Ruling on Rituals: Courts of Law and Religious Practices in Contemporary Hinduism

Abstract

Scholars have regularly pointed out that in secular states the involvement of courts in religious matters is commonplace. There are two main reasons for this. One is that in the modern state, "religion is, in part, constituted by means of law, but simultaneously as something that is constituted to stand at arm's length from the law" (Lambek 2013:1). 1 The second follows on from the first: as Jurinski (2004:3) remarks in the case of the USA, "the courts have become arbiters of what kinds of restrictions the government can impose on religious practice, and what role religion will play in public life." In fact, the courts seldom restrict themselves to being keepers of religious boundaries. As Sen (2007:6) observes, comparing India and the United States, "the line between interpretation of law and legislation often gets blurred in Supreme Court rulings. … This has meant that the Court … actively intervenes and shapes public discourse." 2 Indeed, as early as the 1970s, Marc Galanter clearly pointed out two possible ways in which the law may exercise its control over religion, which he called "the mode of limitation" and "the mode of intervention": By limitation I refer to the shaping of religion by promulgating public standards and by defining the field in which these secular public standards shall prevail, overruling conflicting assertions of religious authority. By intervention I refer to something beyond this-to an attempt to grasp the levers of religious authority and to reformulate the religious tradition from within, as it were (Galanter 1971:480). This paper sets out to contribute to the study of how Indian courts of law have a hand in shaping religion and more particularly Hinduism. While entirely in agreement with Galanter, my specific purpose is to suggest that various forms of "limitation" ensuing from the very fundamentals of Common law (applying to India) directly lead, on their own, to far-reaching "interventions" in religious traditions. 2 There is considerable scholarship on relationships between law and religion in India, which has followed various lines of enquiry. Authors have pointed out the legacy of Ruling on Rituals: Courts of Law and Religious Practices in Contemporary Hind...

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“…First, there is the distinction that post-colonial courts made between religion and superstition, influenced by nineteenth-century Hindu reformist movements such as the Brahmo Samaj and the Arya Samaj that wanted to 'purify' Hinduism of what they called 'evil practices'. Second, there is the distinction between the essential part of religionwhich enjoys constitutional protection and for which the principle of non-interference, in line with the 2015 constitution, has been reaffirmed -and the non-essential part, which extends to superstitious practices, which may be abrogated in the name of social progress (Tarabout 2018).…”

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