Temples, Courts, and Dynamic Equilibrium in the Indian Constitution

Abstract

Must all states have fixed constitutional identities? Does democracy necessarily entail citizen-sovereignty? This Article uses ethnographic data from India to argue that the answer to both questions is "no." In the aftermath of a massive stampede in 2011, the Kerala High Court initiated an overhaul of the complex executive, legislative, and judicial network that governs the famous Hindu temple at Sabarimala. The court's conflicting goals were to avoid further consolidating government authority over the temple and to further empower officials so that they could undertake needed reforms. Ultimately the court did both-and neither-in an instance of judicial balancing that reflects the two visions of sovereignty in India. On the one hand, Indian constitutional law and judicial practice reflect a conventional vision of sovereignty, in which sovereign authority is wholly vested in citizens and merely exercised on their behalf by the state. On the other hand, there exists a vision of "divided sovereignty" in which the state, as the agent of reform, has sovereign authority independent of citizens. The productive tension between these two visions, according to which sovereignty is both vested wholly in citizens and divided between citizens and state, is the dynamic equilibrium at the heart of Indian democracy.

India’s Quotidian Constitution

“…In its design and implementation, India's Constitution was deliberately interventionist. Rather than guarantors of individual liberties, the drafters of India's Constitution-and many of its later judicial interpreters-aimed to reshape social life and reform institutions (Sen 2010;Acevedo 2016). One can see this impulse, among other places, in the Indian Constitution's provisions for religion.…”

Buddhism and Comparative Constitutional Law

“…. the rules of governance": the temple's chief priest, its advisory committee (a nongovernmental body of local elites), or governmental overseers (Nathan 2022;Das Acevedo 2018).…”

“…There is, to be sure, a key difference: namely, the willingness of Indian courts to wade enthusiastically into religious doctrinal waters. Scholars disagree about whether or not these forays reflect indigenous or foreign interpretive styles, about whether they are democratically defensible given the unelected nature of the judiciary, and even about whether they negate India's ostensibly secular characterbut there is little disagreement over whether or not Indian courts do, in fact, pronounce on the validity of religious beliefs and practices (Das Acevedo 2013;Dhavan 2001;Fuller 1988;Galanter 1971;Mehta 2005;Smith 1963). At various points during the women's entry dispute, for instance, Indian courts have declared both that Sabarimala's ban on women is an "essential" aspect of Ayyappan worship (making it eligible for more robust constitutional protections) and that it is a nonessential aspect of Hinduism that gives way to other constitutional guarantees of equality and non-discrimination (Das Acevedo 2020).…”