LASSnet 2010: Religion and Constitutionalism in India
Duration: 01:31:16; Aspect Ratio: 1.333:1; Hue: 81.682; Saturation: 0.064; Lightness: 0.312; Volume: 0.265; Cuts per Minute: 0.131
Summary: Chair/Discussant: Sitharamam Kakarala, Senior Fellow, Centre for the Study of Culture and Society
Title: The Ayodhya judgement: Force, Law and Justice
Panelist: Arvind Narrian, Alternative Law Forum
Abstract: This presentation will look at the intimate link between force, law and justice in the context of the recent Ayodhya judgement. The Ayodhya judgment was one culminating point to a history in which force and law were joined at the hip. The question which will be explored is how does the law respond to an alteration in the status quo effected by illegal means ? The post colonial history in particular the installaion of idols in 1949, the removal of locks in 1986 and the demolition in 1992 provides an account of the response of the law in which the link to notions of justice seems remote. Finally if the link is really between law and force, how do we understand the claim of justice when it comes to the Ayodhya verdict ?
Title: Judging History: Evidencing the Past in the Ayodhya Judgement
Panelist: Rohit De, Doctoral Candidate in the Department of History, Princeton University
Abstract:At first glance, the judge and the historian appear to have much in common. Both examine the written record and attempt to reconstruct a narrative of the past. It is therefore not surprising that the judges of the Allahabad High Court would fearlessly delve into historical reconstruction to decide the claims of the present. Using the Ayodhya judgment, I intend to investigate the nature and standards of evidence demanded by the profession of history and the civil court and underline their incommensurability. Given that a judicial narrative provides creates a history more ‘authentic’ than the efforts of even state backed historians, how should a court approach a historical question, especially in a dispute like Ayodhya? Firstly, I argue that the framing of the civil suit as hinging on a ‘historical question’ was incorrect and unnecessary according to the Supreme Court’s own jurisprudence . Secondly, if the question of the prior existence of a Ram temple is to be determined through historical sources, other historical questions, such as the legitimacy of the mosque, the possibility of alternative temple sites and the right of the VHP to be the ‘next friend” of the deity need also to be investigated. Does the transformation of a Hindu deity to a civil litigant represented by a self appointed guardian hurt the rights of third parties, specifically other Hindus? Finally, I would argue that if historical evidence is to be considered, then the courts must treat it as a body of expert knowledge, like medical or scientific evidence, which requires to offered by ‘experts’ who are subject to public protocols of evidence collection
Title: Religion and the Courts: The Secular Management of Gods’ Affairs in Some Kerala Cases
Panelist: Prof. Gilles Tarabout, CNRS senior research fellow in social anthropology, Paris, Director of the Research Centre in Ethnology and Comparative Sociology, CNRS-University Paris West, Codirector of the ANR programme “Justice and Governance in Contemporary India and South Asia”
Abstract: While a KHC full bench underlined in 1978 that secularism “eliminates God from the matters of the State”, the Courts actually have to arbitrate much religious litigation. This arises partly as a specific legacy from the colonial period, when on one hand Gods were endowed with a juristic personality, and on the other hand Government departments were constituted for the direct supervision and management of major temples in a State. It is also the consequence of the general need to decide about inheritance or land claims, etc., even when they concern religious institutions and entail ritual stakes. The presentation will take up a few cases concerning Kerala temples that came before the KHC and the SC, in order to show to what degree of ritual details the courts may feel compelled to go. Even though some judges may dwell at length on theological and ritual interpretations, the very fact that the debate shifts to the legal sphere may arguably be taken as a step - if paradoxical- in the evolution towards the secular goal.
Title: Privileging Communal Identities and Marginalising the “Other”: Constitutionalism in India and Cow Slaughter
Panelist: Abhik Majumdar, Assistant Professor, National Law University, Orissa (NLUO)
Abstract: This paper explores an unexpected by-product of constitutionalism, where constitutional norms are interpreted to subvert the very ethos of the parent constitution. One example is the manner in the overtly secular Indian constitution has been harnessed to justify banning cow slaughter, a long-standing demand of the majoritarian Hindu community.
From the socio-political perspective, the issue bears multiple layers. In the medieval era, caste Hindus harnessed the ‘sacred cow’ concept to both characterise and demonise the ‘other’. Even today, allegations of cow slaughter constitute a popular incitement to religious riots. Some read into this phenomenon another kind of violence, which involves denying to the socially and economically marginalised (even Hindus at the lowest rungs of the caste hierarchy) an inexpensive and accessible source of nutrition. It is against this backdrop that the legal aspects of the issue need to be examined.
During the drafting of the Indian Constitution, conservative Hindu representatives’ demands for incorporating a constitutional ban on cow slaughter was sought to be balanced with the overtly secular nature of the document. Ultimately, a provision of sorts was incorporated in Article 48 and justified on the basis of protecting agricultural interests. Not only was this provision was non-enforceable in character, but so was its ambit was tightly restricted to certain kinds of cattle only, such as milch and draught animals.
Early litigation on the issue was marked by a certain judicial restraint. When legislatures sought to increase the ambit of such bans, our courts restricted them in accordance with constitutional provisions. However, in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005), the Supreme Court upheld a law of the Gujarat legislature that prohibited the slaughter of all forms cattle, a ban extending well beyond the limits of Article 48. Subsequently, several states including Madhya Pradesh, Chhattisgarh and recently Karnataka, have enacted similarly comprehensive legislation.
The proposed paper addresses the processes through which ‘the law’ has served to curtail the ‘space’ given to minorities qua minorities. Given that cow slaughter continues to be an extremely volatile issue, this denial of ‘space’ inevitably bestows a measure of legitimacy to the pretexts behind religious riots. Moreover, it also provides a justification for denying the marginalised their nutrition rights.
Chair/Discussant: Sitharamam Kakarala, Senior Fellow, Centre for the Study of Culture and Society
1948
1978
1986
1992
Article 48
Ayodhya
Babri Masjid
Chhatisgarh
God
Hindu
Karnataka
Kerala
Madhya Pradesh
Mirzapur Moti Kureshi Kassab Jamat
Ramjanmabhoomi
VHP
Vishwa Hindu Parishad
appointment
beef
communal
cow slaughter
deity
evidence
guardian
historian
historical question
idols
installation
judge
judgment
judicial narrative
litigant
minorities
"next friend"
nutrition
religion
rights
ritual
'sacred cow'
secular
temple
the 'other'
Title: Judging History: Evidencing the Past in the Ayodhya Judgement
Panelist: Rohit De, Doctoral Candidate in the Department of History, Princeton University
Abstract:At first glance, the judge and the historian appear to have much in common. Both examine the written record and attempt to reconstruct a narrative of the past. It is therefore not surprising that the judges of the Allahabad High Court would fearlessly delve into historical reconstruction to decide the claims of the present. Using the Ayodhya judgment, I intend to investigate the nature and standards of evidence demanded by the profession of history and the civil court and underline their incommensurability. Given that a judicial narrative provides creates a history more 'authentic' than the efforts of even state backed historians, how should a court approach a historical question, especially in a dispute like Ayodhya? Firstly, I argue that the framing of the civil suit as hinging on a 'historical question' was incorrect and unnecessary according to the Supreme Court's own jurisprudence . Secondly, if the question of the prior existence of a Ram temple is to be determined through historical sources, other historical questions, such as the legitimacy of the mosque, the possibility of alternative temple sites and the right of the VHP to be the 'next friend" of the deity need also to be investigated. Does the transformation of a Hindu deity to a civil litigant represented by a self appointed guardian hurt the rights of third parties, specifically other Hindus? Finally, I would argue that if historical evidence is to be considered, then the courts must treat it as a body of expert knowledge, like medical or scientific evidence, which requires to offered by 'experts' who are subject to public protocols of evidence collection
Title: The Ayodhya judgement: Force, Law and Justice
Panelist: Arvind Narrian, Alternative Law Forum
Abstract: This presentation will look at the intimate link between force, law and justice in the context of the recent Ayodhya judgement. The Ayodhya judgment was one culminating point to a history in which force and law were joined at the hip. The question which will be explored is how does the law respond to an alteration in the status quo effected by illegal means ? The post colonial history in particular the installaion of idols in 1949, the removal of locks in 1986 and the demolition in 1992 provides an account of the response of the law in which the link to notions of justice seems remote. Finally if the link is really between law and force, how do we understand the claim of justice when it comes to the Ayodhya verdict ?
Title: Religion and the Courts: The Secular Management of Gods' Affairs in Some Kerala Cases
Panelist: Prof. Gilles Tarabout, CNRS senior research fellow in social anthropology, Paris, Director of the Research Centre in Ethnology and Comparative Sociology, CNRS-University Paris West, Codirector of the ANR programme "Justice and Governance in Contemporary India and South Asia"
Abstract: While a KHC full bench underlined in 1978 that secularism "eliminates God from the matters of the State", the Courts actually have to arbitrate much religious litigation. This arises partly as a specific legacy from the colonial period, when on one hand Gods were endowed with a juristic personality, and on the other hand Government departments were constituted for the direct supervision and management of major temples in a State. It is also the consequence of the general need to decide about inheritance or land claims, etc., even when they concern religious institutions and entail ritual stakes. The presentation will take up a few cases concerning Kerala temples that came before the KHC and the SC, in order to show to what degree of ritual details the courts may feel compelled to go. Even though some judges may dwell at length on theological and ritual interpretations, the very fact that the debate shifts to the legal sphere may arguably be taken as a step - if paradoxical- in the evolution towards the secular goal.
Title: Privileging Communal Identities and Marginalising the "Other": Constitutionalism in India and Cow Slaughter
Panelist: Abhik Majumdar, Assistant Professor, National Law University, Orissa (NLUO)
Abstract: This paper explores an unexpected by-product of constitutionalism, where constitutional norms are interpreted to subvert the very ethos of the parent constitution. One example is the manner in the overtly secular Indian constitution has been harnessed to justify banning cow slaughter, a long-standing demand of the majoritarian Hindu community.
From the socio-political perspective, the issue bears multiple layers. In the medieval era, caste Hindus harnessed the 'sacred cow' concept to both characterise and demonise the 'other'. Even today, allegations of cow slaughter constitute a popular incitement to religious riots. Some read into this phenomenon another kind of violence, which involves denying to the socially and economically marginalised (even Hindus at the lowest rungs of the caste hierarchy) an inexpensive and accessible source of nutrition. It is against this backdrop that the legal aspects of the issue need to be examined.
During the drafting of the Indian Constitution, conservative Hindu representatives' demands for incorporating a constitutional ban on cow slaughter was sought to be balanced with the overtly secular nature of the document. Ultimately, a provision of sorts was incorporated in Article 48 and justified on the basis of protecting agricultural interests. Not only was this provision was non-enforceable in character, but so was its ambit was tightly restricted to certain kinds of cattle only, such as milch and draught animals.
Early litigation on the issue was marked by a certain judicial restraint. When legislatures sought to increase the ambit of such bans, our courts restricted them in accordance with constitutional provisions. However, in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005), the Supreme Court upheld a law of the Gujarat legislature that prohibited the slaughter of all forms cattle, a ban extending well beyond the limits of Article 48. Subsequently, several states including Madhya Pradesh, Chhattisgarh and recently Karnataka, have enacted similarly comprehensive legislation.
The proposed paper addresses the processes through which 'the law' has served to curtail the 'space' given to minorities qua minorities. Given that cow slaughter continues to be an extremely volatile issue, this denial of 'space' inevitably bestows a measure of legitimacy to the pretexts behind religious riots. Moreover, it also provides a justification for denying the marginalised their nutrition rights.
Question and Answer Session
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