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² Galanter, Marc, “The Aborted Restoration of ‘Indigenous’ Law in India,” Comparative Studies in Society and History, 14:1 (1972), 53–70.CrossRefGoogle Scholar

³ Ibid., 66–67.

⁴ Renou, Louis, Introduction to Hinduism, Renou, , ed. (New York: Washington Square Press, 1963), 4.Google Scholar

⁵ The text of the two articles (Explanations omitted) reads as follows:

Article 25 (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Article 26 Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire moveable and immoveable property; and (d) to administer such property in accordance with law.

⁶ Mukherjea, B. K., The Hindu Law of Religious and Charitable Trusts, 5th ed. by Sen, A. C. (Calcutta: Eastern Law House, 1983),Google Scholar ch. 8. For a more analytical and comparative discussion of religion and the Constitution, see Smith, Donald E., India as a Secular State (Princeton: University Press, 1963), ch. 4.CrossRefGoogle Scholar

⁷ The development can be traced in detail in Mukherjea, Hindu Law, which amply cites early precedents. Derrett, J. Duncan M., Religion, Law and the State in India (London: Faber & Faber, 1968), 482–90,Google Scholar covers the main points; Derrett discusses British administration of Hindu law more broadly in ibid., ch. 9. He sees it as rather less static than Galanter, who crosses similar ground in “Displacement of Traditional Law,” 65–76. After Derrett and Galanter in particular, it is well known that the British Indian courts purported to apply “traditional” sastric law to Hindus, especially in personal law matters (including religious endowments). It is noteworthy then that in the first treatise on the topic, the continuity and legitimacy of the law of Hindu religious endowments could be asserted by proclaiming that “its roots can be traced back even to the Vedas.” Saraswati, Prannath, The Hindu Law of Endowments (Calcutta: Thacker, Spink, 1897), 8. As we shall see, the modern courts make much the same assertion.Google Scholar

⁸ See, e.g., Southwold, Martin, “Buddhism and the Definition of Religion,” Man. n.s., 13:3 (1978), 362–79.CrossRefGoogle Scholar

⁹ Shastri Yagnapurashdasji v. Muldas Bhundardas Vaishya, A.I.R. 1966 S.C. 1119. 1127–29.

¹⁰ A.I.R. 1954 S.C. 282; on this case, see also Derrett, , Religion, 494–96.Google Scholar

¹¹ A.I.R. 1954 S.C. 282, 290.

¹² A.I.R. 1961 S.C. 1402, 1415.

¹³ A.I.R. 1963 S.C. 1638.

¹⁴ Derrett, , Religion, 467, 481, 511–12.Google Scholar

¹⁵ Rao, B. Parameshwara, “Matters of Religion,” Journal of the Indian Law Institute, 5:4 (1963), 509–13.Google Scholar

¹⁶ Mukherjea, , Hindu law, 5th ed., 391.Google Scholar

¹⁷ Mukherjea, , Hindu law, 4th ed. by Gajendragadkar, P. B. (Calcutta: Eastern Law House, 1979), ch. 8.Google Scholar

¹⁸ Derrett, , Religion, 458.Google Scholar

¹⁹ Ibid., 480–81, 555–60; c.f. Mukherjea, , Hindu Law, 5th ed., 28–29.Google Scholar

²⁰ (1972) 3 S.C.R. 815. Since previous discussion has used this case name and citation, I retain it here; the same case is also reported as: H.H. Srimad P.E. Ramanuja Jeeyar Swami v. State of Tamil Nadu, A.I.R. 1972 S.C. 1586.

²¹ On the Agamas and temples, see Fuller, C. J., Servants of the Goddess: The Priests of a South Indian Temple (Cambridge: University Press, 1984),Google Scholar ch. 6, and references cited there, especially Brunner, Hélène, “Importance de la littérature Agamique pour l'étude des religions vivantes de l'lnde,” Indologica Taurinensia, 3–4 (1975–1976), 107–24.Google Scholar

²² (1972) 3 S.C.R. 815, 825.

²³ Ibid., 826.

²⁴ Fuller, , Servants, 158–60,Google Scholar chs. 5–6 passim; Presler, Franklin A., “The Legitimation of Religious Policy in Tamil Nadu,” in Religion and the Legitimation of Power in South Asia, Smith, Bardwell L., ed. (Leiden: Brill, 1978).Google Scholar

²⁵ Mutatis mutandis, the same norm equally applies to other religions, such as Islam. See, e.g., Mohd. Hanif Quareshi v. State of Bihar, A.I.R. 1958 S.C. 731; Durgah Committee, Ajmer v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402.

²⁶ A.I.R. 1958 S.C. 255.

²⁷ I.L.R. 31 (1908) Mad. 236.

²⁸ A.I.R. 1915 Mad. 363.

²⁹ A I R. 1958 S.C. 255, 266.

³⁰ A.I.R. 1973 Mad. 264; c.f. also discussion by Derrett, J. Duncan M., “Examples of Freedom of Religion in Modern India,” Contributions to Asian Studies, 10 (1977), 42–51, esp. 47–50.Google Scholar

³¹ Derrett, , Religion, 468.Google Scholar

³² For example, Filliozat, Pierre-Sylvain, “Le droit d'entrer dans les temples de Śiva au XI^e siécle,” Journal Asiatique, 263:1–2 (1975), 103–17.Google Scholar

³³ A.I.R. 1958 S.C. 731; on this case, see also Derrett, , Religion, 471–72.Google Scholar

³⁴ A.I.R. 1958 S.C. 731, 744–45; citation of Kane, P.V., History of Dharmasdstra (Poona:Bhandarkar Oriental Research Institute, 1941), II, 772–73.Google Scholar

³⁵ See, e.g., Brown, W. Norman, Man in the Universe (Berkeley: University of California Press, 1970), 58–67.Google Scholar

³⁶ Ibid. But see also the much more radical interpretation of Biardeau: that with the Brahmanical-renunciatory value of nonviolence is associated the “internalisation” of sacrifice as “mental,” so that sacrifice remains at the core of Hinduism, despite its apparent displacement in the post-Vedic age. Biardeau, Madeleine, “Le sacrifice dans l' Hindouisme,” in Biardeau, and Malamoud, Charles, Le sacrifice dans I' Inde ancienne (Paris: Presses Universitaires de France. 1976)Google Scholar; and L' Hindouisme: anthropologie d'une civilisation (Paris: Flammarion, 1981), 23–47.Google Scholar C.f. Heesterman, J. C., The Inner Conflict of Tradition (Chicago: University Press, 1985), esp. ch. 6, for whom the contradiction is a reality.Google Scholar

³⁷ AIR. 1966 S.C. 1119.

³⁸ Compares. Radhakrishnan, S., The Hindu View of Life (London: Unwin, 1971)Google Scholar; “Hinduism,” in A Cultural History of India, Basham, A. L., ed. (Oxford: Clarendon Press, 1975)Google Scholar; “Hinduism and the West,” in Modern India and the West, O' Malley, L. S. S., ed. (London: Oxford University Press, 1941). Derrett, Religion, 50 nn. 1,2, specifies the works of Radhakrishnan cited in Satsang.Google Scholar

³⁹ Mittal, S.P. v. Union of India, A.I.R. 1983 S.C. 1 (on Sri Aurobindo's followers); Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, A.I.R. 1984 S.C. 51 (on Ananda Margis).Google Scholar

⁴⁰ Derrett, , Religion, 47–51Google Scholar (where the Satsang judgment is drawn on for his own definition of Hinduism); Derrett, J. Duncan M., “‘Hindu” Zeitschrift für vergleichende Rechtswissenschaft, 70 (1968), 110–28.Google Scholar

⁴¹ A.I.R. 1966 S.C. 1119, 1134.

⁴² Derrett, “‘Hindu’: A Definition,” 115.

⁴³ A.I.R. 1966 S.C. 1119, 1135.

⁴⁴ See, e.g., “The Hindu Code Bill” and “Social Reform Movement in India,” in Mahajan, Vidya Dhar, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses (Delhi: S. Chand, 1966), as well as his 4th ed. of Mukherjea, Hindu Law (c.f. n. 17 above).Google Scholar

⁴⁵ A.I.R. 1966 S.C. 1119, 1130.

⁴⁶ A.I.R. 1980 S.C. 707.

⁴⁷ Ibid., 713. As authority for the ban on Sudra asceticism, Kane, , History of Dharmasastra, II, 163Google Scholar, was cited. Kane's discussion (ibid., 942–46) of texts that variously opposed or supported the ban—“on which opinion was sharply divided”—was not cited by the court.

⁴⁸ A key precedent in religious endowments law is Saraswathi Ammal v. Rajagopal Ammal, A.I.R. 1953 S.C. 491, which found (495) that if a religious dedication lacked scriptural (sastric) authority, it could still be valid if the pertinent religious beliefs had “obtained wide recognition and constitute the religious practice of a substantial and large class of persons,” even though in the case in question no such grounds existed.

⁴⁹ A.I.R. 1980 S.C. 707, 718; Sastri, Gopalchandra Sarkar, A Treatise on Hindu Law (Calcutta:Eastern Law House, 1927), 6th ed., 226.Google Scholar

⁵⁰ A.I.R. 1980 S.C. 707, 719. Traditional Hindu law has a category of prohibitions for the Kali age (kalivarjya) purporting to recognise the need for the most ancient rules to be altered in the present age. Although the only one potentially relevant here actually forbids sannyasa, the theory of the prohibitions is seen by Kane as evidence that the law has responded to social change. It “furnishes a powerful weapon in the hands of those who want to introduce reforms” in Hindu society. The “incongruity” in the Krishna Singh judgment could perhaps be defended along such lines, but Lingat is surely right to criticise Kane and conclude that the theory of prohibitions has no genuinely creative function. Kane, , History of Dharmasastra (1946), III, 960–61, 967Google Scholar; Lingat, Robert, The Classical Law of India (Berkeley: University of California Press, 1973), 194–95.Google Scholar

⁵¹ Interpretation and reinterpretation are inherent in the entire textual tradition, not only in that part which is more specifically “legal.” On interpretation in the tradition of the dharmaśāstra, see especially Lingat, Classical Law, pt. 2, ch. 1, who periodically cites comparisons with modern judicial methods.

⁵² C.f. Béteille, André, “Individualism and Equality,” Current Anthropology, 27:2 (1986), 121–34 esp. 123–26.CrossRefGoogle Scholar

⁵³ Lingat, , Classical Law, 144.Google Scholar

⁵⁴ Dworkin, Ronald, Law's Empire (London: Fontana, 1986), 6.Google Scholar

⁵⁵ Lingat, , Classical Law, 148.Google Scholar

⁵⁶ A.I.R. 1963 S.C. 1638.

⁵⁷ Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, A.I.R. 1984 S.C. 51; S.P. Mittal v. Union of India, A.I.R. 1983 S.C. 1. The second case, which concerned Sri Aurobindo's disciples and the scandal over maladministration at Auroville, involved a determination of whether the Sri Aurobindo Society was “religious.” The majority judgment decided that it was not, mainly because Aurobindo and the Mother repeatedly asserted that their teachings were not religious. However, one judge's partly dissenting opinion was surely closer to the precedent of Govindlalji in finding that Aurobindo's own pronouncements were irrelevant, since his followers and most other people saw his teachings as religious.

⁵⁸ On reform of Hindu religious endowments, see Derrett, Religion, chs. 13–14; for a case study of temple reform in Tamilnadu highlighting the role of the concept of superstitious accretions, see Fuller, Servants, chs. 5–6, esp. 149–56.

⁵⁹ The fact is well known, and one quotation from Rammohun Roy, acknowledged as the first modern reformer, will suffice: “I endeavoured to show that the idolatry of the Brahmans was contrary to the practice of their ancestors and the principles of the ancient books and authorities which they profess to revere and obey.” This is cited by Radhakrishnan, “Hinduism and the West,” 344; his article precisely expresses the same point at greater length. For a short discussion of Hindu reformism, see Jordens, J. T. F., “Hindu Religious and Social Reform in British India,” in A Cultural History of India, Basham, A. L., ed. (Oxford: Clarendon Press, 1975)Google Scholar; for a longer analysis, see Heimsath, Charles H., Indian Nationalism and Hindu Social Reform (Princeton:University Press, 1964).CrossRefGoogle Scholar

⁶⁰ The exceptional but revealing attempt to ban animal sacrifice in Madras is appositely discussed by Smith, , India as a Secular State, 235–38.Google Scholar

⁶¹ Derrett, Religion, ch. 9; Galanter, “Displacement of Traditional Law,” 65–76 (c.f. n. 7 above). See also Lingat, , Classical Law, 135–42Google Scholar; and I, Lloyd. and Rudolph, Susanne H., The Modernity of Tradition (Chicago: University Press, 1967), 254–78, who discuss the “Brahmanization,” alongside “Anglicization,” of Indian legal culture.Google Scholar

⁶² Lingat, , Classical Law, 194–95, 201, 205–206.Google Scholar

⁶³ Derrett, , Religion, 61–62,Google Scholar refers to intolerance of supersitition by the modernising elite. The displacement of difference by dichotomy is acutely observed by Dumont, who writes of the displacement of “hierarchical structure” by “a single rigid substance” following temple entry. If Harijans are admitted, they must be reformed (for example, by banning animal sacrifice which is allegedly associated particularly with them); moreover, their admission newly creates a class of “Hindus” with equal access to temples as against a class of “non-Hindus” without such access. Dumont, Louis, Homo Hierarchies (London: Weidenfeld & Nicolson, 1970), 230–31, 326.Google Scholar

⁶⁴ Mukherjea, , Hindu law, 5th ed., 76.Google Scholar

⁶⁵ Lingat, , Classical Law, pt. 2, ch. 2.Google Scholar

⁶⁶ Srinivas, M. N., Religion and Society among the Coorgs of South India (Bombay: Asia, 1965), 213–14, and passim.Google Scholar

⁶⁷ Staal, J. F., “Sanskrit and Sanskritization,” Journal of Asian Studies, 22:3 (1963), 261–75.CrossRefGoogle Scholar

⁶⁸ Buitenen, J. A. B. van, “On the Archaism of the Bhāgavata Purāna,” in Krishnac: Myths, Rites and Attitudes, Singer, Milton, ed. (Chicago: University Press, 1968), 34.Google Scholar

⁶⁹ Parry, Jonathan, “The Brahmanical Tradition and the Technology of the Intellect,” in Reason and Morality, Overing, Joanna, ed. (London: Tavistock, 1985), 205.Google Scholar Compare the similar formula derived from the classical legal tradition by Lingat, , Classical Law, 203–204.Google Scholar

⁷⁰ Parry, “Brahmanical Tradition,” 204.

⁷¹ Ibid., 205.

⁷² Ibid., 206–17. Evidence in Srinivas, Religion and Society, 166–67, and passim, though less precise, points in the same direction; dismissal of village deities' cults as supersititious seemed (in 1940) to be most prevalent amongst Westernised, educated Coorgs. The Gujarati Patidars' movement away from “ritual interdependence” to a univocal outlook, which leads some to dismiss village goddess cults as “evil superstition” has, though, been more forcefully stimulated since the 1950s by the influence of the Satsang and other modern socio-economic currents. Pocock, David F., Mind, Body and Wealth (Oxford: Blackwell, 1973), 72–77, 81–82, 90–95, and passim.Google Scholar

⁷³ Galanter, “Aborted Restoration” (subject to qualifications noted earlier); Kidder, Robert L., “Toward an Integrated Theory of Imposed Law,” in The Imposition of Law, Burman, Sandra B. and Harrell-Bond, Barbara E., eds. (New York: Academic Press, 1979).Google Scholar

⁷⁴ O'alley, L. S. S., “General Survey,” in Modern India and the West, O'Malley, , ed. (London: Oxford University Press, 1941), 621.Google Scholar

⁷⁵ Dworkin, Law's Empire. Compare the analysis of the law's “open texture” and precedents by Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), 121–32.Google Scholar Even a legal scholar like Roberts, knowing the inadequacies of the certainty concept, allows his comparative legal anthropology to depend significantly on the proposition that “rule determines outcome” in the modern system and does not in traditional systems. Roberts, Simon, Order and Dispute: AnIntroduction to Legal Anthropology (Harmondsworth: Penguin, 1979),Google Scholar ch. 1. C.f. more sceptical remarks in Comaroff, John L. and Roberts, Simon, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago: University Press, 1981), 244–45.Google Scholar Much legal anthropology, especially of the “substantivist” variety, adopts a similar dichotomous perspective. In relation to Indian material, several authors working on similar themes, such as Appadurai, Dirks, and myself (in an earlier work), have been misled by Lingat's concluding pronouncements on the radical impact of the doctrine of precedent in Anglo-Indian law and have consequently exaggerated the contrast between it and indigenous legal systems. In the light of his exposition of classical Indian legal interpretation and comparisons with Western judicial reasoning, the Conclusion to Lingat's book appears to overstate differences. Appadurai, Arjun, Worship and Conflict under Colonial Rule: A South Indian Case (Cambridge: University Press, 1981), 68–69CrossRefGoogle Scholar; Dirks, Nicholas B., “From Little King to Landlord: Property, Law, and the Gift under the Madras Permanent Settlement,” Comparative Studies in Society and History, 28:2 (1986), 307–33,CrossRefGoogle Scholar esp. 321–22; Fuller, , Servants, 108Google Scholar; Lingat, , Classical Law, 161, 171, 257–59, 263–64.Google Scholar

⁷⁶ Béteille, “Individualism and Equality.”

⁷⁷ Ibid., 121.

⁷⁸ Ibid., 132.

⁷⁹ Gellner, Ernest, Muslim Society (Cambridge: University Press, 1981), 5, and ch. 1 passim.Google Scholar