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How can he think or be at all out of relation to society? Alike the expression of his organic needs and the expression of his inmost individuality take social forms. Why then should it be a social phenomenon to dread heresy and presumably not a social phenomenon to embrace heresy 1 Even were the heresy" anti-social," it would still not be non-social, since heresy no less than orthodoxy is a way of responding to social environment.

Or again, if a man fears the dark, why should that be "merely psychic" whatever that may be 1 Has he not inherited the instinct from ancestors who knew good cause for fearing the terror by night 1 Strangest of all is the statement that sexual attraction is not a social phenomenon. If a man craves a mate, is a craving which iR itself the very foundation and beginning of all society, and owes its strength in each to an endless process of social selection, the less social because it is "vital"? Search all titles. Search all titles Search all collections.

A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress The Commissioner, Hindu Religious Endowments Nevertheless, this remains an individualistic perspective according to which society — and religion—are made up of an addition of persons, with their rights and actions limited by the public good, a presupposition that is widely at variance from what social science has reported about the entanglement, if not the indeterminacy, of religious issues with social, economic, legal, and political relationships.

It is for this reason that D. They rapidly acknowledged that it could not be easily done. As Justice Gajendragadkar wrote in about Hinduism:. It is true that the decision regarding the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character.

Justice Gajendragadkar was a judge known for his reformist views who was brought up in a family of pandits and was a Sanskrit scholar versed in Vedanta Gadbois When he was Chief Justice of India — , he put forward in another judgment 9 a rather encompassing view of Hinduism mostly based on the philosophy of Sarvepalli Radhakrishnan who was President of India at the time.

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He added:. Whilst we are dealing with this broad and comprehensive aspect of Hindu religion, it may be permissible to enquire what, according to this religion, is the ultimate goal of humanity? It is the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and assimilation of the individual soul with the infinite Sastri Yagnapurushadji This was done in various domains. By way of an illustration, I shall sum up here the examples of litigations concerning priestly services in temples.

For instance in a case concerning the hereditary succession to priestly office in some temples in Tamil Nadu, the Supreme Court held that:. This position was confirmed in other judgments. While in the previous judgment it was the appointment of a priest that was deemed to be secular, in a subsequent one the Supreme Court held that it was the service of the priest as well as his person which were secular:. There is a distinction between religious service and the person who performs the service; performance of the religious service … is an integral part of the religious faith and belief ….

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But the service of the priest archaka is a secular part. Narayana Deekshitulu As previously mentioned, this legal view of priesthood largely departs from former Hindu conceptions of the person and especially from the religious qualifications required for performing temple service. This led to a decision taken by the Supreme Court in that opened priesthood in public temples including Brahmanical ones to all castes.

However, in , another decision by Justice Gajendragadkar, who was an open advocate of religious reform and for whom the notion of an essential practice applied not only to secular practices but to religious ones, marked a turning point Dhavan and Nariman :. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. Although different judges may hold different opinions, most of them in the upper courts tend to view religion from an idealist perspective—much as Justice Gajendragadkar did.

Indeed, the author points out that there is a possible shift between an inclusivist vision of Hinduism exemplified by Swami Vivekananda or Sarvepalli Radhakrishnan and expressed in terms of an inbuilt tolerance of Hinduism, which appears—to some—to be similar to secularism, toward a more radical and exclusivist vision promoted by Hindutva.

As part of this process, there is a need to provide unambiguous definitions of common-language expressions that otherwise seem fuzzy or polysemic. It is one of the roles of the Courts to set down these definitions and to establish the legal categories on which judgments may be based, therefore directly impacting the issues in question—in this case, religious life. This intervention of the Courts is systemic in character.

Here are a few examples concerning Hinduism. In order to accept a petition, a court has to determine if the petitioner has an interest in the case; if not, the petition is rejected.

Thus, only worshippers at a given temple may petition a court about matters regarding this temple. This may indeed sound restrictive. However the notion was given a wide berth by the Madras High Court in on the basis of a law textbook:. It has a wide meaning. Thus, a person merely visiting some temple and after paying his respects goes away, is also a worshipper. He would further state that this particular habit may be only of a very recent origin or it may be one which has existed for a long time S. Indeed, as Breckenridge or more recently Das Acevedo have shown, courts themselves may establish and create a custom or a usage.

It is clear that, to constitute an office one, if not the essential, thing is the existence of a duty or duties attached to the office which the office-holder is under a legal obligation to perform and the nonperformance of which may be visited by penalties, such as a suspension, dismissal, etc Vathiar Venkatachariar What is paradoxical is that in deciding courts had no jurisdiction over these religious honors, the Supreme Court actually developed at length notions at the core of temple life with an immediate effect on the relationships between temple devotees and the authorities.


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What is a religious office? It is a contractual service that can be subjected to penalties. What is a religious honor? The Supreme Court supported an idea formulated by J. This is made possible by considering that conflicts involving certain religious issues pertain to questions of civil rights , which are to be decided by civil courts of law.

Some definitions - | Community | Taylor & Francis Group

By extension, it actually protects the right to worship in a particular place :. The dispute as to worship, however, may be a dispute as to the worship of a deity in a particular temple or place. It appears to me that if such be the dispute then the dispute as to the worship necessarily involves a dispute as to the user of the land or building in which the particular deity is located.

The right to worship as I have said cannot be regarded as something entirely apart from the place of worship … it must be held that a dispute as to the right to worship a deity in a particular temple is a Dispute falling within the ambit of Section , Cr. It may be that the dispute in actual fact may have more to do with what a man does in the temple after entering into it and not so much with his actual entry into the temple; nevertheless where the right regarding which a dispute exists is one which is inseparably connected with the right to enter a building and cannot be dissociated from it the dispute cannot be said to be not one regarding an alleged right of user of the building Velappa Goundan And Ors.

Neither these additions to the temple nor the attributes added to the idol were acceptable to the Digambaras—e. If the Digamberies have a right to worship at the temple the attempt of the Swetamberies to put Chakshus to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple. These findings clearly establish that the Appellants interfered with the rights of Digamberies to worship with respect to which a civil suit is maintainable under section 9 of the Civil Procedure Code.

Disputes pertaining to religious office including performance of rituals were always decided by the Courts established by law. There are numerous authorities where dispute about entry in the Temple, right to worship, performing certain rituals, have been taken cognizance of and decided by civil Courts. Bareheaded devotees complained they were prevented by the covered-headed ones from entering the mandir and worshipping there.

This was a long-standing conflict and judgments to decide the same question already existed by the end of the nineteenth century Queen Empress ; Ataullah These earlier rulings were confirmed by the Allahabad High Court, with particular reference to Justice Mahmood in Ataullah :.

I hold also that this should be pronounced. I hold also that there is a difference of the exact note in which it should be pronounced and I hold that there is no authority to say at what note of the vocal octave the voice should emanate. Indeed, the margin between legitimately deciding on religious issues when civil rights are deemed to be at stake and unduly interfering in religious matters is rather narrow. Gopanna The above judgment in Syed Farzand Ali was thus commented upon and implicitly disagreed with in another case, this time concerning Christians Koil Pillai :.

In this case the judge instead stressed the line of argument previously developed in M.

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Appadorai Aiyangar to strike a balance between the two contradictory requirements made of the courts: not to interfere in religious matters while protecting civil rights, which may lead to such interference. It has been recognised that the Court in adjudicating on a right of worship or a right to a religious office not infrequently is obliged to decide incidentally questions of ritual but it follows that the Court will not on a mere pretence that a right to worship has been infringed, arrogate to itself a jurisdiction which it does not possess to prescribe forms of prayer, rights to religious precedence and questions of that nature.

However, important changes in religion are also brought forth through action of a less political nature on the part of the courts. Such processes result from systemic properties of Common law and are quite independent from any secularist agenda. One of them, already identified by scholars, is the general effect produced by the fact that the Constitution is centered on individuals on the basis of equality, a legal framework at odds with widely shared Hindu conceptions and practices.

A right to an office is taken as an instance of a more general right to property. The right to a religious office does not differ from the right to any other office, which means that it must satisfy the same conditions to be held valid. The right to worship is taken as just one instance of the right to access or use land and water, which is regulated by dispositions of the Criminal Code.

But at a much more fundamental level it also results from the legal system itself which imposes a legal categorization on aspects of religious life: religion has to fall within this legal universe of discourse and of enforceable rules. The kind of religion that is thus eventually shaped is mostly framed by questions and rules that were initially elaborated for other, non-religious litigations.

The confederation of Canada presented the federal government with the challenge of uniting distinct and separate Aboriginal groups under one law. Therefore, despite the diversity of experiences and relationships between Aboriginal peoples and settlers across the country, including strong military and economic alliances in certain regions, Confederation established a very different relationship between these two groups by disregarding the interests and treaty rights of Aboriginal peoples and uniformly making them legally wards of the state.

Systems of control that had been established in prior legislation were now newly defined under one act, the Indian Act of This act effectively treated Aboriginal people as children—a homogenizing and paternalistic relationship.

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Since the first pieces of legislation were passed, Aboriginal peoples have resisted oppression and sought active participation in defining and establishing their rights. Early on, Aboriginal leaders petitioned colonial leadership, including the Prime Minister and the British monarchy, against oppressive legislation and systemic denial of their rights. The legislation against Aboriginal peoples did not stop Aboriginal practices but in most cases drove them underground, or caused Aboriginal peoples to create new ways of continuing them without facing persecution.

The potlatch was one of the most important ceremonies for coastal First Nations in the west, and marked important occasions as well as served a crucial role in distribution of wealth. Non-native colonists and missionaries saw the sharing of wealth and food at potlatches as excessive and wasteful, but ultimately they knew how integral it was to sustaining First Nations cultures. Indian Agents and missionaries felt it interrupted assimilation tactics.

They wanted Aboriginal people to shift from an economic system of redistribution to one of private property ownership—seemingly impossible as long as the potlatch existed. The outlawing of the potlatch severely disrupted these cultural traditions, although many groups continued to potlatch. To celebrate a wedding, Cranmer hosted a six-day potlatch over Christmas, Indian Agents interrupted the potlatch and arrested approximately 50 people. The jail term was to be several months, but Indian Agents offered reduced sentences for anyone who would surrender their potlatch items, such as valuable masks, costumes, and coppers.

Judge Alfred Scow describes some of the impacts of the Potlatch Law:. This provision of the Indian Act was in place for close to 75 years and what that did was it prevented the passing down of our oral history. It prevented the passing down of our values. It meant an interruption of the respected forms of government that we used to have, and we did have forms of government be they oral and not in writing before any of the Europeans came to this country. We had a system that worked for us. We respected each other.

We had ways of dealing with disputes. Countless communities were similarly impacted by the restriction on ceremonies, facing legacies that continue to this day in the form of lost cultural practices, traditions, and oral history. When Aboriginal political organizing became more extensive in the s and groups began to pursue land claims, the federal government added Section to the Indian Act.

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Section outlawed the hiring of lawyers and legal counsel by Indians, effectively barring Aboriginal peoples from fighting for their rights through the legal system. Eventually, these laws expanded to such a point that virtually any gathering was strictly prohibited and would result in a jail term. These amendments presented a significant barrier to Aboriginal political organizing and many organizations had to disband. Saskatoon: Saskatoon Law Centre, After the Second World War, Canadian citizens shocked by the atrocities of the war became more aware of the concept of human rights.

Many Canadians recognized that Aboriginal people in Canada were among the most disadvantaged in the country. The more oppressive sections of the Indian Act were amended and taken out. It was no longer illegal for Indians to practice their customs and culture such as the potlatch. They were now allowed to enter pool halls and to gamble—although restrictions on alcohol were reinforced.

Indians were also now allowed to appear off-reserve in ceremonial dress without permission of the Indian Agent, to organize and hire legal counsel, and Indian women were now allowed to vote in band councils. The Royal Commission of Aboriginal Peoples RCAP points out, however, that by taking away some of the more oppressive, and ultimately unsuccessful, amendments, the government simply rendered the Indian Act more similar to the original act of


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