Of the State and Beyond the State

I wanted to flag two articles that both provide important ways of thinking about law the state and our colonial legacy.

Siddharth Narain in EPW traces the history of sedition laws and asks pertinent questions about the role that it plays in the Indian republic.

Jeff Redding in "Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems" examines a Supreme Court petition that challenges the constitutionality of the mushrooming Shariat courts and Dar-ul-Qaza courts in India to highlight what he describes as the institutional turn in Indian legal pluralism.

Both articles ask key questions about the role states should play in regulating lives of its citizens.

Guest Post: Faith in a Civil Suit and the Fundamental right to religion

Rohit De's recent posts have drawn attention to various aspects of British colonial interventions into the legal domain in colonial India. This guest post points out the contemporary significance of British colonial interventions in the sphere of religion, by focusing on the implications of a continuous line of case-law dating from the colonial era for the issues in the recent judgment of the Allahabad High Court in the Ayodhya case.

In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
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There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:

“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”

The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.

In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:

“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”

The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.

In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).

Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:

“ 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. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities

Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:

“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.

The statement is quoted below:-
“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””

The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.

The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.

Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.

The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:

“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.

4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”

In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.

The Rule of Law in Colonial India

Elizabeth Kolsky's, Colonial Justice in British India: White Violence and the Rule of Law recently published by Cambridge University Press is a significant intervention into understanding how criminal law comes to operate in India. Kolsky challenges the central justification of British governance, the promise of the rule of law as opposed to the rule of men. The British strove to justify their imperial project, and differentiate themselves from 'personal and arbitrary rule of the Oriental despot' and the 'cruelty and bigotry' of rival empires like the Spanish by appealing to the idea of the rule of law.

Kolsky specifically focuses on cases of white violence i.e. violence committed by Europeans (often planters and soldiers) upon natives to demonstrate that despite a rhetorical stance of legal equality, legal practice and conventions placed most Europeans in India above the law and, in effect, tolerated and condoned widespread physical assault and abuse. She argues that 'This violated the theory of equal protection that undergirded the rule of law and made law complicit in acts of racial violence rather than a guard against them'.

Her book offers much of interest to lawyers. particularly those who are interested in the codification of Indian criminal law. She traces the tensions between Utilitarian attempts at crafting a 'universal criminal law' and the specifics of the colonial context. For instance the first Code of Criminal Procedure secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments.

While there have been some challenges made to the colonial nature of our criminal law (most notably in the Naz Foundation case, and in the case of sedition), there has been little attempt to think through the context in which the Indian criminal codes were developed. Kolsky argues that the colonial context, and the 'notion of difference' between Europeans and Indians was central to the project of codificaiton.


It is interesting to note the differences that emerge between Indian criminal law and the law of crimes in Britain. For instance, the Penal Code's treatment of The Code’s treatment of interpersonal violence differed profoundly from that in English criminal law. As Jordana Bailkin points out,

As soon as the fact of killing was proved against a prisoner in England, the law assumed such malice on his part as to make the charge murder; the defense had to prove the facts extenuating the charge. In India, the burden was on the prosecution to show that the accused had had intention to kill.

Vernacular newspapers suggested that this ease of defence created a culture of impunity for whites in India.

The Penal Code also provided ways to read down the murder charges. The right of self-defense was expressed in wider terms in India than in England because of Macaulay’s concern about native laziness and passivity regarding physical attacks. A wide latitude on self defence was to help rouse 'manly spirit' amongst Indians. Culpable homicide was not murder if the offender was a public servant who had caused death by an act that he believed to be necessary for the discharge of his duties. If the accused committed the fatal act under grave provocation, then the charge was reduced. As Bailkin notes elsewhere, “Provocation” was not limited to the threat of physical force, but included such acts as failing to work in a speedy manner and using insulting language".

In contrast to English law, the law relating to provocation in India considered the 'relative physical strength of the participants and the ethnic and temperamental traits of the accused'. Indian law also allowed a lapse of time between the provocation and the retaliatory act. Overall, defendants could plead provocation much
more easily in India than in England.

Equally fascinating is Elizabeth Kolsky's engagement with early medical jurisprudence. She examines how a variation of the 'eggshell skull' defence emerged in colonial India, suggesting that native Indians often had enlarged spleens which would be ruptured even when faced with mild force. Thus, exonerating several Europeans who beat their servants to death.

Elizabeth Kolsky has been working on questions on race, violence and criminal law in colonial India for several years now. Her Phd thesis at Columbia University titled 'The Body Evidencing the Crime: Gender, Law and Medicine in Colonial India' examines through rape trials in India, the codification of criminal procedure, the development of medical jurisprudence and the admission of expert testimony in criminal trials. Comparing caselaw of the Bengal Nizamat Adalats and the Indian High Court's Kolsky made the striking discovery that as the colonial legal system became more 'rational and systematic' convictions of rape cases went down.

In her recent article in Gender and History, Kolsky persuasively challenges the narrative of British claims of legal reform that aimed at 'saving Indian women' through the analysis of rape law which "concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious." She contends that it is this colonial jurisprudence that has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.

Kolsky's current research project examines criminal law in the North West Frontier Province and engages with ideas of tribe, frontier and Islam and the role they play in the constitution of criminal law.