Catalogue of Uncommon Legal Precedents

Staying with the Trouble: A Continuation of “Breaking the Person/Property Barrier” Probe by Mario Michas

By Lexi Rubin

In the probe, “Hindu Religious Artefacts and Cross-Cultural Jurisprudence: Breaking the Person/Property Barrier” by Mario Michas, the author explored how the Privy Council, applying Hindu legal principles, recognized that certain religious artefacts were not merely objects but legal persons – “juristic entities” endowed with rights of their own. While the cases Michas explored challenged conventional Western assumptions about the person/property divide, they also raised a more difficult question. What does it mean for a court to recognize a non-Western form of legal personality? Michas’ probe opens the door to this question, but what happens once that door has been left ajar? This probe investigates whether courts are genuinely prepared to engage with distinct legal traditions, or whether the cases discussed by Michas are the exception rather than the rule. Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee and Yogendra Nath Naskar v. Commissioner of Income-Tax demonstrate that, although courts may initially engage with distinct legal traditions, they ultimately default to translating unfamiliar concepts into familiar legal frameworks.

Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee

Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, a case that reached the Privy Council in 1940, assessed whether a mosque can be considered a juristic entity. A Muslim mosque in Lahore had been in Sikh possession and control since 1762. Sikh custodians used the building for Sikh religious and secular purposes. In 1935, the building was demolished by its Sikh custodians, prompting Muslim plaintiffs to sue. The suit was filed by eighteen plaintiffs, the first of which was the mosque itself, represented through a next friend. The plaintiffs did not frame the suit around the waqf, the institution, or the charitable trust; they named the physical site and building as a party in its own right. {n1} Thus, the Privy Council was once again confronted with the legal question of what constitutes a juristic entity. Ultimately, the Privy Council refused to accept the mosque as a juristic person, rejecting the argument that a mosque should have the same juristic character as a Hindu idol. The Court distinguished Hindu and Muslim legal traditions by explaining that the recognition of an idol as a juristic person reflects a specific doctrine within Hindu law. In contrast, Muslim law does not conceptualize mosque property through the legal personality of the mosque itself (para 14).

Yogendra Nath Naskar v. Commissioner of Income-Tax

In Yogendra Nath Naskar v. Commissioner of Income-Tax, Ram Kristo Naskar left a will that dedicated properties to two Hindu deities: Sri Iswar Kubereswar Mahadeb Thakur and Sri Sri Anandamoyee Kalimata. Naskar appointed his two sons, Hem Chandra Naskar and Yogendra Nath Naskar, as shebaits (priests, custodians) of the deities' property. {n2} The case grappled with the question of whether or not a Hindu idol is a legal person capable of owning property and being taxed on income from that property. The Supreme Court of India held that a Hindu deity falls within the meaning of “individual” under s. 3 of the Income Tax Act, 1922. The court recognized the Hindu idol as a juristic entity capable of holding property and subject to taxation through its shebaits, who are entrusted with the management and possession of its property (para 1).

What do These Cases Reveal?

Masjid Shahid Ganj is a pivotal case, as the Privy Council engaged with two distinct legal traditions, Hindu belief and Islamic tradition. The Court rejected the argument that a mosque should be treated as a juristic person in the same way as a Hindu idol. As the Court put it, “that there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships” (para 14). Yet the Court's actual engagement with why the two traditions differ is lacking. It is not supported by any citation to Islamic beliefs on the question of material representations of the divine. The Court does not explain what it understands to distinguish Islamic and Hindu conceptions of the divine. It simply declines the comparison, stating there is no Muslim law that conceptualizes the mosque as a legal person.

While the Court gestures that there is a real difference between the two traditions, it never fully engages with those differences. It could have. Islamic traditions have historically resisted the idea that the divine can be embodied through physical representations. {n3} Unlike the Hindu idol, which functions as a manifestation of the deity within Hindu legal thought, Islamic traditions reject the notion that a material object can represent or embody God (pg. 264). Evidently, even when courts engage with non-Western legal and religious traditions, that engagement tends to stop short of genuine understanding; the courts rarely stay with the trouble. They only let the cat out of the bag for a brief moment before it is coaxed back in.

This judicial reluctance to fully engage with distinct legal traditions is further illustrated in Yogendra Nath Naskar. In that case, the court explains that the “correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognized by law… What is personified here is not the entire property which is dedicated to the deity but the deity itself, which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view” (para 18). While the Court rightfully recognizes the deity as a juristic entity, it relies on the Roman concept of pia causa: the mere act of dedicating property to a charitable cause is enough to turn that cause into its own legal entity, holding legal rights, to support this conclusion. {n4} The Court essentially frames the deity's personhood as derivative of human intention, the donor's pious purpose, rather than as flowing from the deity's own status as a living, worshipped presence. The concept of piae causae appears, at first glance, to offer a bridge between legal traditions by suggesting that Western law has long recognized forms of religious legal personality. This framing seems to validate Hindu juristic entities within a familiar legal vocabulary. Yet what is happening beneath the surface is not engagement, but translation. Rather than grappling with Hindu legal personality on its own terms, the Court reframes it through Roman-law categories. Difference is not denied, but it is never fully engaged with either.

Conclusion:

The pattern of reluctance seen in Yogendra and Masjid Shahid Ganj reveals the unfinished project at the heart of Mario Michas’ probe into Hindu law. The challenge is not only piercing the person/property barrier, but also ensuring that courts “remain with the trouble” once that boundary has been breached or unsettled. {n5} The cat has now been let out of the bag: courts have acknowledged that legal personhood can exist beyond familiar Western categories. The harder question is whether they are willing to live with the consequences of that recognition, or whether they will slowly try to coax the cat back into older, more familiar legal frameworks.

Acknowledgments

I wish to thank Dr. David Howes for his comments on an earlier draft of this probe. It was written during the course of my employment as a research assistant on the “Sensitive Material” project, funded by the Social Sciences and Humanities Research Council of Canada (grant no. 430-2024-01324) 

Notes:

{1} Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, (1940) 42 BOMLR 1100 at para 8.    

{2} Yogendra Nath Naskar v. Commissioner of Income-Tax, Calcutta, AIR 1969 SC 1089  at para 3.

{3} Lutfi, D., 2024. The Image Debate: Investigating the Rationale Behind Aniconism in Islamic Arab Societies. International Journal of Religion, 5(1), pp.264-280.

{4} As Dr. David Howes observed in a comment on an earlier draft of this probe:

This construction is partial at best. What the interjection of the pia causa doctrine boils down to is that there has to have been a pious act, a human intervention, in the first place, but from the moment that the idol is enspirited, it is endowed with a will of its own, independent of the founder’s purpose. Enspiriting (the animation of the artifact) involves the ritual act of piercing the idol’s eyes with a needle. For example, devotees of the deity will crowd around and jostle with each other so they can be the first in the line of sight the idol’s newly opened eyes. This exchange of glances is called darsan, auspicious sight. See Eck, D.L. (1998) Darsan: Seeing the Divine Image in India. 3rd edn. New York: Columbia University Press. The idol may manifest its will, its judgment, in other ways as well: for example, by withholding blessings from the worshipper in the event of bad behaviour, such as failing to observe a taboo or not making the correct offering. When they are not in a position to do so, Hindu law allows for a court to step in and appoint a “next friend” to represent them – that is, to ascertain their will. The idol has a spiritual life of its own, independent of the founder’s purpose. These ritual and spiritual considerations did not form part of the court’s deliberations, only the legal niceties.  

{5} For an in-depth discussion of the concept of “staying with the trouble,” see, Haraway, D.J., 2020. Staying with the Trouble: Making Kin in the Chthulucene. Duke University Press.