2004
Volume 5, Issue 2
  • ISSN: 2212-4810
  • E-ISSN: 2212-6465

Abstract

It is widely recognized that the secular Indian state unlike its Western counterpart does not follow the strict separation of religion and state, opting to intervene in the domain of religion by treating religions equally. This article examines how the concept of equal treatment of religions is applied in the legal domain by an intellectual history of the Ayodhya litigation and argues that the courts cannot treat religions equally due to the incompatible nature of the claims made by the parties i.e. the history of religion claim of the Hindus vis-a-vis the property rights claim of the Muslims. Departing significantly from the current consensus about the litigation being characterized by defective legal interpretation and political influences, it further argues that the real legal challenge in resolving this dispute is addressing the theological frameworks within modern property law which are dependent on a set of normative inferences embedded in colonial discourse.

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2017-03-13
2025-12-07
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References

  1.  Romila Thapar, “The verdict on Ayodhya: A historian’s perspective”, The Hindu,October 2, 2010.
    [Google Scholar]
  2.  Pratap Bhanu Mehta, “The leap and the faith”, The Indian Express, October 1, 2010.
    [Google Scholar]
  3.  See Duncan Derrett, “The Codification of Hindu Law” in Religion, Law and the State in India(Oxford University Press, 1968), 321–351, for an account of these reforms.
    [Google Scholar]
  4.  See Sen, supra n. 26, 1.
  5.  See Kapur, supra n. 21, 115. Kapur’s analysis is based not only on the Ayodhya litigation but also on the various judgments on Hindutva that involved charges of hate speech against politicians from Hindu political parties, and their defense that these were legitimate appeals to Hindutva. In the main judgment, Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte and Ors. 1996 scc (1) 130, the Supreme Court held that Hindutva was a way of life leading to the interpretation that the statements pertaining to hate speech were secular. According to Kapur, such an interpretation, which did not distinguish between Hinduism and Hindutva, failed to see how these political parties were appropriating secularism.
  6.  See Kapur, supra n. 21, 121–122.
  7.  Justice Agarwal, Vol. 7, p.1561.
  8.  Justice Khan, p. 221.
  9.  Justice Agarwal Volume 7, p.1718.
  10.  Justice Agarwal Volume 7, p.1584.
  11.  Justice Agarwal Volume 7, p.1572.
  12.  Justice Agarwal Vol. 14, p.3442.
  13.  Justice Agarwal, Vol. 14, p.3260.
  14.  Justice Agarwal, Vol. 14, pp. 3288–3289.
  15.  Justice Agarwal, Vol. 14, pp. 3336–3337.
  16.  Justice Agarwal, Vol. 8, p.1767.
  17.  Justice Agarwal, Vol. 14, p.3341.
  18.  Justice Khan, pp. 237–238.
  19.  Justice Khan, p. 282.
  20.  Justice Khan, pp. 276–277.
  21.  Justice Agarwal, Vol. 20, p.4997.
  22.  Justice Agarwal, Vol. 19, p.4551.
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  • Article Type: Research Article
Keyword(s): Ayodhya; Hindu endowment; secularism; wakf
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