Sacred and Secular: Some Problems of Discernment and Judgement

THE SACRED AND PROFANE: QUESTIONS OF THEOLOGY, SPIRITUALITY AND JUSTICE Susan Visvanathan Retired Professor, CSSS, JNU 1st July 2025 In this essay I am concerned with certain well known problems of delineating distinctions between religious world views and definitive moral problems. Sometimes the question of ethics has a super boundary, that of cultural dimensions and the subjectivity enjoined by ideological associations. Those not sharing the world view of human rights as enjoined by 20th century charters following world war 11, will repudiate them as strictly belonging to a western world view. For a Sociologist this goes back to questions of Durkheim’s preoccupation with mechanical and organic solidarity. The two solidarities were ideal types, often understood in combination. Mechanical Solidarity is based on resemblance and likeness, while Organic Solidarity is based on difference, hierarchy and interaction. Clearly, they are problems raised by the 1st World War, and what was popularly known as the Dreyfus case, which was mired in anti Semitism. Today, we see that Zionist Jews have crossed all boundaries, and in their annihilation of Palestinians in the War which began in October 2023, and was widely televised, genocide became a daily fare. Evil knew no limits, and there were no laws against Israeli settler preoccupations, with grabbing land in Gaza. United Nations became a concerned observer, but in its bid to sustain itself as a purely European arm of nation states, it made Pakistan the convenor against terrorist organisations, much to the embarrassment of India. Durkheim discussed the manner in which social transformation could make evil appear as good, and be accepted by all who are subject to such an ideology as accepted by all in such a society. Here, I am concerned with certain theoretical problems arising from the relation of law to custom, and the place of the judiciary with regard to specific instances of morality and judgement. Let us look at them one by one. Segmentalisation of emotions, beliefs and occupations as a process of adaptation. Shankaracharyas’ arrest for alleged murder of the ecclesiastical bureaucrat, Sankaraman in 2004. The latter was a temple administrator, described as a ‘serial letter writer’ who would write letters on financial irregularities, womanizing and other faults of the Shankaracharya Jayendra, including his desire to travel across the sea to missionize for Hinduism. He was brutally murdered but out of 189 witnesses, 89 withdrew from the case, and after two years in jail Jayendra asked for bail from the Supreme Court. KTS Tulsi who was the advocate for Tamil Nadu said that Brahmins were put above the law. In 2013, the case was dismissed for lack of evidence. On 3rd December 2004, an essay “Ten minutes in a Life” by S. Anand, documents the Sankaracharya Jayendra’s confession to an all woman police station in Kancheepuram from November 19th to 21st 2004, that he was persuaded by two partisan devotees of Kanchi mutt, to pay for the murder of Sankaraman who had been writing corrosive letters to him for three years. He confessed to land deals, acceptance of black money from various highly placed officials, and womanizing by his colleague Vijayendra and his brother Raghu. However, Anand writes that confessions extracted in police custody had no legitimation in Court. I now quote from Sri Jayendra Saraswati vs State of Tamil Nadu and Others on 26th November 2005 www Kanoon accessed on 29th May 2025 author G.P Mathur : Bench R.C Lahoti and G.P Mathur 46. The Mutt is an organization of religious faith of innumerable people. So also is the Church, Mosque, Wakf, etc. There are several Endowments, Trusts and philanthropic activities attached to these organizations over which several devotees have personal interest, faith and sentimental devotion. One may or may not agree with the respective faith or belief of others. But they have a right to establish and maintain institutions for religious and charitable purposes within the framework of law and such right is granted as a fundamental right under the Constitution vide Article 26. Such an organization cannot be paralysed or closed down virtually by sending a letter purporting to act under Section 102 Criminal Procedure Code, only for the reason that the Head of the Mutt and few office bearers are alleged to be involved in some offences. A word of caution to the Special Investigation Team: By all means, take action in the criminal cases against the indicted individuals with a single-minded determination if you feel convinced about their guilt. No one is above the law. But if you divert and deviate from that direction unmindful of the rights of innocent devotees of the Mutt, it would result not only in diluting the prosecution, but also cast a deep shadow on it. If there is anything wrong with the administration of the Mutt, it is for the H.R. and C.E. Department which has to comply with the procedure under the Act and to look after the said issues in terms of the provisions of the Act and it is not for the police to interfere with the functions of the Mutt while investigating a case of murder or assault. Even if any commission or omission amounting to a criminal misconduct is brought to light in so far as the administration of the Mutt is concerned in the opinion of the H.R. & C.E. Department, it may be open to the H.R. & C.E. Department to file a complaint before the police for appropriate action against the individuals concerned. It is not for the Special Investigation Team dealing with a murder and assault case to plunge into the accounts of the Mutt, and paralyse its functions by invoking Cr.P.C. Section 102." (Accessed 20th May 2025.) Judges further said that 183 Bank accounts being frozen because of alleged irregularities by the petitioner was too extreme, as his guilt was being decided before the case was closed. Transfer out of Tamil Nadu was not permitted as the judges said that there was no atmosphere of anxiety in Kanchipuram, and that Indira Jaisingh appearing for Padma, wife of Sankararaman had said that all the witnesses spoke Tamil, and the correspondence and evidence was also in Tamil. So the proceedings were shifted to Puducherry. The Judges noticed that the respondents were intent on terrifying all those who were supportive of the petitioner and accused their witnesses of other crimes to keep them suspended from daily routines till the murder case was resolved. Shanti vs State of Tamil Nadu On 4th August 2005 Author P Satashivam, Bench Honourable Justice P Satashivam and AR. Ramalingam In the High Court of Judicature at Madras (accessed on 29th May 2005) All the petitioners had the detention order squashed as there was no proof against them of being wrong doers in the Sankaraman case, and the State of Tamil Nadu was accused of keeping 17 respondents in prison, when there were two murderers of Sankararaman It is not the case of the sponsoring authority that all the detenus on whose behalf these habeas corpus petitions have been filed were present at the spot and by their acts in the spot which is a public place, the people in the area felt insecured and fear and panic has been created in the minds of the people in the locality. On the other hand, even according to the sponsoring authority, only two persons entered into the temple and attacked the deceased Sankararaman and came out and sped away from the scene along with three others who were waiting outside the temple with motor-bikes. Thus, it is clear that the conclusion arrived at by the detaining authority as mentioned in the grounds of detention totally contradicts the case of the sponsoring authority. Rediff.com reports that Sankararaman’s father had served the older Sankaracharya for 60 years, and so he wanted everything to be as it was in the Senior Pontiff Sri Chandrasekharanda Saraswati’s time. His father was a close associate who had accompanied Sri Chandrsekharanda on his walk from Kanchi to Kashi. Seeing Jayendra’s new views on friendship with powerful people, missionary travels abroad, views on Dalits, he wrote on 30th August 2004 that he would go to court to get Jayendra dismissed. He was murdered on September 3rd 2004. They were a poor family, living in three room apartment, with a son and daughter who were college students with their father fighting a lone battle, on behalf of traditional practices of the Kanchi Mutt. (www. Rediff.com 14th Nove 2004. Who was Sankararaman? A Ganesh Nadar accessed 29th May 2025) April 27th 2012 NDTV: Wife Padma stated that she had been threatened in appearing in court. By 2013, she had died. Sacred and Profane: Sin as a theological concept It is quite often said in Hindu colloquial speech that there is no paap (sin as pollution), and karma theory will punish the offender. Just as beauty is in the eye of the beholder, so also the concept of sin is differentially viewed by caste communities. Rebirth and status duties are prescribed. This consensus theory of caste was predominant in the 1960s, until Dalit Sociology found its voice through Ambedkarite representation. From then on, the voice of the Dalit intelligentsia became increasingly powerful, and by documentation and activist interventions, they were able to make the voices of the marginalized heard. In the Shankaracharyas case, chronicled extensively by media, come certain theological motifs. In an aberrant moment, a crime was committed. Deed is bad but the person is not bad: the separation of person as spiritual being, and person as unique where action is separated from his being. This motif is also found among activists against capital punishment, who argue that the murderer must not be beheaded as the State then repeats his crime, which was committed at a particular moment, and does not represent the actions of his/her/their entire life. Law as a system of justice had to take into account the representation of Hinduism in its gory practice. There have been attempts by the current political dispensation to remove the word secular from the constitution, and simultaneously to promote the cult of Ram, as simultaneously a representation of Kshatriya and warrior values. Veena Das’s early work on the ideology lying behind the living cow homologous with the Brahmin, and the dead cow representing the Dalit is very apt. Ravi Nandan Singh carefully takes her argument forward by analyzing both the homology of the roti cooked on the kitchen furnace and the corpse cooked on the funeral pyre, to the cannibalistic activities of the agora sadhus. Dread as these are, they are visible to everyone who visits Benaras as tourist, pilgrim or anthropologist. Very recently, the woman judge in the Madras High Court has argued that temples are not for tourists but for pilgrims. How does law then redefine the sacred nature of rules of exclusion? Mysticism is often defined as supernatural practice Handling tantricism in mysticism: sex and blood as vehicles The Courts have defined the rights of ordinary humans to be able to access the courts of law in case of murder, rape and molestation and embezzlement. There are innumerable cases where women and children have been denied right to life, property or their body, and have been coerced into unnatural sexual relations by so called Godmen. In such cases constitutional morality and Manu’s hierarchies are in contestation. As soon as particular classes, castes or genders are seen as subject to religious or sexual exploitation, they are able to access the law courts. When neglected, or forgotten , or as victims of traditional organization which see codes of conduct to be normative, then large scale form of vituperative behavior are seen to be culturally legitimate, if not legal. Ranging from kulin marriage to child infanticide, all of these will be fitted into the prescribed texts which have been ordained in the Dharma Shastra, so carefully collated by Kane for our scholarly use. The price of murder, rape, or the killing of a cow, will each have interdictions defined by Manu and differently placed according to caste status. As Parallel and co-existing structures these forms of repression and the reaction of victims have been chronicled by media. The Indian Express of 20th May 2017 reports the case of a young girl of 15 on being faced with repetitive rape by her predatory guru, castrated him. The report is titled “Controversial godmen of India: A list of self-styled ‘gurus’ and their sexual assault controversies: Several notable self styled gurus have faced criminal action or are presently lodged in various jails across the country in numerous sexual assault cases.” (accessed on 1st July 2025) The most well known is Nithyanand Swamy, who has fled India, as many cases of rape and assault are registered against him, and has enough followers in spite of his crimes (“No Country for Nithyananda: ‘Kailasa’ Falls, Followers Caught for Land Trafficking”, Mint 5th April 2025 accessed on 1st July 2025). How may we negotiate between the sacred and the profane? Let us now look at certain specific cases where the world is defined and redefined in the law courts by virtue of the responsibility laid upon the honourable judges. Refer to a hard working woman’s earning as Haram Ka Maal is defamation. (Nupur Thapliyal Live Law 24th May 2025) Delhi Court Convicts man U/S 509 Any word or gesture which affronts the modesty of a woman is a bailable offence, with 3 years imprisonment. Therefore, gestures, nuances of speech and tone and actions, written and spoken are liable to be analysed carefully. The agency of women as free subjects is a constitutional right, and may be protected by a court of law. Right to Privacy, Nupur Thapliyal India Today,23.05.2025. Army major request CCTV footage of his wife in an adulterous relationship with another Army major. Judge upholds that the request is against the Right to Privacy. (accessed 26th May 2025) Man stealing another man’s wife is an outdated concept. Judge Vaibhav Pratap Singh, Delhi High Court. The Court cannot be used as a tool for Departmental procedures. (India Today 23rd May 2025) Judge said “Courts are not meant to serve as investigative bodies for private disputes or as instruments for the collection of evidence in internal proceedings, specially when no clear legal entitlement to that evidence exists” said the court. Judge said it affected the right to privacy of the woman and her paramour, and the right to be left alone, and reputational harm. While free love was fought in courts of law in England, and included important cases of homosexuality, in India, customary law usually prevails, and those marrying outside their religion or caste are automatically defined as outside the pale. Since property rights are of crucial concern, children born of such marriages are not eligible to inherit from the co-parcenary holdings of the Hindu joint family. In the case of the Mary Roy case, the courts ruled in favour of equal rights to property, but as a consequence, the men began to write wills, and the priests defended patriarchy as they received tithes at marriage, and kept records. Rights of women in the late 19th century pertained to the giving of Stridhanam, and rights to maintenance of widows. 1925 saw the upgradation of rights to widows and daughters, if man dies intestate. Stridhanam seen as equivalent to share in property, but after the death of the father, brothers not obligated to provide stridhanam or share property. Stridhanam was not equivalent to property, it’s a money claim. The Christian Church in Kerala was anxious that 30,000 nuns married to the church should not create division in family of origin, asking for equal share of property. ‘Dowry as crime’ contests the claim but after Mary Roy’s case, it became clear that the religious and social values supported men. The profane is translated as the mundane and the everyday, but in truth it blemishes the sacred, it becomes profane. While we live in the mundane or routine world, dubbed as profane, both Veena Das and Gilles Tarabout have clearly shown the oscillating nature of the boundary between them, alerting us to the danger of ossification of oppositions. Can Sociology understand truth and falsehood or is it restricted to representation? Given in legal terms this encompasses “The right to forget”. Denial is one of the aspects of how law can operate to support the interests of political parties in power. The case of Najeeb, who disappeared on 16th October 2016 after a fight with ABVP students on the previous day, who were supported by their wardens, has been closed. Lack of evidence has been the conclusion by the court who says it will reopen the case in the light of fresh evidence (JNU Student Najeeb Ahmed missing case, www.MoneyControl 1st July 2025, accessed on 1st July 2025 ) Segmentalisation allows the radius of truth and falsehood to have boundaries, as transmission is the delayed space of retribution.Karma is accompanied by amnesia. Rewards and punishment for past life’s actions cannot be proved. The ability to co-exist, or a theory of relativity applies not only to time, but to morality and social obligations. Amnesia is sought because truth can be then denied, and freedom sought as Arendt proved in her concept of the ‘banality of evil’. Once religion is used as a form of ultimate praxis, ideology becomes a tool. This is prescribed action. No morality is applicable. Durkheim called it ‘when good becomes evil’ in the last section of his voluminous book “The Elementary Forms of the Religious Life”. Variations to the rule are described as ‘cultural customs’, or when catalysts in the process of change, as ‘agency’. Vegetarianism as a universal ethic is juxtaposed by the desire or the compulsion to murder humans who do not comply with vegetarianism. Here, no contradiction is perceived. Associational thought pervades – the killing of animals, particularly the cow for food is viewed as a crime.Yet, where political dominance exists, this rule may be foregone in favour of one group or another. Malayalis and Japanese permitted to eat beef, as it is their custom. One BJP worker even said, “ I am a Hindu but the cow is not my mother.” This adaptation is for political processes to seep into cultures which historically have seen no association between the cow and ‘the mother’. Socialisation is the catalyst – once it peremeates as ideology the laws also become osmotic. In the next section, I shall look at the way in which minority rights to the Christians of Travancore over marriage and property took on a specific intonation with the Mary Roy case of 1984. I draw from the work of Sindhu Thulaseedharan, Department of Law, Kariavattam, University of Trivandrum. Rights of women in the late 19th century; Stridhanam, rights to maintenance of widows 1925 saw the upgradation of rights to widows and daughters, if a man dies intestate. Stridhanam seen as equivalent to share in property, but after the death of the father, brothers were not obligated to provide stridhanam or share property. Stridhanam not equivalent to property, it’s a money claim. Church was anxious that 30,000 nuns married to the church should not create division in family of origin, asking for equal share of property ‘Dowry as crime’ contests the claim to property. I now look at the right to privacy, as this becomes essentially important to safeguard the rights of identity and right to life. It is well known that women who have not followed traditional customs are jeopardized, and the right wing fundamentalist state prefers to go by the morality of the epics thought to have been put together in 3000 years Before Common Era. Since these are the tales of warriors that have been passed on, by- hearted or learned by rote by bards, and copied by litterateurs, the influence it has on people has obviously reached mythological dimensions. Right to Privacy, Article 21 Ram Jethmalani vs Subramanium Swamy on 3rd January 2006 The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has the right to safeguard the privacy of his own, his family, his marriage, his procreation ,motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the privacy of the person concerned and would be liable in an action for damages. Position may however be different if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.(Supreme Court statement, Kanoon, accessed on 25th May 2025) The right to privacy is abdicated if there is a record, such as a press record or a court record, unless it is against decency (Article 19(2). Example in the case of rape or assault, kidnap or abduction when a woman has the right to her privacy and her name may not be publicized. Right to privacy is not available when it comes to public office and the surveillance on code of conduct. Is the statement a fact or an opinion. Defamation involves ruining the reputation of another. Since defamation and right to free expression go together, it is necessary to club the two together, as speech which is actionable comes under the purview of this law. Within this, comes the life of those who are in positions of power, and who are rendered continually transparent by their visibility. The secular domain demands freedom of speech, and therefore of action. The constitution permits aethism as it does sarvdharm, which is belief in all religions. How then will we look at the acceptance of rules as given by religious texts, and the multiplicity of these. This is the need of the hour, just as we anticipate the Uniform Civil Code. In the case of Dr Noorjahan Safia and I Anr vs State of Maharashtra and ORS on 26th Augus 2016, accessed Indian Kanoon.org on 25.4. 2025 there is a PIL which has been filed under Article 226 of the Constitution of India. The petitioners were social activists who complained there was gender discrimination and ‘arbitrary denial of access’ to women in the sanctum sanctorum at the Haji Ali Dargah in Mumbai. The petitioners stated that they were the office bearers of Bharatiya Muslim Mahila Andonal – a national secular autonomous mass movement of Muslim women In India with over 50,000 members in 15 states. According to the petitioners they had been visiting the mosque since their childhood, and were permitted to visit the resting place of the Saint through a separate entry. Till March 2011, they were permitted, in June 2012, when the petitioner No 1 revisted the Dargah to lffer prayers she saw that na onbstacel, a steel barricade stopped women from entering. When she enquired, the President of Haji Al Dargah said that women were now refused entry because they wore low cut blouses, and exposed their breasts, and it was for their safety that they were not permitted. Dargah administrators had not enforced Shariat rules in the mosque, and now realized their mistake. Petitioners sent letters to State Minority Commission, National Commission for Women, Chief Minister of Maharashtra, Trustee of Makhdom Shah Baba Trust and a few ministers. According to the petitioners, in January 2014, a letter was sent by the Dolicitores f the Hajji Ali Dargah Trust to the Minorities Development Department, saying that the holy shrine was open to all persons, the separate entrances was to avoid chaos. The petioners said that this was not so, as they were not permitted to enter. Petioners gave a list of dargahs, permitting women to enter the sanctum , and said the Trust violated the Constitution. Of India. The lawyer for the petioners said that the Haji Ali Dargah is on land land leased to them by the Government, and so the Government has control over the Trust, indicating the autonomy of the Haji Ali Trust.. This Trust being a Public Charitable Trust, the Ban on wmen was contrary to Articles 14 and 15. Article 26 says they can manage the trust, not impose rules against the Constitution. Nothing in the Koran according to the petitioners prohibited women from entering the Dargah. In response Shoaib Menon appearing for the Haji Ali Dargah said that Islam discourages free mixing between men and women, and that the intention of the said restriction is to keep interaction at a modest level between men and women. Prophet Mohammad had said different doors were needed for men and women. Since men were indulging in thieving and sexual harassment, the protection of women by Dargah administration was being called Discrimination. Let me close the argument by looking at why religion and spirituality may often be counterposed against each other, as discrimination is seen to be endemic in these ritual spaces. Why khaap panchayats had so much jurisdiction in Haryana, or why vegetarianism and cultic demonstrations of piety were seen to be necessary rules by which individuals were constrained to behave in particular ways was the stuff of much sociological literature. When infanticide became rife, and female demography took alarming downslide, brides were brought from Kerala and Bihar and communicated in interviews on social media, they were escaping from alcoholism and poverty of their men folk. They said that they took their daughters back home and assimilated them into cultic representations in family temples. This mosaic of custom, tradition and new world views were not problematic, migration and the search for a better life was seen to be perfectly comprehensible. Currently we see the break down of social values world wide, and the necessary and logical consequence is seen to be the safety of women and children by making sure that kitchen, church and kindergarten are the anvil all must concede to. Universities are the space which are now under focus, as free thought must be curtailed. And yet, they are not rendered obsolete, as intellectuals have a part to play in defining the vulnerabilities of the human condition and solutions for normlessness. References Das, Veena, Structure and Cognition, OUP Delhi: 1977 Singh, Ravi Nandan Death in Benaras Phd Thesis Submitted to Jawaharlal Nehru University 2010. Tarabout, Gilles. Magical Violence and NonViolence: Witchcraft in Kerala, in Ed. Vidal, Denis, Gilles Tarabout, Eric Mayer, Violence Non-Violence, New Delhi: Manohar and Centre De Sciences Humaines, 2003. Thulaseedharan, Sindhu. Inheritance Practices of Syrian Christians of Kerala in in ed. Susan Visvanathan and Vineetha Menon Chronology and Events, Delhi: Winshield Press, 2019 Visvanathan, Susan. Marriage, Birth and Death: Property Rights and Domestic Relations among the Orthodox/Jacobite Syrian Christians of Kerala, Volume 24, No 24, June 17th 1989, pp 1341-1346 (accessed on 6.10.15, jstor)