Sunday, December 28, 2008

Baird, Robert D. “Traditional Values, Governmental Values, and Religious Conflict in Contemporary India,”

Baird, Robert D. “Traditional Values, Governmental Values, and Religious Conflict in Contemporary India,” Brigham Young University Law Review, 1998/2 (1998): 337-357.

[but the way the article printed, there are only 11 pages for the body of the article, and the pages are numbered 1-11, and I will use that numbering for these notes]

SUMMARY: 1- “The Constitution of India embodies a number of values, which, while promoting the principles of human rights, opposed traditional beliefs and values…The prevalence of these traditional beliefs has in many cases interfered with the full scale implementation of the values articulated in the Constitution.”; the article looks at the events that concern these issues in the area of religious liberty, looking at (2) “axiomatic Indian values which are at odds with the Constitutional notions of equality and religious liberty”, “the Indian courts’ attempts to harmonized these conflicting values”, and discusses the possibility of a Hindu secular state, concluding that “the Constitution will continue to promote religious freedom”

-the Constitution, passed in 1949, says it secures for all people “justice”, “liberty” (of, inter alia, “belief, faith, and worship”), “equality” and “fraternity” (including “dignity of the individual”)

2-Justice: in the Constitution, it “is to be realized in the present life. However, Manusmrti, an ancient law book held in high regard by traditional Indians, portrays justice in light of the doctrines of Karma and rebirth…Before the nineteenth century, Indians universally accepted these Karmic effects as axiomatic. Not until [then]…did Indians begin offering philosophical defenses for the doctrine of reincarnation or rebirth.”, plus, the idea that karma can be passed to others is contrary to idea that justice is contained within individuals

-idea that all people are equal in Constitution is inimical to traditional values of caste and women are seen as lower than men; with this is the (3) traditional idea that some activities render some pure or impure

3-idea of nonviolence (ahimsa) is somewhat widespread, though not fully axiomatic; it was especially made popular by Gandhi; as well as vegetarianism

4-Baird then lists Articles 25 and 26 (the ones that deal with religion) which say that religion can’t interfere with the “public order, morality and health” (25(1), 26), and the government has a right to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice” (25(2)(a)) and “provide for social welfare and reform or the throwing open of Hindu [or any related] religious institutions of a public character to all classes and sections of Hindus [or any related group]” (25(2)(b)); religious groups can have institutions for “religious and charitable purposes” (26(a)), “manage its own affairs in matters of religion” (26(b)), “own and acquire movable and immovable property” (26(c)), and “administer such property in accordance with the law” (26(d))—and if you can’t have use of the idea of pollution through caste impurity, this conflicts with “the right freely to profess, practice and propagate religion” (25(1)), though the Constitution implicitly acknowledges this conflict with its limitations by making its provisions

-a 1958 lawsuit (Sri Venkataramana Devaru V. State of Mysore) said that the Madras Temple Entry Authorization Act (1947) violated Article (26(b)), the Supreme Court found that “religion” included beliefs and practices, (5) it noted that Article 17 abolished “untouchability”, and that Articles 26(b) and 25(2)(b) conflicted, though each was of equal authority, so they tried to harmonize both, saying the temple should be open to all but allowing some religious services to be exclusive—Baird analyzes: “traditional faith was constricted and had to be reformulated” because of this

5-hindus and Muslims have traditionally felt family law to be part of religion and not secular and at time of independence, practices were very diverse, but in the Constitution, which tried to ensure that the state didn’t “discriminate on the basis of religion,” made Article 44 that calls for a uniform civil code; (6) both Muslims and Hindus have resisted its implementation

-between 1955 and 1956 a series of bills were passed on family law: Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill, and Hindu Adoption and Maintenance Bill—provided conformity for “Hindu” law and modernized it, based on rationality, social needs, and even opinion (eg it included allowing divorce and limited marriage to monogamy)

-the BJP said it was unfairly imposed on Hindus only and not on Muslims

-Muslim views on the issue came to foreground when Shah Bano case was made public in 1985: in 1978 a Muslim divorced his wife. Muslim law required him to pay her the marriage settlement her family had originally paid (Rs. 3000); but she (Shah Bano) refused it and sued him “for maintenance under the Criminal Procedure Code” (Article 125 of the Code said a divorcing husband had to pay a monthly fee to his ex-wife if she had no means of support) and they required him to pay a monthly fee (Rs 180/month); and the Supreme Court upheld the decision, with the Chief Justice disparaging Islamic law and its status of women, and he said Court’s decision was keeping with the Shariat—many Muslim clergy said it was wrong for a secular group to interpret Islamic law; then the Chief Justice said the uniform civil code should include Muslims; it caused huge Muslim agitation; (7) Muslims then pressured the government to pass the “Muslim Women’s (Protection of Rights on Divorce) Bill” in 1986, exempting Muslim women from Article 125—Bill was opposed by women’s groups and militant Muslims

7-B/c of religious sentiment against hurting animals, the Constitution included Article 48 to prohibit cow slaughter, but many Muslims were the local butchers plus they usually sacrificed cows on Bakr Id Day—so they took legal action saying it impinged on their religious rights in 1959, but the Supreme Court said the Qur’an merely mandated “prayers and sacrifice” and so other animals could be, and should be used

8-and punishments for the slaughter of cows was excessive—eg in 1956, six men were each given an 18-month sentence for slaughtering 1 cow.

-the question of propagation/proselytizing and whether the Constitution should have an Article protecting or prohibiting it was debated in the Constitutional Assembly; those who wanted to prohibit it felt (9) like it might weaken one culture or religion and fraud was used in the process; but it ended up being protected and later attempts to limit it failed except in 3 states.

9-Orissa’s 1967 Act said there was danger in it because it tended to use “force, fraud and material inducements” which gave rise to civil disorder; Madhaya Pradesh (1968) and Arucachal Pradesh (1978) passed similar laws for similar reasons; In 1977, the Supreme Court upheld the Acts of Orissa and Madhaya Pradesh, it also distinguished between right to propagate and right to convert, with the former being allowed and the latter not seen as a fundamental right; but people continued to violate it have been jailed

Monday, December 22, 2008

Rajeev Bhargava “Religious and Secular Identities”

Rajeev Bhargava “Religious and Secular Identities” in Crisis and Change in Contemporary India, ed. Upendra Baxi and Bhikhu Parekh (London: Sage Publications, 1995), 317-349.

SUMMARY: Essay attempts to create typologies to explain the intersections and divergences of religious and secular identities. It begins with a definition of identity and ends by asserting that despite a popular belief, secularism and religion (and the identities people have relating to them) are not always incompatible.

317-says scholars have typically taken modernization’s effects as marginalizing religion and thus causing zealotry—and this is an obvious conclusion. But some of the reasons for this analysis are ‘not entirely honourable”—and this essay looks at these “unconvincing” reasons; Bhargava says this view “is plagued with an excessive them-us syndrome. It ridicules the dichotomies of modernity without the slightest awareness of its own fractured vision. It is obsessed with the spirituality of traditional religion but unashamedly obscures the spiritual roots of modernity. It is over-sensitive to the linkages of power, wealth (318) and privilege with a secular but not religious discourse. It fluctuates between a perilous purism for which a value loses all it import even when slightly tainted with power and a vertiginous relativism for which high values are at base plain, lowly desires. In short, I detect in this reasoning a dash of motivated simple-mindedness, an oversimplification that has dangerous consequences in times of trouble.”

318-Bhargava identifies himself as a secularist who is “wedged between secularists in power and the religious who wish to usurp this power from them”, and he points out there are various levels of religious and secular identity—some “secular” identities are closer to “religious” than with “state secularism”

-so we must first have an understanding of identity; says there are “at least four ways of formulating the concept of identity”

319-“some forms of secular identities have more in common with some variants of religious identities than they do with members of their own fold, and that a common culture cuts across the familiar divide between the religious and the secular.”

-objects to the common idea that objects, and thus identities, are the same from one moment to the next; and if objects are a little different, what brings them together?; “it is impossible for anything to remain the same within itself in all respects all the time. To demand that it do so is to impose such a stringent requirement that no object can meet it…And if nothing ever lost its identity, then the problem of identity cannot even arise in the first place…(320) This is equally true of a thing’s identity with other things. At a given instant there are any number of respects in which it is different. To talk of the identity of something with some other thing makes sense therefore only within a pre-selected domain; once again, identity is crucially linked to some principle of relevance” (a criterion)—identity must be permanent and essential (cf Erikson “The Problem of Ego Identity”)

320-and this conforms to the common sense of identity which also anchors us in the world, and if one loses it one loses “one’s bearings and the ability to see where one stands, to be unhinged, detached and to feel (321) insecure.”

-But “No person can be exhaustively identified with her body alone…because a person is a person only in so far as she has mental attributes. Strawson is surely correct in viewing a person as an entity to which both corporeal characteristics and state of consciousness can be ascribed” (cf Swanson Individuals 1964); states of consciousness: sensations (eg pain and pleasure) which “cannot occur without the minimal awareness by the subject”; “beliefs and desires” –desires are states of “intentionality”, “involves the use of a ‘that’ clause”—these “do not require that in order to have them we be conscious of them…At the same time, no person can have all her beliefs and desires without some minimal awareness. To be a person at all, an individual must be conscious of some of her beliefs and desires. It is necessary, therefore, that to have an identity a person must consciously be able to identify with some of her beliefs, desires and acts.”

322-beliefs and desires are either completely independent from external environment or “depend on the natural environment” and then they are constituted by language, and so “A person’s identity, one can legitimately say, is defined by her language…She cannot identify with her beliefs and desires without identifying with the conceptual framework embodied in the vocabulary provided by her language…[so] personal identity is related to a world of meanings.”—which is “held in common with others”, beliefs are necessarily shared, identity is recognized in socially defined terms (cf Berger and Luckmann) , and is built through interaction with others; plus each group has a “common world of references” and “we get initiated into the practice of cutting up the world, slicing it in one rather than another manner.”—words have slightly different meanings depending on the group, though (323) not every world has a definite meaning that everyone in the group agrees on—so our identity depends on our group

-323-and not all beliefs and desires are central to an identity, those that are central must matter to a person; (324) sometimes it’s simply one’s strongest desires; plus people (325) can value things differently from how they desire—and this is what’s “relevant for a person’s identity”, therefore, “since my identity is formed within an enduring framework, not to posses it is to fail to have an identity”; (326) a crisis in one’s identity results when a person doesn’t have a framework

326-says individuals that make value judgments vary, they vary on how important they make ideas; and when ideals are made most important, “One’s identity within this culture is non-negotiable or almost so…when acquired it leaves no scope for maneuverability or escape. Getting out of it is next to impossible.”; but when ultimate ideals aren’t the most important aspect of one’s identity, “from an existing repertoire of identities a person partly selects and shapes her identity”, though she can’t “pick up any one and move it exactly how she pleases.” And not everything is up for grabs or negotiable, and they are “context-dependent”, fluidity; (327) there’s also a style with a high idea but is also fluid with many small ideals; then there are those purely driven by desire [PROB: what about when the high ideals are to fulfill desire or to have plurality? This typology would then break down]

328-says a religious identity is a framework for ultimate ideas, of values

329-based off Geertz’s and Nandy’s observations about religion, Bhargava says there are 6 kinds of religious identities: “the zealot, of the faithful and (330) finally of the religious ideologues.”, plus “religion lived as spirituality (religious spiritualism), spiritless religiosity, and what I call religion as a pastiche”

330-for Bhargava, faith = trust; and belief is faith and devotion to a particular object; so the identity of the person with faith is “unshakable belief” in a way of life (that is but one of many available)—(332) and since belief is within a culture, it shares culture’s ideals

333-ideologues appear when certainty in faith weakens, so people cling to their commitment (they are already in the process of losing their religious identity) and their actions are guided by more worldly reasons; (334) and therefore their identity is formed less by ideals than by desire, with religion only as a rationalization for their actions

334-says a religious zealot sees faith and ideology as “dead can” and is driven by desire “but makes the restoration or creation of a religious order his primary project”, but really “moved by an earthly desire for power” and the idea he’s a victim; cynical of all ideals

335-pastiche is just an extremely empty form of spiritless religion, where they don’t know that they are spiritless; they are constantly trying to do self-expression

-spirituality is an intuition of the infinite; and “religion strays when it posits essences…[and] final causes and proclaims eternal truths.” As well as when it has duties and commands—(336) “a person with such a religious identity is contemplative and tolerant”, his ideals are high but he has multiple values

337-says his original dichotomy (his first typology—of desire-driven to ideal-driven) puts the ideal end as the “more mature, fully human sense of one’s identity”; and they are distinct from desires

-religions can have different religious identities; says secularists have a caricatured view of religious identity; each type of religious identity has a secular counterpart

338-“All religions worry about” anarchy; says modern secularism values unrestrained desire, though it also has its own ideals, and multiple values, though because of pluralism these values aren’t as distinguished from desire as they might be in other religions; plus it has spirituality too

339-he calls one of secularism’s high ideals “superhumanism”—man can do and know everything and discovery of all things will only take time and anything is justified in pursuit of knowing and doing everything; (341) also a culture of multiple values; plus there is a “spiritualized” “humanism” that “accepts that we cannot know, predict and control everything”

342-so religious and secular identities can be similar, says their content is different: “One is integrally tied to god, the other is not”

-some religious identities can be subsumed under secular ones; though not those of ideologues and zealots—(343) so the identities are not always incompatible (especially if they’re both “spiritual”)

343-says Nehru was really spiritual, as was Gandhi; (344) and the BJP is closer to ideologue/zealot than secular, as they claim

345-can’t necessarily say that the modern world is incompatible with religion and that it forces the religious to become zealots or ideologues; though it has changed religion through homogenization and traditional religious symbols don’t have as much power

346-criticizes Nandy’s analysis of secularism as too harsh, a caricature
[PROB: bhargava doesn’t play out the implications of changing identities—that religious and secular ones are transient, perhaps constantly changing]

Tuesday, December 16, 2008

Anthony Good, “’Mamul’ and Modernity in a South Indian Temple,” Modern Asian Studies 35/4 (2001): 821-870.

Anthony Good, “’Mamul’ and Modernity in a South Indian Temple,” Modern Asian Studies 35/4 (2001): 821-870.

SUMMARY: Examines the history of British involvement in southern Tamil Nadu: the increasing British control of the military, the estate, and the temple of Kalugumalai—with most of the information centering around discussions of court cases. In addition, Good examines the reactions of Rajas and the citizens of in the area around the temple. He concludes that the zamindars were probably not stealing from the temples and the HRCE’s attempts to appoint an Executive Officer (an EO) went against the idea that they would only take over “public” trusts.

821-in January of 1951, the Raja of Ettaiyapuram had many legal actions against modernizing forces—“a writ petition questioning the legality of the Madras Estates (Abolition and Conversion into Ryotwari) Act of 1948” which had just come into forces January 1951 and “authorized the government to take over his zamindari estate”; he also was bringing a case to prevent the HRE Board from taking control of the Kalugumalai temple (in the Tirunelveli District, a temple of which he was a trustee) and appoint its own employees as EO and 2 lawsuits in Kovilpatti Munsif’s Court, “questioning the authority of the newly-formed Kalugumalai Panchayat Board on the grounds that the entire town was temple property.”

-these were properties that had been slowly taken over by the British since the 1803 Permanent Settlement onwards—this paper looks at these processes, and (822) particularly tries to explain why the Raja’s family continues to defend its hereditary position regarding Kalugumalai temple.”; this process is, as Kaviraj said in 2000, “utterly central to the story of modernity in India”

822-India’s modernity did not come, as in many other colonized countries, with the colonizer imposing fully developed “modern” ideas and institutions, both sides underwent change, “both in their social practices and how those practices were conceptualized”, the E. India Co came in as “a revenue-raising organization” and gradually extended its control—complete by mid-19th century by which time it had European-style State Authority

-the colonial powers had a laissez-faire attitude to religious matters (though this was narrowly defined) and Hinduism wasn’t directly threatened, but it was changed, especially through the “intellectual engagement with Christian missionaries on the latter’s own, rationalist terms” and Hinduism “restructured itself using the European critique”; “The anit-devadasi movement exemplifies this (though notions of “Hindu spirituality” and “tantrism” played a part even there…), as much later, does the imposition of bureaucratic rationality by the HRE Board and its successors.”

823-“The history of the Rajas of Ettaiyapuram typifies that of many ‘little kings’ in sourthern India, whom the British called Poligars…”

-“The Ettaiyapuram Poligars were Vaduka Nayakkars, originating from Chandragiri in present-day Andhra in the ninth century. In the fourteenth century, legend has it, the 11th of the line killed ‘the athlete Soman’ but spared his eight brothers, for what feat Sambu Rajah awarded him the title Ettappan (‘father of eight’). The 14th ruler fled south to escape Muslim incursions, and was granted land near Sattur by Kind Adivira Pandyan, who gave him the title Jakavirarama. Around 1550 the vijayanagara agent, Viswanatha Nayaka, appointed 72 notional tributaries as guardians of the bastions of Madurai city; the 19th Ettappan was one of these, and was awarded the title Kumara. His son founded Ettaiyapuram in 1567.”
“Poligars derived their revenue partly from plunder and partly from land rents and duties. They were in turn liable to pay tribute to the sovereign power, whose demands were, however, resisted whenever possible. This brought Virapandiya Kattapomma, Poligar of Panjalamkuricci, into conflict with the British. Kattabomman had not paid his tribute, and when interviewed about this in 1798, he killed a British officer and escaped. After his capture and execution in September 1799, his deaf-and-dumb brother Oomadurai continued to fight until Panjalamkuricci fort was captured and (824) destroyed. The Ettappan fought on the British side in this conflict, no doubt b/c of enduring border hostility with Kattabomman.”
“The rebels’ lands were granted by the British to Poligars who had supported them, with the Ettappan as principal beneficiary. Almost immediately, however, the British began converting into zamindar landlords. They lost military and judicial rights except for ceremonial purposes, and their forts were destroyed…Ettaiyapuram pal aiyam was converted into a zamindari estate under a Deed of Permanent Settlement in 1803. The Settlement recorded the notional area, or ayacut…of each plot, but this was above all a revenue survey, and the land itself was not properly surveyed until much later. The estate then comprised 185 villages, including 79 formerly belonging to Panjalamkuricci, but subsequently grew by purchasing other estates, until by 1917 it was the largest zamindari in Tirunelveli District, comprising 422 villages in a total area of 647 square miles. Under the zamindari system, finally abolished by the 1948 Act, farmers paid annual land rents to the zamindar, who in turn contributed a fixed peshkash (peskas, ‘tribute’) to government revenue.”

824-the Permanent Settlement shifted life away from militaristic/dependant on agriculture to being a gentleman landlord society, “The new zamindars did their best to cushion this shock by viewing the British as simply the latest in a long line of superior rulers, whose validating presence…had always been needed as a backdrop to their own claims to regality, as the Ettappan’s continued for some time to see their relationship with the British as primarily defined by ‘services performed for their sovereign overlords’ and recognition of these through presentation of honours and privileges.” And (825) they continued to “maintain all the trappings of royalty” even w/out the army, and “never left their Palace except w/ pomp and ceremony”

825-“Increasingly, however, his pretensions appeared anachronistic.”, eg tradition dictated that he didn’t have to go to court, then when courts were modernized in 1862, he petitioned no to still, though the government didn’t allow it; (826) and extravagant household entertainers were seen by British as a waste and were stopped when it was under the Court of Wards management; (826) palace women’s movements also had much pomp and weddings were extravagant

827-in the 16th ce, the 20th Ettappan helped another ruler on a military mission, he was killed, so the ruler that asked for help gave the Kalugumalai village to his family to compensate, though its temple, the kalukacala murtti shrine, is not explicity mentioned in the story—and the priest of that temple claim it was a family shrine, and “they portray the Rajas as merely their wealthiest patrons and deny them any form of ownership. Although the Trustee concedes that this is not unlikely, there is not hard evidence; even under the stimulus of litigation, neither party could trace the temple’s history prior to 1802.” Though “several nineteenth century Rajas spent lavishly to extend the temple and upgrade its rituals.”

828-the 41st and last Raja, Jakavira Rama Muthukumara Venkateswara, is who made the lawsuits and petitions in the 50s, (829) “in 1968 he granted power of attorney to his eldest son, E. Thangaswami, who has continued the legal battles ever since”

829-“to all appearances, the Zamindari went almost undisturbed by Government until the 1860s.”
“The most dire of modernizing influence during the nineteenth century was certainly the Court of Wards, via the Collector as its local representative. The estate twice came under Court management b/c the heir to the estate was a minor…Both periods were traumatic in their different ways, but in terms of modernizing impact the first was more significant.”

-A Zamindar died in 1868 and his dying wish was that the minor ward’s uncle be made manager, the Court accepted, but still looked at the financial records and found its position unsatisfactory, w/ (830) wasteful spending on pagodas, ceremonies, and charities; and the uncle was annoyed with the probing and didn’t want to change; so the Collector got the Court’s permission to run the estate: he leased hitherto money-losing land; (831) he restricted all spending and gave uncle’s family an allowance, and in 1872 the estate was fully taken over and found out many other tenants were withholding rent, and he got them to pay (832) by using threats; he surveyed every village and stone boundary markers were put in place (increasing revenue b/c they found out the estate was bigger than originally estimated; reorganized public works, repaired irrigation tanks, repaired palace and other buildings, paved streets, the “estate’s credit balance had almost trebled since the start of Court management.”, though the Collector thought that things would still be hopeless w/out government overview or revamping views of what a zamindar truly (making it more as an administrator than landlord), (833) and the Court had tutors teach the ward English, Tamil and Telugu. The government’s control ended in 1878.

833-Collector took over again in 1890, (834) and at that time, the state was doing well, though he still found room for improvements, and by the end (1899) revenue demand and cash balance both increased

835-the Raja’s petition in 1951 was dismissed in Madras and later in the Supreme Court, and government “took possession of the whole estate on 26 September.

836-“At the time of Permanent Settlement, the Madras government deferred any enquiry into the validity of existing inams. These were grants, known locally as maniyams, whereby all or most of the “government” or upper share…of revenue of a plot of land, was granted to a person, institution, or deity…but not till 1859 did an Inam Commissioner begin looking at them systematically. Kalugumalai itself was not investigated until 1868.”
“The status of rent-free pre-Settlement inams was just the same in Zamindari estates as in ryotwari areas; their value had not been included in the Zamindars’ peshkash. Zamindars could not change this rent, however, and had no rights over the land itself since it had not been counted among their assets.”
“The Commissioner adopted the principle that 50 years’ enjoyment of an inam conferred valid title, even if no deed existed. Pre-Settlement inams were classed into grants for temple upkeep, Devadayam…; grants to temple staff…or village officers…in return for performing their duties; charitable donations… and “Personal” inams…providing subsistence for particular individuals.”

-“The kalugumalai Register lists two grants to the brothers who shared the priestly duties in its temple.”, In 1868 they claimed the grants were temple staff/service inams in return for them performing puja, “the sub-text here being their wish to be recognized as hereditary arccakars of the temple. The Commissioner rejected this claim…partly b/c they had been classed as [“Personal” inams]…at the Permanent Settlement, but mainly b/c ‘The (837) incumbents do puja and receive separate pay for it’.”; there were many cases like this—the Commissioner decided grants were purely personal “for distinctly ‘modern’ reasons…he tended to define any financial reward as a salary, thereby riding roughshod over a complex set of local notions in a prime example of the lack of official concern with careful exegesis…The priests’ ‘pay’ was probably an honorarium rather than a salary; that is certainly true nowadays,” and a much later Tirunelveli District Judge agreed w/ the priests’ descendents

837-zamindars wanted them classified as service grants b/c that required reciprocal obligation that personal grants didn’t, plus in that case, services would have to be rewarded in other ways; plus the priests wanted it b/c then they couldn’t be dismissed by the Zamindar and “guaranteed them enjoyment in perpetuity of all honours and prerequisites associated with their office.”, so the priests sometimes even claimed they were the true owners, though this is a stretching of the idea of hereditary rights (miracu) which doesn’t necessarily include proprietary rights; (838) though traditionally, hereditary rights implied “partial” “ownership”/a “stake-holder” idea

838-“Grants made after the Permanent Settlement, so-called ‘subsequent inams’, were strictly speaking not legally valid, b/c the entire estate was treated as security for the settled revenue due to government…Even so, they [zamindars] continued to make such grants, and Government treated these flexibly in practice.”, Commission only looked at those in estates taken over by government and even then tried to keep the grants going, though they (839) were increasingly restricted though late 19th ce w/ many accepted b/c they were used as payments for village officials (though the Proprietary Estates Village Service Act of 1894 required a cess from zamindars to pay officials); (840) inams were abolished in the 1950s

841-the Devastanam owned most of the town and hill area, and franchises for the weekly markets and 2 X/year cattle fairs; though this was challenged after the zamindar donated the village to the deity

-The Nadars were a lower caste (with improving economic status) that was not let into the temple; they tried to go in and get (842) procession rights on nearby streets. When the Raja built car streets in mid century, they allowed the Nadars to use them a little, but Nadars wanted to go further, causing a riot in 1885, it led to an injunction and the Raja argued that car streets belonged to the temple who could restrict use (except for secular purposes) while the Nadars said they were public roads, though they lost every level of appeal; at that point, they converted to Catholicism (even the local Jesuits agree their conversion was mostly for social climbing) and, with his new parish, a Jesuit purchased a site to build a church near an important car street which itself caused riots; including in 1885 a big fight in which the Court manager was murdered, as were (843) several Nadars while only Nadars were convicted and Hindus were freed w/out trial. In their appeal to High Court, Nadars showed there was collusion w/ police and sub-magistrate and the High Court overturned the previous decision, though no further action against the magistrate was taken; then the Jesuit agreed to move the church in 1897 to a closer to the Nadar quarter; the Court approved it but Hindus objected saying it was on sacred land, so (844) they had to move to yet another site

845-the next dispute over the Devastanam’s hegemony was from 17 people “mainly from long-established mercantile castes” (including the man Tirumeni) who “brought a suit seeking to prevent the collection of brokerage and cess fees from market traders” in 1931; (846) and wanted a refund of “illegally” collected fees; 1933 judgment was that fees would decrease for locals but increase for outsiders and non recompense had to be paid; but it was noticeable b/c zamindars did compromise

846-for many years the Devastanam had resisted a town Panchayat b/c “this would provide a politicoeconomic framework through which opposition could be expressed, taxes levied on the Devastanam, and other controls exerted over temple activities.”, But one was formed in December 1948, immediately after independence; (847) one of their “first acts was to pass a resolution criticizing the running of the temple” in 1949, and submitted to the HRE Board; the Raja formally objected to its forming and, in 1949, the Inspector of Local Boards “served a notice asking the Panchayat to show cause why its formation should not be cancelled” and Raja filed 2 suits: both against the Panchayat President (Tirumeni, from the 1931 dispute); “one objected to the Panchayat levying union tax on temple property; the other challenged its right to tax the Raja’s personal property.”, and many people, even some from the Panchayat did not trust Tirumeni and his motives and passed a no-confidence motion against him (they thought he was bringing them in a private vendetta); (848) first case decided in 1961, the subordinate judge said the only street the temple had was the strip between its gate based on the Estates Abolition Act, but on appeal to High Court, they showed they took care of streets and altars were indeed along them (the streets were labeled as public because there was no evidence of religious practice on them), and the streets had never been dedicated to the public; (849) though the High Court upheld the original decision

-says deity is legal owner of temple and its wealth, though temple property is managed by Trustee (who is like a legal guardian), British took over temple overseeing until 1863 to prevent misuse of funds and gave authority to independent trustees, (850) though criticized by Raj and Indians in general b/c it gave trustees unrestricted control over temple assets; 1925 Madras made HRE Board, replaced in 1951 by HRCE Department, but the Kalugumalai temple administration wasn’t taken over b/c ever since 1925 “successive Trustees have fought a protracted legal battle to retain control.”

-850-in 1935 the “Board asserted Kalugumalai was a public temple and should therefore come fully under its control, while the Raja contended that it was a ‘100% private’ temple which his family had largely built, and whose property they had donated. The Raja lost this arguemtn on the grounds that there was a Hundial collection box in the temple, whereby the general public contributed to its upkeep. However, the Board’s victory was not complete, as Kalukacalamurtti temple became officially classified as a ‘public excepted temple’ rather than simply a ‘public’ one.”

-“’Excepted’ temples were generally those whose hereditary trustees were wealthy landlords known to be hostile to any circumscription of their powers by appointed Temple Committees. To avoid antagonizing these worthies, such temples were ‘excepted’ from some provisions (851) of the Act.”

851-a 1935 Amendment to the Act said the Board could “notify” a temple concerned that it was planning on sending in an E.O. to replace the trustee, it notified 217 temples by 1940, though the proceedings were dropped in Kalugumalai b/c they “agreed to prepare registers of land, jewels, and other endowments.”

-in 1947, Nadars claimed to the Board that Trustee was mismanaging temple, an inspection was made in 1948 and they found temple funds were simply put into zamindar’s accounts and endowment records hadn’t been verified since 1938, buildings needed repair, and there was no reserve fund—so the Board recommended an EO, a (852) Scheme of Administration (based on the 1927 Act); when given the opportunity to respond to this, the Trustee said that when the temple’s fees are more than the money allocated by state (money given since the HRE was instituted), zamindar paid it, and the temple money was never used for the estate, and the local bank wouldn’t allow the huge withdrawals the temple needed; (853) and said he’d be willing to hear suggestions about building a reserve; then the President of the HRE Board inspected the temple at saw “unhealthy practices” and 10 residents (854) gave him a petition to have an EO, and said that the fact expenditures went over was a sign of bad handling

856-in 1951, the Court decided there had been no misappropriation and the trustee should do banking in Kalugumalai, though the judge felt a Scheme was necessary for other administrative defects; (857) that the trustee should be assisted by an EO (the EO got daily administration and supervising staff while the trustee could appoint, dismiss, punish, and pay staff, though subject to Board’s rules), plus the EO would prepare and submit accounts and balances—but it was still appealed b/c the zamindar said since no misappropriation was found, they couldn’t impose a Scheme under the HRE Act; judgment from High Court given in Jan 1956, but the Board had already been replaced by the HRCE Department by then (in which they modified the Scheme, reducing the power of the Board), (858) though the Trustee could appoint his own EO, plus it came out that the staff hadn’t been paid since the government had started controlling the money.

858-in 1959 the 1951 Act was amended making it easier for the HRCE to appoint an EO, without hearings and it didn’t need the previous trustee to have been dismissed; in 1981 HRCE tried to appoint an EO after noticing “administrative irregularities”, (859) though these were really petty issues and Trustee proved this, but the Commissioner still appointed an EO citing the 1959 Act; (860) then the trustee went to the Madras High Court to obtain a stay order against the Board pending final judgment, (861) and even as late as 1992 the HRCE hadn’t been able to appoint an EO

862-zamindars in 15th and 19th century, even after being reduced to “tax farms” spent lavishly on temple and expanding it onto town property, they did this b/c they thought gain of land was more important for power than profit; but (863) this practice fell off drastically for Ramnad mid 19th ce b/c it was bigger and on the wrong side of the Poligar war—so the British took it over faster and more completely, taking charge of all its devastanams in 1815—the Ettaiyapuram zamindar was a “favourite son” of the British

867-in trying to make temples “secular” rather than “religious” institutions, the HRCE is “at odds with virtually all temple ‘share-holders’ and interest groups, be they Trustees, priests, or donors.” And they tried to make temples profitable; “temples are seen as ‘public’ institutions in the sense that they are part of the Tamil cultural heritage, which should not be (868) restricted to serving particular interest groups or individuals.”, and it’s clear the Devastanam was not a public trust even when it was labeled as so

Sunday, December 7, 2008

Baltutis, Michael C. “Recognition and Legislation of private religious endowments in Indian law”

Baltutis, Michael C. “Recognition and Legislation of private religious endowments in Indian law” in Religion and Law in Independent India second enlarged edition ed. Robert D. Baird, (New Delhi: Manohar, 2005), 443-467

SUMMARY: This essay examines the history of religious and charitable endowment regulation form 1810 to present. Baltutis looks at eh laws, overseeing institutions, and the realities of endowment management. Since the creation of the HRCE in 1927, the Courts and the HRCE Commission have defined the distinction between public and private endowments differently, with the HREC Commission denying the title of “private” to be given hardly at all. In addition, Baltutis points out that after the British stopped overseeing endowments in 1843, misuse proliferated and endowments started being used as tax shelters and sources of income. These practices, however, were drastically reduced with the Income Tax Act of 1961 and by challenges from the HREC Commission. He gives several examples from the wording of various Acts and Court rulings.

443-endowment of religious institutions goes back to as long as they’ve been around; documents of temples go back to 500 BCE; “temples containing images of deities” [aka “idols”] date from first century CE; and “sankara is said to have established the first four maths in the 8th century C.E.”

-“A tradition of gift-giving (dana) in India as a means of distributing wealth and attaining fame and prestige extends back through the Vedic period and is imbued with a legal format by the turn of the Common Ear. By this time, dana is being applied in the form of land grants to brahmanas, large gifts of cash to religious beneficiaries, and the building of alms—houses for distribution of food and clothing to the city’s needy.”—(444) these were the original “endowments” and were used to found new institutions for any number of purposes. Furthering the goals of the institution, “undergoing personal penance, giving for purely altruistic purposes, and establishing and improving one’s reputation.”

444-“From very early on, local governments began to take notice of and oversee the endowments received by the institutions. Reddy discusses the existence of a separated Religious Endowment Department in 15th century Andhra Desa, which supervised the functioning of religious institutions and maintained copies of original grants; similar arrangements were also made in other Hindu Kingdoms.” (cf Hindu and Muslim Religious Institutions)—this supports Derret’s theory (in Religion, Law and the State…) that modern Indian regulation of endowments is in consonance with its own traditions’ and not imitating Western ones. (individual state’s regulations; income tax laws thru Act of 1961, and courts “have been analyzed and reinforced by the Hindu Religious Endowments Commission’s Report of 1962.”

-w/ these mechanisms, the government defines categories and regulates endowments: “Religious,” “charitable,” “temple,” “math,” “absolute,” “partial,” “public,” and “private” are all different categories used—and endowments must meet requirements to be considered valid

-“state legislation since 1927 has explicitly defined (445) endowments so as to exclude private religious endowments, assuming regulatory duties for public endowments while allowing private endowments nearly absolute autonomy; numerous High and Supreme Court cases have strained to define the boundary between public and private endowments, ensuring the constitutionality of endowment acts and the proper administrations of the endowments themselves…income tax codes have addressed the tax-exempt status of each, excluding private endowments from the benefits accrued by their public counterparts; and the Report of the Hindu Religious Endowment Commission of 1962 has put forth recommendations whose goals mirror those of the states’ legislations.”

445-“The courts hear cases on a regular basis and are exposed to the wide variety of existing endowments. They allow oral and documentary evidence to establish the ‘custom and usage’ of an endowment, of the region, or of the religion or sect…”

-“Endowment acts and the income tax laws, on the other hand, do not look at every case; their goal is to establish general policies pertaining to each and every religious endowment…(Interestingly, the Commission also looked at individual cases, yet sided with the state acts and income tax law.)”, courts are conservative, preserving traditional ways; Preler, in Religion Under Bureaucracy, says the HRCE is the opposite and does not take into account differences b/c it is single mindedly focused on preventing (446) “patrimonial-like interests on the part of those with authority in the temple”; but Baltutis says Presler forgets to show how the HRCE also makes sure endowments and being managed with grantor’s intentions and that India, in its past, had other institutions that were similar to HRCE—Presler’s view favors the courts which allows for “privately-managed temples”

446-“While charitable purposes are defined by the benefits bestowed upon the public, religious purposes have no such necessary ‘public’ corollary. A privately endowed family ideol, then, constitutes a valid religious endowment just as much as a math established for the religious education of the public.”

-Acts have identified valid charitable purposes: “Health, education, relief of the poor, and preservation of sciences and literature”; but “religious purposes are rarely if ever provided for in the Acts”—though examples are drawn from actual practices—money for an idol, temple, shraddhas and pujas

-the donor must be competent (legal age and sound mind)

447-no ceremony is necessary now, though “centuries ago” there was 2 parts: sankalpa, in which “one indicated the purpose and direction of the property” and utsarga in which “one renounced all ownership of the property”; now donor must make clear he has divested himself of all the thing donated, usually through a will; though there is no need for a written document “detailing the origin and nature of the endowment”, there are tests done to prove the donor’s “intention” (eg that future financial gains from endowment are applied to religious things, but if “the intention of the donor was to tie up the dedicated money in the family”, then this would be seen as invalid); most states require endowments to be registered with all the pertinent information (including the specific uses and employees); and it must have a specific purpose—can’t be for an unspecified deity or “dharma”, or “without the provision of a specific amount of money have all been judged invalide.”

-“individual who would have inherited the property, had it not been endowed, may appeal the validity of an endowment for any of these reasons”

448-depending on the court, state act, or income tax law, the terms “endowments”, and “trusts” can be used almost interchangeably

449-“In a public temple, the installed idol itself is held to be the temple’s legal owner, and the beneficiaries—those to whom the endowment is dedicated—are the general public. In a private temple, the owner is the individual who endowed the idol, and the beneficiaries are the family members.”

-the Income Tax Act of 1961 defines only public endowments, not private ones, most individual state Acts similarly don’t define or identify private endowments, but Bihar’s Trust Act is the only one that mentions “private”, (and says those endowments are not in its jurisdiction); though (450) its definition of “private” is unclear, and so it could fall under the state jurisdiction

-“The Supreme Court has shied away from offering a strict distinction between public and private endowments,” eg in Radhakanta Deb v. Comnr., Hindu Religions Endowments, Orissa (1981) they said that it should be decided on a case by case basis, (451) and sometimes it’s inconsistent in its rulings, sometimes “size of temple, manner of worship, [or] structure and location of temple”, or other things (eg Did the public build it? Is it for an idol? How is the temple treated?)

-some supreme court “factors have been consistently applied by the court in a majority of cases” eg private trusts have beneficiaries which are “an ascertainable group or specific individuals” while public ones are for the “general public or a class thereof”; though some rulings have said trusts are private if the specific individuals are the only ones that have “interest” (452) (which is strictly defined as the “right” to use the temple, even if the public goes there), while other decisions say that if the public uses it, it is public—there’s a “fine line between the public’s worship in private tempels and the public’s right to worship in public temples”

452-thoughout history “There have been three major financial benefits associated with religious endowments” and numbers 1) and 2) “have been eroded through income tax laws and now the third has been challenged by the Endowment Commission.”
1)”Income tax exemption”: income from endowment for public purposes is not to be taxed, while income from private endowments is
2) “perpetuities and accumulation” based off English models, (454) the Transfer of Property Act of 1882 allowed people to use endowments as tax shelters for several years after someone dies before inheritor gets it b/c it’s an exception for private endowments while these time lengths (more than 18 years after death) are forbidden in that same act if the trust is not for religious purposes
(455) 3) “property rights”: “The landmark Shirur Math [1954] case established the foundation for property owenership within religious endowments. It established that the mahant (like the shebait of the temple) is more than just a servant of the math but is something less than the property owner. Both mahants and shebaits have rights over the disposition of the institutions property and are to be compensated for their services; they may receive personal donations but are not legally entitled to offerings made to the temple itself.” And the Profullo Chorone v. Satya Chorone ruling also said shebait had a “right to a part of the usufruct”

-says for both public and private, ownership of endowed property reside in the idol and profits go the institution [this contradicts p 449], says the identities of beneficiaries and direction of dedication are the only differences legally; but for practical purposes, the difference is a private idol owner can make a profit

456-Central Endowment Regulations (1810-1920)—regulations in which British took control over charitable and religious trusts to prevent people “reaping lucrative financial benefits through the mismanagement of an endowment’s funds”; regulations were done state by state, beginning with Bombay

457-in these, “the states’ Boards of Revenue (BOR) acquired ultimate responsibility for the regulation of endowments.” As well as provide for “repairs and maintenance of buildings, appoint trustees for non-hereditary temples, supervise trustees of hereditary temples, and ensure that the endowments were not used for any private purpose.”

-“Subordinate to the BOR were district-level Local Agents who supplied the Board with information on the temples (e.g. names and numbers of endowments, names of trustees, method of trustee election for each temple). The appointed trustees themselves comprised the third level of the regulatory hierarchy, who directly managed the religious institutions, collecting and appropriating land and cash revenue. Those services were financially supported by a fee taken out of temple funds—kept in the government’s treasuries.”

-Presler has pointed out that the BOR Collector, besides “ensuring the proper administration of endowments”, was to “resume misused or uncared for land, resulting in a new source of governmental income”

458-British continued regulation until 1830’s, “when religious groups in England began to protest their government’s involvement in non-Christian institutions.” Which also included “payments to temples whose endowments had lapsed”, “In 1843, the British government began its withdrawal from endowment regulation; all regulation was given over to local rajas, panchayats, newly-formed committees, or existing temple priests and trustees. This withdrawal produced a vacuum of authority in endowment regulation, producing mismanagement on a scale rivaling, and possibly surpassing, that of any period. The British severed all ties between the BOR and endowment regulation in the Religious Endowment Act of 1863 (Act XX), which provided for the appointment of Local Committees to replace the BOR. These Committees exercised supervision only over those temples whose trustees were appointed; temples whose trustees were hereditary were left wholly unmanaged until 1920…The Charitable and Religious Trusts Act of 1920 (Act XIV)—passed almost 60 years later—allowed an interested party to apply to a court” to get the financial information of trusts for public use—and this Act, like all preceding ones, was only for public trusts, and “private religious endowments were still wholly unregulated”

-“Act XIV operated within the existing framework (459) of Article 92 of the Civil Procedure Code of 1908, the combination of which allowed ‘interested parties’ to hold trustees responsible for alleged mismanagement by forcing them to open their books and file suit in cases of mismanagement; beginning with Madras in 1925, state governments, under continued local pressure, began to eschew the four pages of Act XIV creating more proactive and cost-effective legislation, allowing the states themselves to hold public endowments responsible for their financial dealings, instead of forcing devotees to bring their own suits against wealthy temples”

459-“The HRE Act (Madras Act II of 1927) marked the government’s first attempt to proactively address the issue of temple mis-administration. The Act’s proactivity was effected by a shift from a court-based system to an executive-based system, signaling a departure from the long-standing British policy of non-interference.”

-and most states made their own Acts on it since the Constitution was adopted with Article 25(2)(a) allowing states to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice”, “while leaving all religious activities to the administration of the temples themselves. The ‘secular’ duties assumed include: Preparing codes of conduct for endowment staff, appointing a Board of Trustees, inspecting ledgers, removing the head of the institution of various reasons, and assessing fees…”

460-The Income Tax Act of 1961 eroded 2 old financial benefits of religious endowments; exemption from tax and ability to tax shelter inheritance

-a public religious endowment has 2 sources of income: rental property and donations—they are taxed differently; the Act distinguishes between two types of income from property: applied and accumulated. For Section 11, “Applied funds are those spent during the tax-year; these are tax-exempt. Of those funds accumulated, or unspent, only the first 25 per cent is exempt. The endowment can delay taxation on the remaining 75 per cent for up to ten years, if it discloses the intention behind its accumulation to the Income Tax Officer and invests the accumulated funds in certain approved [government-owned] investments. Section 12 addresses income derived from contributions from the general public applied solely to religious purposes to be excluded for the income for that year; an amendment was passed in 1973, however, making these voluntary contributions taxable as of April 1, 1973. Under sub-section 2, contributions made by another “trust or charitable or religious institution to which the provisions of Section 11 apply” will be treated as income for that year and will not be tax-exempt.”

461-and private trusts are not exempt; a rule actually started in an Act in 1922 [unclear if this rule was ubiquitous form 1922 on]

462-the 3rd financial benefit was owning property which has not been eliminated, but limited—HREC said in early Commission Report that there can be no personal ownership of maths, but shebaits could keep donations that are expressly for them

-“in the past 30 years, the Supreme Court has heard approximately twenty cases involving disputes over the publicity/privacy of a religious institution. In (463) six of these cases, the Court has ruled that the institutions—five temples and one math—were private, in each case overturning the prior judgment of the respective Higher Court.”

465-the Commission Report and Courts define private endowments differently; Commission looks more a “the object of dedication, beneficiaries, and scope of worshippers” and essentially didn’t think people could have private endowments

-while the Court does the opposite, even saying “that to refuse worship to a member of the public is ‘a heresy which is scarcely expected in Hindus (466) who are by and large constitutionally reverent and prone to worship’”—directly contradicting a statement in the Commission Report, the Report even criticizes courts for being too willing to call endowments private