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Divine Sovereignty, Indian Property Law, and the Dispute over the Padmanabhaswamy Temple*

Published online by Cambridge University Press:  02 July 2015

DEEPA DAS ACEVEDO
DEEPA DAS ACEVEDO*
Affiliation:
The University of Chicago Law School, Chicago, United States of America Email: [email protected]
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Abstract

Secular governance in India was meant to have incorporated religion within public life, but the implementation of ‘Indian secularism’ has in important ways been premised on separating religious and secular lifeworlds. Public Hindu temples, whose assets and operations are managed by a melange of statutory bodies, courts, and state governments, exemplify this puzzling situation. The 2011 discovery of treasures within the Padmanabhaswamy temple in Trivandrum, Kerala, prompted extended public debate about the ownership of temple assets as well as litigation that eventually reached the Supreme Court of India. Indian citizens, erstwhile princely rulers, and the deity of the temple were variously presented as the true owners of the wealth. Ultimately, both public discourse and judicial opinion largely reaffirmed the notion that religious institutions are to be treated as private, contractually defined properties, and that temple wealth, as specifically religious property, exists outside of market circulations.

Type
Research Article
Information
Modern Asian Studies , Volume 50 , Issue 3 , May 2016 , pp. 841 - 865
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Copyright © Cambridge University Press 2015 

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Footnotes

*

My thanks to John F. Acevedo and Herman Tull, as well as to the Law, Culture, and Society Workshop at the University of Chicago and the Law and Society Association for opportunities to present this article. Research for this article was partially supported by the Social Science Research Council.

References

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2 Ritu Birla makes a compelling case for this transition in Stages of Capital via a discussion of the gifting practices of wealthy merchant families in South India. Faced with the task of categorizing religious endowments as public or private, a task complicated by traditional and to the colonial mind ‘mutually exclusive’ considerations like social benefit, divine enjoyment, and personal profit, colonial officials encoded endowments as largely private. Endowments were held to remove assets from the commercial sphere according to the intentions of private individuals, transform assets into the private property of deities, and leave assets in the management of individuals who existed in private contractual relationships with the deity. Birla, Ritu, Stages of Capital: Law, Culture, and Market Governance in Late Colonial India, Duke University Press, Durham, 2009Google Scholar.

3 Appadurai, Arjun, Worship and Conflict under Colonial Rule: A South Indian Case, Cambridge University Press, Cambridge, 2008Google Scholar; Bayly, Susan, ‘Hindu Kingship and the Origin of Community: Religion, State and Society in Kerala, 1750–1850’, Modern Asian Studies 18:2, 1984, pp. 177–213CrossRefGoogle Scholar; Dirks, Nicholas B., The Hollow Crown: Ethnohistory of an Indian Kingdom, Second Edition, University of Michigan Press, Ann Arbor, 1996Google Scholar; Fuller, C. J., Servants of the Goddess: The Priests of a South Indian Temple, Cambridge University Press, Cambridge, 1984Google Scholar; Price, Pamela G., Kingship and Political Practice in Colonial India, Cambridge University Press, Cambridge, 2008Google Scholar.

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5 In this sense, the Padmanabhaswamy temple exemplified Appadurai's Worship and Conflict, rather than Dirks’ The Hollow Crown conception of the relationship between temples and kings: that it was a precondition for royal authority rather than merely being a sign of that authority.

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7 Although there is a growing body of literature devoted to distinguishing between the practices and consequences of colonial rule in the Madras Presidency and those of the Bengal Presidency (see, for instance, Wagoner 2003; Washbrook 2004), my intention here is only to limit the discussion of parallel developments in temple management to Madras. It remains, in fact, for future scholarship to more explicitly address differences in the presidencies’ approaches to temple management.

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9 Proclamation 14 considers whether non-Hindus may be obliged to supply temple provisions, and what ritual rights are owed to non-Hindus who do supply such provisions. Parvathi Bayi notes that a letter from her ex-dewan as well as her own order and proclamation have already been published to the effect that Moplahs (Keralite Muslims) and other non-Hindus should be exempt from supplying provisions to temples. However, since ‘the Moplahs and other non-Hindus have conveyed their sorrow that they are [still] being asked to supply provisions to the temple for the prescribed prayers and feedings’, the proclamation reiterates that they should be exempt from providing supplies unless it is their wish to do so. Proclamation 14 (issued 16 May 1816), in S. Raimon, Thiranjedutha Rajakeeya Vilambarangal (Selected Proclamations of the Sovereign), Government of Kerala, Thiruvananthapuram, 2005, pp. 20–21. I am grateful to Mallika Das for the translation of this and all other Malayalam-language texts cited in this article.

10 See Appadurai, Worship and Conflict, as well as Frykenberg, Robert Eric, ‘The Construction of Hinduism as a “Public” Religion: Looking Again at the Religious Roots of Company Raj in South India’, in Yandell, Keith E. and Paul, John J., Religion and Public Culture: Encounters and Identities in Modern South India, Curzon, Richmond, 2000, pp. 3–26Google Scholar.

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13 For instance, in the Madras Legislative Assembly, one member dismissed the proclamation by saying that, ‘everybody acquainted with that proclamation knows, and in fact, all of us know, that the order was issued because the Maharaja possesses autocratic powers’. Another was even more vehement, exclaiming, ‘An autocratic mandate! When such autocratic States are unfit to come into the Federation with democratic British Provinces, I would very much like to know whether a mandatory order passed by the Sovereign of Travancore can be taken as a proper example for introducing this reform here.’ Extracts from the Debates of the Legislative Assembly of the Province of Madras regarding the Malabar Temple Entry Bill, 30 August (1938), Fort St. George Gazette, Kerala State Archives, File 64–65, Bundle 1129 (1904–56). Conversely Gandhi—who had in 1925 visited Kerala to offer support to participants in the Vaikkom Satyagraha demanding temple-entry—made a second visit to Travancore after the promulgation of Chithira Thirunal's declaration, saying ‘I have come as a humble pilgrim to offer congratulations to the Maharaja.’ Gandhi, M. K., ‘All about Travancore’, Young India 7:13, 1925, pp. 1–4Google Scholar.

14 Madras Hindu Religious and Charitable Endowment Act, 1951 (Act XIX of 1951) & Rules (referenced as ‘Remesan 2009’), and Travancore Cochin Hindu Religious Institutions Act & Rules, 1951 (‘Remesan 2006’).

15 In Tamil Nadu, the Department of Hindu Religious and Charitable Endowments is the apex body governing public temples, while in Andhra Pradesh there is a commissioner who oversees all temples except the extraordinarily rich and powerful Tirumala Tirupati temple (governed by a separate board).

16 Presler, Franklin A., ‘The Structure and Consequences of Temple Policy in Tamil Nadu, 1967–81’, Pacific Affairs 56:2, 1983, pp. 232–46CrossRefGoogle Scholar.

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23 W.P. 36487 of 2009, henceforth referred to as T. P. Sundara Rajan.

24 C. P. Sriharshan, ‘Sri Padmanabha swami's diamond treasure in the kannimoola’, Kerala Kaumudi, 14 September 2007.

25 C. P. Sriharshan, ‘The diamond treasure of Sri Padmanabha swamy contains palace properties’, Kerala Kaumudi, 15 September 2007.

26 Ibid.

27 A quo warranto petition demands that the person to whom the petition is directed demonstrate his authority to exercise a particular right which he claims to hold.

28 Uthradam Thirunal Marthanda Varma and others vs Union of India, W.P.C. 4256 of 2010, henceforth Uthradam Thirunal.

29 Kerala States Union Covenant. ‘Outstanding Features of the Kerala States Union Covenant: Rajpramukh's Powers Akin to Those of Governors’, The Indian Express, 9 June 1949.

30 Uthradam Thirunal, at 6.

31 Article 363(1) states: ‘Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party . . .’ (Constitution of India, Art. 363, §1).

32 Uthradam Thirunal, at 9.

33 1994 Supp.(1) SCC 191.

34 Uthradam Thirunal, at 10.

35 The other five members of the committee were two retired High Court judges, one government representative, one member of the Department of Archaeology, and the civil servant in charge of the temple.

36 Gurcharan Das, ‘All the world's gold’, The Hindu, 28 August 2011.

37 Anonymous, ‘Treasure belongs to royal family: Sankaracharya’, The Hindu, 6 July 2011.

38 R. Madhavan Nair, ‘Treasure belongs to temple, says M. G. S. Narayanan’, The Hindu, 6 July 2011.

39 Anonymous, ‘Treasure should be kept in temple’, The Hindu, 11 August 2011. The ‘Hindu United Front’, and the ‘Kerala Temple Rescue Association’, respectively. The Tirumala Tirupati Devasthanams is a statutory body responsible for the governance of the Vaishnavite temple in Tirupati, Andhra Pradesh, which until recently was famous as the richest Hindu temple in the world. It is unclear whether that distinction now belongs to the Padmanabhaswamy temple.

40 See http://www.svvedicuniversity.org/, [accessed 9 August 2013].

41 Anonymous, ‘Rationalist leader's house attacked’, The Hindu, 4 July 2011.

42 The rise of unelected bodies like temple boards in India has been described as originating from a concern, at the time of founding, that ‘the politics, conflicts of interest, and corruption of the country's representative institutions could seriously hamper the young nation’. Robinson, Nick, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’, Washington University Global Studies Law Review 8:1, 2009, pp. 1–70, p. 17Google Scholar.

43 Uthradam Thirunal, at 10.

44 Lack of differentiation between beneficiaries of the temple (that is, of the very existence of an institution in which one may worship and participate in a religious community) and beneficiaries of the temple's assets is responsible for much mischief (see, for instance, Michael C. Baltutis, ‘Recognition and Legislation of Private Religious Endowments in Indian Law’, in Baird, Religion and Law in Independent India, p. 449 in which this distinction is not maintained). Worshippers who are able to propitiate deities clearly benefit from the existence of temples, but case law has consistently upheld the deity as the official—if figurative—beneficiary of the temple's assets. Assets endowed to a temple are rarely if ever dedicated to the general public; rather they are dedicated to a purpose (rituals, support for pilgrims) which colonial law anthropomorphized in the figure of the deity, or they are dedicated to the deity itself.

45 Presler, Franklin A., Religion under Bureaucracy: Policy and Administration for Hindu Temples in South India, Cambridge University Press, Cambridge, 1987, p. 61Google Scholar.

46 Birla, Stages of Capital, especially chapters 2 and 3.

47 Ghose, Jogender Chunder (1917–1919), The Principles of Hindu Law, vols 1–3, S.C. Auddy & Co., Calcutta, pp. xx–xxiiGoogle Scholar; Mukherjea, B. K., The Hindu Law of Religious and Charitable Trusts: Tagore Law Lectures, 5th edition, Eastern Law House, Kolkata and New Delhi, 2006Google Scholar; Saraswati, Prannath, The Hindu Law of Endowments: Tagore Law Lectures (1892), Thacker, Spink, Calcutta, 1897Google Scholar.

48 Mukherjea, The Hindu Law of Religious and Charitable Trusts, p. 159.

49 Ibid., p. 39.

50 Davis, Donald R. Jr., ‘A Historical Overview of Hindu Law’, in Lubin, Davis Jr., and Krishnan, Hinduism and Law: An Introduction, pp. 17–27, p. 25Google Scholar.

51 See Richard H. Davis, ‘Temples, Deities, and the Law’, as well as Davis, Richard H., The Lives of Indian Images, Princeton University Press, Princeton, 1997Google Scholar.

52 Sontheimer, Günther-Dietz, ‘Religious Endowments in India: The Juristic Personality of Hindu Deities’, Zeitschrift für vergleichende Rechtswissenschaft 67:1, 1965, pp. 45–100Google Scholar.

53 Meanwhile, J. D. M. Derrett seems to implicitly endorse the Mimamsa approach: ‘For dedication of an idol and its temple and endowment for its worship are never for the benefit of the idol, but for that of the worshippers’ (Derrett, J. D. M., Introduction to Modern Hindu Law, Oxford University Press, Bombay, 1963, pp. 508Google Scholar). For an explanation of why this view supports Mimamsa (as opposed to Dharmashastra) thinking, see Richard H. Davis, ‘Temples, Deities, and the Law’. Davis states that Dharmashastra disdain for temple priests was founded on the belief that they live on assets ‘stolen’ from the deity.

54 Davis, ‘Temples, Deities, and the Law’, p. 200.

55 Francis Xavier Clooney, Retrieving the Purva Mimamsa of Jaimini, PhD thesis, Department of South Asian Languages and Civilizations, University of Chicago, 1994. See especially Chapter 4, pp. 170–75.

56 See Appadurai, Worship and Conflict, and Fuller, Servants of the Goddess, both cited earlier, as well as Carol A. Breckenridge, The Sri Minaksi Sundaresvarar Temple: Worship and Endowments in South India, 1833–1925, PhD thesis, University of Wisconsin-Madison, 1977; Good, Anthony, Worship and the Ceremonial Economy of a Royal South Indian Temple, Edwin Mellen Press, Lewiston, 2004Google Scholar.

57 Mukherjea, The Hindu Law of Religious and Charitable Trusts, p. 39. On the construction of a ‘Hindu law’, see Cohn, Bernard, ‘Law and the Colonial State in India’, in Starr, June and Collier, Jane F., History and Power in the Study of Law: New Directions in Legal Anthropology, Cornell University Press, Ithaca, 1989, pp. 131–52Google Scholar. For a refutation of the idea that ‘popular Hinduism’ is nothing but degenerate ‘textual Hinduism’, see, generally, Fuller, C. J., The Camphor Flame: Popular Religion and Society in India, Princeton University Press, Princeton, 1992Google Scholar.

58 Moreover, the personhood of the deity allowed for the assets to be preserved without exposing religious endowments to the taint of hoarding and joint ownership associated with the Hindu undivided family, which colonial jurists feared rendered any form of alienation—and thus market operations—impossible. Birla, Stages of Capital, p. 80.

59 Uthradam Thirunal, at 10.

60 Jacobsohn, Gary Jeffrey, ‘The Sounds of Silence: Militant and Acquiescent Constitutionalism’, in Kautz, Steven, Melzer, Arthur, Weinberger, Jerry, and Zinman, M. Richard, The Supreme Court and the Idea of Constitutionalism, University of Pennsylvania Press, Philadelphia, 2009, pp. 131–61Google Scholar.

61 Mehta, Pratap Bhanu, ‘Reason, Tradition, Authority: Religion and the Indian State’, in Jaising, Indira, Men's Laws, Women's Lives: A Constitutional Perspective on Religion, Common Law and Culture in South Asia, Women Unlimited, New Delhi, 2005, pp. 56–86Google Scholar.

62 Bhargava, Rajeev, ‘Introduction’, in Bhargava, Rajeev, Secularism and Its Critics, Oxford University Press, New Delhi, 1998, pp. 1–30, p. 27Google Scholar.

63 Interview, Sreelal Warrior, Ernakulam, Kerala, 22 February 2011.

64 Anonymous, ‘Chandy not for temple takeover’, The Hindu, 29 July 2011.

65 S. A., ‘Render unto Padmanabhaswamy’, The Economist, Asia section, 19 February 2013.

66 Ibid.