Legal Ownership Of Temples, Churches And Mosques In India

Overview

Why are Hindu Idols and religious figures given the status of legal persons?

The basic problem is how to treat property dedicated for religious purposes in a way that makes sense in the context of the religion in question, because any time property is involved in something, the secular law must be able to rule upon those property rights.

There is more than one possible solution for how to handle this in cases in which a legal person is something other than a way to carry on business for profit on behalf of investors when a legal person basically has no "owners".

Charitable foundations, charitable trusts, corporations sole, non-profit corporations with self-perpetuating boards, or non-profit corporations managed democratically by their members or stakeholders are all possible legal tools to handle this problem.

In India, a charitable foundation model in which the charitable foundations are named after a Hindu Idol or religious figure is the way it is handled for religions other than Christianity or Islam, while something close to a corporation sole that can own property model (whose managers are appointed and may be removed by their superiors in the denomination) is used for Christian places of worship. In Muslim mosques, in contract, the succession of inherited trustees of Muslim mosques is treated as an entity separate from the Mosque itself.

Indian religious institutions and charities generally have a hereditary, or at least, non-democratic, organizational model, rather than the democratic governance model of Protestant Christianity that began with the Calvinists in the Protestant Reformation.

When the managers of these religious institutions are not subject to being voting out by the members of the religious institution that they serve (which is particularly unworkable when someone doesn't necessary "belong" to one or many temples where the worshipper might make a pilgrimage), the conduct of the manager of the temple needs to be regulated by law, as opposed to being regulated by being democratically selected by the members of the religious institution.

The important thing is that property belong to the legal person is not just the ordinary private property of the sebait who manages it, even though the property is managed by private individuals who have authority over a Hindu temple and they pass this authority on in a manner very similar to succession to their personally owned property, in part because the temple is often effectively the family's own small business. But the legal personhood of the temple's idol or religious figure makes it clear that this is not just the private property of these private individuals to do with as they please.

Instead, the private individual called a sebait who manages the affairs of this legal person and usually inherited this authority from a relative, has fiduciary-like duties to the worshippers who use use the property belonging to this legal person. Thus, the sebait has a legal duty to put the worshipper's interests above the sebait's personal financial interests beyond fair compensation for their duties. If the sebait does not do so, a court can punish the sebait or take other appropriate action to redress this misconduct.

Religious Legal Persons In India Outside Christianity And Islam

The way this is handled is discussed at length in Saji Koduvath, Advocate, "Legal Personality of Temples, Gurudwaras, Churches and Mosques" (March 12, 2022), which I summarize and quote from below.

For Hindus, Indian law has held that:

The Hindu Law, like the Roman Law and those dervied from it, recognises not only incorporate bodies with rights of property vested in the Corporation apart from its individual members but also juridical persons called foundations. A Hindu who wishes to establish a religious or charitable institution may according to his law express his purpose and endow it and the ruler will give effect to the bounty or at least, protect it so far at any rate as is consistent with his own Dharma or conception or morality. A trust is not required for the purpose; the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early law a gift placed as it was expressed on the altar of God, sufficed it to convey to the Church the lands thus dedicated. It is consistent with the grants having been made to the juridical person symbolised or personified in the idol. Thus, a trust is not necessary in Hindu Law though it may be required under English Law.

See Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass (AIR 2000 SC 1421) citing Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, 1969 (1) SCC 555 which in turn cites Manohar Ganesh Vs. Lakshmiram, ILR 12 Bom 247.

Thus, while the law of India largely follows the model of the common law, in this respect, the recognition of a Hindu Idol or deceased or divine religious figure when property has been dedicated for this "pious purpose" as a legal person has the practical effect of establishing a European civil law style charitable foundation.

[T]he procedure in India takes account, necessarily, of the polytheistic and other features of the Hindu religion and recognises certain doctrines of Hindu law as essential thereto, e.g., that an idol may be the owner of property. The procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203: s.c. 8 C.W.N. 609 (1605).]

See The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar AIR 1940 PC 116.

The organizational structure of a Hindu temple is similar to that of a Shinto shrine in Japan. Management of it is ordinarily vested in a priestly family established in that role by the temple's founder the religious leader of which is called the sebait, and this role is passed down in a manner similar to the inheritance of property except that it may not be divided to multiple heirs in most cases. The sebait, like the trustee of a charitable trust, or a director of a charitable foundation, is duty bound to act in furtherance of the temple's purpose and may be subject to secular court sanctions if this role is abused.

Effectively, the Hindu Idol or Gurdwaras that is treated as a legal person is simply the name of the charitable foundation created in this manner as a matter of style. But, even though, for example, some Hindu Idols are legal persons, this is basically a metaphor.

an Idol as a juridical person is the ‘ideal embodiment’ of a pious or benevolent idea.

See M. Siddiq (D) v. Mahant Suresh Das (2020-1 SCC 1) citing Manohar Ganesh Tambekar Vs. Lakhmiram (1887), ILR (1888) 12 Bom 247.

Thus, the physical idol itself is not the real legal person, the real legal person is the charitable foundation named after the physical idol which the idol represents.

In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol. Where the legal personality is conferred on the purpose of a deity’s continued worship, moving or destroying the idol does not affect its legal personality.

See M. Siddiq (D) v. Mahant Suresh Das (2020-1 SCC 1).

Who are the beneficiaries of these charitable foundations?

the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers

See M. Siddiq (D) v. Mahant Suresh Das (Ayodhya case: 2020-1 SCC 1) citing Deoki Nandan Vs. Murlidhar (1957): AIR 1957 SC 133.

Legal Personhood v. Charitable Trusts

The treatment of these arrangements as legal persons rather than as charitable trusts, as the English common law would be inclined to do, does have solid reasoning behind it.

This distinction really just cures the defects associated with trusts and estates in English law, which are basically "proto-corporations".

In English law, in some technical respects, trusts are treated as legal obligations of a human being who is the current trustee, rather than as an entity. English law does this even though the modern concept of a trust is really closer to an entity than to a private individual who has legal obligations. The reason English law has this rather muddy and mixed non-entity concepts embedded in its trust law is that the concept of a legal person was not well developed when the English developed their law of trusts.

Modern corporations are a later outgrowth of concepts originally but incompletely developed in the context of English trust law.

Treating a Hindu temple as a legal person named after its idol or religious figure for legal purposes strips away the vestigial and dysfunctional non-entity concepts found in English trust law.

Christian and Muslim Places Of Worship Compared

Notably, the law of India does not treat Christian churches or Muslim mosques in the same way.

Christian Church Ownership In India

Christian churches are usually, unless the church forms a charitable trust or other organizational structure, treated as a corporation sole, which is basically a non-profit corporation, but with its governance vested in eternal succession in whomever holds a particular position (e.g. Archbishop of Delhi) within the Christian denomination that established or acquired the church. Thus, the physical building that is the church itself is merely one more piece of property owned by the corporation sole which is governed by the general law that applies to property owned by corporations. See Daisy AP v. Bishop Dr. Thomas Mar Koorilose, 2015-5 KHC 914; 2016-1 KLT 268.

To some extent this position was adopted because this is the way that Roman Catholic and Anglican Canon law characterized the situation. Canon law did so in these large Christian denominations because in these faiths, churches are not effectively "family businesses" governed by a priestly family that passes on that duty from generation to generation. Instead, in these Christian denominations, the entire denomination is one big bureaucracy whose managers are appointed and removed at will by their superiors in the bureaucracy.

Put another way, Hindu temples and Mosques (discussed below) are basically independent small firms, while Christian churches are basically wholly owned subsidiaries of the denomination that they serve.

Muslim Mosque Ownership In India

Likewise, Indian law does not take this position with respect to Muslim Mosques. See Mohamed Shafindeen Vs. Chatur Bhaj (1958), 1958 Raj. LW 461, and M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1) overruling The Mosque Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 P C 116 in which it had held following decisions from Punjab that Mosques were legal persons.

In reaching that decision in the year 2020, the highest court in India observed in M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1) that:

The decisions recognising a mosque as a ‘juristic person’ appear to be confined to the Punjab : 153 PR 1884; Shankar Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula Bux v. Hafizuddin (1926) 13 AIR Lah 372: AIR 1926 Lah 372.

This is despite the fact that the way the Mosque in the 1940 case was established (and for what it is worth, the typical way that a Mosque is established in Islam more generally), is very similar to the way that a Hindu temple or Shinto shrine or Greek family church is established. The court in the same case, M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1), noted that:

In that case, a mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of dedication, Sheikh Din Mohammad and his descendants were appointed as Mutawallis. Since 1762, however, the building together with the court-yard, well and adjacent land, was in the occupation and possession of the Sikhs. The land adjacent to the mosque became the site of a Sikh shrine. At the time of the annexation by the British in 1849, the Sikhs were in possession of both the mosque and the adjacent lands[.]

By essentially treating a Mutawalli as the director of a non-profit corporation that owns the Mosque, rather than treating the Mosque itself as a charitable foundation that is itself a legal person, India's highest court did two things.

First, it appeased the theological concern that within Islam and Islamic law, that all Muslims are in theory a common people under the same god and undivided by sect:

A Mosque does not belong to any particular sect; for once it is built and consecrated, any reservation for people of a particular locality or sect is void, and persons not belonging to that locality or sect are entitled to worship in it, whether or not any particular sect had contributed towards the site or the building of the Mosque and had been saying their prayers in it and every person who believes in the unity of God and the mission of Mahammad as a prophet is a Mussalman, to whatever sect he may belong, and that the Shias satisfy the test; and that there is no such thing as a Sunni or a Shia Mosque though the majority of the worshippers at any particular Mosque may belong to one or other sect either generally or at various times.

See Mahmood Hussain Vs. State Of UP 2018-10 ADJ 249; 2018-128 All LR 71 citing A. Ghosh, "Law of Endowments (Hindu and Mohammedan)".

Second, and more importantly, the courts of India changed course in the face of a de facto organizational structure for Mosques which is almost identical to the organizational structure of Hindu temples, because it made it easier to resolve disputes between an Islamic sect with long time de facto control of the Mosque and the Islamic sect that founded the mosque. Its refusal to treat the Mosque itself as a legal person allowed it to resolve the dispute between two Islamic sects with a claim to the Mosque under the secular property law principle of adverse possession that also applies to ordinary privately owned land.

The court knew in making this ruling that disputes between members of a sect that founded a mosque and a sect that currently controls a mosque is a problem that is likely to recur going forward. The method of resolution that its ruling on legal personhood status for Mosques allows (which favors the de facto status quo) does so in a way that allowed the courts to extricate themselves from the underlying dispute over which Islamic sect is more worthy to control the building dedicated as a Mosque. It also does so without doing much to upset the status quo.

In this analysis, the original non-profit entity established by the founder under the control of a succession of members of the family entrusted with the mosque originally still exists, but it has lost control of the building itself that it was founded to manage by adverse possession. A court in India exprsesed this position by stating that:

A gift can be made to a madrasah in like manner as to a masjid. The right of suit by the Mutawali or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons) seems hitherto to have been found sufficient for the purpose of maintaining Mahomedan endowments. At best the institution is but a caput mortum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a ‘juristic personality’ may be extended for any purpose to Muslim institutions generally or to mosques in particular.

See Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 PC 116.

Follow Up Questions

Does this mean that if a significant amount of people associate with something it can gain the status of a legal person?

This means that if property is dedicated to a non-Abrahamic religious purpose in India, that the management of that property is handled as if the Idol or religious figure is the name of a charitable foundation managed by its sebait for the benefit of the worships who use the temple, all of which is well defined within the context of Hinduism and other South Asian religions.

By this logic, can say fictional characters get the status of a legal person as well?

Generally not, as people generally don't dedicate property to the worship of a fictional character. But, one could imagine, for example, someone dedicating a "Jedi Temple" and establishing a means of selecting a sebait to manage it being treated as a legal person in India, which is to say, that it is treated as basically a bare bones charitable foundation.

Would it effect copyright law in any way?

If a work were prepare as a "work for hire" for the charitable foundation named after a Hindu Idol or religious figure, that legal person could have the same rights in the work prepared in that way that a corporation which commissioned the same work could.

Afterword

It is worth observing that this decision of the English Privy Council reflects the general tendency of England as a colonial power, to care little about consistency between how issues are resolved from one colony to the other, or in this case, between one religious faith and another, instead focusing on the practical implications of their decisions on a case by case basis.

It is also worth noting that while legal personhood is a concept that many people find troubling, despite the fact that, in practice, it is a good practical solution and no big deal.

Legal personhood is simply the way that the law fixes responsibility for the conduct on a collective activity that may outlive someone originally associated with that activity, allows the people associated with that collective activity a mechanism to legally vindicate harms to the enterprise that might otherwise be hard to localize to any one natural person that benefits from that activity, and allocates authority over the property dedicated to that collective activity.

Contrary to conventional wisdom, recognizing a legal personality usually makes it easier to sue when the actions of a collective activity cause harm, and of course, just because a legal person can participate in economic activity, that doesn't mean that a legal person can vote or be incarcerated in prison, or engage in other conduct reserved exclusively for natural persons.