Hinduism in its brahminical construct is as pernicious, if not more, as it is in its Hindutva avatar

The Hindu : Arts - Books : Secularism & the role of the Supreme Court

ARTICLES OF FAITH — Religion, Secularism, and the Indian Supreme Court: Ronojoy Sen; Oxford University Press, YMCA Library Building, Jai Singh Road, ... SHAIKH MUJIBUR REHMAN

As the contemporary Indian political folklore suggests, secularism as state ideology has become contentious ever since Hindutva emerged as a major political plank. For the academia, the history of the contentious nature of this debate is somewhat older, and intriguing. What is, however, striking is that the political and academic streams of discourse have employed two different connotations of secularism. The political strand focussed on the fairness of the way the concept is applied in practice, with one section even accusing the state of being biased towards the minorities, particularly Muslims. On the other hand, the academic discourse stressed mostly on its genesis and on questions such as whether it is Western or Indian in origin. While both allude to the part the Supreme Court of India has been playing in this area, citing its different verdicts wherever necessary, there has been no systematic research into its proactive role. This book fills this vacuum quite comfortably.

On landmark cases

How the Supreme Court has been addressing the issues related to Hinduism and minority religions such as Islam is discussed extensively under different heads. In each chapter, considerable space is devoted to analysing the landmark cases that have a definitive bearing on Indian secularism. Among the significant points the author makes in his multi-layered argument is that the judicial verdicts are, in some measure, reflective of the dominant personalities of the court at a given time. In fact, the chapter titled, “Judging Religion: A Nehruvian In Court,” is entirely about P.B. Gajendragadkar, who served as the Chief Justice of India during the 1960s, and his was a dominant voice in matters of religion. Going by the manner in which the public debate and political campaign have proceeded in the area of secularism, there is a perception that the state’s relationship with minority religions, particularly Islam, needs to be grasped sensibly in order to make sense of its practices. In an attempt to depart from this dominant perception, the author devotes two chapters to discussing how the Supreme Court has been shaping the country’s political portrait and, in the process, created a lot of confusion about the connotations of ‘Hinduism’ and ‘Hindutva’. According to him, the confusion is partly due to the absence of Gandhian view of Hinduism in judicial discourse. He needs to have also noted that Hinduism in non-Hindutva sense is not completely compatible with the idea of tolerance. In fact, Dalit scholars such as Gopal Guru, Kancha Ilaiah, and Gail Omvedt consider that the idea of Hinduism in its brahminical construct is as pernicious, if not more, as it is in its Hindutva avatar.

Deviating from the conventional path, the author suggests that secularism needs to be visualised in a broader relationship not just with Islam but also with Hinduism. He devotes substantial space to the issue of minorities and Islam, with one chapter dealing exclusively with the question of Uniform Civil Code, one of the most contentious issues figuring in the secularism debate. This well-written chapter, however, could have profited from a discussion on the drafts that various civil society groups based in New Delhi, Mumbai, and Pune have been working on since the later part of the 1980s.

Insights

Viewed in the context of the vicious communal attacks witnessed in Kandhamal recently, where Christians were the target, the valuable insights offered into the way the courts have handled conversion-related issues acquire special relevance. How the Indian state grapples with religious conversion is, as the author says — and rightly so —“in many ways very central to the constitutional experiment with secularism.” Equally noteworthy is the chapter that deals with minority rights in running educational institutions.

Scholarship

This book, however, is not about the “unfettered role of religion and religious practices.” While discussing the core dimension of Indian secularism, he suggests that the court “rethink its language of uniformity in favour of one accommodative of religious and legal pluralism.” Otherwise, he warns, religion and faith could be hijacked by religious fundamentalists. The book, the core of which is a product of the author’s doctoral work, has further enriched the wealth of scholarship on secularism. In addition, it should serve as a valuable source for students of law and Indian politics. ARTICLES OF FAITH — Religion, Secularism, and the Indian Supreme Court: Ronojoy Sen; Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs. 675.

A precise cut Shylashri Shankar: FE Home- 

Sunday, Jan 31, 2010

Understanding the role of religion in society and the effect of judicial intervention on a country’s polity is vitally important today, says Ronojoy Sen in Articles of Faith. True, but how does one write in an interesting fashion about a topic (court judgments on secularism) that has been over-analysed? The lateness of the author’s entry is a function of the process where the transformation of a Ph.D thesis (in his case from the University of Chicago) into a book takes years. The author, a journalist and a Visiting Fellow at the National Endowment for Democracy and the East West Centre in Washington DC, faces the insurmountab le challenge of introducing a fresh flavour to a jaded palate.

Ronojoy Sen’s driving question is: “how has the higher judiciary interpreted the right to freedom of religion, and, in turn, influenced the discourse on secularism and nationalism?” (p. xiii). He focuses on the Indian Supreme Court’s rulings on the constitutional Articles of Faith (25-30), a topic that has already been addressed by many scholars.

The book reviews landmark cases such as the 1966 Sastri Yagnapurushdasji vs Muldas Bhundardas, where the apex court defined Hinduism as a way of life; the Shirur Mutt case where the test for the essential practices of religion that qualified for constitutional protection was first proposed; the Aruna Roy vs Union of India ruling where the court made a distinction between religious instruction and religious education; the TMA Pai and other cases on the rights of minority educational institutions; the Stanislaus case that denied constitutional protection to a right to propagate; the Jasani case where courts enforced disincentives for converting out of Hinduism, and the Shah Bano and Sarla Mudgal cases where the court linked the uniform civil code with national unity, and the Hindutva judgment. The final chapter analyses the Nehruvian motivations for former chief justice PB Gajendragadkar’s judgments because he “is a key figure in the tendency to rationalise and ultimately homogenise Hinduism”. (p. xxxvi).

Ronojoy Sen’s argument, which mirrors previous arguments by other scholars, is that the court’s rulings have homogenised and rationalised religion and religious practices, especially in Hinduism, along the lines of “classical or high Hinduism that originated with the 19th century reformation of Hinduism” (p. xxxii). The court’s emphasis on an inclusivist form of Hinduism, the author argues, led inexorably to the Hindutva judgment where the court conflated inclusivist forms with an exclusivist version of Hinduism promoted by Hindu nationalists. Like Derrett and many others, the author argues that the inclusivist discourse failed to take into account the pluralist nature of Hinduism and instead created a monolithic version of Hinduism.

Through an analysis of the main positions in the Constituent Assembly debates, he traces the muddy contours of secularism in India. He argues that the Nehruvian formulation of secularism “won the day” but its oscillation between “sarvadharma sambhava (goodwill towards all religions) and dharma nirapekshata (religious neutrality)” (p. xxiv) later contributed to the legitimisation of an exclusivist Hindu nationalism within Hinduism.

However, Rononjoy Sen’s discussion of the relationship between the court and the political arena is unclear. At several points in the analysis, he seems to be arguing that the court influenced the political movement towards an exclusivist Hindu nationalism, and at other points he argues that the court’s ruling “was representative of the politics of a time when Hindu nationalists had acquired a legitimacy” (p.195). If so, Sen’s argument that the court’s propensity to homogenise Hinduism in the name of modernisation led to an overlap with the Hindu nationalist agenda seems more a function of the inclination of the political elite. In response to such a critique, the author says “too much though should not be read into the judiciary being influenced by the ‘tides and currents’ of the time” (p.196). The author then goes on to cite Rajeev Dhavan’s warning about analysing the behaviour of the court as being “technically unpredictable” (p.196). However, his discussion of chief justice Gajendra- gadkar’s rulings shows a symmetry between the desire of the elites in the judiciary and Parliament to bring about enormous changes in people’s habits, work, living patterns, moral conduct and world view, (p.194), but the fact that Gajendragadkar’s intellectual mentor was Jawaharlal Nehru implies that the court was influenced by the political elite rather than the other way around.

For the lay reader lost in a thicket of debates on secularism, 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 reform on the other”. 

—The reviewer is Senior Fellow, Centre for Policy Research