The commissar and the priest

Render to Caesar the things that are Caesar's, and to God the things that are God's

– Mark, Chapter XII, Verse 17

Currently in a transitional period, with what seems like at least one controversy every day, the Gregorian New Year in Nepal began with a bang, with the two top South Indian Brahmin abbots of the Pashupatinath temple being replaced by Nepali ones. This led to a furore, one most likely unanticipated by the Maoist-led government. Protests by citizens, along with the Nepali bhandari priests who assisted the two Indian abbots and political leaders, took place near the temple with the requisite burning of tyres and obstruction of traffic. Interest in the matter quickly took root down south: the leader of the opposition in India, Lal Krishna Advani rang up Prime Minister Pushpa Kamal Dahal (aka 'Prachanda') to protest; and Samajwadi Party leaders Messrs Mulayam and Amar Singh, at the time in Nepal for a visit to the very same temple, expressed distress at the politicisation of a time-honoured tradition. They refused to visit Pashupatinath, and made do with the Krishna Mandhir in Patan instead. With a storm clearly brewing, Nepal's Supreme Court stayed the appointment of the Nepali priests, and directed that rituals at Pashupatinath, one of the holiest Hindu shrines, be conducted by the Indian priests for the interim.

In defiance of the Supreme Court order, under police escort and cordoned by the presumably atheist cadres of the Young Communist League (YCL), the locks placed by the protesting bhandaris and the Indian abbots were broken. On 1 January, the newly appointed Nepali priests performed the daily puja without conducting the traditional rituals. Former-king Gyanendra, deposed eight months back by popular uprising, issued an appeal to protect the "sanctity" of Pashupatinath, as well as the social and religious amity of Nepal. Some looked upon the replacement of the abbots as still more evidence of an anti-India agenda; others as an attempt to whip up Nepali nationalism; while others thought it was the lucre-dakshina offerings that Pashupatinath received from Indian pilgrims in particular that explained it all. Still others perceived it as an attack on religion itself, and possibly part of deeper communist designs. Amidst growing condemnation, particularly the voluminous noise coming from India, including the TV channels, Prime Minister Dahal revoked the Pashupatinath appointments.

As the controversy abates, dispassionate scrutiny into the matter is required, especially as a new constitution, one meant to safeguard, among other things, the right to religion, is being drafted. In countries like the US and Australia for example, the right to religion has been put down in absolute terms, unlike in India. Changing from a Hindu kingdom to a secular republic is a major shift affecting Nepali society in myriad ways. For example, Christmas was for the first time declared a public holiday in Nepal, with probably the largest-ever gathering of about 4000 Christians on 25 December 2008 at St Xavier's school in Kathmandu. Therefore, construing the issue simply as 'godless communists' interfering with religion does not do justice to the complexities. Details of the Pashupatinath debacle, as reported in the media, do not bring out certain aspects of the situation. For instance, the bhattas, as the South Indian priests are locally referred to, are said to be some of the biggest money lenders in town, relying on the liquidity that the dakshina built.

The bhandaris, the Nepali priests who assist the abbots, function more or less as the local agents of the bhattas in the money-lending business. It is even rumoured that some of the biggest of industrialists of Nepal have borrowed money from the bhattas. What is undisputed is that despite efforts that go back more than a decade, there is no transparency in the finances of the temple. Even the most well-informed of Nepalis are unable to offer any estimate as to the scale of the offerings made at Pashupatinath. The Pashupati Area Development Trust was created to regularise governance of the temple during the reign of King Birendra, but it is said even he dared not touch the bhatta-bhandari nexus.

Meanwhile, it is known that the easy access to Indian pilgrims in the last few decades has increased the income manifold. And yet the system of accounting has remained of old, when the priests kept the takings as salary. Furthermore, neither the public nor the government appears to know for what purpose the substantial offerings by devotees are utilised. That the money being offered to Pashupatinath is being spent to maintain infrastructure for a healthy, hygienic environment for the thousands of pilgrims flocking to the temple is not much in evidence. This would be the task to focus on in the days ahead, as the controversy recedes.

Secularising the temple
No matter how dire the situation may seem, improving the functioning of the temple is certainly not an impossible task. Examples from India could prove instructive. In 1983, the management of Sri Adi Vishweshwara Kashi Vishwanath Temple in Benaras, a Shiva temple and a holy of holies like Pashupatinath, was in a similarly appalling condition. Devotees and pilgrims were fleeced and exploited by the pandas (priests), while the surrounding areas were left in extremely unhygienic conditions. There were also incidents of jewellery theft off the idol of Shiva.

In response to this state of affairs, the Uttar Pradesh Sri Kashi Vishwanath Temple Act was enacted that same year, taking over control of the premises from the mahants and pandas. The ownership of the temple as well as of all movable and immovable properties was vested in the deity of Sri Kashi Vishwanath. A Temple Fund was constituted comprising of income from properties, religious offerings, donations, charities, grants, gifts, fines, penalties and recoveries under the Act. A board of trustees was constituted, comprised of eight non-officials well versed in Hindu theology and with experience in temple management and seven officials as ex-officio members.

At that time, these steps were decried as an attack on the right to profess religion, to manage one's own affairs in the matter of religion and to administer property. The UP government was, however, completely within its rights, as Article 25 of the Indian Constitution declares the right to religion subject to public order, morality and health. It also specifically affirms the power of the state to make laws regulating economic, financial, political or other secular activity associated with religious practice. Subsequently, the validity of the Act was upheld by the courts. It was also pointed out that one of the duties of the Board was to arrange for the proper performance of worship of Sri Kashi Vishwanath in accordance with Hindu shastras. In fact, every archaka (priests who make the offerings to deities, derived from archana) serving in the temple was responsible for proper conduct of worship with the Board enjoined not to interfere.

The defining factor was that with the temple no longer considered the property of the mahants, pandas and archakas, action by the UP government could not be perceived as a case of encroachment on the right to property. As there was no interference in the execution of rituals and ceremonies, it was also not held to be a violation of the right to religion. However, the appointment, service and emoluments of those who perform the ceremonies were held to be in the domain of the secular and within state control.

Bare bones of religion
The US judicial view of religion as "reference to one's views of his relation to his Creator and to the obligations they impose of reverence … and obedience to His will", does not fit in with religions that are not theistic. A religion may also have a set of doctrines or beliefs but may not posit a belief in god or an 'Intelligent First Cause'. In India, the constitutional protection is not only for freedom of religion, but also to practice rituals including offering food to deities, recitals of texts or oblations to the sacred fire, considered integral to the religion. That the ceremonies involve money or employment of priests or the use of marketable commodities does not bring them into the ambit of secular activities. On the other hand, the scale of expenditure incurred in religious observances has been held to be a matter of administration of property controlled by state regulation.

With such sensitivities at play, an important dimension of the constitutional as well as legislative rhetoric on religion requires a balance between accommodating practices considered integral by adherents, and pushing for social reform. There are no easy prescriptions to resolve, for example, the conflict between the right to religion and the abolition of untouchability, the throwing open of religious institutions to all sections of people, or the abolition of the power of a head of a religion to ex-communicate a person – whether the Pope in the case of Catholics or the Mullaji of Dawoodi Bohras. The last issue is particularly contentious, because besides an impact on civil rights, the fundamental right to equality comes into direct conflict with the power of the head of a religion to ex-communicate for heresy or apostasy, something considered integral to the right to religion. Perhaps, the observations of Chinnappa Reddy, an erstwhile judge of the Indian Supreme Court encapsulate a perspective for determining whether a belief or practice constitutes an essential part of a religion.

The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant, if belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course to the inhibitions contained therein.

Coming back to the Pashupatinath controversy, it appears that the YCL, the Maoist youth wing, had been taking an active interest in the offerings at Pashupatinath. It could be that pressure for accountability from the YCL towards the South Indian priests may have lead to the resignation of the bhattas or, as is suggested by some, there may also have been a willingness to try one's own hand at the till. This is not clear. But what is clear is that even if the Maoist government was acting with the best of intentions, it could have done so in a more sensitive manner at a shrine such as Pashupatinath, attracting the devotion of millions of the Hindu faith, in Nepal and elsewhere.

Enactment of legislation or the formation of a board with clearly prescribed membership is, however, a far cry from what looked like an attempt by a political party to control the management of a religious institution. As events played out in Pashupatinath, there is room for reasonable suspicion that perhaps the substantial takings of the temple was the motive rather than a genuine desire to institute transparency in the temple books and ensure regulation of secular aspects.

Of course, there is a thin distinction between practices that constitute the essential part of religion, and hence not be interfered with, and other that can be regulated. The Ananda Marg denomination of the Shaivite Order of Hinduism, for instance, asserted a right to perform the Tandava dance in public. The courts held that as the Tandava was not introduced when the denomination was founded, and as there was no justification in the writings of the sect founder Sri Ananda Murti that it must be performed in public, it could not be deemed an essential ritual. The order prohibiting Tandava, which calls for the carrying of daggers, trishuls and skulls, in public was not held to be a violation of the right to religion. The question as to which practices are integral to a religion is very much a matter of fact to be determined based on evidence.

Extrapolating from Indian jurisprudence to the case of Pashupatinath, all the affected parties would have to be given an opportunity to adduce documentary and oral evidence in support of their respective positions. Thereafter, an impartial tribunal, whose members put aside their individual views and opinions, could determine whether the practice of having South Indian Brahmins as head priests constitutes an integral part of the right to religion. In case the practice is held not to be integral to the religion, the replacement of Indian priests by Nepali priests would be considered valid. However, if the practice of having South Indian Brahmins as head priests is held to be integral to the religion, then the removal of the Indian priests would be declared as an unconstitutional exercise of power by the state, encroaching on the fundamental right to religion.

~ Rakesh Shukla is an advocate of the Supreme Court of India and a visiting fellow at the Centre for Law and Governance, Jawaharlal Nehru University, Delhi.