecularism under our Constitution is that whatever the attitude of the
State towards the religions, religious sects and denominations, religion
cannot be mixed with any secular activity of the State. In fact, the
encroachment of religion into secular activities is strictly prohibited. This
is evident from the provisions of the Constitution to which we have made
reference above. The State’s tolerance of religion or religions does not
make it either a religious or a theocratic State. When the State allows
citizens to practice and profess their religions, it does not either explicitly
or implicitly allow them to introduce religion into non-religious and
secular activities of the State. The freedom and tolerance of religion is only
to the extent of permitting pursuit of spiritual life which is different from
the secular life…. This is also clear from sub-section (3) of Section 123 of
the Representation of the People Act, 1951… [and] sub-section
320 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

This understanding of secularism as based on both religious

tolerance and equal treatment of all religious groups, included an
assurance of the protection of life, property, and places of worship for
all religious groups. According to Justice Sawant, any act of state
government “calculated to subvert or sabotage secularism as
enshrined in our Constitution, can lawfully be deemed to give rise to
a situation in which the Government of the State cannot be carried on
in accordance with the provisions of the Constitution.” 47 In a similar
vein, the opinions of Justice Jeevan Reddy and Justice Ramaswamy
similarly condemned the strategies of the Hindu Right as non-secular.
For example, Justice Jeevan Reddy stated:
[I]t is clear that if any party or organization seeks to
fight the elections on the basis of a plank which has
the proximate effect of eroding the secular philosophy
of the Constitution it would certainly be guilty of
following an unconstitutional course of action . . . .
Introducing religion into politics is to introduce an
impermissible element into body politic and an
imbalance in our constitutional system. If a political
party espousing a particular religion comes to power,
that religion tends to become, in practice, the official

3(A) of the same section…. [R]eligious tolerance and equal treatment of

all religious groups and protection of their life and property and of the
places of their worship are an essential part of secularism enshrined in our
Constitution.
Id. at 146–48.
47. Id. at 149. Although each of the judges echoed the general idea of Indian
secularism as the equal respect of all religions, there were slightly different
emphases in each of their respective decisions. For example, while Justice Sawant
most strongly emphasized the equal respect of all religions, and its requirement of
toleration, Justice Jeevan Reddy’s decision placed some emphasis on the idea of the
separation of religion and politics. After a long discussion of the requirement of
equal respect, Justice Jeevan Reddy stated, “In short, in the affairs of the State . . .
religion is irrelevant; it is strictly a personal affair. In this sense . . . our
Constitution is broadly in agreement with the U.S. Constitution, the First
Amendment whereof declares that ‘Congress shall make no laws respecting an
establishment of religion or prohibiting the free exercise thereof ’ Perhaps this
is an echo of the doctrine of separation of Church and State; maybe it is the modern
political thought which seeks to separate religion from the State—it matters very
little.” Id. at 235 (Jeevan Reddy, J.). By way of contrast again, Justice
Ramaswamy’s opinion, while also speaking of the equal respect of all religions,
included several references to the concept of neutrality. See, e.g., id. at 161–62
(Ramaswamy, J.).
 religion . . . . This would be plainly antithetical to
Articles 14 to 16, 25 and the entire constitutional
scheme adumbrated hereinabove. Under our
Constitution, no party or organization can
simultaneously be a political and a religious party.48
Justice Ramaswamy’s decision also strongly condemned the rise
of fundamentalism as a violation of the constitutional principle of
secularism. For example, he writes: “[The] rise of fundamentalism
and communalization of politics are anti-secularism. They encourage
separatist and divisive forces and become breeding grounds for
national disintegration and fail the Parliamentary democratic system
and the Constitution.”49
In Bommai, the Indian Supreme Court lamented the destruction
of the mosque. Not only was the act of vandalism described as a
“national shame,” the Court expressed the view that the destruction
of the mosque shook the faith of the minorities in justice and the
constitutional process.50 The significance of Bommai lies in its
recognition and reassertion of the importance of secularism in Indian
constitutional law, as well as its restatement of the core ingredients
that constitute the very specific “Indian” version of secularism:
religious tolerance and equal treatment of all religions. It also
underscored the right to freedom of religion as an integral component
of secularism in India.
Bommai represents a landmark moment in the Court’s protection
of a specifically Indian model of secularism at a time when the
country was experiencing the violent convulsions of communal
politics. The Hindu Right’s majoritarian march towards establishing
its understanding of secularism in Indian constitutional law, was
temporarily thwarted by the extraordinary levels of death and
destruction brought on by its public arguments and campaigns. The
case suggested that the Court was committed to holding back the
tides of intolerance and Hindu majoritarianism in the name of
secularism.
D. Ismail Faruqui Case
In the Supreme Court’s 1994 decision in M. Ismail Faruqui v.
Union of India (U.O.I.), there appears to be a substantial shift from its
earlier position and reflects a discursive tension in the judicial

48. Id. at 236 (Jeevan Reddy, J.).

49. Id. at 175 (Ramaswamy, J.).
50. Id. at 141 (Sawant, J.).
322 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

understandings of secularism. The case involved a constitutional

challenge to the central government’s acquisition of the land at
Ayodhya as well as the adjoining area following the destruction of
the mosque.51 The acquisition was justified in the interests of
maintaining public order and communal harmony in the wake of the
demolition of the mosque.52
The constitutional validity of the Acquisition of Certain Area at
Ayodhya Act 1993 was challenged on the grounds that the
acquisition was anti-secular as it interfered with the right to freedom
of religion, in particular the right to worship, of the Muslim
community.53 The land acquired included the site where the mosque
once stood. The petitioner stated that the site continued to belong to
the Muslims and a place where they could continue to perform their
prayers or namaz. The petitioner stated that a mosque enjoyed a
special position in Muslim law and that once it was established and
prayers were offered in the mosque, it would remain the property of
Allah for all time and that any person of the Islamic faith could offer
prayers at such a place even if the structure had been demolished.54
Alongside the constitutional challenge to the Act, a Presidential
Reference under Article 143 of the Constitution was also made to the
Court.55 The reference sought the Court’s opinion on “[w]hether a
Hindu temple or any Hindu religious structure” existed prior to the
construction of the disputed structure.56 The reference provided stated
that the request was being made in light of the fact that “a dispute has
arisen whether a Hindu temple or any Hindu religious structure
existed prior to the construction of the structure (including the
premises of the inner and outer courtyards of such structure,
commonly known as the Ramjanmabhoomi-Babri Masjid) in the area
in which the structure stood in village Kot Ramachandra in
Ayodhya.”57 The Court was thus invited to consider an issue of faith
and religion and in the process articulated the essential ingredients of
the religion in a manner that also implicated the meaning of

51. A.I.R. 1995 S.C. 605, 612 (India).

52. Id. at 636.
53. The acquisition was implemented through the enactment of the Acquisition
of Certain Area at Ayodhya Act, 1993, which was the subject matter of the
challenge.
54. Id. at 640.
55. Id. at 616.
56. Id.
57. Id. at 616–17.
secularism.
The majority rejected the arguments that the Act in any way
violated the constitutional principle of secularism. Speaking for the
majority Justice Verma held that “the right to worship is not at any
and every place, so long as it can be practiced effectively, unless the
right to worship at the particular place is itself an integral part of that
right.”58 Justice Verma went on to discuss the position in Muslim law
stating firstly that “[u]nder Mohammedan law applicable in India,
title to a mosque can be lost by adverse possession,” 59 and secondly
that “[a] mosque is not an essential part of the practice of the religion
of Islam and namaz (prayer) by Muslims can be offered anywhere,
even in open [sic].”60 He concluded that the acquisition of the
disputed areas as well as the surrounding land did not violate the
religious freedom of Muslims and therefore, the acquisition was not
prohibited under the Indian Constitution.61 While the majority
recognized that the offering of prayer is a religious practice, it held
that such an offering at all locations where such prayers can be
offered was not an essential or integral part of the Muslim faith. Only
if the place had a particular significance for the religion so as to
constitute an essential or core practice could the interference be
considered as in violation of the communities right to freedom of
religion.
At the same time the Court also entered into a discussion of the
Hindu belief that the disputed site was the birthplace of Lord Ram
and that therefore Hindus had the right to worship at the disputed site.
In upholding the constitutional validity of Section 7(2) of the Act
stating that the position existing prior to the destruction of the
mosque should remain in place, the Court protected the worship of
the idols planted on the site of the demolished mosque.62
The Court upheld the constitutional validity of the Act but

58. Id. at 641.

59. Id. The doctrine of adverse possession permits a person who is in
possession of land that is legally owned by someone else, to acquire valid title to it
so long as the common law requirements are complied with and the adverse
possessor has been in continuous possession of the land in question for a sufficient
period of time as defined by law.
60. Id.
61. Id. at 644–45.
62. Section 7(2) states, “[I]n managing the property vested in the Central
Government, the Central Government or the authorised person shall ensure
maintenance of the status quo in the area on which the structure (including the
premises of the inner and outer courtyards of such structure), commonly known as
the Ram Janma Bhumi-Babri Masjid, stood.” Id. at 624–25.
declared Section 4(3) of the Act, which compulsorily abated the suits
and legal proceedings pertaining to the disputed structure, to be
invalid.63 The Court ordered the revival of all pending suits and legal
proceedings before the Allahabad High Court to be heard on merits.
It simultaneously declared the Presidential Reference as “superfluous
and unnecessary” in view of the Court’s decision to uphold the
validity of the Act.64
In sharp contrast, the minority opinion in the case concluded that:
When, therefore, adherents of the religion of the
majority of Indian citizens make a claim upon and
assail the place of worship of another religion and, by
dint of numbers, create conditions that are conducive
to public disorder, it is the constitutional obligation of
the State to protect that place of worship and to
preserve public order, using for the purpose such
means and forces of law and order as are required. It is
impermissible under the provisions of the Constitution
for the State to acquire that place of worship to
preserve public order. To condone the acquisition of a
place of worship in such circumstances is to efface the
principle of secularism from the Constitution.65
The dissenting opinions delivered by Justice S.P. Bharucha on
behalf of Justice A.M. Ahmadi and himself further observed that
section 7(2) of the Act perpetuated the performance of the Hindu
prayers or puja on the disputed cite: “No account is taken of the fact
that the structure thereon had been destroyed in a most reprehensible
act. The perpetrators of this deed struck not only against a place of
worship but at the principles of secularism, democracy and the rule of
law...”66 The decision did not take account of the fact there was a
dispute with respect to the site on which the idols were placed and
that the Muslim community continued to regard the mosque as
legally belonging to them even after the idols were placed inside the
mosque in 1949.
In the course of his discussion, Justice Verma quoted with
approval a speech from the Indian President Shankar Dayal Sharma,

63. Id. at 637.

64. Id. at 641.
65. Id. at 655–66 (Barucha, J. dissenting).
66. Id. at 655 (internal quotations removed).
who defined secularism in India by drawing considerably on Hindu
scriptures, and held that the principle of religious toleration found in
Hindu scriptures was an integral feature of Indian secularism. 67 The
speech also drew from a more eclectic set of resources, including
Islam, Christianity and Zorastrianism.68 However, towards the end of
his decision, Justice Verma proceeded to observe that Hinduism is a
tolerant faith that has enabled all of these religions to find shelter and
support in India.69 While the discussion was intended to support the
dominant model of secularism based on the equal treatment of all
religions, the Court ended up interpreting this model along the lines
of a Hindu majoritarian sensibility—holding for example that
tolerance, a central component of Indian secularism, had its roots in
Hinduism. The argument ends up aligning religious toleration with
the Hindu faith and beliefs and subsuming other faiths within this
logic. Implicit in this logic is that as Hindus are tolerant, and
tolerance is a central component of Indian secularism, then only
Hindus are truly secular.
The Court also articulated the narrative of the demolition in
terms that cast it as aberrational and an act of miscreants. Justice
Verma stated:
[T]he act of vandalism so perpetrated by the
miscreants cannot be treated as an act of the entire
Hindu community for the purpose of adjudging the
constitutionality of the enactment. . . .The miscreants
who demolished the mosque had no religion, caste or
creed except the character of a criminal and the mere
incident of birth of such a person in any particular
community cannot attach the stigma of his crime to
the community in which he was born.70
Thus the Court reduced the demolition of the mosque that was
driven by an ideological agenda to establish India as a Hindu state, to
the acts of miscreants for which the entire Hindu community could
not be held responsible.
The case reinforced a normative conception of secularism
together with the right to freedom of religion almost exclusively
within majoritarian terms while simultaneously reducing the attack
on Muslim religious sensibilities that was enacted through the

67. Id. at 627–28 (Verma, J.).

68. Id. at 628.
69. Id. at 658.
70. Id. at 634.
demolition of the mosque as entirely unrelated to religiosity and the
pursuit of Hindu majoritarianism through liberal rights discourse. The
injury caused to the Muslim religious minority community not only
becomes unintelligible; the act is reduced to an act of destruction of
property that in any case had little significance to the essential
practices of the Muslim community. At the same time the religious
sensibilities of the Hindu majority remain both understood and
protected by ensuring that there would be no interference with the
continued offering of their prayers at the disputed site.71
E. The Hindutva Cases
The shift in the judicial approach to secularism was accentuated
in the Supreme Court’s unanimous 1995 decisions in what came to be
known as the Hindutva cases, the central case being Ramesh
Yeshwant Prabhoo v. Prabhakar Kashinath Kunte.72 These cases
involved a series of challenges to the election of several members of
right wing parties to the state legislature on the grounds that they had
appealed to religion in the course of their election campaigns and
incited religious enmity and hatred, in violation of the provisions of
the Representation of Peoples Act of 1951. 73 A number of the
campaign speeches appealed to the idea of Hindutva, arguing that the
Muslim religious minorities in India were receiving special treatment
under various provisions of the Constitution and in law. These
provisions included separate personal status laws that governed
familial and domestic concerns, as well as provisions that accorded
the Muslim dominated state of Jammu and Kashmir special status
under the Constitution.74 These were examples of the practice of
appeasement and exceptional treatment that the candidates alleged

71. In a subsequent case, the Supreme Court issued an order directing that no
religious activity of any kind by anyone either symbolic or actual be allowed to
take place on the 67 acres of land adjacent to the disputed site. It further clarified
that even though no title rights were in dispute in the adjacent land, and that the
order amounted to denying real property holders from worshipping on their own
land, the restriction was necessary to ensure that (approvingly quoting from the
Ismail Faruqui judgment) “the final outcome of the adjudication should not be
rendered meaningless by the existence of properties belonging to Hindus in the
vicinity of the disputed structure in case the Muslims are found entitled to the
disputed site.” Mohd. Aslam, alias Bhure v. Union of India, A.I.R. 2003 S.C. 3413.
72. A.I.R. 1996 S.C. 1113 (India).
73. The Representation of the People Act, No. 43 of 1951, I NDIA CODE (1951),
§ 123(3).
74. See INDIA CONST. art. 370; The Muslim Women (Protection of Rights on
Divorce Act), No. 25 of 1986, INDIA CODE (1986).
were both intolerant and discriminatory. 75 The difference in treatment
of religious minorities was stated to be in violation of the
Constitutional mandate of equal treatment of all religions, based on
sameness in treatment, which was a central component of Indian
secularism.76 The Court held that several candidates were guilty of
appealing to religion to gain votes. At the same time, it also held that
Hindutva—the ideological linchpin of the Hindu Right—simply
represented “a way of life of people of the subcontinent” rather than
an attitude hostile to persons practicing other religions or an appeal to
religion.77 The Court held that, in fact, the speeches at issue appealed
to the principle of secularism and to violations of the right to
equality.78 According to the Court, election speeches that referred to
religion during the course of the election campaigns with a secular
stance that alleged discrimination against any religion and promising
to remove that imbalance was consistent with secularism and outside
the purview of section 123(3).79 As the speeches did not include an
appeal to vote for or against a candidate on the basis of his religion it
was not caught within the terms of the section. 80 In other words, in
criticizing the “pseudo-secularism” of their political opponents by
pointing out the discrimination against Hindus that this version of
secularism encouraged meant that the speech was of a secular
nature.81 By validating the secular nature of the Hindu Right’s version
of secularism, the Court allowed the Hindu Right’s version of
secularism to officially enter into legal discourse.
In arriving at its’ conclusions about Hindutva, the Court quoted
extensively from two earlier decisions by the Constitutional Bench of
the Supreme Court. The decision in Shastri Yagnapurushadji v.
Muldas Bhudardas Vaishya82 included a lengthy discussion about the
identities of Hindus and provided extensive commentary involving
the definition of Hinduism to demonstrate that the Hindu religion
“does not appear to satisfy the narrow traditional features of
any
religion or creed” and therefore it could be broadly described as a
way of life.83 Similarly, in the Comm’r. of Wealth Tax, Madras v.

75. Prabhoo v. Kunte, A.I.R. 1996 S.C. 1113, 1119–20 (India).

76. Id. at 1123.
77. Id. at 1127.
78. Id. at 1131.
79. Id. at 1132.
80. Id.
81. Id.
82. A.I.R. 1966 S.C. 1119 (India).
83. Prabhoo, A.I.R. 1996 S.C. at 1127 (quoting Yagnapurushadji v. Vaishya,
A.I.R. 1966 S.C. 1119).
Late R. Sridharan,84 Hinduism was described as “doctrinally tolerant,
leaving others-including both Hindus and non-Hindus- whatever
85
creed and worship practices suit them best.“
Relying on these two decisions, the Court in Prabhoo concluded
that it could not give a precise meaning to the terms Hindu,
Hinduism, or Hindutva:
No meaning in the abstract can confine it to the
narrow limits of religion alone, excluding the content
of Indian culture and heritage. It is also indicated that
the term Hindutva is related more to the way of life of
the people in the sub-continent. It is difficult to
appreciate how in the fact of these decisions the term
“Hindutva” or “Hinduism” per se, in the abstract, can
be . . . equated with narrow fundamentalist Hindu
religious bigotry, or [how it might] . . . fall with the
prohibition of . . . Section 123 of the [Representation
of the People Act].86
In citing these two decisions to justify its’ holding that the
Hindutva was a “way of life,” the Constitutional Bench in Prabhoo
seemingly ignored the fact that neither decision mentioned the word
“Hindutva.” In eliding its discussion of the meaning of Hinduism
with the meaning of Hindutva, the Court ignored the historical and
political context within which the concept of Hindtuva had acquired
meaning that cannot be separated from its appeal to religion or from
its assault on the legitimacy of religious minorities.
The Supreme Court’s judgment was problematic in three
respects. Firstly, the Court erred in concluding that Hindutva
constituted a way of life of the people of the subcontinent, and that its
deployment amounted to neither a violation of the prohibition on
appealing to religion to gain votes nor a violation of the prohibition
on promoting religious enmity and hatred. It failed to recognize that
the term has historically had a specific meaning associated with the
political philosophy of the Hindu Right, in particular its early
ideologues V.D. Savarkar and M.S. Golwalkar.87

84. (1976) 4 S.C.C. 478 (India).

85. Prabhoo, A.I.R. 1996 S.C. at 1127.
86. Id. at 1129.
87. Anil Nauriya, The Hindutva Judgments: A Warning Signal, ECON. & POL.
WKLY. Jan. 6, 1996, at 10, 11.
 The Court’s discussion of Hinduism was also ubiquitous. It
conflated the term “Hinduism” with “Indianess,” closing off any
discussion on the possibility of non-Hindu forms of Indianess.88 The
construction of a uniform Hindu culture instantiated an erasure of
Muslim identity and religion. It constituted a majoritarian move
where “Indianisation” was uncritically assumed to represent the
cultural and political aspirations of all Indians, and the norms of the
majority applied to all Indians, irrespective of their religious or
cultural identity.89 The formulation that Hinduism as a “way of life”
allows for an argument to be made that because it is so extant to the
Indian way of life there is no distinction between “Indian culture”
and Hinduism per se.90 Through this assimilation, Hinduism, the
religion of the majority of Indians comes to reflect the way of life of
all Indians.
In accepting the secular nature of the speeches, the Court did not
appreciate the broader discursive struggle over the meaning of
secularism in India, in which the Hindu Right has been a very active
player.91 The Hindu Right parties appropriated the dominant
understanding of secularism as the equal respect for all religions to
promote their vision of Hindutva and advance their agenda of
establishing a Hindu state. Their emphasis on formal equal treatment
of all religions on which Indian secularism is based operates as an
unmodified majoritarianism whereby the majority Hindu community
becomes the norm against which all others are to be judge and
treated.
In a subsequent petition filed in the Supreme Court to a larger
bench of judges, seeking a review of the Hindutva judgment, the
petitioner argued that the decision was inconsistent with the Court’s
earlier ruling in the Bommai case.92 The review petition was rejected
on technical grounds. However, in its order the Court observed that
there was no inconsistency between the two decisions. In the Court’s

88. Prabhoo, A.I.R. 1996 S.C. at 1129–30.

89. Id. at 1130.
90. See id. (discussing the contest over the meaning of Hinduism).
91. See generally Gary Jeffrey Jacobsohn, By the Light of Reason: Corruption,
Religious Speech, and Constitutional Essentials, in O BLIGATIONS OF CITIZENSHIP
AND DEMANDS OF FAITH : R ELIGIOUS A CCOMMODATION IN P LURALIST
DEMOCRACIES 294 (Nancy L. Rosenblum ed., 2000) (conducting a comparative
study with U.S. cases and examining the justifications for constraining religious
speech under the Representation of People Act as a constitutional essential but not
interrogating the majoritarian instincts that inform the application of the regulation
of free speech.).
92. Mohammad Aslam v. Union of India, A.I.R. 1996 S.C. 1611 (India).
330 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

view, the Bommai case did not relate to the interpretation of the
provisions of the Representation of the People Act 1951, and
therefore there was nothing in the Bommai decision that was of
assistance for constructing the meaning and scope of these
provisions.93 At the same time, the Court sought to clarify its decision
in the Hindutva cases, stating that it was simply based on earlier
decisions of the Supreme Court that it was bound to follow and that
in no way had it condoned the appeal to religion to gain votes in an
election.94 The Court did not take up the opportunity to address a
central contradiction in the Hindutva cases: the interpretation on the
meaning of Hindutva and the secular nature of the speeches of the
Hindu Right. The Courts conclusion in the Hindutva cases thus
effectively vindicated the profoundly anti-secular vision of
secularism that the Hindu Right has long been trying to promote and
unwittingly left the door ajar for the Hindu Right to continue their
discursive strategy in pursuing secularism for their distinctively anti-
secular ideological agenda.
The Hindu Right hailed the decision in the Hindutva cases as a
victory and continue to deploy the decision in its political advocacy
not only as an endorsement of the “true meaning and content of
Hindutva as being consistent with the true meaning and definition of
secularism” but also to vindicate and validate its movement to begin
the construction of the temple at Ayodhya.95 Their campaign to
construct a Hindu temple where the Babri mosque once stood, by
alleging that the mosque was built on the site of the birth of the
Hindu god Ram, has generated broad-based support for the Hindu
Right. Throughout the campaign some of their supporters have
followed the marches to Ayodhya while other others have sent money
and bricks to Ayodhya to help construct the new temple. 96 The
campaign, which eventually culminated in the destruction of the
Babri Masjid on December 6, 1992, was cast by the Hindu Right as a

93. Id. at 1612.

94. Id.
95. BHARATIYA J ANATA PARTY MANIFESTO 1998, available at
http://bjpelectionmanifesto.com/pdf/manifesto1998.pdf. See BHARATIYA J ANATA
PARTY MANIFESTO 2009, available at
http://www.bjp.org/images/pdf/election_manifesto_english.pdf (making no
mention of the term “Hindutva” but referring to the true meaning of secularism
within the framework of cultural nationalism).
96. Cossman & Kapur, supra note 22, at 118.
legitimate expression of the sentiment of the majority.97 While the
demolition of the mosque triggered massive communal riots around
the country in which thousands were killed, the subsequent decision
by the Allahabad High Court appears to have conferred some
legitimacy on the destruction.
II. THE AYODHYA CASE AND DETERMINING THE SPOT WHERE GOD
WAS BORN

A. The Historical “Truth Claims” and Legal Narrative

The Ayodhya case involves a dispute over the legal title to a
property approximately 1500 square yards in size. 98 Hindu parties
claim that this particular spot is the janamsthan or birthplace of Ram,
that they have a right of worship at the site, and that the title and
possession of the site itself belongs to Hindu deities.99 While there are
no less than four million gods and goddesses who live with Indians
on the sidewalks, streets, and even travel with passengers in taxicabs,
Ram has been accorded the status of übergod, especially in the
discourse of the Hindu Right and those who have sought to
consolidate the tradition under one god and one institution.100 This
consolidation move is a thoroughly modern as well as Semitic move
and has been enacted partly in and through the right to freedom of
religion. Muslims have continued to assert that they have enjoyed
exclusive legal title to the property ever since the Babri mosque was
constructed in 1528.
The assertion of the right to freedom of religion is advanced
partly through the submission and reliance on a virtual mountain of
historical documents and archaeological evidence. For example, the

97. See Shri L.K. Advani, Statements on the Babri Masjid Demolition, BJP
TODAY, Jan. 15, 1993, reprinted in THE BABRI MASJID QUESTION, supra note
38, at 44–45 (defending those who pulled down the mosque as “exasperated by the
tardiness of the judicial process, and the obtuseness and myopia of the executive”).
98. Visharad v. Ahmad, O.O.S., No. 1 of 1989, All. H.C., 232 (2010) (Khan,
J.).
99. Id. at 72–73, 77–78.
100. As a number of historians have argued, the claim that Ram is the central
Hindu deity runs counter to the polytheist character of Hinduism, transforming its
pluralist character that accords well with a modernist and monotheist construction
of religion. See Romila Thapar, Syndicated Moksha?, 313 SEMINAR 14, 15 (1985).
See also Romila Thapar & Bipan Chandra, The Political Abuse of History, in
BABRI MASJID/RAMA JANAMABHUMI DISPUTE 235 (Asghar Ali Engineer, ed.,
1987); Chetan Bhatt, Primordial Being: Enlightenment and the Indian Subject of
Postcolonial Theory, in PHILOSOPHIES OF RACE AND ETHNICITY 40, 60–61 (Peter
Osborne & Stella Sandford eds., 2002).
332 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

Hindu parities relied heavily on the Archaeological Survey of India’s

findings produced through its court mandated excavations in 2003,
which indicated that remnants of a twelfth century temple dedicated
to Ram Lalla (Infant Ram) existed and stood at the cite that marked
the birthplace of Ram.101 The evidence is used to bolster the
arguments made by some Hindu parties that in 1528 a temple was
destroyed to build a mosque in its place. Other groups, such as the
Nirmohi Akhara (Group without Attachment), used the historical
material to claim that no mosque existed at the site and that the
Akhara has been the sole custodian of it ever since the time of
Ram.102 They partly relied upon a reference by Joseph Tiffenthaler, a
European traveller who visited the town between 1766 and 1771, to
the existence of a platform (referred to as the Ram Chabutra or Ram
platform in later accounts) at the site. 103 The significance of this
reference rests in it being located at the site that Hindu parties
subsequently claimed to be the birthplace of Lord Ram. Thus, while
the historical and archaeological documentation was used by the
Hindu parties primarily to demonstrate title and ownership of the
disputed site, it was simultaneously also used to advance a claim to
the sanctity and sacredness of the site for Hindus and that worship at
the site represented a core and essential feature of the Hindu religion
and its adherents. In contrast the Muslim parties used the historical
material primarily to establish their legal title to the disputed site,
rather than to assert their right to religious freedom. 104 They claimed
that Mir Baqi Isfahani, a general in the army of the Mughal Emperor
Babur, constructed a mosque at the site in 1528 and that the title over
it rested with the mosque ever since that time.105

101. Sunni Central Waqf Board v. Gopal Singh Visharad, O.O.S. No. 4 of
1989, All. H.C., Mar. 5, 2003, reprinted in THE BABRI MASJID QUESTION , supra
note 38, at 135–139.
102. Ayodhya, (2010) All. H.C at 59 (Agarwal, J., Vol. 1). The Nirmohi
Akhara was to become one of the main claimants in the Ayodhya legal dispute.
They represent one of seven cloisters or akharas in Ayodhya, who worship Vishnu,
and Ram as Vishnu’s avatar or incarnation. Hence the site is of particular relevance
to Vaishnavite Hindus. See Hans Bakker, Ayodhya: A Hindu Jerusalem: An
Investigation of “Holy War” as a Religious Idea in the Light of Communal Unrest
in India, 38 NUMEN 80, 89–90 (1991) (stating that they view Ayodhya as sacred
because Vishnu was born there and that Ram is Vishnu’s incarnation).
103. Ayodhya, (2010) All. H.C at 20–23 (Sharma, J., Vol. 4).
104. Id. at 29–30 (Agarwal, J., Vol. 1).
105. Id.
 The historical claims provide the backdrop to the legal contest
that has been in existence since the latter part of the nineteenth
century.106 In 1857, a series of skirmishes took place when Hindu
ascetics occupied the alleged birthplace of Ram and the Muslims in
the area retaliated.107 A compromise was reached whereby a partition
was constructed on the disputed land in two equal parts. 108 The inner
portion or inner courtyard was allotted to the Muslims and the outer
portion or outer courtyard was allotted to the Hindus.109 In 1885,
Raghubar Das, the Hindu Mahant (head priest), sought permission
from the district court to build a temple over the Ram Chabutra in the
outer portion, that is, the land adjoining the Babri mosque. 110 The suit
was filed when some Hindu ascetics attempted to extend the
boundary of the outer courtyard that would have also incorporated a
Muslim cemetery that existed on the site.111 This case marks the first
moment when the dispute was initiated into the legal arena. The
Mutwalli (manager) of the Babri Mosque contested the suit claiming
that the entire land belonged to the mosque.112 He argued that merely
because Hindus had been allowed to pray in the mosque from time to
time they could not acquire title over the property. A map submitted
to the court indicating the demarcation of the land into two equal
parts was not however disputed.113 While the possession of the land
by the Hindus was accepted, the suit was denied on public policy
grounds that the construction of a temple would lead to the
performance of noisy rituals including the blowing of conch shells,
and since Muslims were praying nearby, their service would be
disrupted. The court held that the construction would aggravate the
already pervasive ill will and tension between the two
communities.114

106. See Parmanand Singh, The Legal History of the Ayodhya Litigation, in
RAM JANMABHOOMI BABRI MASJID: H ISTORICAL DOCUMENTS, LEGAL
OPINIONS AND JUDGMENTS 29 (Vinay Chandra Mishra ed., 1991) (noting that a
lawsuit was bought in 1885 regarding an attempt to construct a Ram Temple on the
site of the Babri-Masjid).
107. Ayodhya, (2010) All. H.C. at 6 (Khan, J.). See THE BABRI MASJID
QUESTION, supra note 38, at (173–175).
108. Ayodhya, (2010) All. H.C. at 6–7.
109. Id. at 7.
110. Id. at 9–12.
111. Id.
112. Id. at 16; THE BABRI MASJID Q UESTION, supra note 38, at 178–
181. 113. Ayodhya, (2010) All. H.C. at 13–15, 17.
114. See A.G. Noorani, Legal Aspects to the Issue in ANATOMY OF A
CONFRONTATION : THE RISE OF COMMUNAL POLITICS IN INDIA 65 (Sarvepalli
Gopal ed., 1991) (discussing the judge’s reason for declining to decree the suit).
 A similar logic was adopted in subsequent court appeals. In the
first appeal, Judge F.E.A. Chamier visited the disputed spot and
admitted, “[i]t is most unfortunate that a Masjid should have been
built on the land especially held sacred by the Hindus. But as that
occurred 356 years ago, it is too late now to remedy the grievance.
All that can be done is to maintain the parties in status quo.” 115 A
further appeal was also dismissed, with the Judge stating:
This spot is situated within the precinct of the ground
surrounding a mosque erected some 350 years ago
owing to the bigotry and tyranny of the emperor who
purposely chose this holy spot, according to Hindu
legend, as the site of his mosque. The Hindus seem to
have got very limited rights of access to certain spots
within the precinct adjoining the mosque and they
have for a series of years been persistently trying to
increase those rights and to erect buildings on two
spots in the enclosure namely: (1) Sita- ki-Rasoi
(kitchen of Sita) and (2) Ram- Chander-ki-
Janmabhoomi (birthplace of Lord Ram). The
executive authorities have persistently refused these
encroachments and absolutely forbid any alteration of
the status quo.116
He further added that there was nothing on record to show that
the plaintiff Raghubar Das was a proprietor of the land. 117 The
proceedings represented the first time when the disputed land was
formally divided into a Hindu and a Muslim portion and also marks
the emergence of the legal contest over the content of religious
liberty. The modes of worship of the Hindus and Muslims would
become a focus of judicial attention in the subsequent legal narrative
of the case, with a persistent question remaining as to how these
modes of worship and claims to property could be evaluated. The
visit to the disputed site by the judges, as well as the recording of
identifying marks and inscriptions on the monument, the routines of
prayer and their timings, and the drawing up of procedures for
regulating entry into the disputed site, were all used to construct the
terms of the dispute and the content of the right to freedom of
religion.

115. Id.
116. Id. at 66.
117. Id.
 In 1934, there were further riots between Hindus and Muslims at
the disputed site, which caused severe damage to the mosque.118 The
damage occurred when some sadhus (holy men) led by the Nirmohi
Akhara forcefully occupied the mosque. Some of the Hindu parties
claimed that the structure ceased to exist as a place of worship for
Muslims from that time and as Hindus continued to hold their prayers
at the disputed spot they could claim possession of the entire
property.119 Muslim parties, in particular the Sunni Central Waqf
Board, claimed that Muslims had continued to offer namaz (prayers)
in the inner courtyard and remained in possession of the property. 120
In addition, in 1936, the board claimed that the mosque was waqf
property and that the Sunni Board was its sole legatee.121
In 1947, the City Magistrate of Faizabad ordered that the Ram
Chabutra could not be converted into a permanent structure. Muslims
were at the same time prohibited from re-building the damaged
section of the mosque.122 The order further embedded the dispute
within the legal process. In 1949, there were a series of further
disturbances that culminated in some Hindu worshippers placing the
idols from the outer area into the inner courtyard under the central
dome of the mosque during the night of December 22, claiming the
spot to be the exact birthplace of Ram.123 The court immediately
issued a notice to attach the disputed property and handed temporary
possession to a government appointed receiver.124
A few days after the installation of the idols, K.K.K. Nayar, the
District Magistrate of Faizabad in correspondence with the Chief
Secretary of Uttar Pradesh, requested that the Hindus be given
permission to erect a “decent and vishal (large) temple,” stating that

118. See Parmanand Singh, Legal History of the Ayodhya Litigation, 18

INDIAN BAR REV. 31 (1991), reprinted in THE BABRI MASJID QUESTION, supra
note 38, at 189 (noting that the riot was sparked by the slaughter of a cow during a
Muslim festival).
119. Ayodhya, (2010) All. H.C at 48–49 (Agarwal, J., Vol. 1).
120. Id. at 21–22; Id. at 52 (Khan, J.).
121. Id. at 30 (Agarwal, J., Vol. 1). Waqf means a “permanent dedication by a
person professing Islam, of any movable or immovable property for any purpose
recognized by the Muslim law as pious, religious or charitable . . .” Wakf Act, No.
43 of 1995, INDIA CODE (1993), available at http://indiacode.nic.in. Each waqf has
a trustee and each mosque, a keeper or mutawalli. Id. Unlike a Hindu mahant, the
mutawalli or manager has no propriety interest in the property nor is he allowed to
derive any profit or financial gain from the property. Id.
122. Order of City Magistrate, Faizabad (Apr. 28, 1947), reprinted in T HE
BABRI MASJID QUESTION, supra note 38, at 202.
123. Ayodhya, (2010) All. H.C. at 23–24 (Khan, J.).
124. Id. at 36–37.
the removal of the icons would amount to a “step of administrative
bankruptcy and tyranny,” and produce immense suffering.125 Nayar
mentions the slogans raised by the crowds demanding that he “open
126
the doors of the lord.” Implicit in this request is that Hindus would
be deeply affronted should the idols be removed and that such an act
would be regarded as a violation of a deeply held belief that the site
of the idols marked the spot where god was born. The state took
possession of the mosque on January 5, 1950, and neither of the
groups was allowed to worship at the site. 127 However, while the
enclosure where the idols were placed was fenced off, Hindu
worshipers were permitted to worship from outside the fenced off
area.128 Muslims were no longer able to offer any prayers inside the
mosque.129 The Additional City Magistrate of Faizabad and Ayodhya
also appointed a Hindu receiver to take care of the property until the
court had determined the right to ownership.130 While the original
division of the land into Hindu and Muslim sections was retained, the
appointment of a Hindu receiver, together with the installation of the
deities under the central dome of the mosque and the legal
recognition of their installation represented a shift from the status quo
towards an acknowledgement of the claim that the right to worship at
the spot where the idols were installed was integral to the Hindu
faith.
The legalisation of the dispute through the local district courts
continued between 1950 up until 1986. In 1950, a suit was filed
claiming that the right to worship the idols was denied to Hindus by
the order of receivership by Gopal Singh Visharad, a Hindu
Mahasabha Member, and Parmahans Ramchandra Das, head of the
Ram Janmabhomi Nyas (Ram Birthplace Trust).131 They claimed an

125. Letter from Deputy Commissioner, Faizabad, to Chief Secretary,

Government of Uttar Pradesh (Dec. 27, 1949), reprinted in THE BABRI MASJID
QUESTION , supra note 38, at 215–18.
126. Id. at 217. K.K.K. Nayar went on the contest the Utter Pradesh assembly
elections in 1950 supported by Hindu organizations.
127. S.K. Tripathi, Magistrate Markandey Singh’s Order under Section 145 of
the Criminal Procedure Code 1898, INDIAN EXPRESS, Mar. 30, 1986, reprinted in
THE BABRI MASJID QUESTION, supra note 38, at 218; Noorani, supra note 114, at
74–75.
128. Ayodhya, (2010) All. H.C. at 41 (Khan, J.).
129. Id. at 40–41.
130. Id. at 40; THE BABRI MASJID QUESTION , supra note 38, at 218.
131. Ayodhya, (2010) All. H.C. at 42–44. The right was allegedly denied
because of § 145 of the Code of Criminal Procedure, 1898, which permitted a
unobstructed right to worship the idols at the place where the main
dome of the mosque once stood.132 In 1959, the Nirmohi Akhara filed
a suit against the court receiver and the state government of Uttar
Pradesh claiming to be the religious order traditionally charged with
the maintenance and management of the Ram Janamsthan.133 They
claimed that a Hindu Temple dedicated to Ram Lalla (infant Ram)
stood at the disputed spot ever since the twelfth century, marking his
birthplace.134 In the alternative, they argued that Babur, the first
Moghul emperor, had tried to unsuccessfully convert the temple into
a mosque.135 Moreover, they argued that as Hindus had continued to
pray and worship at the spot and no namaz (prayer) had been held
inside the mosque since 1934, the Akhara was the sole owner of the
Ram Janamsthan, as well as the temple and idol.136 In 1961, the
Sunni Central Waqf Board filed a suit seeking a declaration that the
disputed structure was a mosque and that possession of it be handed
over to the Board.137 They stated that the structure was built on
barren land or, in the alternative, on the ruins of a temple and that
Muslims had been praying at the Babri Masjid since 1528, a practice
that was halted after the idols were installed. 138 They claimed that
they had exclusive possession of the premises though Hindus had
prayed in the outer courtyard.139 The four suits were consolidated
with the suit of the Sunni Waqf Board being treated as the leading
case.140
The last suit was filed in 1980 on behalf of the idol, Ram Lalla,
and the Ram Janamsthan, with the petitioner claiming that both were
juristic entities, as deities were legally capable of holding land in

magistrate to order that the devotees could only practice worship from behind the
railing that had been installed.
132. Id. at 44.
133. Id. See Nirmohi Akhara v. Baboo Priya Datt Ram, O.O.S., No. 3 of 1989,
All. H.C. (India).
134. While the Archeological of India (ASI) came to the ambiguous
conclusion that its excavations revealed the existence of remnants of a temple-like
structure in the place where the mosque was constructed, these findings remained
disputed throughout the course of the proceedings by the Sunni Central Wakf
Board as well as various academics. See Supriya Varma & Jaya Menon, Was There
a Temple under the Babri Masjid? Reading the Archaeological “Evidence,” ECO.
& POL. WKLY., Nov. 11, 2010, at 61, 61–71 (2010).
135. Ayodhya, (2010) All. H.C. at 32 (Agarwal, J., Vol. 1).
136. Id. at 47–49 (Khan, J.).
137. Id. at 50–51, 58–59 (citing Sunni Central Board of Waqfs, U.P v. Gopal
Singh Visharad, O.O.S., No. 4 of 1989, All. H.C. (India)).
138. Ayodhya, (2010) All. H.C. at 1 (Sharma, J., No. 2, Vol. 1).
139. Id. at 55–56 (Khan, J.).
140. Id. at 78–79.
their own name and of suing and being sued.141 They acquired a legal
personality with the attributes of real individuals, backed by
administrative doctrines.142 The petitioner filed the suit as “a friend”
of the idol, seeking title and possession of the disputed property
solely in favour of Ram. The petitioner was a member of the VHP,
established in the mid-1960s to popularize the message of the Hindu
Right.143 The relevance of this suit lay partly in the fact that the VHP
did not trust the Nirmohi Akhara, whose interest seemed to be in
asserting a religious claim and not with the broader political agenda
of the VHP. This suit was filed at a time when the political climate in
India had changed considerably as a mass based agitation had been
launched for the construction of the temple spearheaded by the BJP
and led by its former head L.K. Advani.144

141. Id. at 69–70. A deity has the identity of a juridical entity, who can be both
sued and also sue. The deity can be represented by a qualified person, who is
known as the Shebait/Dharmakarta, and whose responsibility it is to protect the
idol’s property. The origin of the notion that idols are juristic persons in law seems
to be based in Roman law, where a similar concept operated with respect to
churches. See FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE
HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 481 (1895) (“Perhaps
the oldest of all juristic persons is the god, hero or the saint.”). However, over the
years, the notion of a juristic person for the idol has been developed by Indian
courts as one based on the religious customs of the Hindus themselves. See, e.g.,
Pramatha Nath Mullick v. Pradyumna Kumar Mullick, (1925) 52 I.A. 245 (India)
(stating that a Hindu idol has the power to sue and be sued); Kalanka Devi
Sansthan v. Maharashtra Revenue Tribal, Nagpuri, A.I.R. 1970 S.C. 439, 441
(India) (“[W]hen property is given absolutely for the worship of an idol it vests in
the idol itself as a juristic person.”).
142. Hindu religious idols and images are considered animate and capable of
making economic, political, and legal claims. See J. D UNCAN M. DERRETT ,
RELIGION , LAW AND THE STATE IN INDIA 484–85 (1968) (discussing the legal
personality of Hindu idols).
143. See generally MANJARI KATJU, VISHVA HINDU P ARISHAD AND INDIAN
POLITICS (2003) (providing a detailed discussion on the role of the VHP in Indian
politics).
144. L.K. Advani was the leader of the opposition BJP in September 1990. He
launched a rath yatra (journey of the charioteer) across a number of states in India
to garner support for the construction of the Ram temple in Ayodhya. See Pinarayi:
Sudheeran’s Remarks a Challenge to Secularism, H INDU (March 19, 2014),
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/pinarayi-sudheerans-
remarks-a-challenge-to-secularism/article5803249.ece (stating that Advani, along
with former Prime Minister A.B. Vajpayee that created “communal agitation all
over the country for constructing a Ram temple in Ayodhya”).
 From the mid-1980s, the Hindu parties stepped up their rhetoric
and sought court sanction over the performance of specific rituals at
the site. These interventions coincided with the rise of the Hindu
Right as a powerful political force in contemporary Indian politics.
Some of these interventions included a suit seeking the removal of
the locks that had been placed on the fenced off portion.145 In 1986,
the local district Judge directed that the locks of the mosque be
opened, without hearing the application for impleadment made by
interested Muslim parties as well as the Waqf board. The Judge urged
the Muslims to recognize the fact that the idols and site were juristic
entities and had a legal personality, and that they should permit
Hindu worshippers to access the site. He stated that the Muslims
would not be affected in any manner if the locks of the gates were to
be opened and pilgrims and devotees allowed inside the premise to
worship. The court added:
It is undisputed that the premises are presently in the
court’s possession and that for the last 35 years Hindus
have had an unrestricted right of worship as a result of
the court’s order of 1950 and 1951. If the Hindus are
offering prayers and worshipping the idols, though in
a restricted way for the last 35 years, then the heavens
are not going to fall if the locks of the gates are
removed.146
In the process of delivering its order, the court initiated a process
of universalizing the practice of worshipping at the site as an
essential practice and an experience and belief of all Hindus. The
locks were broken open within half an hour of the pronouncement of
the order.147
Thereafter, in 1989, the VHP, one of the parties to the Ayodhya
dispute, conducted an event consecrating the bricks to be used for the
construction of the temple and invited villagers and communities
around the country to make bricks for the temple that would be
transported to the site.148 The Allahabad High Court refused a request
for an injunction against the consecration and transportation of the
bricks, while it also directed that the status quo over the disputed site

145. Umesh Chandra Mishra Pandey v. State of Uttar Pradesh, 1991 L.L.R.
638 (India) reprinted in THE BABRI MASJID Q UESTION , supra note 38, at 267–69.
146. NOORANI , supra note 114, at 79.
147. Ayodhya, (2010) All. H.C. at 88 (Khan, J.). Mohammad Hashim filed a
write petition in the Allahabad High Court challenging the order. See THE BABRI
MASJID Q UESTION, supra note 38, at 270.
148. DIANE P. MINES, FIERCE GODS 203 (2005).
340 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

be maintained.149 Hundreds of thousands of bricks poured into

Ayodhya and in October 1990 several workers belonging to the
Hindu Right parties stormed the mosque and placed three saffron
flags on the domes of the mosque, damaging them in the process. 150
The process of acquisition and legitimation of their claim to worship
at the exact spot where the idols were lodged had acquired a
significant momentum and was gradually being consolidated.
The Uttar Pradesh state government also helped in the
consolidation move by acquiring almost three acres of land including
the cemetery and outer portion of the mosque, ostensibly to provide
facilities for the pilgrims visiting the site and to accommodate
tourism.151 This move was challenged on the grounds that the land
was waqf property and hence could not be acquired by the state
government.152 The petition further alleged that the acquisition was
motivated by a bigger design to ensure the construction of a
temple.153 While the court issued an interim order upholding the
acquisition of the land, it also held that the possession would be
subject to further orders and that the land could not be alienated or
transferred.154
On December 6, 1992 the mosque was demolished by Hindu
karsevaks (volunteers), after the BJP and other members of the Hindu

149. See Sunni Central Board of Waqfs, U.P v. Gopal Singh Visharad, O.O.S.,
No. 4 of 1989, All. H.C. (India).
150. THE BABRI MASJID Q UESTION , supra note 38, at 331–33; Krishna
Pokharel & Paul Beckett, Ayodhya, the Battle for India’s Soul: Chapter Four,
WALL ST. J. (Dec. 6, 2012),
http://blogs.wsj.com/indiarealtime/2012/12/06/ayodhya-the-battle-for-indias-soul-
chapter-four/; Mark Tully, Ayodhya Showed that Mixing Religion and Politics is
Playing with Fire, INDIA TODAY (Dec. 17, 2012),
http://indiatoday.intoday.in/story/mark-tully-ayodhya-babri-masjiddemolition/1/23
6638.html.
151. Uttar Pradesh State Gov’t Notification No. 3814/XLI-33-86, dated Oct. 7,
1991, reprinted in THE BABRI MASJID QUESTION, supra note 38, at 334–36.
152. Mohd. Hashim v. State of Uttar Pradesh, Order on Writ Petition 3540
(M/B) of 1991, reprinted in THE BABRI MASJID QUESTION, supra note 38, at 337.
153. Id. (the notification said the purpose of the acquisition was for developing
tourism and providing amenities to pilgrims).
154. In a separate writ filed by the Sakshi Gopal Temple ensuring that the
acquisition would not affect the religious character of the site, the court held that the
acquisition would be subject to the caveat that the deity in the temple would be
preserved and that no permanent structure would be constructed at the site. Shakshi
Gopal v. State of Uttar Pradesh, Writ Petition No. 3579 (HB) of 1991, reprinted in
THE BABRI MASJID QUESTION, supra note 38, at 344.
Right organized a religious prayer ceremony that was to mark the
symbolic construction of the temple. 155 The destruction of the mosque
was partly facilitated by the history of the legal dispute that preceded
it, where the courts invariably decided in favour of the Hindu parties,
together with the ideological zeal of the Hindu Right, which
remained determined to establish the site as integral to the Hindu
faith and identity.
As discussed earlier, the government subsequently issued an
ordinance to acquire the disputed site and adjacent lands following
the destruction of the mosque, and a constitutional challenge to the
act was dismissed. The Court however invalidated section 4(3),
which provided for the abatement of all pending suits and legal
proceedings pertaining to the disputed structure.156 In light of this
decision, in 1995, a three-judge bench of the Allahabad High Court
re-commenced proceedings to hear the arguments in the dispute and
delivered its decision on September 30, 2010.
B. The Judicial Holdings
On September 30, 2010, the decision in the Ayodhya land-
holding case was delivered by a three-member bench of the
Allahabad High Court, located in India’s western state of Uttar
Pradesh, amidst tight security.157 The three judges included: Justice
Khan, a Muslim; Justice Agarwal, who delivered the majority
opinion; and Justice Sharma, who was the dissenting judge in the
case. The decision ran into a staggering 8,189 pages, the longest
being 5,238 pages and delivered by Justice Agarwal. While there was
no outbreak of public violence after the decision was pronounced,
appeals were filed by all sides in the Supreme Court, reflecting
considerable dissatisfaction over the ruling.
On the specific issue of the right to freedom of religion, the
“Muslim” parties did not advance any arguments based on the
freedom of religion clauses. And Justice Khan was the only one of
the three judges who did not address the arguments made in
relation to

155. Id. at 254. Dilip Awasthi, Babri Masjid Demolition - 1992: A Look at the
Countdown to Disaster, INDIA TODAY (Dec. 5, 2011),
http://indiatoday.intoday.in/st ory/babri-masjid-demolition-1992-ayodhya-
shame/1/162900.html.
156. Ismail Faruqui v. Union of India, (1994) 6 S.C.C. 360, 383 (India).
157. Several companies of the Central Security Paramilitary forces as well as
the police were deployed across the state and through different parts of the country,
and special security was provided to the three judges who rendered the decision in
the title disputes. Tight Security Across the Country amid Appeals for Peace,
HINDU (Sept. 30, 2010), http://www.thehindu.com/news/national/tight-security-
across-the-country-amid-appeals-for-peace/article804415.ece.
342 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

Articles 25 and 26, but focused exclusively on the issue of title. 158
Justice Khan held that neither party was able to demonstrate
exclusive title to the disputed property.159 The available evidence
indicated that by the middle of the eighteenth century there existed a
mosque at the site and that by the middle of the nineteenth century
Hindus were claiming that this site was the birthplace of Ram. 160
Since 1855, both parties appeared to be in joint possession of the
site.161 Justice Khan decided to divide the disputed property into three
equal parts: one part was awarded to the Muslim parties; one part was
given to the Hindu Idols, with the caveat that their part should
include the land under the central dome; and one part was handed
over to the Nirmohi Akhara with the caveat that their part should
include the outer courtyard.162 Justice Khan based his decision on the
issue of title and possession, rather than on considerations of the right
to freedom of religion, although he recognised the significance of the
site for Hindus.163
Justice Khan’s decision to divide the property into three parts is
curious and there is no real explanation for altering the situation from
1949 when the property was divided into two nearly equal parts
between the Hindu and Muslim communities. In permitting the area
under the central dome to be given over to the idols, the judge’s
decision is contrary to the acknowledged fact that the idols had been
placed there illegally and only in 1949. Justice Khan’s decision
placed the onus on the Muslim community to make all the necessary
adjustments in relation to the dispute.164
Justice Agarwal accepted that there was a non-Islamic, ancient
structure that stood where the mosque once stood.165 While the earlier

158. Ayodhya, (2010) All. H.C. at 250–55 (Khan, J.) (addressing the issue of
title); id. at 4997–98, 5043–44 (Agarwal, J.) (discussing protections under Articles
25 and 26); id. at 166 (Sharma, J.) (noting the differences in protection provided by
Articles 25 and 26).
159. Id. at 255, 283 (Khan, J.).
160. Id. at 206, 281, 283.
161. Id. at 250, 260.
162. Id. at 275–76, 284–85.
163. Id. at 243–44, 250–56.
164. See id. at 279–80 (“Indian Muslims … are therefore in the best position to
tell the world the correct position. Let them start with their role in the resolution of
the conflict at hand.”).
165. Id. at 4414–15 (Agarwal, J., Vol. 18); see also ALIGARH HISTORIANS
SOCIETY, HISTORY AND THE JUDGEMENT OF THE ALLAHABAD HIGH COURT,
(LUCKNOW BENCH) IN THE RAMJANMABHUMI–BABRI MASJID CASE iii–iv (2010)
structure appeared to be a Hindu religious place, the ruins could also
be evidence of other non-Islamic traditions or practices.166 He also
accepted that there was evidence of persistent practice as well as a
strong belief on the part of Hindus that the disputed spot, particularly
the spot under the central dome, was the birthplace of Ram. 167 This
faith was borne out by ancient literature that Justice Agarwal stated
168
should be “accepted on its face without any ‘tinkering.’” He thus
implied that such persistent practice and faith was enough to deify the
place and give it a juridical personality.
Justice Agarwal addressed the issue of whether a deity has a
right to file a suit, a right that was contingent on whether the idol had
been properly consecrated and hence acquired a juristic personality.
The Judge observed that a determination whether the idol had been
properly consecrated could only be made according to the doctrine
and belief of the respective religious denomination.169 In considering
this issue, Justice Agarwal involved himself in the construction of
Hindu tradition and belief. The Hindu parties contended that the
entire site would be regarded as a temple and have a juristic
personality.170 During the course of the proceedings, Justice Agarwal
asked the Hindu parities whether the worship of rivers and hills by
Hindus, would render all such places juristic persons? 171 In response,
the defendants stated:
[I]t is the belief of the Hindu people that the fort of
King Dashrath situated at Ayodhya included the part
of the building wherein Lord Rama was born
according to Hindu belief and the disputed area
covered that house. It is believed that it is this place
which is so pious and sacred for Hindu people being
the birthplace of Lord Rama and, therefore, in this
particular case, it is not necessary to go into larger
question since it is not the claim of the Hindu parties
that the entire city of Ayodhya or the entire locality is
birthplace of Lord Rama. He was born at Ayodhya is a
well-known fact. In Ayodhya, it is the disputed place

(discussing Judge Agarwal’s judgment and how his reasoning and understandings
of the dispute are historically flawed).
166. Ayodhya, (2010) All. H.C. at 4414–15.
167. Id. at 4436.
168. Id. at 3502.
169. Id. at 2173.
170. Id. at 1807, 1831, 1975 (Agarwal, J., Vol. 8).
171. Id. at 1974–75.
 where the Lord of Lords was manifested in the form of
natural person and, therefore, it is believed to be the
birthplace of Lord Rama by Hindus for time
immemorial and they visit it to worship and Darshan.
This satisfy [sic] the requirement of a ‘deity.’ He
submits that ‘deity’ in the name of birthplace of Lord
Rama is a legal person considering the concept of
legal personality of Hindu deity…172
The Judge accepted this argument (while construing the spiritual
nature of Hinduism) and held that “[i]f the public goes for worship
considering that there is a divine presence and offer worship thereat
believing that they are likely to be the recipient of the bounty of God
then it satisfies the test of a temple. Installation of an idol or the mode
of worship are not the relevant and conclusive test.” 173 Justice
Agarwal also held that the deity was a perpetual minor and therefore
no claim of adverse possession could be made against the deity.174 For
the same reason the suit on behalf of the Lord Ram filed in 1989 was
not time-barred and a next of friend was entitled to represent the
deity.
Various Indian courts have recognised a temple deity as a legal
entity and that even a devotee or a regular worshipper can move the
court on behalf of the presiding deity. 175 Justice Agarwal’s holding
could have serious implications with regards to claims being made all
over India in relation to Islamic structures and historical monuments.
He also cited the right to freedom of religion and the view that the
right to worship at the birthplace of Ram constituted a core ingredient

172. Id. at 1975.

173. Id. at 1977.
174. Id. at 2031–33.
175. Id. at 2034. There have been several cases recognizing that all deities are
perpetual minors, not only child deities such as Lord Ram. As a result the courts
have held that no suit filed on their behalf can be treated as time-barred. Sri Adi
Visheshwara v. State of Uttar Pradesh, 1997 (4) S.C. 124 (where the Court ruled
that a deity could move the court and that the properties of endowment vested in
the deity). Several scholars have disputed the equation of idols with minors. See,
e.g., Gautam Patel, Idols in Law, ECO. & POL. WKLY 49 (2010); Debaashish
Bhattacharya, God of Small Things, THE TELEGRAPH (Nov. 7, 2010),
http://www.telegraphindia.com/1101107/jsp/7days/story_13147783.jsp; J.
Venkatesan, Suits on Behalf of Deities Can’t be Treated as Time-Barred, HINDU
(Oct. 3, 2010), http://www.thehindu.com/todays-paper/tp-national/suits-on-behalf-
of-deities-cant-be-treated-as-timebarred/article810107.ece.
of the Hindu faith.176 To allow a claim of adverse possession would
extinguish a core feature of the religion and hence the religion itself,
and would be contrary to the fundamental right of freedom of religion
protected under articles 25 and 26 of the Constitution. He further
stated that while the state could acquire any property that belonged to
a particular religious group for public purpose, it was refrained from
doing so if the property was of “special significance” to the
community.177 Such state intervention would violate Article 26 that
protected the essential features of a religion. Justice Agarwal thus
held that, “Undoubtedly, Asthan Ram Janma Bhumi . . . belongs to
this very category of Deity – Class entirely by itself; hence the State
cannot acquire either the Deity or its property.”178
Justice Agarwal also held that the statute of limitation, which
bars a suit from being filed after a specific period of time has passed
(usually three years from the date of the initial wrong or violation),
would not apply in this case as it would violate the fundamental
rights of the Hindus to worship at the site.179 Justice Agarwal stated:
It is a deity, which has filed the present suit for
enforcement of its rights. The religious endowment in
the case in hand so far as Hindus are concerned, as
they have pleaded in general, is a place of a peculiar
and unique significance for them and there cannot be
any other place like this. In case this place is allowed
to extinguish/extinct [sic] by application of a provision
of statutes, may be of limitation or otherwise, the
fundamental right of practicing religion shall stand
denied to the Hindus permanently since the very
endowment or the place of religion will disappear for
all times to come and this kind of place cannot be
created elsewhere.180
Justice Agarwal further stated that a similar argument could have
been available to the Muslim parties had they been able to show that
that the mosque was of special significance to them:
In fact this reason could have been available to the
plaintiffs (Suit-4) also had it been shown by them that
the mosque in question for them was a place of special

176. Ayodhya, (2010) All. H.C. at 2617 (Agarwal, J..Vol. 12).

177. Id. at 2551–2552 (Vol. 11), 2615–17 (Vol. 12).
178. Id. at 2552 (Vol. 11).
179. Id. at 2611–15.
180. Id. at 2615.
 significance but this has already been observed by the
Apex Court in respect to this particular mosque that
like others it is one of the several mosques and by
acquisition of the place it will not have the effect of
depriving such fundamental right of Muslims. It is
always open to them to offer prayer at any other place
like they could have done here but Hindus are not
placed on similar footing. According to Hindus, this is
a place of birth of lord Rama and that be so, there
cannot be any other place for which such belief
persists since time immemorial. Once this land is
allowed to be lost due to the acts of persons other than
Hindus, the very right of this section of people, as
protected by Article 25, shall stand destroyed.181
Referring to the Supreme Court decision in Ismail Faruqui
discussed earlier in this article, Justice Agarwal further stated:
A mosque is not an essential part of the practice of the
religion of Islam and namaz (prayer) by Muslims can
be offered anywhere even in open. . . . [U]nless the
right to worship at a particular place is itself an
integral part of that right, i.e., the place is of a
particular significance, its alienability cannot be
doubted.182
Implicit in Justice Agarwal’s reasoning is that the offering of
namaz by Muslims is not as significant to their religion as is worship
at the birthplace of Ram for Hindus. The holding suggests that the
individual right to worship is an inferior right to the Hindu’s
collective right to worship at the site where god was ostensibly born.
The decision suggests that the Muslim’s individual right to worship is
an inferior right to the Hindu’s collective right to worship at the site
where god was ostensibly born. Justice Agarwal’s reasoning reflects
that what is at stake is nothing less than the epistemological basis and
competing truth claims of different religious traditions.
Justice Agarwal proceeded to articulate how the fundamental
right to freedom of religion gets established and protected. He stated
that:

181. Id. at 2617.

182. Id. at 4412 (Agarwal, J., Vol. 18).
 It may be noticed at this stage the scope of judicial
review about what constitute religious belief or what
[are] essential religious practices or what rites and
ceremonies are essential according to the tenets of a
particular religion. It is not the subject to the belief or
faith of a judge but once it is found that a belief, faith,
rite or ceremony is genuinely and consciously treated
to be part of the profession or practice of a religion by
the segment of people of distinct group, believing in
that particular religion, suffice it to constitute
‘religion’ within the term of Article 25 of the
Constitution whereunder the persons of the said
segment have a fundamental right to practice their
religion without any interruption from the State. This
right is subject only to public order, morality and
health and to the other provisions of Part III of the
Constitution as well as the power of the State to make
laws in respect to the matter provided in Article 25(2)
of the Constitution. This right is conferred to the
persons professing, practising and propagating the
concerned religion.183
He further added:
[O]nce such belief gets concentrated to a particular
point, and in totality of the facts, we also find no
reason otherwise, it partakes the nature of an essential
part of religion particularly when it relates to a matter
which is of peculiar significance to a religion. It,
therefore, stands on a different footing. Such an
essential part of religion is constitutionally protected
under Article 25.184
Having held that the Hindu parties had established their
fundamental right to worship at the site on the grounds that it was an
essential feature of their faith, Justice Agarwal addressed the other
arguments of the Muslim parties. He proceeded to hold that the
Muslim parties had not proved that Babur had title over the land nor
had they successfully challenged the argument that the construction
of the mosque failed to adhere to the principles of Islam. Hence, he
declared that the structure was not a legitimate mosque and that it
was non-existent. He held that the area under the dome had to be

183. Id. at 1036–37 (Agarwal, J., Vol. 5).

184. Id. at 4997–98 (Agarwal, J., Vol. 20).
given to the idols, the inner courtyard to be shared between Hindus
and Muslims and the outer courtyard to be shared between the idols
and Nirmohi Akhara.185 However, he also stated that the Muslim
parties should be given at least a third of what the other parties were
being given, and requested the government to ensure land was made
available for such a purpose.186 This last move was more of an act of
Solomonic justice, rather than based on the facts and legal questions
raised in relation to possession and title.187
In his dissenting opinion set out in 2,666 pages, Justice Sharma
held that the disputed site had long been believed to be the birthplace
of the “Lord of the Universe”—Shri Ram.188 He explicitly treats the
dispute as not between private parties but between religious
communities, stating that “the present suit is a representative suit and
plaintiffs are representing the interest of Muslims and defendants
have been arrayed representing the interest of Hindus.”189 He further
stated that the “the dominant issue in the present dispute pertains to
the legal adjudication of matters relating to the Hindu faith.” 190 In this
regard, he noted, approvingly quoting from B.K. Mukherji’s The
Hindu Law of Religious and Charitable Trusts, that the Court was
obliged to “act upon the belief of the members of the community
concerned, and unless these beliefs are per se immoral or opposed to
public policy, it cannot exclude those who profess any lawful creed
from the benefit of charitable gifts...”191 Justice Sharma also placed
considerable reliance on the historical documentation. In this regard,
he pointed out that the Court had decided to take the assistance of
archeological “science,” since according to him, archeology would
deliver accurate answers to the dispute.192 On the basis of the

185. Id. at 5077.

186. Id. at 5077–78.
187. Implicit in Justice Agarwal position is that while the disputed site was
sacred to Hindus and that worship there was an essential practice of the Hindu
faith, the Muslims should not feel that they were being deprived of all rights. Given
that a mosque had been destroyed, some level of compensation needed to be
provided to the Muslim groups to assuage the sense of injustice they were
experiencing, but it would not be at the cost of the Hindu right to worship precisely
at the spot where the mosque once stood.
188. Id. at 192 (Sharma, J., Vol. 1).
189. Id. at 206. Notably, the Muslims did not contest this position.
190. Id. at 28 (Vol. 4).
191. Id. at 29–30.
192. Id. at 28. (“It is not a matter of dispute now that in the modern age
Archaeological Science has achieved the great accuracy. Thus with the assistance
Archaeological Survey of India report that there existed a temple
before the mosque and parts of the temple were used in the
construction of the mosque, Justice Sharma concluded that a Ram
Janambhoomi temple was destroyed in order to construct the
mosque.193 Relying on excerpts from the report and statements made
by the various officials working under the ASI, Justice Sharma,
showed how the various artifacts discovered during the ASI
excavation of the site, left “no doubt” that the structure was a
temple.194 He treated the report and statements of ASI officials as
expert evidence and also held that there was no evidence that the
report was biased, but was “scientific.” 195
Based on his broad reading of Article 25, and tenets of Hindu
faith, Justice Sharma held that:
[E]ach and every thing connected with the Lord of
Universe is of great value to the Hindus and extinction
of the most holiest shrine Sri Ramajanamsthan will
deprive the Hindus from acquiring unparallel merit
and salvation which can be obtained only by visiting
the said sacred shrine and performing customary ritual
there.196
...
[A]s the Suit premises is the Birth Place of the Lord of
Universe Sri Rama and his invisible power is present
in the said Sthandil [sic. a piece of open ground] the
Hindus have superior fundamental right to worship at
that sacred place according to injunctions of their
Sacred Scriptures in comparison to the fundamental

of Archaeological Science, one can answer up to the considerable degree of

certainty about various past activities of people for which material evidence is
available.”).
193. Id. at 160–61.
194. Id. at 80.
195. Id. at 94 (“The main thrust of the plaintiffs is that there was a structure
which was not a Hindu religious structure is not believable for the reasons that
certain images were found on the spot were there. Hundreds of artifacts which find
mention in the report were recovered during the excavation that denote the
existence of Hindu religious structure.”); Id. at 96 (“The Court is taking full care
and issued specific directions to maintain transparency. . . . The excavation was
conducted in presence of the parties, lawyers and their nominees. Thus, no body
can raise a finger about the propriety of the report on the ground of bias. There is
nothing on record to suggest that the scientific report is incorrect.”).
196. Id. at 203 (Sharma, J., Vol. 4). .
350 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

right of the Muslims to offer their prayer at that place

which in not integral part of Muslim religion.197
Finding that there was adequate proof the disputed area was the
birthplace of Ram, and as the birthplace of Ram itself was a deity for
purposes of holding property, Justice Sharma held that the property
belonged to the deity itself. 198 Like Justice Agarwal, he also found
that for the purposes of limitation a deity was a perpetual minor and
thus its land could never be taken away by adverse possession. 199
Therefore, the title of the land never passed either by conquest or by
adverse possession.
Perhaps most importantly, Justice Sharma held that to dispossess
Hindus from the land would be to extinguish a core ingredient of the
Hindu religion, which is the birthplace of Ram. He states, “Lord Ram
as the Avatar (Reincarnation) of Vishnu, having been born at
Ayodhya at the Janmasthan is admittedly the core part of Hindu belief
and faith which is in existence and practiced for the law thousands of
years.”200 In his decision, Justice Sharma adopts an expansive
definition of religion, which is not in his view only confined to
opinion, doctrine or belief, but also includes religious practices.201 As
the Constitution did not set out a definition of religion, it included
any act “in pursuance of religious belief as part of religion.” 202 He
added that no secular authority of the State could restrict or prohibit
such essential practices or extinguish the same through a suit or by
transfer to another party. 203 In the process of declaring that the right
to worship at the disputed site was a core ingredient of the Hindu
faith, Justice Sharma essentialized and ossified the Hindu tradition
against any notions of plurality, diversity or fluidity.
While the right to worship is an important component of
freedom of religion, both Justice Agarwal and Justice Sharma held
that the right to worship on the exact spot where god was born was a
core or essential ingredient of the Hindu faith and part of the

197. Id. at 215.

198. Id. at 182.
199. Id. at 167; Id. at 2031–33 (Agarwal, J.) (determining that the a deity is a
perpetual minor for purposes of adverse possession).
200. Id. at 121.
201. Id. at 126 (“Religious practices are as much part of religion as faith or
belief in actual doctrine.”).
202. Id. at 128.
203. Id. at 128–29.
 collective belief of the community.204 In the process they not only
rejected the plurality of tradition within the Hindu faith, they centred
one particular position. Hindus and scholars alike have contested the
position taken by the two judges, who considered worship at the site
a core ingredient.205 The fact that large tracts of Hindus do not
worship Ram nor even recognize him as a noted deity challenges the
claim that worship at his ostensible birthplace is a core ingredient of
the Hindu tradition.
While the Ayodhya decision has been stayed by the Supreme
Court on grounds that partition of the property was not a relief
claimed by any of the parties, the broader discursive struggle over the
meaning of freedom of religion and the Hindu Right’s pursuit of a
more robust understanding of this concept have implications for the
meaning of secularism in Indian Constitutional law well beyond the
decision.
III. THE RIGHT TO FREEDOM OF RELIGION: CONSTRUCTING HINDU
MAJORITARIANISM THROUGH SECULAR LAW
The meaning of secularism is structured by majoritarianism
whether it is based on the model of equal treatment of all religions or
state neutrality. Not only does religion remain present in both models,
the unstated norms of the dominant religion also remain present.
Scholars have demonstrated how state neutrality has served to
reinforce majority practices and the power of the majority to define
the norms.206 State neutrality does not readily acknowledge the

204. Both judges relied on the Supreme Court’s decision in Ismail Faruqui v.
Union of India, (1994) 6 S.C.C. 360, 417 (“While offer of prayer or worship is a
religious practice, its offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice unless the place
has a particular significance for that religion so as to form an essential or integral
part thereof.”). Ayodhya, (2010) All. H.C. 161, 164 (Sharma, J.); id. at 2551–52
(Agarwal, J.).
205. See Kumkum Roy, Issues of Faith, ECON. & POL. WKLY., DEC. 11,
2010, at 53 (2010) (who argues that the court ignored the polytheisim in Hindu
religion and de-recognized the diversity of faith. She posits a critical question as to
whether the recognition of a personal god is intrinsic to secularism); see also
Nivedita Menon, The Ayodhya Judgement: What Next?, ECO. & POL. WKLY., July
30, 2011 at 81, 86–87 (2011). At the same time, some progressive scholars have
also argued that the case opens the possibility of recognizing the importance of
faith in individual human life. See Lata Mani, Where Angels Fear to Tread: The
Ayodhya Verdict, ECO. & POL. WKLY., Oct. 16, 2010, at 10, 11 (2010); Ashish
Nandy, The Judges Have Been Injudicious Enough to Create a Space for
Compassion and Human Sentiments, TEHELKA, Nov. 6, 2010, at 16.
206. Some scholars have unpacked the majoritarianism implicit in the
American model of secularism, which is ostensibly based on state neutrality.
352 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

presence of religion since its very premise is about the prohibition of

religion in politics. It is thus unable to resolve the problem of
majoritarianism.207
In contrast, the model based on equal treatment, though it is also
complicit in majoritarian politics, is better able to acknowledge the
presence of religion in politics. The extent to which this model has
been used to advance the cause of the Hindutva parties and the role of
the courts in enabling the advance of Hindu majoritarianism requires
serious consideration in light of the Ayodhya decision.208 In this
section, I elaborate on how the right to religious liberty has served as
a significant arena for the advance of Hindu majoritarianism. This
effort has been enacted partly through the Supreme Court in its
elaboration of the “essential practices of the religion” test and partly
through the aggressive engagement of the Hindu Right in fleshing out
the content and meaning of the right to freedom of religion.
A. Essential Practices Test
Freedom of religion by the Indian Supreme Court has been
addressed through the “essential practices of the religion” test
devised by it in order to allegedly protect the right to freedom of
religion. As I demonstrate, in applying this test, the Court has
continually engaged in determining the core of religious belief for a
given religious community. I argue that through the essential
practices test the Supreme Court has been actively involved in the
construction of the
religion that is to be recognized and in the process enacted a series of
erasures as well as a tended to homogenize religious categories.
In Shirur Mutt,209 the Supreme Court posed itself the question
“What is the line to be drawn between what are matters of religion
and what are not?”210 The idea that religion referred to ones

207. WINNIFRED SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM

154 (2005) (discussing the problems with legally enforced religious freedom
requirements in the U.S. context).
208. For a discussion of the dangers of majoritarianism that lie within this
vision of secularism, see Prakash Chandra, The Politics of Indian Secularism, 26
MODERN ASIAN STUD. 815, 830–37 (1992); Cossman & Kapur, supra note 22, at
160–62.
209. Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, (1954) S.C.R. 1005 (India).
210. Id. at 1022–23 (sanctioning, for the first time, the elaborate regulatory
regime for Hindu temples and maths, while also widening the definition of religion
to include rituals and practices).
relationship to god or a higher being was rejected in light of the fact
that some religions such as Jainism and Buddhism do not have a
belief in a higher god.211 The Court collapsed the distinction between
belief and practice.212 While it recognized that religion had its basis
in a system of beliefs or doctrines, it was also more than this
system.213 The Court stated that, “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.” 214 The Supreme Court rejected
the idea that the mere assertion that a practice was part of a religious
belief would be sufficient to warrant constitutional protection. 215
Instead, the Court formulated the “essential practices test,” whereby a
policy or law could only be struck down if it could be demonstrated
that it violated one of the essential practices of a religious faith,
which was to be ascertained by the doctrines of that religion itself. 216
No outside authority had the right to say what was or was not an
essential practice.217
While initially, in the 1950s there was some indication that
essentiality would be tested on the basis of a community’s own
beliefs and popular practices, over time the courts have taken on the

211. Id. at 1023. The same is true of a number of philosophical positions in

India such as the Advaita tradition or notion of non-duality.
212. Id. at 1025.
213. Id. at 1023–24.
214. Id. at 1024.
215. Id. at 1028–29.
216. Id. As discussed earlier the doctrine of “essential practices” finds its
origins in the colonial period as a technique of governance over the native
population. See SEN, supra note 7. The process of codification and rationalization
begins with Warren Hastings, the first governor general of India, in 1772, and the
translation of all Sanskrit and Persian texts into English. See generally NATHANIEL
BRASSEY HALHED, A CODE OF GENTOO LAWS OR ORDINATIONS OF THE
PUNDITS (1776); S.N. MUKHERJEE, SIR WILLIAM JONES: STUDY IN EIGHTEENTH
CENTURY BRITISH ATTITUDES TO INDIA (1968) (on the work of the Orientalist
William Jones and his codification of Muslim and Hindu law).
217. Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, (1954) S.C.R. 1005,1025 (India).
This test was reiterated in Ratilal Panachand Gandhi v. State of Bombay, (1954)
S.C.R. 1055, 1065 (India), and Shastri Yagnapurushdasji v. Muldas Bhudardas
Vaishya, (1966) 3 S.C.R. 264 (India). See Marc Galanter, Hinduism, Secularism
and the Indian Judiciary 21(4) S YMPOSIUM ON LAW AND MORALITY 467-487
(1971) (analyzing the reformist approach adopted by Justic Gajendragadkar in this
decision) This line of cases was relied upon by Agarwal J. and Sharma J. in the
Ayodhya dispute in declaring worship at the site an essential or core ingredient of
the Hindu faith.
task themselves. The essential practices test was elaborated upon in
the decisions of Justice Gajendragadkar, who became its primary
architect.218 In the case of Durgah Committee, Ajmer v. Syed Hussain
Ali,219 Justice Gajendragadhkar stated that the test excluded those
practices, which “though religious may have sprung from merely
superstitious beliefs and may in that sense be extraneous and
unessential accretions to religion itself.”220 The Justice stated that in
order for a practice to be regarded as a part of a religion it had to be
regarded by that religion as essential and integral to its faith. With
these words the Court established itself as the gatekeeper of religion
and would take upon itself the role of determining what was “real”
religion as distinct from mere superstition.221
The cases discussed above demonstrate the unwillingness on the
part of the Supreme Court to accept the mere assertion of the
significance of a particular practice by a group or individual, thus
placing the judges at the centre of determining what constitutes
religion. The cases also illustrate the ways in which religion
continues to be remade by the Court and over time have taken what
Ronojoy Sen describes as a textual turn.222 As Sen argues, this textual

218. See SEN , supra note 7, at 28 (stating that he “whittle[d] the protection
of essential practices to those that the court would deem suitable”).
219. (1962) 1 S.C.R. 383 (India).
220. Id. at 412.
221. Judge Gajendragadkar further reinforced this process of “rationalizing”
religion in Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Others,
(1964) 1 S.C.R. 561, 622–23 (India). See also Mohammad Hanif Quraishi v. State
of Bihar, A.I.R. 1958 S.C. 731 (where the Court dismissed a claim by Muslims
who argued that a law prohibiting cow slaughter violated their right to freedom of
religion as Muslims were compelled by their religion to sacrifice cow at Bakr-Id, a
religious festival, was not an essential practice for Muslims). A later Supreme
Court decision followed this move. D.A.V. College, Bhatinda v. State of Punjab,
A.I.R. 1971 S.C. 1731 (rejecting the argument that the Arya Samaj is a separate
religion, a status that they sought in order to claim the autonomy that is granted to
religious minorities in respect of establishing and administering their own
educational institutions).
222. See SEN, supra note 7, at 49–50. This turn becomes evident in a case by a
woman who claimed to have the right to have worship conducted in perpetuity at
the Samadhi (a place where realization and state of consciousness free from the
creation is attained) of her late husband. While the case did not involve an
interpretation of the freedom of religion clauses, the Court took on the role of
determining whether or not such a practice was an essential practice of the Hindu
faith. It held that only practices that had a basis in the shastras or sacred texts would
be allowed. The recognition of a ground for the perpetual dedication of the
claimant’s husband for the purpose of acquiring religious merit was not such a
turn was similar to the move by colonial judges to ascertain the
validity of religious practices.223
This feature of modern states and laws making scripture the
linchpin for their definition of what is or is not a religion is a
longstanding characteristic of liberal secularism. Hinduism does not
have a central scripture, and hence this modern construction of
Hinduism as text based is dramatic in the shift that it stages. The
tension is explicitly demonstrated in the Satsangi case involving the
regulation of entry into a temple. The petitioners challenged
legislation that was enacted in Bombay in 1947 which was directed at
ensuring that Hindu temples were opened to individuals of all
castes.224 They claimed that as they were not Hindus the act did not
apply to them. The Court held that the Satsangis were in fact
Hindus.225 In coming to this determination, the bench was compelled
to consider who was a Hindu. It declared that the teachings of the
Satsangis were identical to Hinduism and also that its leader was
simply one of many reformers of Hinduism. 226 The petitioners tried
to distinguish themselves by stating that they initiated women and
also permitted Muslims and Parsis to become full members of the
sect without forcing them to forsake their own religion. They also
argued that the founder of the sect was worshipped as a god in the
temple. The decision written by Justice Gajendragadkar held that all
of these arguments were consistent with Hinduism and its basic claim

practice. Saraswathi Ammal v. Rajagopal Ammal, (1954) S.C.R. 277, 288 (India);
see also Sri Venkataramana Devaru v. State of Mysore, (1958) S.C.R. 895 (India)
(validating a state law allowing Harijans (untouchables) unrestricted access to enter
a temple that was founded by upper cast Brahmins, despite the right to determine
who can enter temples, conduct the worship and how to conduct the worship being
matters of religion, because Article 25 (2)(b), which deals with the State’s right to
open public temples to all Hindus, took precedence over Article 26).
223. For a discussion of the academic debates on this issue, see generally
Bloch, supra note 4.
224. See Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya, (1966) 3
S.C.R. 242, 264 (India). In India, a category of people described as untouchables
(Harijans or dalits) who were considered to be unclean, and excluded from access
to common public spaces including temples. These castes were relegated to low-
status jobs and experienced restricted social mobility on the grounds that they were
regarded as untouchable. British colonial rule strengthened this caste based politics
as a measure by which to consolidate their political power over the native subject.
In post-independent India, the practice of untouchability was banned under Article
17 of the Constitution and the community has mobilized and become a significant
political force in mainstream politics, though they still suffer the effects historic
and systemic disadvantage.
225. Id. at 271.
226. Id. at 271–74.
to being tolerant and accommodating. The Judge referred to the Gita
as a central Hindu text to substantiate the idea that the worship of
other deities was not proscribed by Hinduism and in the process also
cast Hinduism as accommodating and progressive.227 On the basis of
this reasoning any discrimination or socially regressive practice could
be cast as a misunderstanding of the “true” faith and teachings.228
Relying on a text-based approach, the courts have continued to
set out the distinction between the true religious experience as
opposed to rituals and symbols.229 In the case of Hindus, this
approach is directly connected to the way in which Hinduism was
articulated by reformists in the nineteenth and twentieth centuries
through an anti-colonial nationalist lens.230 Hinduism does not have a
single foundational scripture, yet as many historians of modern
religion have noted Hinduism during the colonial period came to
acquire a form modeled on the Abrahamic religions, Christianity in
particular. Lata Mani has argued that statist projects directed at
regulating religion since the colonial period have tended to
essentialize religious claims. In her work on the regulation of sati, the
practice whereby a widow would immolate herself on her husband’s
funeral pyre, under colonial rule, she shows how the British, as much
as the Indian nationalist (primarily Bengali) elite, reified “scripture”
as the primal source of religion thereby homogenizing and
essentializing the polivocality of the tradition. 231 As a result sati came
to be equated with Indian culture and ideal Indian womanhood that
was disconnected from the reality of its actual practice. Similarly,
Mrinalini Sinha’s work illustrates how the contest over the scriptural
basis of a tradition was central to the legal reform of women’s

227. The Court was unable to resolve the tension raised in Sri Venkataramana
Devaru, which involved a similar issue, where in upholding the constitutional
validity of the Act, the Court acknowledged that the Act may be violating the right
to religious freedom. (1958) S.C.R. 895, 920–21 (India).
228. Id. See also Seshammal v. State of Tamil Nadu, (1972) 3 S.C.R. 815,
833–34 (India) (referring to scriptural authority to justify upholding a state act
abolishing hereditary appointments of temple priests, according to which the mode
of appointment of a priest was a secular and not a religious function and thereby
could be regulated).
229. See Shri A.S. Narayana Deekshitulu v. State of Andhra Pradesh and
Others, (1996) A.I.R. 1765 (India) (identifying the rituals involved in an
appointment process as not being an essential part of religion or religious practice).
230. See, e.g., King, supra note 4, at 177–79.
231. See LATA MANI, CONTENTIOUS TRADITIONS: THE DEBATE ON SATI IN
COLONIAL INDIA 25–26 (1998).
rights.232 The nineteenth century colonial encounter came to inform
the ways in which the Hindu religion has come to be understood and
taken up in the postcolonial present in law.
In the contemporary moment, core religious practices have come
to be identified in Supreme Court decisions as based on foundational
documents and the construction of a common Hindu belief and
culture. While the earlier cases tended to offer a wider understanding
of religion as including rituals and superstitious practices, the
Supreme Court gradually whittled down the scope of what constitutes
religion by introducing a requirement that the practice must have a
scriptural or textual basis.233 In the process a juridically constructed
“rational Hinduism” has come to define the parameters of legitimate
faith.234 In articulating a common Hindu culture and belief, the Court
has cast Hinduism in the same framework as Semitic traditions—that
is, as a monolithic religion based on foundational documents. 235 It is
also a position that ends up converging with the position of the Hindu
nationalists.236 The doctrine of essential practices is reflective of a
“secular rationality” that has emerged with the modern state and in
the process it has rearticulated religion and its content. In other
words, rather than being opposing ideologies or understood as
unalterable essential concepts, secularism and religion have both
been mutually constitutive.237

232. See generally MRINALINI SINHA, COLONIAL MASCULINITY: THE “MANLY

ENGLISHMAN” AND THE “EFFEMINATE BENGALI” IN THE LATE NINETEENTH
CENTURY 138–80 (1995).
233. See SEN, supra note 7, at 14–18.
234. Id. at 18–25.
235. In contrast to the endless efforts by the Supreme Court to construct an
essential or authentic faith, Balagangadhara argues that Hinduism is neither a
religion nor collection of religions, but a construction of Europeans and their
Christian theology, which compelled them to look for and see religion in India. It is
an entity that exists in the western experience of India and writings of scholars, and
tells us more about the west than about India and Indians. Balagangadhara thus
argues that the construction of Hinduism had little to do with the demands of
colonialism or the goals and motives of Indian/Hindu nationalists. See S.N.
BALAGANGADHARA , “THE HEATHEN IN HIS BLINDNESS ”: ASIA, THE WEST AND
THE D YNAMIC OF RELIGION 507 (2005). See also S. N. Balagangadhara & Jakob
De Roover, The Secular State and Religious Conflict: Liberal Neutrality and the
Indian Case of Pluralism, 15 J. POL. PHIL. 67, 83 (2007).
236. See SEN, supra note 7, at viii.
237. See Saba Mahmood, Religious Reason and Secular Affect: An
Incommensurable Divide? in IS CRITIQUE SECULAR? BLASPHEMY, INJURY, AND
FREE SPEECH 64 (Talal Asad et al., eds. 2009).
 There has been some dissent in the case law from the essential
practices test and how far the judiciary should be allowed to interfere
in and reform religion. In Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay,238 which was a challenge brought by the head of the
Dawoodi Bohra community to the Bombay Prevention of
Excommunication Act of 1949, the majority declared that Act was
unconstitutional as excommunication was a core ingredient of the
religion and central to the preservation of the community. 239 The
dissent by Justice Sinha focused on how the right to
excommunication affected the civil rights of the members of the
community and constituted the basis for upholding the
constitutionality of the Act on grounds of public welfare. 240 The
judgment crystallises the tension produced by the essential practices
test and the difficulty in separating “pure” religion from the secular
sphere, a tension that has produced considerable legal controversy.
The resort to the texts or scriptures to resolve competing views
assumes that there is a central text and that a “right” answer can be
excavated from it.
Similar sorts of scriptural reification in the context of both Islam
and Christianity in the modern period have also been enacted and
such a turn appears to be a development that is internal to the
“secularization” of world religions. In relation to Muslims, the
Supreme Court restricted the protection of Article 25 to the Quran in
the few decisions that it has delivered, and over time tended to reject
practices that were not specifically stated in the Quran as not being
essential to Islam and therefore, not within the protective sphere of
Article 25.241 In the famous case of Shah Bano v. Union of India,
which involved the issue of the right to maintenance of a divorced
Muslim woman, the Court attempted to interpret the Quran to

238. (1962) 2 S.C.R. Supp. 496 (India).

239. Id. at 499.
240. Id. at 528 (Sinha, J., dissenting).
241. See, e.g., Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C. 556,
566–68 (stating that there is no greater authority for judging religious obligations
for Muslims than the Quran); Mohd. Quareshi v. State of Bihar, 1958 A.I.R. 731,
1959 S.C.R. 629 (where the constitutional validity of the law preventing cow
slaughter was challenged as violating the fundamental rights of Muslims under
Article 25 of the Constitution). The Muslim parties claimed that the sacrifice of a
cow on the occasion of Bakr-Id day was a significant custom. The Court found no
scriptural reference that made the sacrifice of a cow obligatory, either in the Quran
or other scriptural texts. While accepting that the practice was a custom, it was
optional, and not an essential practice as it had no scriptural basis. Id.
determine whether such a right was religiously prescribed. 242 In
coming to the conclusion that only a limited right existed, and that
the secular law would take effect at the point at which religious
personal law ceased to operate, the Court triggered a national
controversy and cries of “religion in danger” from the Muslim
minority community.243
Pratap Bhanu Mehta argues that the essentiality test serves
several functions.244 It enables the courts to decide whether a
particular practice is entitled to the Constitutional protections under
the freedom of religion clause.245 Such decisions have included
determinations on whether the setting up of a trust to provide milk to
cobras in a temple constitutes part of the Hindu religious tradition or
whether a particular dance form constitutes an essential practice of a
specific religion.246 At the same time, as Mehta argues, the test has
enabled the courts to claim that the public purposes of the state are
the most suitable expressions of the free exercise of a particular
religion, that is, if the essentials of a religion were properly
comprehended, then those practices deemed essential would in fact
justify the legitimate public purpose of the state.247 However, the
wide berth bestowed on the courts to determine and regulate the
meaning of religion has raised the question of the possibility of
religious freedom. While the test has been developed ostensibly to
narrow the gap between the right to religious liberty and what is
identified as a public purpose served by the state, there is an
arbitrariness built into the test that enables judges to discard practices
that are not proved to their satisfaction to be essential.248
The move by the Indian Supreme Court to formulate an
“essential ingredients test” that actually constitutes religion is part of a

242. Id. at 566–68.

243. Id. at 571; Nawaz B. Mody, The Press in India: The Shah Bano Judgment
and Its Aftermath, ASIAN SURV., Aug. 1987, at 935, 950 (1987).
244. Pratap Banu Mehta, Passion and Constraint: Courts and the Regulation
of Religious Meaning, in POLITICS AND ETHICS OF THE INDIAN CONSTITUTION
311, 323 (Rajeev Bhargava ed., 2008).
245. Id.
246. See Acharya Jagdishwaranand Avadhuta v. Comm’r of Police, Calcutta,
(1983) 1 S.C.R. 447, 463 (India) (finding that performing the andava dance in street
processions and public gatherings is not an essential rite observed by a spiritual
organization).
247. See Mehta, supra note 244, at 323.
248. See DERRETT, supra note 142, at 447 (“[T]he courts can discard as non-
essentials anything which is not proved to their satisfaction . . . to be essential, with
the result that it would have not constitutional protection.”).
360 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

larger development internal to secular modernity. The attempt by the

secular state to define “religion” in defence of freedom of religion is
a necessary and essential quality of almost all adjudications in this
area. The “essential practices” test finds expression in other
jurisdictions and is used to construct religion (and secularism)
through law. As Sullivan argues, when courts have to decide between
competing religious claims, they ultimately get involved in deciding
whether a particular religious claim is true to the tradition or not. 249
This means deciding what is properly religious. As a result the idea
of religious freedom becomes impossible to realize as the court is in
fact fabricating all religious traditions.250 The continuous adjudication
of what is true religion or not points to the way in which no form of
secularism is devoid of religion; that in fact all forms of secularism
regulate religion and in doing so, change its meaning, practice and
substance.
Examples of this practice are found in a number of cases decided
by the European Court of Human Rights at Strasbourg upholding the
ban on the wearing of the headscarf on the grounds that it is imposed
on individuals and incompatible with the democratic values of a
liberal state.251 As Peter Danchin points out, such holdings ignore the
fact that the veil has no singular or fixed meaning.252 Muslim girls
and women who wear the veil may do so for multiple and
contradictory reasons. To ascribe it with a single unitary meaning,
“says more about a particular liberal conception of religion” and
religious activity and its deep links with Christianity than about

249. SULLIVAN, supra note 207, at 147–48 (discussing the application of a

text-based standard for determining religious beliefs and how it excluded typical
American forms of religious conduct).
250. Id.
251. See, e.g., Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 449, 463 (finding
that “the measure prohibiting the applicant from wearing a headscarf while
teaching was ‘necessary in a democratic society’”); Refah Partisi v. Turkey, 37 Eur.
H.R. Rep. 1, 29 (2003) (agreeing with case law that a state in a democratic society
may limit the ability to wear a headscarf if doing so “clashes with the aim of
protecting the rights and freedom of others, public order and public safety”); Șahin
v. Turkey, 44 Eur. H.R. Rep. 99, 137 (2007); Dogru v. France, 49 Eur. H.R. Rep.
179, 197 (2008). See also Carolyn Evans, The ‘Islamic Scarf’ in the European
Court of Human Rights, 7 MELB . J. INT’L. L. 52, 65–71 (2006).
252. Peter G. Danchin, Suspect Symbols: Value Pluralism as a Theory of
Religious Freedom in International Law, 33 YALE J. INT’L L. 1, 9 (2008).
coercion or harm in Islamic religious practices. 253 What is distinct in
the Indian example is that its model of secularism explicitly
recognizes the importance of religion to the operation of state
governance and stands in stark contrast to the neutrality of the state
model.
B. Hindu Right and the Right to Freedom of Religion
The specific ways in which the Supreme Court has determined
the contours of faith in India also converges with the singular,
monotheistic, and institutionalized construction of Hinduism being
pursued by the Hindu Right. As discussed throughout this article, in
the contemporary moment, the Hindu Right has increasingly emerged
as a significant player in determining the contours and parameters of
the right to freedom of religion and in turn how Hinduism itself is to
be defined. Initially, surprisingly little emphasis was placed on the
right to freedom of religion in the Hindu Rights struggle to pursue its
understanding of Indian secularism. The BJP, the political wing of
the Hindu Right, refers to “liberty of faith” in its party constitution as
a basic objective, but the term is not synonymous with the Indian
constitutional guarantees of freedom of religion. 254 And this term is
used in three highly restricted and specific ways. Firstly, the idea of
“liberty of faith” or “freedom of worship” is cast in individualistic
terms: it is the individual’s right to pursue his or her own spiritual
path; it is not the collective rights of a religious community to any
form of self-determination.255 In fact, collective rights, such as the
right of religious and linguistic minorities guaranteed under Article
30 of the Constitution to set up and administer their own schools and
colleges using state subsidies and for the purpose of preserving their
community identity, have been challenged by the BJP as violating the
Constitutional principle of equality.256
A second move on the part of the Hindu Right parties is to bring
the right to freedom of religion under the rubric of Hinduism.
Hinduism alone is argued by the Hindu Right to provide the
toleration that is required for individuals to be able to pursue their
own faith or spiritual path. The Hindu Right’s argument that

253. Peter Danchin, Islam in the Secular Nomos of the European Court of
Human Rights, 32 MICH. J. INT’L LAW 663, 747 (2011).
254. BHARATIYA J ANATA PARTY , C ONSTITUTION AND RULES ART. II, (Sept.
2012), http://www.bjp.org/images/pdf_2012_h/constitution_eng_jan_10_2013.pdf.
255. Cossman & Kapur, supra note 22, at 149.
256. Id. See, e.g., BJP ELECTION MANIFESTO 1998, supra note 95, at 36
(“Amend Article 30 of the Constitution suitably to remove any scope of
discrimination against any religious community in matters of education.”).
362 MARYLAND JOURNAL OF INTERNATIONAL LAW [VOL. 29:305

Hinduism is the only truly tolerant tradition, as it does not proselytize

like other traditions, allows them to claim that only Hindus are truly
secular, given that tolerance is the basis of Indian secularism.257
A similar reasoning is used to advance a third and related
argument that the right to freedom of religion does not include the
right to propagate one’s religion. Rather, the propagation of religion,
specifically by Christians and Muslims, is cast as a violation of
toleration, as the inability of some religions to tolerate others. The
objection to the propagation of religion has found practical
expression in the enactment of anti-conversion laws in a number of
BJP-run states that are specifically directed at curtailing the
conversions.258 The sphere of freedom of religion for religious
minorities was thus radically curtailed within the discourse of the
Hindu Right. The movement retained just enough of the
constitutional guarantee to freedom of religion (construed narrowly
as the individual right to worship) to maintain its claim to secularism,
and to distinguish itself from religious fundamentalism.
In the Ayodhya case, the claims of the Hindu Right were based
on a more muscular and substantive notion of freedom of religion
than had previously been pursued. While the Hindu Right initially
paid little attention to the right to freedom of religion, preferring to
focus on the meaning of equality and tolerance, in the Ayodhya case
they began to argue that freedom of religion was to mean more than
an individual right to worship. While they continue to use the right to
freedom of religion to push back against the claims of religious
minorities for special treatment or accommodation of their religious
practices, they have simultaneously sought to assert a more robust
and substantive claim to freedom of religion in their own interests, a
position recognized most explicitly by Justice Agarwal in the

257. Cossman & Kapur, supra note 22, at 147–48.

258. Six states in India have now enacted anti-conversion laws, including one
that was ruled by the Congress Party. Goldie Osuri, Secular
Interventions/Hinduized Sovereignty: (Anti) Conversion and Religious Pluralism in
Jodhaa Akbar, 81 CULTURAL CRITIQUE 70, 78 n.15 (2012). These “Freedom of
Religion” laws that restrict the religious freedoms of religious minorities,
paradoxically claim to derive their validity from Article 25 of the Indian
Constitution. See generally GAURI VISWANATHAN, OUTSIDE THE FOLD:
CONVERSION, MODERNITY, AND BELIEF (1998); Laura Dudley Jenkins, Diversity
and the Constitution in India: What is Religious Freedom? 57 DRAKE L. REV. 913,
937 (2009); Laura Dudley Jenkins, Legal Limits on Religious Conversions in India,
71 LAW & CONTEMP. PROBS. 109, 123–24 (2008).
Ayodhya case. The Hindu parties have pursued a more substantive
notion of freedom of religion which recognizes that religious identity
is necessarily constituted in and through a broader community, that
is, it is a matter of the group’s collective survival: their right to
practice their religion collectively, including to worship in a place
that has deep reverence and meaning to the Hindu tradition. The
Muslim parties did not argue “essentiality” or core ingredients in the
Ayodhya case. They were more focused on title and possession, rather
than the right to worship, though providing evidence of worship was
used to try to establish title/adverse possession. In the Ayodhya case,
the right to freedom of religion played a much more significant role
in the arsenal of the Hindu Right than in the hands of the Muslims.
The argument by the Hindu parties represents a broader tension
between the individual and collective right to religious freedom that
is internal to the very secular conceptualization of religious liberty. It
is a tension that is a feature of religious freedom cases that define
religion, which is at work in different legal contexts. In other words,
what is once again evident is that the decision is not simply a case of
Indian peculiarity or exceptionalism, but is a feature of disputes
involving religious freedom across the Western and non-Western
divide. What is interesting in the Indian example is how the Hindu
Right has been moving between these two articulations to
simultaneously limit the right to freedom of religion for religious
minorities, while making more muscular claims to freedom of
religion for Hindus. Their argument that the majority community
needs religious freedom in order to protect its traditions is consistent
with the group formulation of religious freedom. This is an inversion
of the group conception of religious liberty propounded by the Indian
constitution in the 1950s as a means to protect minority traditions
from being destroyed through force or assimilation.
There is of course nothing extreme in this argument. To insist on
such a vision of freedom of religion is to do little more than insist on
the rights that are already recognised and articulated within the Indian
Constitution under Articles 25 and 26 and is consistent with secular
modernity. These constitutional guarantees contemplate both
individual and collective rights to freedom of religion that extend
well beyond the limited right to worship. But it is the Hindu Right
that uses the claim of collective rights in the Ayodhya case to
pushback against what it has perceived to be Muslim appeasement
and also to more aggressively pursue its claims by appealing to a
consolidated, homogenous, monotheistic and thoroughly modern
religious identity.
 CONCLUSION
The Hindu Right has pursued an understanding of the right to
freedom of religion that is consistent with its broader political project
to redefine the basic ingredients of secularism in majoritarian terms.
The inroads of the Hindu Rights have been primarily in relation to the
concepts of equality and toleration. They have emphasised a formal
approach to equality, and argued that any recognition of religious
differences—differences that require recognition in accordance with
the Constitutional requirement of freedom of religion—becomes a
violation of the Constitutional guarantee of equality. In a similar vein,
it is through their understanding of Hinduism as the only tolerant
religion that the right of religious minorities to profess and propagate
their “intolerant” religions is cast as a violation of freedom of
religion. The Hindu Right has effectively inverted the concept of
toleration to argue that the practices of the religious majority, in this
instance to worship at the spot where a god was born, is a core
ingredient of the Hindu faith and hence toleration must be extended
in the direction of
the majority, and not exclusively in favour of the religious minorities.
In the context of the Ayodhya case, we witness a strategic shift in the
Hindu Right’s approach to secularism. They focus on pursuing a
more robust understanding of group rights in and through the right to
freedom of religion than they had previously done.
In the Ayodhya decision, the Hindu Right’s mobilization of the
right to freedom of religion at one level appears to revitalize and
democratize secularism. It implies that the playing field for minorities
and majorities is equal. Yet the trouble with Ayodhya case is not one
of legal discourse alone. The problem is a broader political one in
which the Hindu Right has succeeded in capturing the popular
imagination. The fact that the discourse of Indian constitutionalism
and secularism can be co-opted by the Hindu Right has forced its
champions to critically examine the structural possibilities internal to
Indian secularism that can provide for this cooptation.
The Hindu Right has enacted some undemocratic and politically
dangerous encroachments on secularism and the right to freedom of
religion. To push back against these advances requires nothing short
of reversing the growing domination of freedom of religion as
defined in majoritarian terms and set out in this article. A re-
democratised revision of freedom of religion will need to break its
association with formal equality and religious toleration, both of
which disavow any recognition of religious/group difference.
 Freedom of religion needs to be seriously engaged with to expose
how secularism is serving to advance the project of anti-democratic
majoritarian politics. These politics are increasingly staking a claim
to define and determine the contours, features, and limits of the legal
and political management of religious difference through Indian law
and politics. There is a pressing need to re-appropriate the right to
freedom of religion to argue for a legal and political order that
defends the ways of life of Muslims and others who do not share the
Hindu Right’s majoritarian impulses.

View publication stats