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Articles of FaithReligion, Secularism, and the Indian Supreme Court$

Ronojoy Sen

Print publication date: 2010

Print ISBN-13: 9780198063803

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198063803.001.0001

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Conclusion

Conclusion

Chapter:
(p.192) 8 Conclusion
Source:
Articles of Faith
Author(s):

Ronojoy Sen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198063803.003.0008

Abstract and Keywords

If the overall direction of India's court decisions on religion were to be assessed from 1951 to the present, some patterns are discernible. This has something to do with the personality of dominant judges, usually serving chief justices or judges who would become chief justices, as well as the prevailing political climate. The Supreme Court laid the foundation for a relationship between state and organized religion that gave considerable freedom to religious denominations. One of the main themes of this book is the strong current of high modernism and rationalism in the judicial discourse on religion. This comes out most powerfully in the Court's understanding of Hinduism, and its articulation and application of the doctrine of essential practices. Another important theme is the Court's attitude towards minorities and its understanding of minority rights, particularly in relation to Muslims. The Court has not been sufficiently sensitive to the fact that the threats posed to a civil liberal order in India and elsewhere are less from disputes over religious beliefs and more from the conjunction of nationalism and religion.

Keywords:   India, Supreme Court, nationalism, religion, court decisions, judges, minority rights, Hinduism, Muslims, doctrine of essential practices

If the overall direction of court rulings on religion were to be assessed from 1951 to the present, some patterns are discernible. This has something to do with the personality of dominant judges, usually serving chief justices or judges who would become chief justices, as well as the prevailing political climate. It must be stressed, however, that no linear movement can be discerned in court rulings. The early 1950s, the very first years of the existence of the Supreme Court, saw rulings that arguably most closely approximated the constitutional position of the state giving free play to all religions. B.K. Mukherjea, J in 1954 rejected the narrow definition of religion enunciated by the Bombay High Court in Ratilal Panachand, where religion was restricted to matters of personal faith and belief. In Shirur Mutt, Mukherjea defined religion far more expansively and said rituals, observances, ceremonies, and modes of worship were to be regarded as integral parts of religion. Second, he observed that a religious denomination or body enjoyed complete autonomy in deciding what rites and ceremonies were essential. The Court, thus, laid the foundation for a relationship between state and organized religion that gave considerable freedom to religious denominations. Mukherjea, who was an expert on Hindu religious and charitable endowments—on which he delivered the famous Tagore lectures at Calcutta University—as well as a Sanskrit scholar, greatly influenced the direction of the Court in the decade after 1950.

This would change in the 1960s when Gajendragadkar, J became the dominant voice of the Court, at least with regard to religion. In successive cases, he would whittle down the protection to essential practices to those that the court deemed suitable. The phase when Gajendragadkar was dominant also marked the beginning of an (p.193) increased role for the state in regulation and administration of temples. It has been noted how the idea of social engineering played a crucial role for high modernists such as Gajendragadkar. The notion of the ‘felt needs’ of society or the ‘mores of the times’ is central to the notion of social engineering. Hence, in an earlier chapter I have tried to show that Gajendragadkar's rulings can be viewed as a product of Nehruvian rationalism.1 Thus, when he talked of social engineering, Gajendragadkar assumed a moral consensus, which is characteristic of political elites, on the Nehruvian objectives.

This phase is possibly best explained by political scientist James Scott's concept of high modernism. Some key components of Scott's formulation of modernism are a supreme confidence in progress and a rationalist understanding of the world. The faith reposed by high modernism in progress and rationality implies a ‘truly radical break’ with history and tradition. For the high modernists, according to Scott, the ‘structures of the past were typically the products of myth, superstition, and religious prejudice. It followed that scientifically designed schemes for production and social life would be superior to received tradition’.2 This description is similar to political theorist Michael Oakeshott's analysis of rationalists: ‘At bottom he [the Rationalist] stands (he always stands) for independence of mind on all occasions, for thought free from obligation to any authority save the authority of “reason”. His circumstances in the modern world have made him contentious: he is the enemy of authority, of prejudice, of the merely traditional, customary or habitual’.3 Since tradition or custom has no value for rationalists, it makes ‘destruction and creation easier for him to understand and engage in’. This is especially true for a figure like Gajendragadkar, who makes frequent appearances in this study. Gajendragadkar's crusade against religious superstition and myths, particularly through the construction of a rationalist Hinduism and the application of the essential practices doctrine, could be seen as typical of a high modernist.

In the high modernists' scheme of things, the state plays a central role in every aspect of life. Scott observes, ‘High modernism is thus a particularly sweeping vision of how the benefits of technical and scientific progress might be applied—usually through the state—in every field of human activity’.4 Scott argues that it was only in the (p.194) late nineteenth and twentieth century that the state acquired the wherewithal to impose its schemes on society. He further argues that the ‘massive, state-enforced social engineering of the twentieth century has been the work of progressive, often revolutionary, elites’. Indeed, Gajendragadkar—and his intellectual mentor Jawaharlal Nehru—fit Scott's description of progressive elites who desire to use the power of the state to ‘bring about enormous changes in people's habits, work, living patterns, moral conduct, and world-view’.5

The close fit of the Nehruvian elite with high modernism is not surprising since Scott notes that high modernism has great appeal to those who see themselves as responsible for nation-building and social transformation. According to Scott, ‘Where this intelligentsia conceives of its mission as the dragging of a technically backward, unschooled, subsistence-oriented population into the twentieth century, its self-assigned cultural role as educator of its people become doubly grandiose’.6 Thus, postcolonial elites, like Gajendragadkar, who sought to radically transform society, are particularly apposite candidates for high modernism.

One might in fact speculate that the more intractable and resistant the real world faced by the planner, the greater the need for utopian plans to fill, as it were, the void that would otherwise invite despair. The elites who elaborate such plans implicitly represent themselves as exemplars of the learning and progressive views to which their compatriots might aspire. Given the ideological advantages of high modernism as a discourse, it is hardly surprising that so many postcolonial elites have marched under its banner.7

The framework that was put into place in the 1960s has not been seriously questioned since. In the 1980s and 1990s, the Court sanctioned state control of major Hindu temples. It also placed ever-stricter rules on groups claiming religious denomination status and protection under Article 25. Though no single judge was dominant during this period, except for Ramaswamy, J who handled most of the temple cases in the 1990s, the idea of state regulation of temples had taken deep roots by then. This was also the period when Hindu nationalism was ascendant, and the sanction of state control of temples possibly stemmed from different imperatives than those of Gajendragadkar's time. The court was less concerned about rooting out irrational elements of religion than it was about expanding the role of the state (p.195) with regard to religion. This comes out in the introduction of the idea of dharma into the judicial discourse by Ramaswamy in place of a narrow conception of religion. Involving dharma gave the state, like the earlier royal dynasties, latitude to play benefactor to religious institutions. The court, in this phase also, was at its most activist in tackling the many perceived ills in India such as corruption and environmental pollution. The enthusiastic support of the state taking over temples could be seen as a by-product of this activism.

However, when Hindu nationalism was ascendant in the 1990s, Verma, J used Cardozo's idea of ‘mores of the community’ to achieve a completely different end. Gary Jacobsohn points out, ‘For Justice Verma, secularism means equal treatment under law, whereas for Justice Gajendragadkar, the constitutional aspiration of equality may justify the active intervention by the State into the spiritual domain (in violation, perhaps, of formal equality) in order to achieve an objectively more egalitarian society’.8 According to Jacobsohn, in the Hindutva ruling, ‘Gajendragadkar's discussion of Hinduism was appropriated by Verma in order to advance an understanding of religion and politics that is sharply divergent from the intentions of the earlier jurist’.9

It could be argued that Verma's ruling was representative of the politics of a time when Hindu nationalists had acquired a legitimacy and popular support unrivalled since Indian independence. Hence, Jacobsohn writes, ‘Verma's unwillingness to delegitimate all Hindutva campaign advocacy is accordingly a reflection of his intention to reinforce what he saw as the legitimate sociopolitical aspirations that many people associate with the use of the term’.10 Framing the Hindutva judgment in terms of Cardozo's notion of community mores, Jacobsohn observes, ‘In looking to the mores of the majority, Verma appealed to a rather vague and undifferentiated set of norms and assumptions that reflect the aspirations for a uniform culture held by many, perhaps most Hindus in India’.11

S.P. Sathe, too, links the changes in the direction of Court rulings with the politics of the time. Of the years immediately following independence, Sathe comments: ‘The Court, barring a few property rights cases, supported the economic regulation undertaken by the Indian State. During the 1950s and early 1960s, the Court seemed to share the Nehruvian vision of socialist India, as evident (p.196) in its decisions on the rights of industrial labour and regulation and control of the economy’.12 However, around the 1990s, when Hindu nationalism and economic liberalization were the dominant themes in Indian politics, Sathe says, ‘The tides and currents which engulf the rest of the people, do not pass the judge by. Therefore, there have been decisions which showed that even judges have not been left out of the prevailing climate of privatization and soft Hindutva’.13

Too much though should not be read into the judiciary being influenced by the ‘tides and currents’ of the time. In the 1950s, the government and the judiciary were at loggerheads with Nehru's Congress government over land reform and the right to property. Further, in the early 1980s, following the Emergency, judges ‘not only placed their power over all authorities, public or private, but claimed the status of an independent institution of governance’.14 This is something that the courts have continued to practice. Thus, Rajeev Dhavan gives a salutary warning about analysing the behaviour of the Court:

In the end, we must regard the attitude of Supreme Court judges as typical of the decision-making habits of metropolitan Indians: technically unpredictable, not influenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by the psychologist or documented even by the novelist, the dramatist or the fiction writer, and suffering from an over-sensitive opinion of their lonely and unparalleled position.15

Supreme Court judges have, however, shown a willingness—which is rare for constitutional democracies—to interpret religious texts. One reason for this could be the tendency of judges to see themselves as inheritors of the Brahmanical tradition of interpreting religious texts. It is perhaps no accident that Gajendragadkar hailed from a family of Brahmin, Sanskrit scholars and took great pride in interpreting Hindu law, as is evident in Madhavrao. Similarly, Ramaswamy, J (who is incidentally not a Brahmin) goes to great lengths in A.S. Narayana to demonstrate his knowledge of Hindu religious texts and traditions. This leads the other judge on the Bench, B.L. Hansaria, J, to comment, ‘It may look pedantic to say anything more in the face of the very scholarly and erudite judgment of my learned brother …’16

(p.197) Another reason for judges to refer to Hindu scriptures and traditions, as Pratap Bhanu Mehta points out, is a ‘way of bolstering their authority by giving Hindus reasons that are internal to the tradition itself to go along with the courts and legislature's reform agenda’.17 According to Mehta,

The act of interpreting religious texts has a dual purpose. On the one hand the courts are able to demonstrate that the authority of their rulings rests both upon modern constitutional principles and scripturally sanctioned foundations. On the other hand the courts offer internal reasons to Hindus to the effect that there is little in the content of social reform efforts that is a threat to their religion, understood in its essentials.18

The contradiction of judges interpreting religious texts was not so apparent so long as the courts stuck to interpreting Hindu texts and traditions. However, as soon as the courts and Hindu judges took on the role of interpreting Islamic law, as Chandrachud, J did in Shah Bano, there was a huge public outcry. Indeed, there are commentators who feel that had Chandrachud not referred to the Quran in Shah Bano to justify maintenance for divorced Muslim women, the case would not have taken such a controversial turn. Interestingly, when Chagla, J, a Muslim, had to decide on the legitimacy of anti-polygamy legislation in Appa, he admitted, ‘It is only with very considerable hesitation that I would like to speak about Hindu religion …’19 Instead of dwelling on the place of polygamy in Hindu religion, Chagla focused on the right of the state to undertake social reform. Like Chagla, Iyer, J, too, avoided the pitfall of interpreting Muslim personal law in Fuzlunbi and Bai Tahera, and thus did not cause a furore as in Shah Bano.

The State as Patron and Reformer of Hinduism

One of the main themes of this study has been to highlight the strong current of high modernism and rationalism in the judicial discourse on religion. This comes out most powerfully in the Court's understanding of Hinduism, and its articulation and application of the essential practices doctrine. As discussed earlier, the Supreme Court's inclusivist definition of Hinduism put forward the idea of Hinduism as an all-encompassing but coherent whole. The (p.198) Court's description of Hinduism as a ‘way of life’ was based on the idea that there were certain foundational features of Hinduism, one of them being the centrality of the Vedas. Hence, in rejecting the claim of the Satsangis that they were distinct from the Hindus, the Court in Yagnapurushdasji appealed to the idea of a ‘subtle indescribable unity’ underneath the ‘divergence’ of Hinduism. The appeal to a unity within Hinduism, based on a Vedic core, allowed the Court to ignore the issue of the multiplicity of sects and beliefs within Hinduism. This inclusive conception of Hinduism would also enable the Court to deny the right of exit to any sect or group.

Second, through the essential practices doctrine, outlined by B.K. Mukherjea, J in Shirur Mutt and developed by Gajendragadkar, J in later rulings, the Supreme Court put in place a stripped down rationalist version of religion. In Durgah Committee, the Court made a distinction between ‘essential’ religion and practices that had their origins in superstitious belief. This ruling was a powerful statement in favour of rationalizing and homogenizing religion. At the same time, newer religious groups such as the Ananda Margis were held by the Court to be illegitimate. The rationalization process would also find expression in increasing state regulation of temples and rituals of worship. The Court even went to the extent of ruling in Swami that the appointment of a temple priest was not a matter of religion. This meant that the Court was sanctioning a system where the state had a direct say in how worship was to be conducted.

The high modernist and rationalist thrust of the court, however, failed to accomplish what it set out to achieve: the transformation, in Gajendragadkar's words, of a ‘traditional’ community into a ‘modern, progressive and dynamic’ one where reason would be the guiding principle, and religion would be ‘totally irrelevant in the consideration of social, economic and political problems’. The court's modernism and rationalism was turned on its head, resulting in the complete negation of what a Nehruvian rationalist like Gajendragadkar had originally set out to achieve. This was most starkly illustrated in Gajendragadkar's definition of Hinduism that was used by the court, and subsequently appropriated by the Hindu nationalists, to legitimize Hindutva.

(p.199) As has been touched on earlier, the overlap between the inclusivist and exclusivist discourses on Hinduism—where differences within Hinduism were appropriated rather than recognized—was at the root of this paradoxical outcome. The moment the Supreme Court in Prabhoo ruled that speaking about Hindutva in election campaigns was not religious speech because Hindutva is about ‘a way of life’, it articulated Hinduism in a way that would be equally useful to Hindu nationalism as to high modernism. It must be remembered that Nehruvians such as Gajendragadkar were deeply preoccupied with nation-building and that dictated much of their unification project. However, this propensity toward homogenization reinforces the Hindu nationalist dual project, unifying and monotheizing Hinduism on the one hand, and subsuming all religions under the umbrella of Hindutva as a way of life on the other. Indeed, this overlap in the Indian state's modernizing project and the Hindu nationalist agenda was foreshadowed by sociologist M.N. Srinivas in the early 1960s:

Thus the state has become an important means of reinterpretation of Hinduism in the middle decades of the twentieth century, and this in spite of India's proclaimed policy of being a secular state. The state, though most important, is not the only organization performing this function. Political parties such as the Hindu Mahasabha and the Jan Sangh, and ‘cultural organisations’ such as the militant Rashtriya Swayamsevak Sangh, become agencies for the perpetuation and reinterpretation of Hinduism.20

The consequences of the essential practices doctrine were at odds with the goals of Nehruvian modernism. The essential practices doctrine, as developed by Gajendragadkar, sought to cleanse religion of superstition and irrationalities. It was based on the premise that the state must protect only the ‘essential and integral part’ of religion. While it was certainly desirable that the state would play a role in passing laws to abolish social practices, such as untouchability and denial of entry of lower castes to temples, the Supreme Court permitted the state to become deeply involved in administering religious institutions, and even regulating rituals and modes of worship. Beginning with Durgah Committee, the Court gave sanction for an elaborate regulatory apparatus for religious institutions. The involvement of the state in religious institutions flew in the face (p.200) of the Nehruvian assumption that the domain of religion would gradually shrink. Instead of religion disappearing from the public sphere, the state became the principal agent of Hindu reform.

This has resulted in the virtual takeover of temples which completely undermines any form of secularism. For instance, the richest Hindu temple in India, the Sri Venkateswara temple at Tirupati in Andhra Pradesh is run by a board appointed by the government and the executive officer is a government bureaucrat. Hence, Pratap Bhanu Mehta argues that the Indian secular state has already put in place what a Hindu state would have probably liked to:

The Indian state has used state power to consolidate Hindu identity in more ways than one can list. The state, for the first time, created a territorially unified body of Hindu law, transcending numerous regional divisions. Supreme Court judges not only promulgate public purposes; they act as authoritative interpreters of Hindu religion … The state runs thousands of temples across the country, appropriated in the name of social reform and financial propriety.21

The Question of Minorities

Another important element of this study has been the Court's attitude towards minorities. The Stanislaus judgment and its role in legitimizing anti-minority legislation to check conversions have already been discussed in Chapter 5. So has been the Court's role in making it easier to re-enter the fold of Hinduism and its caste hierarchy than to leave it. However, here I want to touch once more on the question of the Court's understanding of minority rights, particularly in relation to Muslims. This is critically important for the future of Indian secularism, given the insecurities and fears of the Muslim community following the Babri Masjid demolition, 2002 Gujarat riots and, more recently, the spate of terror incidents culminating in the terrorist attack on Mumbai in 2008. While Muslim organizations and civil society groups have unequivocally condemned terrorists claiming an Islamic ideology, fingers are pointed at the community by many Indians, particularly Hindu nationalist groups. The insecurities, and the several problems afflicting the community, have been extensively documented in the government-appointed Rajindar Sachar Committee's report in 200622, which recommends specific policies (p.201) targeted at Muslims. This calls on the state to be attentive to the rights of Muslims.

In the Muslim personal law cases, the Supreme Court made a strong argument against separate laws for religious minorities. On several occasions, including the Shah Bano case, the Court has strongly pushed for a uniform civil code. The Court viewed the failure of the legislature to enact a uniform civil code as an invitation to don the mantle of reformer. The Court based its rulings on the premise that separate laws for religious communities undermined the Indian nation-state and its unity. Then again, in the cases involving minority institutions, it has slowly eroded the rights of these institutions. As was mentioned earlier, the Aligarh Muslim University is still fighting a battle for minority status.

The Supreme Court's repeated calls for a uniform civil code have not had the desired effect. The Shah Bano case was a dramatic instance of a Court ruling triggering a backlash from the Muslim community, as well as remedial action by the legislature. The ruling coalesced both traditionalist and modernist elements of the Muslim community, who saw their religious and cultural identity under threat. The reaction to the Court's emphasis on uniformity and homogeneity was so strong that the Congress passed the Muslim Women's Act to nullify the Shah Bano ruling. The Court's strident advocacy of a uniform civil code also made it an ally of the Sangh Parivar since the uniform civil code has consistently been at the top of the Hindu nationalists' agenda, which includes scrapping of the special status granted to Kashmir, a temple at Ayodhya, and stemming Christian conversions.

The Court's utopian, and potentially destabilizing, thinking on minority rights comes out in the Bal Patil case (mentioned in Chapter 2), which dealt with the demand for minority status by Jains:

Article 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so called forward and backward classes … We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights.23

(p.202) At a theoretical level, the Hindu nationalists echo the Court's emphasis on legal uniformity and antipathy to religion-based personal laws. Thus, Deen Dayal Upadhyaya writes, ‘If we examine our constitution from the point of view of the growth of the nation, we find that our constitution needs amendment. We are one nation, one society. That is why we did not entertain any special rights on the basis of language, province, caste, religion etc. but gave everyone equal citizenship’.24 Arun Shourie echoes Upadhyaya when he says: ‘The individual should be the unit for policies and laws of the State, and not the religion or caste to which he belongs or the region in which he lives; … nothing should be conceded to a group or organization of one religion which is denied to or not made available to groups or organizations of other religions’.25 Following the Shah Bano ruling, Shourie stated that ‘no religious or other group has any inherent or perpetual right to insist that it will be governed by laws different from laws that apply to the generality of citizens’.26 The rank and file of the Sangh Parivar express the same sentiments, but in a much more blunt manner, when they talk of ‘pseudo secularism’ to describe Congress' secularism which, in their reading, amounts to minority ‘appeasement’ or ‘pampering’.

Shourie has couched his Hindu nationalist agenda in a classic liberal position which demands equal and universal laws for all citizens. This is what Charles Taylor calls a ‘difference-blind’ approach, where any concession to ‘difference’, be it religious or otherwise, ‘violates the principle of nondiscrimination’.27 Akeel Bilgrami sums up well the dilemma of a liberal state regarding personal laws: ‘Can culture and religion provide grounds for exemption from a secular liberal nation's laws?’28 The reasoning of Hindu nationalist ideologues such as Shourie, who twist the rationale of a liberal state for their own purposes of exclusion, highlights the possibility of a cognitive collaboration between Hindutva and the secular Indian state. Thus, Partha Chatterjee notes, ‘In its most sophisticated forms, the campaign of the Hindu right often seeks to mobilize on its behalf the will of an interventionist modernizing state, in order to erase the presence of religious or ethnic particularism from the domains of law or public life, and to supply, in the name of “national culture”, a homogenized content to the notion of citizenship’.29

(p.203) The problem with the judicial discourse on minority rights is that it is caught up in the rhetoric of national unity and assimilation, little realizing that it undercuts the very foundation of a diverse and plural nation such as India. It was one thing for the framers of the Indian Constitution in the aftermath of partition to stress national unity, but it is quite another for the Court to insist on cultural and religious homogeneity more than sixty years after independence. Here, one sees the larger issue of the role of the liberal, democratic state vis-à-vis minorities. As Bhikhu Parekh points out, unlike pre-modern formations such as the Ottoman or Mughal empires where communities were relatively free to follow their own practices, the modern state is a different beast: ‘The modern state rested on a very different view of social unity. It generally recognized only the individuals as the bearers of rights and sought to create a homogenous legal space made up of uniform political units subject to the same body of laws and institutions’.30 The Indian secular state, with space for personal laws for religious minorities and state funding for minority institutions, is different from this model. However, as I have tried to show, the Court has more often than not ended up looking at minority issues through the lens of a homogenized state and uniform rights.

Indian Secularism and Exceptionalism

This then brings us right back to the place of religion in India, and the tensions within India's official secular policy. Ramachandra Guha persuasively argues in India After Gandhi that India is an ‘unnatural nation’ which did not have a ‘shared language, a shared religious faith, a shared territory, a common enemy’ to hold it together.31 Indian secularism is at the heart of this ‘unnatural’ experiment. Using Ashis Nandy's memorable line that cricket is an Indian game invented by the British, Pratap Bhanu Mehta even suggests that ‘secularism, like cricket and democracy, is a quintessentially Indian game that just happens to have been invented elsewhere’.32 What Donald Smith had once called ‘anomalies’ are now seen as an integral part of Indian secularism. It's the ‘celebratory neutrality’ of the Indian state, or a state-sponsored tolerance namely sarva dharma samabhava, which is a sine qua non of Indian secularism.

(p.204) Nonetheless, a central contradiction still remains. As Mehta succinctly puts it, modernity presents a profound dilemma: ‘We think religion is important enough that it should be given space, but at the same time it is a threat that needs to be contained’.33 With regard to religion, the modern state has been particularly interventionist having ‘had to assert authority over areas of social life that traditional religious practices had claimed as their own’.34 The postcolonial Indian state is no different. However, like Indian democracy, secularism can be termed a qualified success given the tremendous odds it faced. If Indian secularism is seen as exceptional—changing the rules of the game even as it develops—what role has the Court played? There is little doubt that the Court, on several occasions, has played a positive role in defending religious freedom and minority rights. A good example is the Court's efforts to deliver justice to the victims of the 2002 communal riots in Gujarat in the face of an unresponsive, and even complicit, state government. However, on the questions of both religious and legal pluralism, the Court has, far too often, erred on the side of homogeneity and uniformity. This is, indeed, characteristic of any modern, liberal state. As Parekh points out, the modern state is a ‘deeply homogenizing institution’ because it ‘expects all its citizens to subscribe to an identical way of defining themselves and relating to each other and the state’.35 Ashis Nandy makes this point more strongly when he says that ‘state-formation and nation-building is simultaneously a story of how religions, denominations and ethnicities were bludgeoned into nationalities’.36 Thus, there is often a gap between ‘pluralist intentions and the actual functioning of the Indian State’.37

Indian secularism (as well as multiculturalism), where the boundaries between state and religion are sometimes by design and often by accident flexible, could well be described as fuzzy:

The Indian project of multiculturalism, fuzzy and implicit before independence and explicitly fuzzy afterwards, has drawn scepticism from theorists and men of letters alike. However, the politics of negotiation and contestation that Indian democracy has institutionalized has provided the requisite space in which different communities have come together and made a concerted effort to add their voices to the definition of the core values of the nation.38

(p.205) The Court has often chosen to neglect this elasticity. It has worked with notions of religion and citizenship which have, more often than not, privileged the unity rather than the diversity of that favourite, and somewhat tired, slogan of the Indian nation-state: unity in diversity. The Court's stand today is anachronistic as the world has moved on since the days when the ‘melting pot’ and ‘assimilation’ were the dominant metaphors for nation-states. India, which was seen as an aberration, is now viewed as a relatively successful model of a multicultural and multi-religious state. As Guha says,

One might think of independent India as being Europe's past as well as its future. India is Europe's past in that it has reproduced, albeit more fiercely and intensely, the conflicts of a modernizing, industrializing, urbanizing society. But it is also Europe's future, in that it anticipated, by some fifty years, the European attempt to create a multilingual, multi-religious, multiethnic political and economic community.39

It's not that multi-religious countries don't need some sense of a ‘common citizenship’. However, that's quite different from the ‘homogeneous legal space’ that the Court has normally prescribed. Thus, Kymlicka and Norman make a distinction between ‘assimilation’ and ‘multicultural integration’. The latter, according to them, ‘does not have the intent or expectation of eliminating other cultural differences’ but ‘accepts that ethnocultural identities matter to citizens, will endure over time, and must be recognized and accommodated within these common institutions’. It's difficult for the Court, which has been called a ‘problem solving’40 institution, to adopt this flexibility.

The same holds true for the Court's interventions on religious practice. While it is bound by the Constitution to proscribe religious practices and speech when they disturb public order, the Court has been uncomfortable with expressions of religious faith and practices that have not conformed to its own idea of religion. This represents an inability to make a distinction between religion as faith and religion as ideology. Or, to put it differently, the Court has not been sufficiently sensitive to the fact that the ‘threats posed to a civil liberal order in India and elsewhere are less from disputes over religious beliefs and more from the conjunction of nationalism and religion.’41

(p.206) In the final analysis, the principles of secularism encoded in the Indian Constitution are marked by what Granville Austin, in his pioneering work, calls ‘accommodation’. According to him, one of India's original contributions to constitution-making has been the ‘ability to reconcile, to harmonize and to make work without changing their content, apparently incompatible concepts—at least concepts that appear conflicting to the non-Indian, and especially to the European or American observer’.42 He goes on to say that with accommodation ‘concepts and viewpoints, although seemingly incompatible, stand intact’.43 Bhargava makes a similar point about the Indian Constitution when he says that ‘if we strive towards two or more values which cannot all be realized and then trade them off against each other, in that case, provided one value is not overwhelmingly given up in favour of the other, the compromise cannot be dismissed as morally unworthy’.44

The principle of accommodation makes the constitutional provisions for Indian secularism, at best, open-ended. It also leaves ample scope for play and internal tensions. This, of course, makes the task of the Court much more difficult than in secular democracies where the separation between religion and state is much better defined. As we look ahead to what appears to be a period of increasing uncertainty, where religion and religious identity will continue to play a prominent role, the Court should rethink its language of uniformity in favour of one that is more accomodative of religious and legal pluralism. Otherwise, we risk matters of religion and faith being hijacked by the Hindu nationalists or Islamic radicals. That is something that India, and the rest of the world, cannot afford.

Notes

(1.) The critique of Nehruvian rationalism should not be seen as a blanket criticism of Nehru and his policies. For a brief summary of critiques of Nehru, see Ramachandra Guha, ‘Verdicts on Nehru: Rise and Fall of a Reputation’, Economic and Political Weekly, 7 May 2005.

(2.) James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998), pp. 93–4.

(3.) Michael Oakeshott, ‘Rationalism in Politics’, in Rationalism in Politics and Other Essays (New York: Basic Books, 1962), p. 1.

(p.207) (4.) Scott, Seeing Like a State, p. 90.

(5.) Ibid., p. 89.

(6.) Ibid., p. 96.

(7.) Ibid., p. 96.

(8.) Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context, p. 208.

(9.) Ibid., p. 208.

(10.) Ibid., p. 219.

(11.) Ibid., p. 219.

(12.) Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, p. 6. It must be noted, however, that Sathe underestimates the court's obstreperousness in the 1950s regarding land reform.

(13.) Ibid., p. xxxix.

(14.) Rajeev Dhavan, ‘Judges and Indian Democracy: the lesser evil?’ in Francine R. Frankel et al. (ed.), Transforming India: Social and Political Dynamics of Democracy (New Delhi: Oxford University Press, 2000), p. 325.

(15.) Rajeev Dhavan, The Supreme Court of India: A Socio-legal Analysis of its Juristic Techniques, p. 461.

(16.) AIR 1996 SC 1805.

(17.) Pratap Bhanu Mehta, Passion and Constraint: Courts and the Regulation of Religious Meaning, p. 8.

(18.) Ibid., p. 13.

(19.) Appa, p. 86.

(20.) M.N. Srinivas, ‘Secularization’, in Social Change in Modern India (New Delhi: Orient Longman, 2007), pp. 150–1.

(21.) Pratap Bhanu Mehta, ‘Why the BJP is calm’, The Telegraph (Calcutta), 4 March 2003.

(22.) Available at minority affairs.gov.in/newsite/sachar/sachar_comm.pdf (Last accessed on 14 July 2009).

(23.) 2005 (6) SCC 703.

(24.) Available at http://www.bjp.org/content/view/444/396/ (Last accessed on 14 July 2009).

(25.) Arun Shourie, A Secular Agenda (New Delhi: ASA Publications, 1993), p. ix.

(26.) Shourie, ‘The Shariat’, The Illustrated Weekly of India, 5 January 1986.

(27.) Charles Taylor, Multiculturalism: Explaining the Politics of Recognition (Princeton: Princeton University Press, 1994), p. 43.

(28.) Akeel Bilgrami, ‘Secularism and the Very Concept of Law’, in Needham and Rajan (ed.), The Crisis of Secularism in India, p. 316.

(p.208) (29.) Partha Chatterjee, ‘Secularism and Tolerance’, in Bhargava (ed.), Secularism and Its Critics (New Delhi: Oxford University Press, 1999), p. 347.

(30.) Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge: Harvard University Press, 2000), p. 8–9.

(31.) Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (London: Picador, 2007). Sunil Khilnani analysing the essence of India says, ‘The idea of India is not homogenous and univocal. In fact, no single idea can possibly hope to capture the many energies, angers, and hopes of one billion Indians; nor can any more narrow ideas—based on a single trait—fulfill their desires’. Khilnani, The Idea of India (New Delhi: Penguin, 2004), p. xv.

(32.) Pratap Bhanu Mehta, ‘Hinduism and Self Rule’, p. 64.

(33.) Pratap Bhanu Mehta, ‘On The Possibility of Religious Pluralism’, p. 87.

(34.) Ibid., p. 80.

(35.) Parekh, p. 184.

(36.) Ashis Nandy, ‘The Demonic and the Seductive in Religious Nationalism: Vinayak Damodar Savarkar and the Rites of Exorcism in Secularizing South Asia’, p. 8.

(37.) Peter Van Der Veer, Hindus and Muslims in India (New Delhi: Oxford University Press, 2000), p. 23.

(38.) Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, p. 27.

(39.) Guha, India After Gandhi, p. 755.

(40.) Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 263.

(41.) Pratap Bhanu Mehta, ‘On the Possibility of Religious Pluralism’, p. 87. M.S.S. Pandian argues that the ‘secular has to contaminate its categories by searching out other languages, including the language of religion’. Pandian, ‘Dilemmas of Public Reason: Secularism and Religious Violence in Contemporary India’, in Economic and Political Weekly, 28 May 2004.

(42.) Granville Austin, The Indian Constitution, p. 318.

(43.) Ibid.

(44.) Bhargava, ‘Introduction’, p. 29. However, it must be noted Austin makes a distinction between ‘accommodation’ and ‘compromise’ saying that, ‘Accommodation is a belief or an attitude; compromise is a (p.209) technique’. Austin, The Indian Constitution, p. 318. See also Khilnani who says, ‘It is a defining trait of the Indian Constitution and more generally of the founding ambitions of the Indian political project, that it committed to multiple ends and ideals …’ Khilnani, ‘Secularism: Western and Indian’, p. 54.

Notes:

(1.) The critique of Nehruvian rationalism should not be seen as a blanket criticism of Nehru and his policies. For a brief summary of critiques of Nehru, see Ramachandra Guha, ‘Verdicts on Nehru: Rise and Fall of a Reputation’, Economic and Political Weekly, 7 May 2005.

(2.) James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998), pp. 93–4.

(3.) Michael Oakeshott, ‘Rationalism in Politics’, in Rationalism in Politics and Other Essays (New York: Basic Books, 1962), p. 1.

(p.207) (4.) Scott, Seeing Like a State, p. 90.

(5.) Ibid., p. 89.

(6.) Ibid., p. 96.

(7.) Ibid., p. 96.

(8.) Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context, p. 208.

(9.) Ibid., p. 208.

(10.) Ibid., p. 219.

(11.) Ibid., p. 219.

(12.) Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, p. 6. It must be noted, however, that Sathe underestimates the court's obstreperousness in the 1950s regarding land reform.

(13.) Ibid., p. xxxix.

(14.) Rajeev Dhavan, ‘Judges and Indian Democracy: the lesser evil?’ in Francine R. Frankel et al. (ed.), Transforming India: Social and Political Dynamics of Democracy (New Delhi: Oxford University Press, 2000), p. 325.

(15.) Rajeev Dhavan, The Supreme Court of India: A Socio-legal Analysis of its Juristic Techniques, p. 461.

(16.) AIR 1996 SC 1805.

(17.) Pratap Bhanu Mehta, Passion and Constraint: Courts and the Regulation of Religious Meaning, p. 8.

(18.) Ibid., p. 13.

(19.) Appa, p. 86.

(20.) M.N. Srinivas, ‘Secularization’, in Social Change in Modern India (New Delhi: Orient Longman, 2007), pp. 150–1.

(21.) Pratap Bhanu Mehta, ‘Why the BJP is calm’, The Telegraph (Calcutta), 4 March 2003.

(22.) Available at minority affairs.gov.in/newsite/sachar/sachar_comm.pdf (Last accessed on 14 July 2009).

(23.) 2005 (6) SCC 703.

(24.) Available at http://www.bjp.org/content/view/444/396/ (Last accessed on 14 July 2009).

(25.) Arun Shourie, A Secular Agenda (New Delhi: ASA Publications, 1993), p. ix.

(26.) Shourie, ‘The Shariat’, The Illustrated Weekly of India, 5 January 1986.

(27.) Charles Taylor, Multiculturalism: Explaining the Politics of Recognition (Princeton: Princeton University Press, 1994), p. 43.

(28.) Akeel Bilgrami, ‘Secularism and the Very Concept of Law’, in Needham and Rajan (ed.), The Crisis of Secularism in India, p. 316.

(p.208) (29.) Partha Chatterjee, ‘Secularism and Tolerance’, in Bhargava (ed.), Secularism and Its Critics (New Delhi: Oxford University Press, 1999), p. 347.

(30.) Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge: Harvard University Press, 2000), p. 8–9.

(31.) Ramachandra Guha, India After Gandhi: The History of the World's Largest Democracy (London: Picador, 2007). Sunil Khilnani analysing the essence of India says, ‘The idea of India is not homogenous and univocal. In fact, no single idea can possibly hope to capture the many energies, angers, and hopes of one billion Indians; nor can any more narrow ideas—based on a single trait—fulfill their desires’. Khilnani, The Idea of India (New Delhi: Penguin, 2004), p. xv.

(32.) Pratap Bhanu Mehta, ‘Hinduism and Self Rule’, p. 64.

(33.) Pratap Bhanu Mehta, ‘On The Possibility of Religious Pluralism’, p. 87.

(34.) Ibid., p. 80.

(35.) Parekh, p. 184.

(36.) Ashis Nandy, ‘The Demonic and the Seductive in Religious Nationalism: Vinayak Damodar Savarkar and the Rites of Exorcism in Secularizing South Asia’, p. 8.

(37.) Peter Van Der Veer, Hindus and Muslims in India (New Delhi: Oxford University Press, 2000), p. 23.

(38.) Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, p. 27.

(39.) Guha, India After Gandhi, p. 755.

(40.) Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 263.

(41.) Pratap Bhanu Mehta, ‘On the Possibility of Religious Pluralism’, p. 87. M.S.S. Pandian argues that the ‘secular has to contaminate its categories by searching out other languages, including the language of religion’. Pandian, ‘Dilemmas of Public Reason: Secularism and Religious Violence in Contemporary India’, in Economic and Political Weekly, 28 May 2004.

(42.) Granville Austin, The Indian Constitution, p. 318.

(44.) Bhargava, ‘Introduction’, p. 29. However, it must be noted Austin makes a distinction between ‘accommodation’ and ‘compromise’ saying that, ‘Accommodation is a belief or an attitude; compromise is a (p.209) technique’. Austin, The Indian Constitution, p. 318. See also Khilnani who says, ‘It is a defining trait of the Indian Constitution and more generally of the founding ambitions of the Indian political project, that it committed to multiple ends and ideals …’ Khilnani, ‘Secularism: Western and Indian’, p. 54.