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Buddhists Denied Justice: The Law
And The Mahabodhi Temple At Bodh Gaya

By Sanjay Kumar Chaudhary

24 July, 2011
Countercurrents.org

Abstract

The historical and internationally famous Mahabodhi Temple has been under virtual control of Brahminical Hindus for centuries. The legal mechanism for this unacceptable cultural domination has been provided under the Bodh Gaya Temple Act, 1949 (hereafter BGT Act), which violates the principles of secularism, a basic pillar of the Indian Constitution, and the fundamental rights of religious communities as enshrined in the Constitution. After briefly discussing the history of the Mahabodhi Temple, this paper critically analyses the provisos of the BGT Act vis-à-vis other similar legislations which govern Hindu temples. It questions the constitutionality of the BGT Act and argues for its repeal it in order to protect the Constitutional principles and fundamental rights of Buddhists.

Introduction

Buddha was the first teacher in the world who made morality the essence and foundation of religion. -Dr. B.R. Ambedkar

The cultural hegemony of Hindutva forces over Buddhism in general, and the Mahabodhi temple, located at Bodh Gaya in state of Bihar, in particular, has received scant media and academic attention. However, in a rare and sophisticated work based on primary sources, Myer (1958) traced the history and Buddhist origin of the Mahabodhi temple, its fall at hands of Brahminical revivalists and its overall cultural and spiritual significance. He writes (ibid 298):

“With the renascence of interest in Buddhism, not only in India but throughout Asia and the western world, the ancient temple, gleaming white again amid the ruins of the monuments which surrounded it, has to a degree resumed its former role as a center of Buddhist faith and a symbol of Enlightenment.”

One of the founding fathers of the Constitution, Dr. B.R. Ambedkar, who embraced Buddhism with a vast number of Dalit followers and played a key role in the revival of Buddhism in India, argued that Buddhism’s radical critique of Brahminism and social equality lay behind the ferocity with which Brahminical revivalists sought to destroy it. Ambedkar (1995) pointed out the devastative actions of Islamic iconoclasts and Brahminist Hindus that caused the decline and fall of Buddhism in India. Similarly, Trevithick (1999) in his paper on the Mahabodhi temple pointed out how it had functioned as a symbol of the triumph of ‘orthodox’ Hinduism over ‘heterodox’ Buddhism. A recent study by Asher (2008) examines the history of Bodh Gaya and the surrounding monuments and pilgrimage sites and tension between Hindus and Buddhist followers. The works of Robinson and Clarke (2003) and Neddham and Rajan(2007) contain some chapters on the issues pertaining to conversion, Buddhism and the crisis of secularism in India. However, none of these writers has looked in detail into the legal issues concerning the Bodh Gaya Mahabodhi temple and the BGT Act, 1949, the governing law of the temple its properties, which exists in contrast with Constitutional principles and provisions. This paper attempts to fulfill these gaps in the existing literature.

Historical Account of Mahabodhi Temple

Bodh Gaya is as sacred a pilgrimage centre to Buddhists as Mecca is to Muslims, Kashi and Prayag to Hindus and Jerusalem to Christians and Jews across the world. It was there that in the sixth century B.C., when Siddhartha Gautama got enlightenment and became the Buddha. The great Mahabodhi Vihara in Bodh Gaya is an ancient Buddhist temple, established by the Emperor Ashoka in the third century B.C.. Traditionally, the Mahabodhi Vihara has been and still is the most sacred pilgrimage place for the Buddhists of the world. Every year, millions of people travel from the far corners of the globe to worship and to pay their respects there to the Teacher.

Even after the decline of the Magadha Empire, Buddhism continued to flourish and spread and Bodh Gaya continued to be in the control of the Buddhists. However, with the rise of Hindu kingdoms in this region and the emergence of aggressive Shaivite and Vaishnavite revivalism, Buddhism began to suffer a decline, because, among other factors, of lack of support from rulers, as well as persecution (Ahir:2005). Buddhism and Bodh Gaya suffered severely during the reign of the Saivite king, Shashanka in 7th century A.D., but the final nail on the coffin is said to be the assault from Islamic invaders in 13th century, when Bodh Gaya was abandoned (Scott 1995). According to renowned art historian Myer (ibid 298):

“The Buddhist origins of the temple were all but forgotten locally. By the beginning of the nineteenth century the entire site had passed into the possession of a Saiva cult, which permitted the Vaishnava pilgrims from Gaya to include the Bodhi-tree, regarded as an incarnation of Vishnu, in their circuit of holy places. Buddhism had fallen in the thirteenth century, a condition for which the Muslim invasion can be held only partly responsible, since it had begun centuries before with the renascence of Brahmanism and the establishment of Vaishnava and Saiva cults at nearby Gaya and at Bodh-Gaya itself”.

In the 16th century, a wandering Hindu sadhu established a shrine near the Mahabodhi Vihara, and the Mahanth, as he was called, became the chief landlord of the area, even claiming ownership of the Mahabodhi Temple and its environs. Between the 16th and 18th centuries, the kings of Burma sent delegations with ample funds for the excavation and restoration of the Mahabodhi Vihara. Many British administrators were also instrumental in the restoration of the temple. A very significant role played by Alexander Cunningham, Edwin Arnold, Hamilton Buchanan, Rajendralal Mitra, and many others who rediscovered Buddhist history in India and worked to protect, preserve and highlight the country’s noble Buddhist heritage.

In 1891, the Sri Lankan Buddhist activist Anagarika Dharmapala visited the Vihara as a pilgrim and was shocked by the pitiful situation he found. Distressed that worshipers’ generous offerings were expropriated by the Brahmin Mahanth, while virtually nothing was being done for the care or upkeep of the Mahbodhi Vihara itself, he vowed to free the temple from the Mahanth’s clutches. In order to liberate the Mahabodhi temple, Buddhists from all over the world began to demand that their sacred shrine must be under the control of Buddhists alone. Dharmapala’s actions so infuriated the Mahanth that he even ordered physical attacks on him.

Bodh Gaya managed to come in to prominence once again only after the British took over the subcontinent. In around 1875, two British missions under J.D. Beglar conducted excavations and restored the temple. Ven. B. Pannasila (2008) argued that because Hindus were in an overwhelming majority in the area, there being hardly any local Buddhists there at that time, the temple fell in to the hands of Brahmin priests. The British did nothing to stop this because they needed the support of the Hindus. During the national movement for independence, M.K. Gandhi, Jawaharlal Nehru, Rajendra Prasad and the Indian National Congress itself, at the Gaya Conference of the Party held in 1922, promised the Buddhists that the Mahabodi Vihara would be handed over to Buddhists after Independence[i]. Yet, even after sixty years of independence, this solemn promise remains unfulfilled. Moreover, the BGT Act, which came into effect after Independence, instead of recognizing and protecting the fundamental rights of Buddhists over their temple, provides for an overwhelming representation of Hindus to dominate the cultural and financial affairs pertaining to it.

Considering the historical and cultural significance of the Mahabodhi Temple, the World Heritage Committee of UNESCO declared it as a World Heritage site in June 2002[ii]. The Committee referred to the temple as being ‘of immense importance, being one of the earliest temple constructions existing in the Indian sub-continent. It is one of the few representations of the architectural genius of the Indian people in constructing fully developed brick temples in that era.’ The temple complex, it noted, ‘has direct association with the life of the Lord Buddha, being the place where He attained the supreme and perfect insight’. It recommended to the Indian authorities to develop an overall management plan to protect this World Heritage site. However, the UNESCO did not recognize the dispute and tension that exists between the Buddhists and the Hindu chauvinists’ for control and management of the Mahabodhi Temple.

Secularism and Right to Freedom of Religion Vs. Bodh Gaya Act, 1949

Being a diverse society, with numerous religious, cultures, castes, ethnicity and languages, India was envisaged by its Constitutional framers as a secular state. The Constitution promised to secure to all its citizens liberty of thought, expression, belief, faith and worship. It recognized and guaranteed fundamental rights, including the right to equality[iii] and non-discrimination[iv] and the right to freedom of religion[v].

In historical case of M. Ismail Faruqui vs. Union of India, J.S. Verma observed:

“It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasising that there is no religion of the State itself. The Preamble of the Constitution read in particular with Articles 25 to 28 emphasises this aspect and indicates that it is in this manner the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of the Constitution. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution”[vi].

The Bodh Gaya Temple Act, 1949

With the stated purpose of better management of the Bodh Gaya Temple and its properties, the Legislature of the State of Bihar enacted the BGT Act, which came into force on July 6, 1949. The BGT Act was amended by the Adaptation of Law Order, 1950, dated February 8, 1955. Since then, this Act has been governing the cultural, spiritual and financial affairs of one of the most sacred shrines of world without passing the Constitutional scrutiny of secularism, non-discrimination and the fundamental right of freedom of religion.

The BGT Act is short piece of socio-cultural legislation, running into just 18 sections. Its Preamble, in contrast, for instance, to the Shri Jagannath Temple Act, 1955, does not provide any significant information about the historical-cultural importance of the Buddha, Buddhism and the Mahabodhi Temple itself. The omission of any positive mention about the life, philosophy and historical achievement of the Buddha and Buddhism appears to reflect not only a mechanical approach of the ‘upper’ caste Hindu legislators of Bihar of the time the law was enacted but also apathy and even a hostile approach to Buddhism, which stands for modern democratic and human values, including equality, rationality and humanism.

The most important section under the BGT Act is Section 3, which obliges the state government to constitute a nine-member temple management committee, consisting of a Chairman, and four Buddhists and four Hindus, including the Mahanth of Bodh Gaya[vii]. It imposes the condition that the Mahanth must be a Saivite Hindu[viii]. In the event that the Mahanth is unable to fulfill his duties, only another Hindu member can replace him.

This provision of the BGT Act is thus decidedly pro-Hindu. It makes it mandatory that only a Hindu District Magistrate shall be the ex-officio Chairman of the Committee. In case the District Magistrate does not profess the Hindu religion, the Government shall nominate a Hindu officer as Chairman of the Committee for the period during which the district Magistrate of Gaya is a non-Hindu[ix]. The Secretary of the Committee has to be nominated by the Government from among the members of the Committee[x]. Thus, for all practical purposes the Buddhist Temple is controlled by the five Hindus members, with the Chairman on their side. Consequently, the four Buddhist members have to follow their decisions.

The Committee performs executive functions, including management and control of the Mahabodhi temple land and its properties.[xi] The Committee is a legal entity, having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable.[xii] The term of office of the members of the committee is three years.[xiii] Four members constitute the quorum of the committee.[xiv] Another arbitrary and obnoxious provision[xv] has been provided under the BGT Act, which tends to take away the power of judicial review. Section 5(3) of the BGT Act lays down:

“Any Act done by the Committee shall not be questioned on the ground merely of the existence of any vacancy in or any defect in the constitution of the Committee”.

One of the duties of the Committee apparently violates a basic tenet of Buddhism, i.e. making arrangement for the proper performance of worship at the temple and pindadan (offering of pindas for the deceased) on the temple land[xvi]. The BGT Act recognizes inherent disputes between Hindus and Buddhist when it states:

“Notwithstanding anything contained in any enactment for the time being in force, if there be any dispute between Hindus and Buddhists regarding the manner of using the temple or the temple land, the decision of the State Government shall be final.[xvii]

Given the power, functions and nature of the Committee, it may fall under the definition of ‘state’ as per the Article 12 of the Constitution of India. It is a well settled proposition of Constitutional law that any action of the state is subject to judicial review by the higher judiciary of country. This provision, too, takes away the power of the judiciary to review the constitutionality and legality of executive actions of the Committee. And, finally, Section 12 of the Act is unjust on the grounds that, according to it, the Committee does not have any jurisdiction over the movable or immovable property of the Saivite Monastery of Bodh Gaya, despite the fact that the head priest of the Saivite Hindu monastery is one of the members of the Committee. Thus, this Saivite Hindu can determine the affairs of the Mahabodhi Temple and its properties, but no Buddhist member or even another Hindu member has any right to intervene in the affairs of the Saivite Hindu monastery, which exists within the premises of Mahabodhi Temple.

To appease international Buddhist followers, the BGT Act provides for the constitution of an Advisory Board[xviii], in which majority of the members shall be Buddhists who may not be Indians. However, it is purely advisory to the Committee and has no power of any kind which may bring about any kind of substantive change in the functioning of the Committee.

Protesting against the Act and the decision of the Bihar Government to form a new panel of the Bodh Gaya Temple Management Committee, in 2008 Buddhist monks at Bodh Gaya went on a fast unto death[xix] demanding amendments in the Act.

Violation of Secularism and Rights of Religious Minorities

This BGT Act tends to fail the test of constitutionality as it violates the principles of secularism and the power of judicial review, as well as the fundamental rights of religious minorities as envisaged under the Constitution.

The BGT Act should have been ipso-facto null and void by virtue of Article 13 of the Constitution, which defines the scope of laws which were in force before the commencement of the Constitution. In unequivocal language, the Constitution declares all laws which were in force in the territory of India before the commencement of the Constitution to be void to the extent of inconsistency with the provisions of the fundamental rights, and directs the state not make any law which takes away or abridges fundamental rights. The Constitution provides the right to equality and equal protection of laws under Article 14. It limits the power of the state by prohibiting any arbitrary classification. Arbitrariness is anathema to the rule of law. Yet, various provisions of the BGT Act appear to be in contrast with the spirit of Article 14. The preponderance of Hindus members in the Bodh Gaya Temple Management Committee violates secular principles and substantive provisions of the Constitution.

In this regard, the BGT Act stands in contrast with other similar legislations.[xx] The laws for several Hindu temples mention not only the need for only Hindus to be a part of their management committees but also, in one case, mention the specific caste that such persons should belong to. For instance, Section 5 and 6 of the Shri Jagannath Temple Act, 1955 provide for the constitution of a management committee, expressly making the eligible criteria for membership of such a committee as adherence to the Hindu religion. Section 6 (2) of Shri Jagannath Temple Act, 1955 lays down that no person who does not profess the Hindu religion shall be eligible for membership of Jagannath Temple Management Committee A proviso to Section 6 of the same Act states that if the Collector of the district does not profess the Hindu religion, an officer of the State Government professing this religion not below the rank of an Additional District Magistrate shall be a member and the Vice-Chairman of the Committee in place of the said Collector. This provision betrays a vivid contrast with the Bodh Gaya Act. Another such example is section 6 of the Shri Sanwaliaje Temple Act, 1992, which limits membership and presidentship of the management committee of this temple only to Hindus.

Article 15 (1) of the Indian Constitution prohibits discrimination against any citizens. It reads:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.

A combined reading of the BGT Act, the Shri Jagannath Temple Act and Articles 25 and 26 of the Indian Constitution clearly suggests that Buddhists are discriminated against by the state only on grounds of religion. These two articles recognize the fundamental right to freedom of religion, including of conscience and free profession, practice and propagation of religion; and freedom to manage religious affairs.

Article 25 (1) reads as follows:

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

While defining the concept of religion with regard to the scope of Article 25, the Supreme Court in the Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[xxi] observed that:

“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism which do not believe in God. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief.[xxii]”

Explaining the scope of Article 25, the Supreme Court stated:

“Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others.[xxiii]”

As we have explained, various provisions of the BGT Act prohibit Buddhists from freely professing, practicing and propagating their religion because of the preponderance of Hindu members in the temple management committee.

Article 26 of the Indian Constitution provides freedom to manage religious affairs. Under this article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such a denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law.

Article 26 runs as follows:

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

With regard to the management and control of religious affairs and institutions, the law laid down in the case of Ratilal Panachand Gandhi Vs.The State of Bombay and Others[xxiv], decided by the Constitution Bench of the Supreme Court, is still being followed. The scope of the Article 26 explained by the Supreme Court is worth quoting:

“The language of the two clauses (b) and (d) of article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under article 26(d), it is the religious denomination itself which has been given the right to administer it's property in accordance with any law which the State may validly impose. Any law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26(d) of the Constitution.[xxv]”

The BGT Act in general and section 3 of the same Act in particular, apparently violates Article 26 of the Constitution, which undermines a cardinal pillar that is part of the basic structure of the Constitution, namely secularism.

In State of Rajasthan vs. Sajjanlal[xxvi] the apex court held valid a law vesting the management of Jain religious trusts in committees of management subject to the condition that the members of the concerned committees should belong to the same denomination to which the particular trust belonged. The government cannot nominate persons of one denomination to mange trusts belonging to another denomination. Such propositions have been laid down in a number of cases.[xxvii] In this regard Jain (2006:1213) a renowned authority on constitutional law, states:

“Any law which takes away the right of administration altogether from the religious denomination and vests it in any other body or a secular authority would amount to violation of the right which is guaranteed by Article 26(d).”

The Constitution envisages secularism to mean neutrality of the state in the domain of religion. The concept of secularism does not envisage any atheist notion of the state but corresponds to equal treatment of all religions. Secularism has been recognized as one the basic structures of the Indian Constitution. A land mark judgment of S.R. Bommai Vs.Union of India[xxviii], decided by a nine judge bench of the Supreme Court of India, referred to the idea of secularism, holding that secularism is a part of the basic structure of the Constitution. In this regard, Justice Sawant commented:

“Religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution[xxix].

In the same spirit, B.P. Jeevan Reddy observed:

“While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally[xxx].”

The importance given to religious rights in the Constitution can be understood from the fact that the Constitutional framers placed these rights in the Part III of the Constitution, as fundamental rights, so that the state, by its legislative or executive action, does not violate these rights enshrined under the various provisions of the Constitution. In case those cherished rights are violated by state action, they could be enforced directly by the Supreme Court or High Courts.

Hinduising Buddhism, Denying Buddhists Their Identity

Another issue relates to the distinct identity of Buddhism and Buddhists. While Hindu chauvinists consider Buddhism a part of Hindu religion (Edward 1975; Ahir 2005), the Constitution does not define any religion, for limited purposes Indian law controversially considers Buddhism to be a part of Hinduism. The law continues to define Hindus as including Sikhs, Jains and Buddhists. Most of the Hindu personal laws are applicable to Jains, Buddhists and Sikhs as per Section 2 of the Hindu Marriage Act, 1956.

Explanation II of Article 25 has been inserted in the context of Sub-clause (b) of Clause 2 of Art.25, which states that “Hindu shall be construed as including a reference to persons professing the Sikhs, Jain or Buddhist religion, and the reference to religious institutions shall be construed accordingly.” The clause states that the ‘State has been empowered to make law, providing for social welfare and reform or the throwing open of Hindu religious institutions of public character to all classes and sections of Hindu’. This categorization itself is ironic because there are many differences between the basic tenets of Hinduism and Buddhism. But as it always plays out, the dominating religion overshadows the minority religion and that is exactly what has happened with Buddhism. The literal meaning of above mentioned explanation and clause is that, for the purpose of temple entry and welfare measure, Hindus shall include Buddhists, Jains and even Sikhs. Defining Buddhism and Buddhists in terms of the Hindu religion is ironical, false and baseless.

Another controversial legation that denies the separate identity of Buddhism and Buddhists and that works to absorb them into the Hindu fold is the Bihar Hindu Trust Act, 1950. Section 2(e) defines “Hindu” as a person professing any religion of Hindu origin and includes Jains and Buddhists, but does not include Sikhs. This legislation stands in contrast with the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997. This Act also defines the term ‘Hindu’, but Section 2(ii) clearly indicates that here ‘Hindu’ does not include Buddhists, Jains or Sikhs. It is ironical that the application of similar legislations on some individuals or group of individuals in different geographical location yields different juridical relations. A Buddhist ‘becomes’ a Hindu in Bihar and a non-Hindu in Karnataka. This clearly shows the great contradiction in legislative policy with regard to the religious identity of Buddhists.

During the 1950s and 60s, ‘upper’ caste Hindus, mostly Brahmins, dominated the entire political and legal institutions of Bihar state. Therefore, it is likely that they deliberately sought to deny Buddhists their right to control their most important temple. They were fully aware of the impact of the revivalism of Buddhism and of how this would threaten their hegemony, and so it seems they pressed for the Hinduisation of Buddhism by establishing effective Hindu control of Bodh Gaya through law, in the form of the BGT Act.

Implications of the Hinduisation of Mahabodhi Temple, Bodhgaya and Attempts to Liberate it from the Grip of Hindu Chauvinists

The BGT Act, 1949 has actually empowered the Hindus to dictate terms to a Buddhist temple and to virtually control its financial and spiritual affairs. This continues unabated till this day. For example, on 16th June 2007, Acharya Kishore Kunal, former IPS officer and head administrator of Bihar State Religion and Trust Board, visited Bodh Gaya and announced that the State would build a Jagannath Temple (modeled like the Jagannath Temple at Puri, Orissa) inside the very premises of the Mahabodhi Temple in Bodh Gaya[xxxi]. The ostensible intention of this suggested temple, as claimed by Kishore Kunal, was to “bring the two sects closer”, by which he meant Hinduism and Buddhism, but there was possibly an ulterior motive actually at work—to further establish Hindu control of the Mahabodhi Temple, hasten the process of the Hinduisation of Buddhists and Buddhism and to stamp out the challenge that conversion to Buddhism poses to Brahminism. He announced that the government of Bihar would sanction money for the very same purpose and that a trust would be created which would generate funds for the construction of the new temple.

Even though these plans have not yet been accepted formally by the Mahabodhi Temple Management Committee, funds for the construction of the proposed Jagannath Temple have already been created. The Sangh Parivar, apex body of Brahminical revivalism in India, has gone all out to channelize resources into funding this enterprise. In this context, a key Central law that would be violated is The Places of Worship (Special Provisions) Act, 1991, which aims to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947. Section 3 is relevant in this regard. It which reads as:

“No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof”.

Acharya Kishore Kunal, being the head of the Bihar State Religion and Trust Board, shares the same rank as a Minister of State. His wishes are quite likely to materialize into reality given the influence he exerts over the Committee. If India were truly secular, the very suggestion of a Hindu temple being built inside the premises of a shrine of another religion would have raised the hackles of the keepers of the Constitution. Yet, this failed to happen. As it is, there already exists a small shrine of Shiva inside the Mahabodhi Temple complex which was built illegally by Hindu priests. And now the suggestion of Kishore Kunal would only legitimize this Brahmimical invasion with the blessing of the law and with a larger, grander agenda of imposing Hinduism on Buddhism. Thus, dramatic as it may sound, all the sources of authority in India seem to be conspiring against Buddhism retaining its own identity. The administrative authorities have used their position to ensure that the little autonomy enjoyed by this religion be taken away mercilessly. This would certainly amount to encroachment into Buddhism’s holy shrine and would hasten the sinister Brahminical agenda of the Hinduisation. That this is completely un-Constitutional is obvious.

Narratives popular among local Hindus in and around Gaya relate that the name ‘Gaya’ was derived from a demon allegedly called ‘Gayasur’, who was very strong and intelligent. In order to overcome him, a great battle between ‘Gayasur’ and the Brahminical god Vishnu occurred. Vishnu won the battle after killing ‘Gayasur’. The ‘Gayasur’ in this baseless myth symbolizes Buddhism, the rational, human and scientific thoughts and philosophy of Lord Buddha, who challenged Brahminical hegemony and domination. Since the personality and thought of the Buddha were invincible, the Hindu chauvinists painted the same as the demon Gayasur Rakshash. The Brahminical chauvinists have been disparately trying to destroy Buddhism and its rational and humane philosophy for many centuries, as this myth illustrates. The BGT Act reflects their hegemonic agenda. As this paper has tried to show, it miserably fails to pass the test of constitutionality and the rule of law.

Apart from violating constitutional principles and provisions, the BGT Act has provided an opportunity to Hindutva forces, led by the RSS, to conspire to corrupt the basic tenets of Buddhism. It has also enabled pseudo-Buddhists, sympathizers of the Hindutva camp, to dominate the cultural and spiritual affairs of the Mahabodhi Temple pertaining to Buddhism that has resulted in the theft of precious artifacts from the temple. Faizan Ahmad has reported that at least 1,000 precious artifacts had been stolen from the temple. Quoting Bhante Anand, a notef Buddhist monk, he states that most of the idols and stupas were smuggled out when Bhante Gyan Jagat, alleged to be a Rashtriya Swayamsevak Sangh man in the garb of a monk, was the superintendent of the Temple’s management committee.[xxxii] Several Buddhist idols and stupas are still being kept in the mutt of the Bodh Gaya Mahanth, who happened to be the caretaker of the shrine before the enactment of the Bodh Gaya Temple Act, 1949. Notable Buddhist monk Bhadant Arya Nagarjuna Shurei Sasai is of the view that Hindu Brahmin priests are responsible for defiling and looting of some of the original statues of Lord Buddha from the Mahabodhi Mahavihara and that accounts of donations and gifts received have not been maintained properly. Elections for the management committee were held only after raising objections and launching agitations throughout India. Moreover, Hindu chauvinists have installed idols of some Hindu gods inside the Mahavihara, including a Shiv linga, in order to dilute and defame Buddhism. All sorts of Hindu rituals and rites are followed inside the Mahabodhi Mahavihar so as to Hinduise and defile Buddhism, he alleges. Criminal elements are, he says, encouraged by the Brahmin priests, who misappropriate donations and gifts offered by visitors.[xxxiii] Thus it is seen that sacredness of Buddha Gaya has been threatened by Brahminical forces.

In 1992, Buddhists from across the world joined hands to start the Mahabodhi Mahavihar All-India Action Committee. Since then, under the leadership of Ven. Bhante Ananda Mahathero and Ven. Bhadant Arya Nagarjuna Shurei Sasai, many Buddhist activists and followers have been agitating to ensure the return the Mahabodhi Vihara to Buddhist hands. They have been protesting peacefully at Buddha Gaya, requesting both Government of India and Government of Bihar to make suitable amendments in the BGT Act, 1949. In July 2002, the renowned Buddhist scholar Bhante Prajnasheela wrote to Mary Robinson, the United Nations High Commissioner For Human Rights, complaining about the mismanagement of the Mahabodhi Mahavihar, demanding that it be handed over to Buddhists.

The National Commission for Minorities (NCM) has also taken up this demand of Buddhists worldwide. In a resolution adopted on 30 March 2005, the NCM stated, “The provisions of the BGT Act, 1949 are not in harmony with the fundamental right enshrined in Article 26 of the Constitution, guaranteeing the right of freedom to every religious denomination to manage their respective religious affairs. Appropriate legal measures should be taken to ensure that all members of the committee entrusted with the management and control of the Bodh Gaya Temple, including the Mahabodi Mahavira in Bihar, are Buddhists.”[xxxiv] However, this recommendation of the NCM remains unimplemented, having fallen on deaf ears.

Conclusion

India is, in theory, a secular country but state policies and practices indicate preference for Hindus. This is clearly illustrated, as this paper has sought to prove, in the case of the BGT Act, which goes against India’s theoretically secular Constitution and commitment to the in human rights of religious minorities. The Act clearly discriminates against Buddhists. The most sacred places for Muslims, Christians, Hindus, Jews, and Sikhs are managed entirely by their own religious leaders but only Buddhists are denied this right. Since the Constitution of India guarantees and protects rights of religious minorities, the BGT has to be repealed or else declared to null and void since it is bereft of the morality and constitutional principles. The existence of the BGT Act is a blot on the Indian Constitution and Indian democracy. Any suo moto action initiated by the Supreme Court to test the constitutionality of the BGT Act would certainly be appreciated. This would only protect its own credibility and image.

Sanjay Kumar Chaudhary is Assistant Professor of Law, Centre for the Studies of Social Exclusion and Inclusive Policy, National Law School of India University, Nagarbhavi, Bangalore-560072. Email: advocate.sanjaykchaudhary@gmail.com

NOTES

[i] Ven. B. Pannasila’s memorandum on “Return the Mahabodhi Vihara to Buddhist Control and Revise The Bodhgaya Temple Act of 1949” to the Prime Minister of India, Chief Minister of Bihar and others.

[ii] See, http://whc.unesco.org/archive/2002/whc-02-conf202-25e.pdf#decision.23.15

[iii] Article 14 of the Constitution of India

[iv] Article 15(1) of the Constitution of India

[v] Article 15, 26 of the Constitution of India

[vi] (1994)6 SCC 360 at para 41

[vii] Section 3(2) of the Bodh Gaya Temple Act, 1949

[viii] Section 2(c) of the Bodh Gaya Temple Act, 1949

[ix] Section 3(3) of the Bodh Gaya Temple Act, 1949

[x] Section 3(4) of the Bodh Gaya Temple Act, 1949

[xi] Section 3(1) of the Bodh Gaya Temple Act, 1949

[xii] Section 4 of the Bodh Gaya Temple Act, 1949

[xiii] Section 5(1) of the Bodh Gaya Temple Act, 1949

[xiv] Section 7(3) of the Bodh Gaya Temple Act, 1949

[xv] Section 5(3) of the Bodh Gaya Temple Act, 1949

[xvi] Section 10(1)(d), 11(1) of the Bodh Gaya Temple Act, 1949

[xvii] Section 12 of the Bodh Gaya Temple Act, 1949

[xviii] Section 12 of the Bodh Gaya Temple Act, 1949

[xix] The Bihar government issued a notification on 17th May, 2008 to form a new panel of the Bodh Gaya Temple Management Committee (BGTMC). In this notification, it nominated eight members—four Buddhists and four Hindus—to form the new panel with the Gaya district magistrate as its ex-officio chairman. This panel has been constituted under the BGT Act. (See http://in.jagran.yahoo.com/news/local/bihar/4_4_6101252.html) [viewed on 10/06/2009]

[xx] See Section 6, Shri Sanwaliaji Temple Act, 1992 and 6 of the Shri Jagannath Temple Act, 1955. The Section clearly prohibits a non-Hindu from joining the Board of members managing the temple.

[xxi] AIR1954SC282

[xxii] AIR1954SC282 para 17

[xxiii] AIR1954SC282 para 14

[xxiv] AIR 1954 SC 388

[xxv] AIR 1954 SC 388 para 11

[xxvi] AIR 1975 SC 706

[xxvii] Ratilal Panachand Gandhi vs. State of Bombay, AIR 1954 SC 388; Pannalal Bansilal Patil vs. State of Andhra Pradesh, AIR 1996 SC 1023; Usman Khan vs. Faezulla, AIR 1959 MP 377; Basir Ahamed vs. State of West Bengal, AIR 1976 Cal 142; Ram Chandra vs. State of Orissa, AIR 1959 Ori 5.

[xxviii] AIR 1994 SC 1918

[xxix] AIR 1994 SC 1918, Para 40

[xxx] AIR 1994 SC 1918, Para 86

[xxxi] “Acharya Kishore Kunal Visits Bodhgaya”, Dainik Jagran, Patna, June 17, 2007.

[xxxii] Faizan Ahmad, ‘Artifacts disappear from Buddhist shrine’, The Telegraph, February 17, 1997

[xxxiii] Email message I received from Bhante Prajnasheela on August 16, 2008 containing the letter written by Bhadant Arya Nagarjuna Shurei Sasai to Mary Robinson, High Commissioner for Human Rights United Nations, Geneva, on, dated July 31, 2008

[xxxiv] See National Network for Human Rights Treaty Monitoring in India, Dimensions of Discrimination in India: A Shadow Report (periodic reports CERD/C/IND/19) of India to UN CERD Committee, 19 February 2007), p.16.

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