The Great Indian Political Debate - 3

[acharya]

Secularism, Toleration and
the Decline of Indian Pluralism


No society has been celebrated as much for its cultural and religious diversity as
that of the Indian subcontinent. If we wandered through an important city in India
during any of the previous twelve centuries, the number of different cultural groups
we encountered in this society would be vast in comparison to the religious variety
in the seventeenth-century Dutch town we visited earlier. Apart from a range of different
Hindu traditions, historians tell us, the subcontinent was populated by Buddhists,
Jains, Christians, Jews, Muslims and Parsis by the end of the eighth century
(Basham 1969: 264-8, 345-7). In itself, the fact that this extremely plural society did
not collapse indicates that it must have developed successful ways of going about
with cultural and religious diversity. Yet, from the late colonial times onwards, both
Indian and western intellectuals have argued that India needs the modern political
theory of toleration to survive. The liberal model of the neutral state, they suggest, is
as indispensable in India as elsewhere.
In the Indian debate on this issue, the term “secularism” is generally used to
refer to the liberal principles of toleration: a secular state ought to be neutral towards
the various religions in society and it ought to grant to its citizens the right to
religious liberty or freedom of conscience. The Indian Constitution embodies this
model of the liberal plural state. Several of its articles declare the equality of all
citizens before the law, regardless of their religious affiliations. Moreover, Article 25
states the following: “Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion.” Such legal formulas have
been adopted from the constitutions of the nation states of Europe and America. And
the value of secularism in general, both its advocates and its opponents acknowledge,
has been taken from the modern West and liberal-democratic political theory (e.g.
Madan 1987: 754; Mahajan 2002: 35; Nijwahan 1995: 183-8; Smith 1963: 22; Taylor
1998: 37; Vanaik 1997: 29).
313
The common recognition of the western origins of secularism leads the secularists
and the anti-secularists to very different conclusions. The latter argue that it has
become a sterile concept in India because of its alien origins. As a consequence, it
has not alleviated the conflicts between the Hindus on one side and the Muslims
and Christians on the other, but rather created more tensions. Shortly, secularism is a
western and Christian value unfit for the South-Asian societies. This point of view is
taken by Gandhian anti-secularists such as T. N. Madan (1987) and Ashis Nandy (1985,
1998, 1999). It is also shared by many of the Hindutva thinkers—the so-called “Hindu
nationalists”—who argue that the native “Hindu secularism” is superior to the western
brand (Madhok 1995; Nijwahan 1995). In contrast, the secularists disagree that
the western or Christian origin of this idea creates difficulties in India. Thus, Charles
Taylor (1998: 37) writes: “The Christian origins of the idea are undeniable, but this
does not have to mean that it has no application elsewhere.” Mushirul Hasan (1996:
202) makes the following remark: “The central issue is not the Western provenance
of an idea but its place and relevance in a plural society.” The sociologist Andre Beteille
(1994: 560) has similar reservations about the rejection of the idea of secularism
because of its western roots: “Surely, the test of an idea or an institution should be its
capacity to meet our present needs and not its provenance…[G]eography can never
be a decisive test of the social value of an idea or institution.”
Naturally, the Gandhian anti-secularists and the Hindutva thinkers do not reject
the idea of secularism merely because of its western origins. If this was their
reason for doing so, they would also have to dispose of the theories of the natural
sciences—from Newton to Darwin and beyond. They do not. What they question is
the place and relevance of secularism in the Indian plural society and its capacity to
meet the present needs of this society. The issue they raise is not that the idea originates
in the Christian West, but that it is a western and Christian idea, which is of no
significance to the Indian culture and society. However, the retort of the secularists
shows that the anti-secularist argument fails to make it clear what exactly is western
or Christian about the idea of secularism and how its western and Christian nature
creates difficulties in India.
What is the connection between secularism and its culture of origin, the West?
In the previous chapters, Balagangadhara’s theory of religion and its role in the formation
of the western culture has brought us to a hypothesis that allows us to answer
this question. The modern liberal conception of toleration makes sense only against
the background of a particular religious framework. On the one hand, the normative
structure of toleration is the consequence of a specific cultural attitude towards human
society: the incessant pursuit to make a Christian society how it ought to be according
to God’s Will has given rise to a normative ideal like toleration. On the other
hand, the conceptual structure of the notion of toleration or secularism has emerged
from the secularisation of Protestant theology. Its theological core is the presupposi314
tion that human society is divided into a sphere of political coercion and a sphere of
religious liberty. In this sense, liberal toleration could indeed be called “a western
and Christian idea.”
How could the Indian proponents of liberal secularism challenge this hypothesis?
If their theories gave a consistent analysis of the conflicts and tensions in India’s
plural society—which demonstrated that the principles of secularism are the evident
conceptual solution—then the secularists would show that the notion of secularism
has become independent of its religious foundations in the West. These theories
would have to disclose a necessary connection between the structure of the conflicts
and that of the principles of secularism or liberal toleration. The first section of
this chapter will address two questions: Have the Indian secularists produced such
a consistent theoretical analysis which demonstrates that secularism is the solution
to the conflicts between Hindus, Muslims and other groups in the Indian society? If
they have not, how do we account for the deep-seated conviction that secularism is
necessary in India?
What difficulties could the link between liberal secularism and its culture of
origin cause, when its normative principles are transplanted to India? One of the
central claims of liberal political theory is its neutrality towards all religions. However,
if the model of the liberal secular state is based in a Christian theological framework,
its claim to neutrality becomes dubious. In the second section, we will have a closer
look at the clash over state neutrality between the secularists and the anti-secularists
(including both the Gandhian anti-secularists and the Hindutva thinkers) by focusing
on one of its central issues, i.e. the issue of religious conversion. Our question is the
following: Is the secular state in India neutral between the different communities in
its society, when it comes to this issue? The question of conversion in India, we will
see, offers us a unique way to assess the neutrality of the liberal political theory of
toleration.

Secularism and the Absence of Theory
Since the declaration of Independence in 1947, the question of toleration and the
secular state has been at the centre of the struggle between the different political
forces in Indian society. With the rise of the Hindu Right and the growing intensity
of Hindu-Muslim conflict in recent decades, this issue has once again become as
urgent as it was in the aftermath of Partition. The growing tensions between Hindus
and Muslims in India today cannot be ignored. The gruesome riots which erupted
in the state of Gujarat in 2002 bear witness to this fact. And so did the destruction of
315
the Babri Mosque in Ayodhya and the consequent eruption of riots in various Indian
cities ten years before. Therefore, India needs secularism.
At least, that is what “the secularists”—the proponents of liberal toleration—tell
us. Indian society is characterised by its religious pluralism, they say, and therefore
the state should be secular, that is, it should be impartial towards all religions. In this
view, the problem with the Hindu Right is that it strives to make the Indian state
into a religious state. If this were done, the state would consistently take the side
of the Hindu majority in conflicts between Hindus and Muslims and it would no
longer be able to curb the violence as an impartial arbiter. In short, the basic fear of
the secularist thinkers is that India threatens to fall apart if the domain of politics is
not separated from that of religion. It is this view that brings them to sweeping statements
such as the following: “Secularism, for India, is not simply a point of view, it is
a question of survival” (Rushdie 1990: 19).
Since this group of Indian intellectuals attaches such importance to the idea of
secularism, one would expect its content to be more or less clear. However, whenever
the participants in the debate attempt to pinpoint what secularism is, they end up in
obscurity and confusion. In the 1970s, Mushir-Ul-Haq (1972: 6) made the following
remark: “For the last two decades Indians have been talking of secularism, yet the
term remains vague and ambiguous. One may, therefore, be justified in asking: what
does secularism really mean—especially in the Indian context?” Twenty years later,
M. M. Sankhdher (1995: 1-2) articulated the same concern: “Such a commonplace
concept as secularism, with which the man in the street is so familiar and so used to,
tends to acquire the character of a riddle, a puzzle, an enigma amongst intelligentsia.”
In the last few decades, analogous remarks have surfaced again and again. Some
point out “the curious absence, the startling and significant vacuity of the notion
‘secularism’ itself,” and go so far as to claim that the notion has become “a sort of
mantra, a quasi-religious incantation” (Rai 1989: 2770-1). Others put it mildly and
say there is a tendency among Indian intellectuals to interpret the concept in their
own subjective manner (Khan 1994: 373), or they use more pointed terms: “Like
liberal Hindu gods who can take different forms and give a chance to the devotees
to worship in any form they like, in India the concept of secularism has acquired
so many interpretations and it now means different things to different groups of
people” (Srikanth 1994: 39). Whether Muslim or Hindu, rightist or leftist, sociologist
or political scientist, these thinkers all agree on this one point: the term “secularism”
has so many different meanings in the Indian context that it appears to have lost all
meaning.
This section will argue that the semantic confusion surrounding “secularism”
masks a more basic problem in the Indian debate. Instead of being embedded in
a well-structured theoretical framework, the notion of “secularism” or “the secular
316
state” consists of a number of isolated normative propositions—about the separation
of politics and religion and the right to religious freedom—proclaimed as though
these are self-evidently true. First, I will show that the principle of the separation of
politics and religion does not make much sense, because it is based on an arbitrary
distinction between “the religious” and “the political.” Next, we note that a similar
problem confronts the principle of religious liberty: when it is unclear how to identify
the domain of religion, it will be equally vague what it means to secure freedom in
this domain. As a consequence, the tenets of the liberal secular state are not intelligible
in the Indian context, because the theoretical background required to make
sense of them is nowhere to be found.
The Religious and the Political
Not all participants in the secularism debate express difficulties in making sense of
the concept around which the debate revolves. Those who intend to protect the secular
character of the Indian state from the onslaught of the Hindu Right often provide
definitions that appear to leave no doubt as to the meaning of the term. “Secularism,”
they say, requires the separation of the state from religion in general, from all faiths,
or from any particular religious order, or it stands for the separation of religious and
non-religious institutions (Smith 1963; Gopal 1993: 13; Sen 1996: 13; Bhargava 1998b:
488). As secularists, they defend “the demarcation of two realms of existence, the
separation of church from state, of the sacred from the secular” or they reformulate
this in terms of a “distinction between the area of individual autonomy and of secular
or social control” (Chatterji 1995: x). When the secularists argue that this notion is
indispensable in India, it is their burden to produce a theoretical description of the
Indian situation, which demonstrates that the separation of politics and religion is its
only conceptual solution.
At the very least, any such description has to answer two basic questions. Firstly,
it should be able to tell us what properties distinguish the religious domain from the
secular or the political (or vice versa). If there is no theoretical clarity on what makes
some phenomena of Indian culture into religious phenomena or some institutions of
Indian society into religious institutions, then there is simply no point in stating that
the religious ought to be separated from the political. Secondly, the belief that the
secular state offers the one reasonable political answer to the Hindu-Muslim strife
in India derives from the underlying belief that it is the only viable solution to the
predicament of religious pluralism. For this inference to hold, the description should
identify the general properties of religious pluralism and show that these properties
can also be discerned in the Hindu-Muslim problem. In other words, it has to de317
scribe the structure that distinguishes the problem of religious pluralism or religious
strife from other problems of human coexistence. As the cogency of the “secularism
discourse” depends on these two issues, we will examine the extent to which they
are satisfactorily addressed by some of the prominent Indian advocates of secularism.
When India became independent, it was obvious to most leaders of the Indian
National Congress that it had to become a secular state, because they considered this
to be the only form of government that would secure the peaceful co-existence of
Hindus and Muslims. This view found one of its strongest proponents in Jawaharlal
Nehru, independent India’s first Prime Minister, who went so far as to assert that “no
state can be civilised except a secular state” (cited in Chandra 1994: 79). According to
the chief interpreter of Nehruvian secularism, the historian Bipan Chandra, Nehru’s
definition of secularism was four-pronged:
Secularism meant first, separation of religion from political, economic, social and
cultural aspects of life, religion being treated as a purely personal matter; second,
dissociation of the state from religion; third, full freedom to all religions and
tolerance of all religions; and four, equal opportunities for followers of all religions,
and no discrimination and partiality on grounds of religion (Chandra 1994: 63).
Prima facie, this may appear to be a precise definition. However, when one is aware of
the confusion surrounding the concept of religion, its obscurity becomes baffling. As
Balagangadhara (1994) argued earlier, we do not know today what makes something
into religion. No theory is available that explains the characteristics of the religious
domain. If this is unclear, however, it will also be impossible to separate religion from
“political, economic, social and cultural aspects of life.” One does not know what practices,
beliefs or institutions need to be separated from what other practices, beliefs
or institutions. The Nehruvian secularism turns out to be a scarcely intelligible idea
once one tries to give content to its principle of the separation of religion from the
different domains of public life.
The ambiguity can be shown in B. R. Ambedkar’s interventions in the Constituent
Assembly Debates—the debates leading to the formulation of the Indian Constitution.
At the time of Independence, Ambedkar was the main advocate of some of the
oppressed groups in Indian society. As such, he was a strong proponent of importing
the western liberal notions of state neutrality and equal human rights, because he
believed the injustices of Indian society had to be blamed on the Hindu religion and
its caste system. This stance determined his contributions to the formation of the
Indian constitution. He argued for the adoption of many articles from the constitutions
of western liberal democracies, especially where it concerned the separation
of the state and religion. Given this background, one would expect some clarity in
Ambedkar’s understanding of the role of religion in the Indian society. However:
318
The religious conceptions in this country are so vast that they cover every
aspect of life from birth to death. There is nothing which is not religion and if
personal law is to be saved I am sure about it that in social matters we will come
to a standstill…There is nothing extraordinary in saying that we ought to strive
hereafter to limit the definition of religion in such a manner that we shall not
extend it beyond beliefs and such rituals as may be connected with ceremonials
which are essentially religious (Constituent Assembly Debates, vol. 7: p. 781; cited in
Chatterjee 1998: 356).
Religion seems easily identifiable to Ambedkar since he sees that it covers every
aspect of life from birth to death. Naturally, he should be aware that when there
is nothing which is not “religion,” the term loses all meaning. Next, he proposes
that political expediency obliges us to limit the definition of religion. How will we
find out what is really religion and what not? The extraordinary answer is that we
shall define it in terms of beliefs and rituals connected with ceremonials that are
essentially religious. When we are still striving to define what religion is, how can we
possibly know what things are essentially religious? In this quote, it is painfully clear
how arbitrary the statements about the role of religion in Indian society are. One
can feel that “religion” covers every aspect of life in India, and one can at the same
time propose that “religion” ought to be limited to those things which one feels are
“essentially religious.” In the absence of a consistent theory of religion, there is no
firm cognitive ground for any of these feelings. One can invent definitions of “the
religious” according to one’s personal intuitions or one’s political aims.
These theoretical problems in the principles of secularism will not disappear
when the notion “religion” is replaced by “Hinduism,” because that strategy confronts
us with similar questions as to what Hinduism is, whether it is religion or not,
or even whether it exists or not. Nehru himself would certainly admit that these are
thorny issues:
Hinduism, as a faith, is vague, amorphous, many-sided, all things to all men. It is
hardly possible to define it, or indeed to say whether it is a religion or not in the
usual sense of the word. In its present form, and even in the past, it embraces
many beliefs and practices, from the highest to the lowest, often opposed to or
contradicting each other. Its essential spirit seems to be live and let live (Nehru
1946: 75).
It is impossible to identify something which can hardly be defined, which is vague,
amorphous, many-sided, and all things to all men. And when one does not succeed
in identifying the Hindu religion, how can one even dream of separating it from the
state or from the public sphere? Surely a serious problem is involved here. In the
words of a specialist, Richard Zaehner, there is no particular set of dogmas that define
the Hindu religion:
319
…Hinduism is quite free from any dogmatic affirmations concerning the nature
of God, and the core of religion is never felt to depend on the existence or nonexistence
of God, or on whether there is one God or many; for it is perfectly
possible to be a good Hindu whether one’s personal views incline towards monism,
monotheism, polytheism, or even atheism. This is not what ultimately matters
(Zaehner 1966: 2; italics mine).
As R. N. Dandekar points out, the social scientific study of Hinduism has long accepted
that this “religion” defies all attempts at definition:
…Hinduism does not insist on any particular religious practice as being obligatory,
nor does it accept any doctrine as its dogma. Hinduism can also not be identified
with a specific moral code. Hinduism, as a religion, does not convey any definite or
unitary idea. There is no dogma or practice which can be said to be either universal
or essential to Hinduism as a whole (Dandekar 1971: 237).
Basically, the conclusion is that the Hindu religion does not have any properties—i.e.
any common beliefs or practices—that allow us to recognise it.
These have become platitudes today, but they hide a vital quandary in making
sense of the notion of secularism in India. If the Hindu religion does not have any
clear properties, how shall we determine when this religion intrudes into the political
domain? When does a state become a Hindu state, as opposed to a secular state?
When the government publicly cites Rama as the prototype of the ethical king? Or
when it consults an astrologer before making an important political decision? When
a puja ritual is done in parliament? Any answer to these and similar questions will be
derived from the properties that distinguish the class of things Hindu from that of
things secular. Since there is not the least consensus on the properties of the Hindu
religion, one can fix this standard as one chooses. Accordingly, one can give one’s own
interpretation as to what it means for India to be a secular state.
Besides, if the essential spirit of the Hindu traditions seems to be “live and let
live,” what then is the point of arguing for secularism or toleration in India? In the
West, such great import was assigned to “the separation of church and state” because
the Christian confessions had given rise to intolerant states, which imposed one specific
form of doctrine, discipline and worship upon the subjects. Considering that the
Hindu traditions do not regard any practice or doctrine as obligatory, it is impossible
that contemporary India is confronted with the same threat of a persecuting religious
state, and that it is in need of the same safeguard of the secular state.
At this point, the objection may arise that although it is quite true that Hinduism
generally has no difficulty with accommodating all kinds of practices and beliefs, the
more dogmatic and intolerant form of Hindutva or “Hindu nationalism” also exists,
and that therefore the Hindu religion should be separated from the state in India.
For such an objection to be meaningful, one will have to demonstrate what makes
320
the various Hindu traditions into a “Hindu religion” (or several Hindu religions, for
that matter), how the religious elements of this religion are present in an excessive
form in the discourses and practices of Hindutva, and what it would mean to separate
these elements from politics. These questions have not even been addressed by the
secularists. Thus, one cannot but conclude that they presuppose that the current difficulties
in Indian politics and society should be understood in terms of the relation
between “the religious” and “the political”—while they have no clue as to how to
identify these domains of life and society.
This one assumption is constitutive of the entire debate. For instance, the Nobel
Laureate Amartya Sen (1996: 13-14) argues that the principle of secularism does
not require the state to steer clear of an association with any religious matter whatsoever:
“Rather, what is needed is to ensure that in so far as the state has to deal with
different religions and members of different religious communities, there must be
a basic symmetry of treatment.” The virtue of this approach, he emphasises, is that
the requirement of symmetric treatment leaves open the question as to what form
that symmetry should take. Two imaginary examples are sufficient to assess the consequences
of Sen’s liberality. The first is that of some predominantly Muslim state,
which allows freedom of religion to the minorities, but also proclaims that all women
should wear full burqa. The second example asks us to imagine a time in the future
at which the Indian state enacts a law that forbids the consumption of meat to all
citizens. Both states are still politically secular according to Sen’s principle, since they
treat the members of different religious communities in a symmetric manner.
Of course, he may object to these counter-intuitive examples of secularism by
pointing out that these states do not really respect the principle of symmetry because
they impose the religious values or beliefs of the majority on the other communities.
To make this point convincing, however, Sen should show that matters of dress and
diet are part of the religion of the respective majorities. The validity of this argument
depends on the inclusion of these domains of life in some definition of religion.
Therefore, the states in question could argue as convincingly that their measures are
not related to religion in any way—provided they have another definition of religion.
Thus, Sen’s formula of “basic symmetry of treatment” once again illustrates that the
theoretical inadequacy of the secularism discourse is largely due to the lack of clarity
and stability in the essential conceptual distinction between “the religious” and “the
secular.” The resulting equivocation is not limited to the academic debates. Perhaps,
its consequences are best illustrated when the Indian judiciary arbitrarily invokes a
number of differing definitions of Hinduism and religion to decide whether a certain
community belongs to the religion of Hinduism (Galanter 1971) or whether Hindutva
is a religion or a non-religious way of life (Cossman and Kapur 1996).
The principle of the separation of politics and religion is intelligible only if one
provides a consistent theoretical description that clarifies what religion is and what
321
makes the various traditions of the subcontinent into religion. Quite obviously, one
can separate “the religious” from “the political” only if one knows how to recognise
these two spheres by identifying at least one of them. To be able to do so, one should
possess a theory that conceptualises either the religious or the political in terms of
the characteristic features of these domains in life and society. These issues being
as opaque as they are, the idea of secularism was bound to become an empty mantra
and such a mantra will certainly fail to counter the dynamics that are currently disrupting
Indian society.
Freedom of What?
Instead of the separation of politics and religion, one could emphasise the importance
of another principle of secularism, namely, that of the freedom of religion. This
step allows us to illustrate how the absence of theory has brought about fundamental
problems in the actual political and legal conflicts on the nature of the secular state
in India. As said, the Indian Constitution grants “freedom of conscience and the right
freely to profess, practice and propagate religion.”
The central difficulty of the principle of freedom of religion surfaced soon in
the courts of independent India: one’s interpretation of this principle is completely
dependent on one’s conception of the religious domain. The fact that there was no
consensus whatsoever on the characteristics of this domain gave rise to confusing
situations. Thus, the Bombay High Court put forward its very own definition of religion
in its interpretation of Article 25 on the freedom of religion. On the basis of this
definition, it suggested that certain aspects of a particular religion were not religious
but really secular in nature:
…[W]hatever binds a man to his own conscience and whatever moral and ethical
principles regulate the lives of men, that alone can constitute religion as understood
in the Constitution. A religion may have many secular activities, it may have
secular aspects, but these secular activities and aspects do not constitute religion
as understood by the constitution (cited in Smith 1998: 197).
In another similar case, the Bombay High Court stated very explicitly that the authority
of a religious body in relation to its members had nothing to do with religion.
The Supreme Court of India, on the contrary, interpreted Article 25 according to a
completely different definition of religion:
322
A religion may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of religion, and these forms and observance might
extend even to matters of food and dress (Ibid.: 198).
The confusion is obvious. The different courts determine what freedom of religion
entails according to their verdict as to which activities in Indian society are religious
and which are secular. This would be understandable if there were disputes on the
exact scope of the religious domain. Even if the characteristics of this domain were
clear, the precise location of its boundaries would be disputed. Thus, we saw that in
Reformation Europe the location of the boundary between the spiritual kingdom
and the temporal kingdom was a topic of heated debate (see 3.4.). However, in this
debate, both a theological framework and a social background of Christian institutions
were shared. Therefore, the participants knew roughly to which aspects of life
and society they referred when they asserted that all human beings ought to be free
in the spiritual kingdom.
The situation in India is different altogether. There is no such conceptual framework
and no such institutional background. Consequently, the discord regarding the
interpretation of “freedom of religion” in the Indian courts is not about the precise
location of the boundary of the religious domain. There is no clue on how to recognise
this domain in the first place. According to the exigencies of a case, the judge can
propose that certain activities are secular and not religious, without giving any criterion
or arguments.
In one of its judgements, the Supreme Court tried to provide a route to avoid
the problem of figuring out what religion is and what it means for religion to be free.
“What constitutes the essential part of a religion,” it asserted, “is primarily to be ascertained
with reference to the doctrines of that religion itself” (Ibid.). This shifts the
problem. We now confront more difficult questions: What are the religions of India?
Is “Hinduism” one of them? “Hinduism,” we noted, consists of a range of traditions,
all of which tell different stories. Which of these contains the doctrine that determines
the essential part of the Hindu religion? One could also propose that there
are many different Hindu religions. However, given the absence of scriptures or doctrinal
systems that distinguish them, where will we find the respective doctrines
about the essential parts of their religion? Given the absence of a fixed ecclesiastical
authority, who will decide what this doctrine is?
The meaning and implications of the principle of religious freedom became
highly contentious when the question was addressed of a Uniform Civil Code for the
independent India. At the time of the framing of the Constitution, the secularists
had argued that in a secular state all communities should be subject to a common
civil code, which would regulate marriage, inheritance and other family matters. This
gave rise to Article 44 of the “Directive Principles of State Policy” of the Constitution:
323
“The State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India.” However, the representatives of the Muslim League party in
the Constituent Assembly argued that the Sharia should be retained as the personal
law of the Muslim community. Interestingly, they invoked the principle of religious
liberty as a grounds for the protection of Muslim personal law:
Religious freedom was most prominently invoked in conceptions of a secular
state in the speeches of proponents of Muslim Personal law in the Constituent
Assembly. Many Muslim League representatives argued that religious personal
laws that governed areas such as marriage, divorce and maintenance, were an
essential aspect of religion, and as such, ought to be granted immunity from
state interference…A secular order…was one in which citizens would have full
religious freedom, including the freedom to live by the tenets of their religious
personal law. The secular state would be excluded from the religious realm and
would lack the authority to intervene in matters regulated by religious personal
law (Bajpai 2002: 183).
Clearly, these laws belonged to the realm of religion, so the Muslim politicians reasoned,
and therefore freedom of religion entailed that their community should be
left free by the state to live according to the Sharia. Thus, one of the Muslim League
representatives in the Constituent Assembly Debates argued as follows:
People seem to think that under a secular State, there must be a common law
observed by its citizens in all matters, including matters of their daily life, their
language, their culture, their personal laws. That is not a correct way to look at this
secular State. In a secular State, citizens belonging to different communities must
have the freedom—to practise their own religion, observe their own life and their
personal laws should be applied to them (cited in Shefali 2002).
Another stated that the “right to follow personal law is part of the way of life of those
people who are following such laws; it is part of their religion and part of their culture”
(Ibid.).
The same argument surfaced in the famous Shah Bano case of the 1980s (Rudolph
& Rudolph 2001: 52-3; Tambiah 1998: 427-33). In this case, the Supreme
Court had challenged the status of Muslim personal law by applying the Criminal
Procedure Code to the claim to maintenance of a Muslim wife, Shah Bano, who
had been divorced by her husband. In reaction to this judgement, the largest-ever
agitation of Muslims in independent India was instigated. Eventually, the national
government overruled the Supreme Court judgement through the ratification of the
Muslim Women (Protection of Rights on Divorce) Act of 1986, which basically protected
Muslim personal law. In the debate about this Act in the Lok Sabha (the Indian
parliament), Ebrahim Sulaiman Sait, Muslim League leader and one of the chief
proponents of the Act, put forward a typical view when he declared that “secular324
ism…is full freedom to live according to one’s own religion and not interfere with
Shariat religion. The Muslims in this country have therefore full freedom to follow
Shariat as part of their religion” (cited in Bajpai 2002: 189). Frank Anthony, a Christian
Anglo-Indian representative of the Congress Party in the Lok Sabha declared
that secularism means “equal respect for all religions, equal respect for the rights
of minorities” and therefore he felt that “the Muslims today, if they feel that it is a
Koranic injunction…then the Government has, not only an option but a duty to see
that this Bill is passed” (Ibid.). Several other representatives similarly argued that a
secular state ought not to interfere in the religious life of the minorities and ought to
leave all steps towards reform to these communities themselves.
Naturally, the liberal secularists oppose this interpretation of the principle of
religious freedom. They assert that the fact that members of different communities
who are citizens of the same country are governed by different inheritance laws is “an
anachronism indeed in modern India and diametrically opposed to the fundamental
principles of secularism” (Smith 1963: 497-8). Or they complain that “the absence
of a Uniform Civil Code (UCC) of even an optional nature has been a concession to
a Muslim fundamentalist leadership adamant about the sanctity of a conservatively
interpreted Sharia” (Vanaik 1997: 46). Another classical suggestion is that the communities
in India have failed to understand the principles of secularism:
The Constitution declares India to be a secular state in which persons are
guaranteed equal protection of the law and where there is to be no discrimination
based on religion, caste, race, sex or place of birth. On the other hand, freedom
of religion is also guaranteed but what is happening is that this freedom is being
exploited by religious groups to infringe fundamental rights and equal protection
of the law. This antagonism between two sets of freedoms arises from the fact
that religious and political groups have not understood or appreciated the basic
principles of secularism (Chatterji 1995: ix).
Freedom of religion, from the perspective of the secularists, cannot be understood
as the freedom to follow the system of “personal law” of one’s religion. Rather, it
entails that the individual is free from all laws in the domain of religion. In the words
of Justice Ruma Pal (2001: 32-3) of the Supreme Court of India: “While laws may be
derived from religion, they do not form part of it, and the need for a uniform civil
code cannot be overstated. It would not impinge on the freedom of an individual’s
conscience, nor on the expression of it.”
This dispute leads to a deadlock. One group insists that the domain of religion
includes the legal restrictions it puts on the matters of family life. If the secular state
and its legal system intrude upon these matters, this is seen as a violation of the tenet
of religious freedom. Another group believes that religion is a private matter of the
individual, which cannot possibly include a legal system like the Sharia. This group
will view the position of the first group as an infringement upon the principle of
325
freedom of religion. The secular state is then obliged to interfere in the practices of
the first group and to impose a common civil code on all individual citizens. In other
words, it has to discard the tradition of this community. On what grounds could one
take a position in this conflict on the interpretation of secularism and its principle of
religious freedom?
On cognitive grounds? This would be possible if one had a scientific theory on
the domain of religion in Indian society. This theory would have to tell one what the
characteristics and limits of this domain are, what freedom in this domain entails,
and how it leads to a stable plural society. Such a theoretical foundation cannot be
found for the tenet of freedom of religion. Naturally, one can always take a position
on normative grounds. One could show that the principle of religious liberty as it has
emerged in liberal political theory implies that the individual conscience ought to be
free from all coercive laws in the domain of religion. Hence, a religious community
ought not to impose the laws of its religion on its members. Legal coercion is the
prerogative of the state.
Why should a group like the Indian Muslims accept these normative grounds?
What is the problem in the claim that religion, from an Islamic point of view, does
include religious laws and that, consequently, religious liberty includes the liberty
for a community to live by these laws? The secularists argue that the Islamic doctrine
which argues that the religious domain encompasses the laws of the Sharia is
false. However, they are not able to show that this account of religion is untenable by
providing a cognitively superior theory of religion. Instead, the normative grounds
upon which they take this position assume the truth of a particular understanding of
religion. This understanding fixes the characteristics and the outer limits of the religious
domain as follows: each individual is autonomous in this domain and, therefore,
no religious laws ought to be imposed on the individual citizen.
If a society shares this understanding of religion—if the view has become part
and parcel of its common sense—the principle of freedom of religion appears to
make sense and disputes like the above could be settled in favour of the secularists.
This is what generally happens in the liberal democracies of the contemporary West,
where the majority of the citizens shares the “secular” and “modern” understanding
of religion. However, when it is challenged in a country like India, one confronts the
embarrassing task of showing how and why this view is superior to other views—the
supposedly “religious,” “conservative” and “traditional” ones. In the absence of a
sound theoretical foundation, one can then only conclude that the liberal norm of
religious liberty presupposes the superiority of this understanding of religion.
In the previous chapters, we have seen where this presupposition stems from.
The norm of religious liberty has emerged within the theological framework of anticonfessional
Protestantism. Therefore, the norm will inevitably presuppose the
superiority of its theological understanding of religion. In the words of the earlier
326
quoted Constitution of Maryland, religion “is the duty of every man to worship God in
such a manner as he thinks most acceptable to him” (in Perry (ed.) 1952: 349). Or in
the similar words of K. T. Shah, one of the participants in the Constituent Assembly
Debates, “religion is a private affair between man and his god. It has no concern with
anyone else in the world” (Constituent Assembly Debates, Vol. 7: 819). As a consequence,
laws cannot possibly belong to the domain of religion, because the relation between
God and every human being’s conscience should always be left free from coercive
laws.
As long as this theological understanding of religion is present in the background,
the principle of religious liberty will not bring about significant conceptual problems.
When the principle is cut loose from this theological background, however, one can
interpret it in different ways according to one’s understanding of the domain of “religion.”
The dispute will be interminable, because no neutral or scientific theoretical
basis exists which allows one to decide between these different views of religion.
This is the problem of the Indian debate on freedom of religion. The problem is not,
as many have argued, caused by the fact that the term “secularism” has acquired a
new meaning in India, namely “equal respect for all religions” (Bajpai 2002: 191;
Chatterjee 1998: 349-51; Madhok 1995: 116). Neither is it a question of “group rights”
or “minority rights” versus “individual rights” (Chandhoke 1999). Rather, the meaning
of “secularism” and “freedom of religion” have become vague and shifting, because
these normative principles have been detached from the theoretical framework
in which they were embedded, viz. the Protestant theology of Christian liberty.
Secular Politics and Plural Religion
It is not that no attempts at all have been undertaken to theorise the religious and
the conflicts it is alleged to cause in India. In fact, a specific terminology has been
coined to study these conflicts, namely, that of “communalism” and its cognates such
as “communal violence” and “communal riots.” What is this phenomenon of communalism?
Nehru defined it as “a narrow group mentality basing itself on religious
community but in reality concerned with political power and patronage for the group
concerned,” or, more bitterly, as “politics under some religious garb, one religious
group being incited to hate another religious group” (cited in Chandra 1994: 62). In
a series of essays, Bipan Chandra has similarly argued that communalism should be
understood as an ideology which connects religious identities with secular interests,
and which suggests that the secular interests of the followers of different religions
are opposed to one another (Chandra 1994: 148-9). Both Nehru and Chandra argue
that the problem is not so much religion itself or even the pluralism of the various
327
religious communities, but rather that the religion of the communities is being used
to pursue secular interests in the political domain.
Let us try to illustrate this account of communalism with an example. Imagine a
leader of the Jain community who encourages his followers to engage in a campaign
of non-violent resistance to British rule in the colonial era—or one who does the
same towards the activities of the Rashtriya Swayamsevak Sangh (one of the organisations
of the Hindutva movement) today. Arguably, both leaders use religion (Jain
ahimsa) to pursue political interests. Their position further entails that these political
interests are opposed to those of the Christian colonials or to those of the Hindu
nationalists. Thus the position fulfils the conditions of Nehru’s and Chandra’s notion
of communalism. However, Nehru, Chandra and most other secularists would not
like to condemn these acts as instances of communalism in the same way they would
condemn the case of Hindu leaders who incite their followers to destroy a mosque.
One can think of many other examples which throw doubt on the above explanation
of communalism.
The explanation of communalism is not useful because it is based on the invalid
assumption that one knows what constitutes secular as against religious interests. Does
the Gandhian non-violence imply the pursuit of a secular interest, a religious interest
or that of a secular interest tied to a religious identity? The account of communalism
should allow us to answer such questions. Since it does not, its conceptual foundation
collapses and it loses all viability as an explanation of the negative role of community
in Indian politics. Rather than being the conclusion of a careful analysis of this issue,
the normative view that religion ought not to be used to pursue secular interests is
the pre-theoretical assumption the account starts from. It seems both the distinction
between the religious and the political and the moral tenets about their separation
precede all analysis of the current tensions in the Indian society.
The secularists often assert that the most typical property of Indian secularism
is its firm opposition to communalism. Secularism then is explicitly presented as the
ultimate ideological answer to the communal tensions between Hindus and Muslims.
Now, as said, any description of the Hindu-Muslim conflict which is to prove that the
secular state is necessary in India, should discern the structure of the class of conflicts
that can be resolved through secularism and show the necessary connection between
this structure and that of the latter concept. The account of communalism does certainly
not offer such a description. When we remove its useless distinction between
secular and religious interests, it merely suggests there are different communities in
Indian society, which come into conflict because they have (or falsely believe they
have) differing interests. Of course, this is a description that can be applied to any
and every conflict between two groups of people.
Adding the terminology of “the religious” gives us the impression that we are
describing a specific kind of conflict; that we are referring to a specific category of
328
conflicts that should be analysed and solved in the same manner. This would be
the case if we could demonstrate that the conflicts between Hindus and Muslims
in contemporary India, those between Protestants and Catholics in early modern
Europe, and all other conflicts we designate as “religious conflicts” share a common
structure that makes them into religious conflicts. But the predicate “religious” does
not refer to such a common structure in the phenomena it intends to describe. It
rather appears to be a self-explanatory tag which generates the illusion that we have
a deeper understanding of these phenomena. So even if Nehru wrote in 1936 that
“the communal problem is not a religious problem, it has almost nothing to do with
religion,” and even if some contemporary thinkers agree that the communal riots do
not revolve around religion, such claims do not explain anything about the conflicts
among the various communities in Indian society as long as one does not provide
theoretical criteria to distinguish religious problems from those that have nothing to
do with religion (cited in Chandra 1994: 71).
If one does not possess such criteria, any argument one constructs in order
to demonstrate that secularism is the sole answer to India’s problem of “religious
pluralism” is bound to end up in a conceptual muddle. This is well illustrated by
the work of the political theorist Rajeev Bhargava. The case for secularism is “overdetermined,”
Bhargava believes, since the reasons in favour of the idea are “overwhelming”
(Bhargava 1998: 488). Of these reasons, he considers “the argument from
ordinary life” to be the most convincing. This argument begins with the assertion
that religious world-views are constituted by ultimate ideals. When the believers of
different religions and non-believers have to live together, a clash of their ultimate
ideals is always imminent. A clash of such ideals could deprive people of leading an
ordinary life. Since it is the state’s task to secure a minimally decent existence for its
citizens, all ultimate ideals must be expunged from the affairs of the state. Therefore,
politics and religion have to be separated, the two domains have to keep a principled
distance and respect each other’s boundaries. “To sum up,” Bhargava says, “ordinary
life requires that an acceptable minimum standard exists and that it is barbaric to fall
below it.” Political secularism is the only way to secure this minimum standard and
to avoid barbarism (Bhargava 1998: 491).
This argument from ordinary life is sustained by a specific conception of the
common predicament with which human societies are generally confronted. Both in
the West and in India, Bhargava suggests, secularism was consolidated in the face of
irresolvable religious conflicts and in the aftermath of sectarian violence. More generally,
he concludes that “whenever conflicts became uncontainable and insufferable,
something resembling a politically secular state simply had to emerge” (Bhargava
1998: 497). This simply had to happen because of the following reason:
329
At no point in the history of humankind has any society existed with one and only
one set of ultimate ideals. Moreover, many of these ultimate ideals or particular
formulations of these have conflicted with one another. In such times, humanity
has either got caught in an escalating spiral of violence and cruelty or come to the
realisation that even ultimate ideals need to be delimited. In short, it has recurrently
stumbled upon something resembling political secularism. Political secularism must then
be seen as a part of the family of views which arises in response to a fundamental
human predicament. It is neither purely Christian nor peculiarly Western. It grows
wherever there is a persistent clash of ultimate ideals perceived to be incompatible
(Bhargava 1998: 497-98; my italics).
Although there is some ambiguity in this passage (societies have to develop political
secularism itself or “something similar” that belongs to the same “family of views”),
Bhargava does not really waver from his main point: all cultures and societies are
confronted with one and the same fundamental human predicament and secularism
is the answer to this predicament.
When Bhargava claims that the secular state has to emerge whenever conflicts
become uncontainable and insufferable, he cannot possibly mean all conflicts since
this would imply that even fights between family members, lovers or neighbours
have secularism as their solution. He is referring to conflicts between groups holding
divergent religions, and he defines these conflicts in terms of the distinctive property
of “a persistent clash of ultimate ideals.” This, of course, is a rather vague notion and
the author never comes to explaining what makes an ideal into an ultimate ideal. This
heading of a clash of ultimate ideals could well comprise a gang-war between Latinos
and Blacks somewhere in L.A., a battle between the hooligans of two rival soccer
teams somewhere in Europe, a separatist struggle of an ethnic minority anywhere in
the world, and literally thousands of other conflicts. It sounds slightly absurd if one
claims that the secular state is the solution to all of these conflicts. Still, in this view,
whenever some compromise emerges between conflicting parties, this would have
to be seen as an instance of humanity solving “the fundamental human predicament”
by stumbling upon “something resembling political secularism.”
Bhargava is so keen on proving the universal scope of the idea of secularism, that
he presents it as the indispensable solution to the human predicament of religious
pluralism. Since he begins with the assumption that this predicament is a universal
phenomenon of human societies, he never really poses the question as to what
properties make a conflict into a religious conflict. The consequence is that he takes
recourse to some all-encompassing category—“the clash of ultimate ideals”—which
cannot possibly refer to a well-defined set of conflicts with common structural traits.
The same is true for the resulting notion of political secularism: if all non-violent
compromises that prevent barbarism between groups holding different “ultimate
ideals” are termed “secularism,” the term becomes so all-encompassing that it loses
its meaning. Thus, Bhargava’s argument from ordinary life seems to be no more than
330
a tautology: he wants to give secularism its due simply by stating that all peaceful and
civilized pluralism in human societies is due to secularism.
At this point, we can come back to the confusion surrounding the idea of secularism
among the Indian intellectuals. Fundamentally, this confusion is caused by
the utter lack of theoretical clarity in the religious-secular distinction. On top of that,
the vacuous term of “secularism” has grown to be the keyword in Indian political
discourse to refer to any kind of situation in which different groups of people live
together: if they get along well, this is because of secularism; if they fight and kill
each other, they are in need of the antidote of secularism. Anything that allows different
kinds of people to live together can be called secularism, and thus the notion
has become as vague as it possibly could: it is defined as “a state of mind, almost an
instinctive feeling, such as existed, by and large, for many centuries in India, when
Hindus, Muslims, Christians, Parsis and followers of other faiths lived side by side in
general harmony” (Gopal 1993: 19-20), or as “a respect for differences cutting across
class, caste, community, and gender, in which religion is a component in the shaping
of identity but not the determining criterion” (Bharucha 1998: 6).
Instead of examining and theorising the ways in which the different cultural
groups have succeeded or failed to live together peacefully, we take recourse to this
obscure concept of secularism to discuss these matters. Consequently, the discourse
of the liberal secular state prevents us from understanding the problems of pluralism
in India, instead of helping us to solve them. The urgency of these problems today
makes it all the more painful that the idea prevails that they can be coped with by
endlessly repeating that “the religious” should be separated from “the political.”
Religious Strife and the Necessity of Secularism
Where does the stubborn conviction originate that secularism as the separation of
politics and religion is indispensable in India? What sustains it? In post-Reformation
Europe, the different confessions imposed a strict doctrine on the believers and the
confessional strife arose from the conflicting truth claims made for these doctrines. A
classical justification for liberal toleration emerged from this fact: the state should not
take a position in this conflict of truth claims, for it would then persecute those who
went against its religious position and this would eventually bring about the destruction
of a state. This rationale was adopted by the Indian secularists from the time of
the Constituent Assembly Debates onwards:
Separation was…regarded as a critical imperative, as ‘mixing religion and politics’
was dangerous from the standpoint of the survival of the new nation-state.
Religion was viewed as a source of deep discord in the nation, and the recent
331
violent partition of the country was thought to be a direct consequence of ‘mixing
politics and religion’. It was felt if conflicts about religious doctrines were played
out in the arena of the state, the state would be torn apart. Therefore, the state, in
order to save itself and in order to achieve the consolidation of the nation, had to
keep clear of matters concerning religion (Bajpai 2002: 182).
This has remained the most basic “argument” for the secular state in the writings
of the secularists throughout the twentieth century. Secularism is necessary in India
because of the persistence of violent religious strife between Hindus and Muslims.
The assumption is that the problem of diversity in India is equivalent to the problem
of diversity that emerged in post-Reformation Europe. Both are instances of the
general predicament of “religious diversity” and “the basic idea of the secular state
represents the only sound democratic solution to the problem of religious diversity”
(Smith 1963: 93).
The peculiarity of this belief becomes clear, once one is aware that there can be
no such conflict of truth claims between the Hindu traditions and Islam (or any other
religion). In fact, from the eleventh century to the present day, Christian and Muslim
visitors to India have been struck by the fact that the Hindus do not make any truth
claim for their traditions. While travelling through India in the eleventh century, the
Muslim traveller Alberuni was surprised by the indifference of the local traditions towards
doctrinal controversy: “On the whole, there is very little disputing about theological
topics among themselves; at the utmost, they fight with words, but they will
never stake their soul or body or their property on religious controversy” (Alberuni
in Sachau, Ed. 1888: 3). Throughout the centuries, many European missionaries and
travellers came to a similar conclusion: the Hindus did not perceive any conflict between
their “religion” and the doctrines of the Christian religion. They did not desire
others to accept their teachings as true and refused to reject the doctrines of others
as false (see the next section of this chapter for an analysis; e.g. Bernier 1671: 149-50;
Ziegenbalg 1719: 14).
Today, this still is the story told by the standard textbook accounts of “Hinduism”:
unlike the Semitic religions, it does not attach any importance to doctrine or
dogma. Thus, Duncan Derrett (1968: 57) in a classical work on law and religion in
India notes the following characteristic of Hinduism: “One is free to have any and
every belief or no beliefs at all, without forfeiting one’s religious denomination or affiliation.”
As Richard Zaehner puts it in his introduction to the Hindu religion:
Hindus sometimes pride themselves, with some truth, that their religion is free
from dogmatic assumptions…They do not think of religious truth in dogmatic
terms: dogmas cannot be eternal but only the transitory, distorting, and distorted
images of a truth that transcends not only them but all verbal definition. For the
332
passion for dogmatic certainty that has racked the religions of Semitic origin from
Judaism itself, through Christianity and Islam, to the Marxism of our day, they feel
nothing but shocked incomprehension (Zaehner 1969: 4).
Or in the words of Ram Singh (1992: 35), “a Hindu may believe in one God or ten, or
ten million, or none at all; in the theory of karma, transmigration of souls, or in nothing
at all, and will still remain a Hindu.” In short, the Hindu traditions do not make
truth claims for some set of doctrines.
If this is the case, how can one claim that the Hindu-Muslim problem revolves
around a conflict between different religious truth claims? How can one argue that
secularism is necessary because of the religious strife in Indian society? How can the
danger of mixing politics and religion in India be located in the issue of the state taking
a position in the conflict of religious doctrines? The fact that it is totally unclear
what characterises the domain of religion in Indian society and how it differs from<br