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‘This splendid effort explores how the judicial process in India has mediated between the state and the ideology of secularism by redefining perhaps even narrowing the meaning of religion and expanding the meaning of a democratic state. It is a book that is concerned with not only our past but also our future.’
ASHIS NANDY Senior Honorary Fellow
Centre for the Study of Developing Societies, New Delhi
‘Ronojoy Sen’s innovative and carefully crafted study makes a major contribution to the understanding of politics and religion in India. It shows among other things how Indian Supreme Court’s decisions based on Vedic rationalism have homogenized Hinduism. One starting result has been to justify the claim that Hinduism is “a way of life”, a result equally useful to Hindu nationalism and Nehruvian high modernism.’
Late LLOYD I RUDOLPH AND SUSANNE HOEBER RUDOLPH Professor Emeritus of Political Science and William Benton Distinguished Service Professor Emerita respectively, University of Chicago, Chicago
‘Though this book is part of the “Law in India” series, it would be a mistake to think that it deals only with law. It has profound relevance for independent India’s political, social, intellectual and, of course, legal history.’
TAPAN RAYCHAUDHURI
Fellow (Emeritus), St Anthony’s College, Oxford Anandabazar Patrika
‘The breadth of analysis is striking Sen provides a rich descriptive account of the Supreme Court, and manages to systematically organize the field of law and religion in a coherent and comprehensive fashion.’
MADHAV KHOSLA Junior Fellow at the Harvard Society of Fellows Harvard University, Cambridge Seminar
‘In a work rich with historical information, legal insight and dexterous amalgamation of theory and empirical data, Ronojoy Sen examines the Indian practice of secularism through a study of the pronouncements of the Supreme Court.’
TANWEER FAZAL
Associate Professor, Centre for the Study of Social Systems, School of Social Sciences
Jawaharlal Nehru University, New Delhi
South Asian History and Culture
[This] book is a thoughtful critique of what happens when a state institution interferes deeply in matters that it may not be best equipped to deal with.’
OMAIR AHMAD
The Asian Age
‘The book has further enriched the wealth of scholarship on secularism It should serve as a valuable source for students of law and Indian politics ’
MUJIBUR REHMAN
Assistant Professor, Centre for the Study of Social Exclusion and Inclusive Policy
Jamia Millia Islamia, New Delhi
The Hindu
‘The book provides a nifty summary of the main position, the patterns of the apex court’s rulings, and the historical sources of the judiciary’s position when it tries to balance “religious even-handedness on the one hand and religious reforms on the other”’
SHYLASHRI SHANKAR Senior Fellow
Center for Policy Research, New Delhi Financial Express
‘Sen’s writing style and arguments are lucid and make for a highly readable book ’
RATNA KAPUR
Senior Core Faculty, International Global Law and Policy Institute
Harvard Law School, Cambridge
South Asia: Journal of South Asian Studies
‘Sen’s argument is carefully crafted and … convincing.’
—RAPHAEL SUSEWIND Lecturer in Social Anthropology and Development
King’s College, London
For Debakshi
Contents
Preface
Introduction
1. Defining Religion: The Supreme Court and Hinduism
2. The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism
3. In the Name of God: Regulating Religion in Elections
4. Good Citizens: Religion and Educational Institutions
5. Boundaries of Faith: The Court and Conversion
6. Imposing Legal Uniformity: The Court and Muslim Minority Rights
7. Judging Religion: A Nehruvian in Court
8. Conclusion
Afterword: Two Judgments and Other Anomalies
Notes
Select Bibiliography
Case Index
Subject Index
About the Author
Preface
This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, I have chosen to do so by looking at the Indian Supreme Court judgments. This is not intended to be a comprehensive account of the Court’s understanding of religion and secularism, but a discussion of judicial interventions in areas which, I believe, are important to the life of the Indian nation and Indian secularism. Several public events have shaped the argument of this book, even though it might not be apparent from the text itself. The first was the riots following the assassination of Indira Gandhi, when I realized for the first time how my Sikh friends in school and their families in Calcutta became demonized overnight because of their religion. I felt the tremors of the Babri Masjid demolition in the distant environs of an American campus and worried about India’s future. Many years later, images of the twin towers of the World Trade Center crumbling on 11 September 2001, the 2002 Gujarat riots, and the 2008 Mumbai terror attacks would be defining moments of my journalistic career. One reaction to these acts of terrible violence, where religion or religious extremism could be seen to be central, might have been to argue for banishing religion from the public sphere. This book traverses an opposite path because I believe religion and religiosity were not at the heart of these violent events. This is, of course, not a novel position. More than anyone else, it was Mahatma Gandhi who through his life and teaching embodied this principle. I believe, too, that religious pluralism and tolerance are critical for the survival of the Indian nation. The book seeks to bring this view back to centre stage in the context of the courts in particular and public policy in general.
This book has not just been an academic exercise. It has also meant a re-evaluation of my own understanding of religion. Having grown up in a Brahmo family, where visits to houses of worship were few and far between, I had a dim view of religious rites and ceremonies. However, after marrying a practicing Hindu, I have frequented places of worship with greater regularity. Though this has not had any impact on my personal agnosticism, I have come to appreciate the faith of practicing believers. I remain optimistic that the uplifting as well as the quotidian elements of religion can triumph over its parochial and destructive side.
This book began as a PhD dissertation. I am deeply indebted to the late Lloyd Rudolph and Susanne Rudolph, who had guided me since my days as a graduate student at the University of Chicago. Long after I had moved out of Chicago, the occasional meeting with Lloyd and Susanne either at their Jaipur home or in Delhi and their lengthy e-mails from wherever they were, kept me on track. I owe special thanks to Rajeev Dhavan who not only gave me his unstinting time and advice, but also access to his library. I am grateful to Upendra Baxi for comments on an earlier version of this manuscript and to Tahir Mahood for his helpful suggestions. I also wish to thank the two anonymous readers for their comments. Different editors at The Times of India—Shikha Mukherjee, Uttam Sengupta, and Abheek Barman (with whom my association goes back to Presidency University, Kolkata)—have been supportive of this project. Gautam Adhikari and my colleagues at the editorial page of The Times of India have been a fertile source of ideas. My thanks to Amrith Lal, Manmohan Malik, and Manoj Mitta for their comments. My editors at Oxford University Press have set tough deadlines and prodded me to finish the book much quicker than I would normally have. During the final stages of editing Shivendra Singh, a final-year law student, provided invaluable assistance. There have been several others who have helped me in different ways to complete this book. Bambi and Arpita in New York and Zach and Tash in Chicago have provided a home away from home while I was doing research and writing. I have benefitted over the years from my conversations with Shankar Ramaswami. The staff of different libraries, particularly Ashim Mukhopadhyay in National
Library, Calcutta, have been extremely helpful. I have presented different parts of this book at conferences and seminars in Honolulu, Boston, Oslo, and Chicago. A visiting fellowship at the East-West Center Washington allowed me to take time out of my normal working schedule at the newspaper and begin revising my dissertation.
But for my parents, Sumitro and Manjusri Sen, who never interfered with my decisions, I might never have gone into research and writing. My parents-in-law, Asutosh and Mitali Law, have always encouraged a not too sociable son-in-law with his work. I have spent several productive hours in my late father-in-law’s library. My grandmother, Joyasree Sen, had followed my career with great interest. If she were alive, she would have been very happy to see this book completed. I began work on this project when my son Rousseau was one year old. Even though he saw his father hunched in front of the computer after returning from work and on weekends, he rarely ever complained. Indeed, he silently played with his toys day after day even as I was locked up in my study. And, finally, I have no words to express my gratitude to Debakshi, without whom this book would not have been possible. She never stopped believing that I could finish this book. Whenever I despaired and felt like giving up, she quietly reminded me how much effort and time I had already put in. I thank her for believing in me.
Introduction
One of the principal concerns of contemporary political science is the relationship of religion to politics and the state. The role of religion in the Indian public sphere is actively contested, both within academic and popular discourse. However, too often, the constitutional and legal foundations of the place of religion in India are neglected. Examining them is an effective way of studying the relationship between religion and the state. The driving question of this book is: how has the higher judiciary in independent India interpreted the right to freedom of religion, and, in turn, influenced the discourse on secularism and nationalism?
I primarily look at Supreme Court rulings on the Articles in the Indian Constitution that are concerned with freedom of religion. This necessarily involves a close study of court judgments on Articles 25–30, which might be termed the ‘Articles of Faith’, or the freedom of religion clauses and minority rights. I do not, however, restrict my study only to these Articles, but also examine other constitutional provisions and laws related to religion. The aim of this book is not only to uncover the jurisprudence on religion, but also to situate it within the larger philosophical and political context of Indian secularism. I pay particular attention to the judicial discourse on Hinduism, since the legislature and the courts have become the primary agencies of Hindu religious reform after Independence. The Indian state has had to negotiate the dual task of religious evenhandedness, on the one hand, and religious reform on the other My research explores this duality and the tensions associated with it.
In most nations, recognized as secular constitutional polities, the courts are confronted with the question of defining religion when deciding cases related to religious freedom. The Indian Supreme Court is no exception. However, unlike courts in other multireligious
democracies, notably the United States, the Supreme Court in independent India has been not only actively involved in defining religion, but also in examining the veracity of religious doctrine. This is what I have referred to elsewhere as the ‘legalization of religion’,1 something that stands in contrast to dominant theories on religion in US jurisprudence.
SITUATING INDIAN SECULARISM
In an early study on secularism in India, Donald Eugene Smith concluded that the Constitution of India provided ‘a relatively sound basis for the building of a secular state’. Smith felt that there was a good chance that twenty years from the time of the 1963 publication of his work, ‘many of India’s constitutional anomalies regarding the secular state will have disappeared’.2 At around the same time, Ved Prakash Luthera, another scholar, argued that India was not a secular state, nor was it desirable that it be so in the absence of an organized structure for the Hindu religion. He preferred to call India a ‘jurisdictionalist state’, where the state balanced the power of religious authorities.3 More than 5 decades after Smith made his predictions and over 70 years after Indian Independence, the anomalies that troubled Smith—the existence of separate personal laws for religious groups, the intervention of the state in religious institutions and practices, and reservations for groups defined by caste—continue to loom large. With the benefit of hindsight, one could readily challenge Smith’s prediction. However, he was writing at a time when theories about the decline of religion were dominant and the growth of secularism was ‘often interpreted as a natural concomitant to the spread of science, education, and technology’.4 The following statement by Smith is fairly typical of the time:
The forces of Westernization and modernization at work in India are all on the side of the secular state Industrialization, urbanization, the break-up of the joint family system, greatly increased literacy, and opportunities for higher education all tend to promote the general secularization of both private and public life.5
This follows from the post-Enlightenment belief in the gradual erosion of religion in peoples’ lives. This was one of the primary arguments of Max Weber’s thesis on modernity in The Protestant Ethic and the Spirit of Capitalism where he quotes John Wesley, the founder of the Methodist Church, to sum up his views on the ‘spirit’ of capitalism: ‘I do not see how it is possible, in the nature of things, for any revival of true religion to continue long. For religion must necessarily produce both industry and frugality, and these cannot but produce riches. But as riches increase, so will pride, anger, and love of the world in all its branches.’6
Many of Weber’s contemporaries, such as August Comte, Emile Durkheim, and Karl Marx, shared his belief in the decline of religion in modern, industrial societies. As is now understood, the impact of modernization on religion and religious beliefs has been far more complicated, and the thesis of progressive secularization of society has not been borne out. Peter Berger, a leading proponent of secularization in the 1960s, has now changed his views: ‘The world today, with some exceptions is as furiously religious as it ever was, and in some places more so than ever.’7 As Jean Bethke Elshtain puts it: ‘The secularization thesis has failed, and failed spectacularly.’8
Even Pippa Norris and Ronald Inglehart, who have authored a study supporting the thesis of a decline of religion in industrialized societies, argue against a simple correlation between modernization and secularization.9 Norris and Inglehart believe that despite advanced industrial societies moving towards ‘more secular orientations’, poorer societies now have more people with ‘traditional religious views’ than ever before.10 They conclude: ‘The expanding gap between the sacred and the secular societies… will have important consequences for world politics, raising the role of religion on the international agenda.’11
At the same time, in the aftermath of the terror attack on 11 September 2001 and the global surge in Islamist terrorism, there have been a slew of books on the role of religion in general12 and Islamic radicalism in particular.
These debates have greater resonance in India, which ranks as one of the most religious countries in the world and has in recent years become a target of Islamist terrorism. A Pew Global Attitudes and Trends survey in 2008 showed that religion was important to 89 per cent of respondents in India, putting India among the top 10 nations where religion was central to peoples’ lives.13 As a special report on religion and public life in the Economist says, ‘Today, India is a test tube for religious politics. The birthplace of four big religions (Buddhism, Jainism, Sikhism, and Hinduism), it has remained religious even as it has modernized.’14
In the aftermath of the Gujarat riots in 2002, one scholar went so far as to say that ‘tensions between religious communities were increasingly defining lives in many regions of India’.15 There are, of course, others who believe that the potential for religious violence is vastly overstated. Bureaucrat and author Pavan Varma, for instance, writes that the very nature of Hinduism makes it inimical to religious violence.
The paranoia that Hinduism is under siege, and needs to assert itself aggressively, has been whipped up only recently by fringe fundamentalist groups whose credentials to speak for all Hindus is very doubtful Moreover, Hindus are temperamentally opposed to any prolonged instability or disorder that could be a consequence of religious violence, especially since it is amply clear that there is no practical alternative to coexistence.16
He goes on to add that the large Muslim population, which no ‘political party with the ambition to come to power can ignore’,17 acts as a bulwark against religious violence. However, this no longer holds true under the Bharatiya Janata Party (BJP) government, headed by Prime Minister Narendra Modi, which came to power in 2014. When the BJP won a majority in India’s lower house of Parliament (Lok Sabha) in 2014, not a single Muslim member was elected on a BJP ticket. A similar pattern has followed in Assembly elections in states, including the election in 2017 in the crucial and most populous state of Uttar Pradesh. There are also those who insist ‘the classical concept of secularization—the declining influence of religion—needs to be strongly defended as something
that has happened, and whose furtherance is desirable (though not certain) in countries like India’.18
The other lynchpin of Smith’s analysis—one that is much more important for the purposes of the current study—is his conception of the secular state, which he says is derived from the ‘liberaldemocratic tradition of the West’. Smith conceptualized a secular state as involving three sets of relations: religion and the individual (freedom of religion); the state and the individual (citizenship); and the state and religion (separation of church and state). In liberal–democratic theory, these relations can be classified under the three broad principles of liberty, equality, and neutrality. For Smith, a secular state is one where freedom of religion is guaranteed, all citizens are equal irrespective of their religion, and the state is not connected in any way to religion. In this scheme of things, the Indian state falls short on several counts.
There are, indeed, several departures in the Indian Constitution from the model that Smith was working with. Article 25, which enshrines the right to individual freedom of religion, also empowers the state to intervene in Hindu religious institutions. Similarly, Article 17 requires the state to abolish untouchability, one of the most abhorrent practices of Hindu society. Although equality of citizenship is guaranteed by the Constitution, there are provisions for reservations or affirmative action in elections, educational institutions, and government jobs for the lower castes and tribals. Likewise, although no one is required to take part in religious instruction or prayer in educational institutions, the state is committed to giving aid to institutions run by religious communities. Finally, there are personal laws in place for different religious communities, with a non-justiciable ‘directive principle’ in the Constitution calling for a uniform civil code in the future. As Gary Jacobsohn points out, ‘Religious and secular life are so pervasively entangled [in India] that a posture of official indifference cannot be justified either politically or constitutionally.’19
The idea of secularism itself has become contested in recent times. Although the Christian roots of the term ‘secular’20 are acknowledged by most scholars, there is, at the same time,
recognition that secularism has relevance for non-Christian societies. It is now recognized that separation of the church and state is not the only viable model for secularism. As Charles Taylor, one of the most prominent theorists of secularism, writes, ‘Some kind of distancing is obviously required by the very principle of equidistance and inclusion which is the essence of secularism. However, there is more than one formula that can satisfy the principle of equidistance and inclusion. Complete disentanglement of government from any religious institutions is one such, but far from the only one.’21 Taylor begins his magnum opus A Secular Age with the question, ‘What does it mean to say we live in a secular age?’22 His answer: there are at least three aspects of secularity, namely emptying religion from public spaces; the decline of belief and practice; and the new conditions of belief or lack thereof, which is what Taylor is most interested in. Besides the interrogation of the different meanings of secularism, there have been efforts to distinguish between the terms ‘secular’, ‘secularization’, and ‘secularism’. José Casanova is a leading theorist in this respect. In his scheme, ‘secular’ is a modern epistemic category; ‘secularization’ an ‘analytical conceptualization of modern worldhistorical processes’; and ‘secularism’ a world view.23 According to him, ‘secularism’, in turn, can be seen as ‘ideology’ or a ‘statecraft principle’.
Alongside the interrogation and disaggregation of secularism, there have been various attempts to construct a typology of the relationship between the state and religion. One of these by Ahmet Kuru lists four types of state–religion regimes: religious state, for example, Iran; state with an established religion, for example, England; secular state, for example, the United States; and antireligious state, for example, North Korea.24 Of these the secular state and the state with an established religion are the most numerous. Political scientists such as Jonathan Fox have also sought to map these relationships by constructing indexes, such as government involvement in religion (GIR).25
We should note that among states with established religions, too, there are enormous variations in the secularity of states as well as
its citizens. This is particularly true of European states where it is common for the state to privilege one religion. As Casanova notes, ‘European societies may be highly secular, but European states are far from being secular or neutral.’26 There are several states in Europe, including the United Kingdom (England and Scotland), Denmark, Finland, Greece, and Sweden that have established churches. Federal states such as the Netherlands, Germany, and Austria also allow local communities to decide on the role of religion in education and some till recently had a church tax. Alfred Stepan comments on this phenomenon of established religion in longstanding democracies: ‘Virtually no Western European democracy now has a rigid or hostile separation of church and state. Most have arrived at a democratically negotiated freedom of religion from state interference, and all of them allow religious groups freedom not only to worship privately but also organize groups in civil society and political society.’ There is significant variety in Muslim-majority countries too. Kuru cites the 2005 US Commission on International Religious Freedom report, which says that ‘the majority of the world’s Muslim population currently lives in countries that either proclaim the state to be secular or that make no pronouncements concerning Islam to be the official state religion’.27
Turning to a typology of secularism, which by now should be apparent is a complex task, it is useful to apply Kuru’s model of ‘passive’ and ‘assertive’ secularism. He defines ‘passive’ secularism as one where the state allows for the ‘public visibility’ of religion whereas ‘assertive’ secularism ‘excludes religion from the public sphere’ and aggressively confines it to the private domain.28 In this scheme, the United States is a model of passive secularism.29 Unlike the many Articles in the Indian Constitution that define the relationship of the state to religion, the American Constitution is fairly cryptic on the issue. Also, the use of the word ‘secular’ is absent in the American Constitution. The First Amendment of the US Constitution merely says: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ This has been usually separated to denote two aspects of the relationship of the state to religion—the establishment
clause, which prohibits the government from advancing the interests of any one faith, and the free exercise clause, which guarantees religious freedom. It is common to describe this arrangement as a ‘wall of separation’, following Thomas Jefferson’s memorable words written in a letter to the Danbury Baptists in 1802.30 Justice Hugo Black famously used this phrase in Everson v. Board of Education Ewing,31 which made the ‘wall of separation’ doctrine the foundation of subsequent jurisprudence.
However, in practice, Jefferson’s wall of separation has been far more difficult to implement. Similar to in India, questions of the extent to which the government should accommodate the religious practices and conscientious objections of individuals or groups, as well as the distance it should maintain from religion, have frequently come up before the courts. Five years after Everson, Justice William Douglas in Zorach v. Clauson, while upholding the idea of separation, said that the First Amendment did ‘not say that in every and all respects there shall be a separation of church and state’.32 Again in Lemon v. Kurtzman, Justice Warren Burger said, ‘The line of separation, far from being a “wall”, is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.’33 Thus, legal theorist Amy Gutmann prefers to call the separation of church and state in the United States a ‘two-way protection’.34
Unlike the United States, France and its policy of laicite is an example of ‘assertive’ secularism. France’s policy of laicite is a contrast to the rest of Europe.35 French secularism has also probably been the most hotly debated in recent times because of its policies towards minorities, particularly Muslims. Some French scholars have argued that laicite has no adequate English translation, though the adjective laique is usually translated as ‘secular’. These scholars have stressed on the historical background of laicite, including the confrontational nature of church–state relations, which has contributed to its singular nature. The origins of laicite can be traced back to the French Revolution and the effort to eradicate religion from public life and replace it with a statesponsored civic religion. The goal at the time was to create a
uniform and secularized French identity However, it was only in 1905 that a law codified the formal separation of the church and the state. The traditions of laicite have been especially critical in French educational policy, and were the subject of controversy when in 2004, France’s National Assembly passed a law banning prominent religious symbols in schools. This sparked serious concerns among France’s Muslims—who make up 8 per cent of the country’s population—since it prevented Muslim girls from wearing the hijab (head scarf) in schools. In 2008, when an immigrant Muslim woman applied for French citizenship, France’s highest administrative court denied citizenship on the grounds that her practice of Islam was incompatible with French values.
The only country that practised a version comparable to France’s version of ‘assertive’ secularism is Turkey, where the relationship between religion and state was unique for a Muslim-majority nation. Turkey set off on that journey in the 1920s when the founder of modern Turkey, Kemal Ataturk, imposed Western-style secularism on the country. Ataturk abolished the caliphate in 1924, changed the alphabet into Latin letters, placed mosques under state control, and crushed the religious hierarchy. This version of secularism was enforced by a small, but powerful, elite, comprising the military and judiciary. This consensus has cracked over the past decade or so with the rise of Islamist forces, particularly the Justice and Development Party (AKP in Turkish). Ever since the AKP became Turkey’s governing party from 2002, the tensions between the secularist and Islamist forces have become more apparent, beginning with a controversial constitutional amendment lifting the ban on women wearing headscarves in universities. As Hakan Yavuz points out, under the AKP government, ‘Turkish society has become embroiled in bitter conflict, largely between Kemalist secularists and Islamic groups’.36
Monica Toft, Daniel Philpott, and Timothy Samuel Shah have also sought to construct a typology based on the relationship between religious and political authority.37 In their schema, there are some states where the independence of religious and political authority is high. Within this category, the independence could be ‘consensual’ or ‘conflictual’. India, along with the United States, according to Toft
et al., falls in the consensual category whereas states such as Turkey fall in the conflictual category. There are also states where independence of religious and political authority is low. Here too the relationship could be consensual, as in Sri Lanka, or conflictual, as in many states in West Asia.
Commenting on the forms of secularism in modern states, Talal Asad thus says that that picture is far from uniform:
Even in modern secular countries the place of religion varies. Thus, although in France both the highly centralized state and its citizens are secular, in Britain the State is linked to the Established Church and its inhabitants are largely nonreligious, and in America the population is largely religious but the federal state is secular.… Consequently, although the secularism of these three countries have much in common, the mediating character of the modern imaginary in each of them differs significantly38
Sunil Khilnani makes a similar point when he says that ‘there is no one paradigmatic form of secularism or of the secular state’.39
WHAT THE FOUNDERS THOUGHT
It is apparent that the Indian version of secularism differs from the American or the European model. The Constituent Assembly, which drafted the Indian Constitution between 1946 and 1949, is a good site to locate the thinking behind the Indian secular state.40 The Assembly debates represent a rich source for the thinking behind the Indian secular state and one does not have to be an originalist to go back to the debates. As Rajeev Bhargava points out:
The underlying point of secularism must have been articulated with a greater deal of perspicacity at that time than is possible even in this current phase of communalization. In short, to get a handle on current constitutional practices, to grasp their value and meaning, we may have no option but to go back in time to the Constituent Assembly debates and perhaps even further back to the colonial era 41
I have tried to do this wherever possible.
The Assembly debates reveal that there were real differences on the direction that Indian secularism should take. Though there were
attempts to insert the term ‘secular state’ in the draft Constitution, on the one hand, and to begin the preamble by invoking God, on the other, these did not succeed. Members such as H.V. Kamath, Govind Malaviya, and S.L. Saxena wanted to begin the preamble to Indian Constitution with the phrase ‘In the name of God’.42 After a heated discussion on the merits of this proposal, Kamath’s amendment was put to vote and defeated. The same fate befell Brajeshwar Prasad’s proposal to begin the preamble with the following words: ‘We the people of India, having resolved to constitute India into a secular cooperative commonwealth to establish socialist order …’ It was only in 1976, during the Emergency, that ‘secular’ (as well as ‘socialist’) was inserted into the Preamble of the Constitution through the 42nd amendment.
There were, however, several voices in the Constituent Assembly, including that of B.R. Ambedkar, who wanted to severely restrict the role of religion in the public sphere. Scientist K.T. Shah raised the demand that there be an Article expressly stating that the Indian state has ‘no concern with any religion, creed or profession of faith’. He said, ‘The State of India, if it claims to be secular, if it claims to have an open mind, should have, in my opinion, a right not merely to regulate such [religious] practices but also absolutely to prohibit them.’43 He also proposed a strict separation where the Indian state ‘shall have no concern with any religion, creed or profession of faith’, which was rejected. Similarly, India’s future president Sarvepalli Radhakrishnan said, during the debates, ‘Nationalism, not religion, is the basis of modern life.’44
On the other side, there were members such as Hindu traditionalist K.M. Munshi who said the state must take into account the religiosity of Indians, and articulated religious tolerance in Hindu terms: ‘We are a people with deeply religious moorings. At the same time, we have a living tradition of religious tolerance—the result of the broad outlook of Hinduism that all religions lead to the same god.’45 He felt that the non-establishment clause of the American Constitution was ‘inappropriate to Indian conditions and we had to evolve a characteristically Indian secularism’, and the Indian state could not ‘possibly have a state religion, nor could a rigid line be
drawn between the state and church as in the US’.46 He added, ‘A secular state is not a Godless State. It is not a state which is pledged to eradicate or ignore religion. It is not a state which refuses to take notice of religious belief in this country.’ Members such as H.V. Kamath expressed similar views.
Ultimately, it was the ‘equal respect’47 theory—where the state respects and tolerates all religions—that won the day. This was also the Nehruvian formulation of secularism. This is a position that oscillates between sarvadharma samabhava (goodwill towards all religions) and dharma nirapekshata (religious neutrality). It is no secret that Jawaharlal Nehru saw religion as a force that checked the ‘tendency to change and progress’, but he did not let his personal convictions colour his conception of the secular state. He wrote, ‘A secular state does not mean an irreligious state: it only means that we respect and honour all religions giving them freedom to function.’48 On another occasion, Nehru defined a secular state as one where there is ‘free play for all religions, subject only to their not interfering with each other or with the basic conceptions of our state’.49
In a recent article, Bhargava has argued that Nehru’s views on religion and secularism were much more ‘subtle’ and ‘complex’ than is usually portrayed.50 According to Bhargava, Nehru’s model of secularism had the following characteristics: the identity of the state is independent of religion, but religion is officially recognized in a limited sphere; a distinction is made between being ‘anti-religious’ and ‘anti-institutionalised religious domination’; and some aspects of state intervention are recognized.51
THEORIES OF INDIAN SECULARISM
Obviously, India is not alone among secular democracies where the relationship between the state and religion is contested. It is also equally true that Indian secularism is radically different from countries where there is a hard division between the state and religion, as well as other nations where one religion is a state religion or gets privileged status. Perhaps, the closest to the Indian
model is the American one, where the separation between state and religion exists, but in effect has been difficult to define. Though the contexts of the judicial cases in India and America have usually been very different, the underlying issues have some similarities. Indeed, it is acknowledged that the framers of the Indian Constitution were greatly influenced by the American Constitution. However, on the issue of religion, the Indian Constitution is significantly different from the American one, as indeed from European models. As Mahajan points out, ‘Independent India followed neither the English nor the American model. It charted a different route wherein non-establishment of religion was combined with the absence of separation.’52 She says that by placing religion ‘squarely in the public domain’, the Indian Constitution ‘endorsed a position that was significantly different from the perspective that was expressed by the dominant liberal framework of that time’.53 This was a policy that brought ‘religion frontally to the public arena, but at the same time also allowed the state to engage with matters of religion as also with the affairs of religious communities’.54 Indeed, Robert Baird believes that the Indian Constitution ‘not only makes provision for “religion” in the modern Indian state, but is itself a religious document’.55
In the Indian context, a great deal has been written on secularism since Smith’s India as a Secular State was published. Shortly after the publication of Smith’s book, Galanter critiqued Smith’s conception of secularism by raising the difficulty of separating the religious and secular. He pointed out that underlying Smith’s model of the secular state in India was the belief that the ‘notion of the religious may be readily distinguished from the “secular” or nonreligious’.56 Galanter has, in fact, argued that the Indian state was not in the business of promoting freedom of religion, but concerned with religious reform:
The freedom that is a principle of the secular state is not freedom of religion as it is (in India) but freedom of religion as it ought to be.… The ultimate argument for the secular state then is not to maximize the presently desired freedoms but to substitute a new and more appropriate or valuable kind of freedom.57
This is what Jacobsohn also alludes to when he labels Indian secularism as an ameliorative model that ‘embraces the social reform impulse of Indian nationalism in the context of the nation’s deeply rooted religious diversity and stratification’.58 Mahajan points out that there are variations in the way Western democracies have dealt with religion, with only some nations conforming to the ‘wall of separation’ doctrine.59 Galanter, too, argues that instead of seeing the Indian secular state as playing catch-up with the West, one must recognize that India has ‘as long or a longer tradition of secular government in many respects than most of western Europe or north America’.60 This, in effect, means working with a conception of secularism that does not mark a clear break between the church and state, since the former in the Christian sense did not exist in the Indian context.
This conception of a secular state is what Rajeev Bhargava describes as ‘principled distance’ from religion, which he believes is the primary characteristic of Indian constitutional secularism. In this interpretation, a secular state ‘neither mindlessly excludes all religions nor is merely neutral towards them’.61 Neera Chandoke, too, subscribes to this view of ‘principled distance’ as the defining characteristic of secularism in India. She writes, ‘Secularism, we can say, outstripping provisions for freedom and equality, stipulates that the state will maintain an attitude of principled distance from all religious groups.’62 She further says that Indian secularism was ‘designed to allow people to live together in civility. This is what contemporary critiques of secularism seem to forget’.63
Sudipta Kaviraj puts it somewhat differently when he notes that the Indian Constitution ‘sought an institutional translation of the principles of premodern statecraft into the sociological conditions of modernity.… Demands of political modernity in Indian history could be met only by innovation and improvisation of institutions, not by plagiarizing European constitutional ideas.’64 A second feature of Indian secularism that Bhargava identifies is its ‘contextual’ nature. He notes, ‘It [Indian secularism] is contextual not only because the precise form and content of secularism varies from one context to another and from place to place, but also because it embodies a
