Articles of Faith: Religion, Secularism, and the Indian Supreme Court 9780199489367, 019948936X, 9780199095285, 0199095280

Table of contents :
Halftitle Page
Title Page
Copyright Page
Dedication
Table of 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
Introduction
Chapter 1. Defining Religion: The Supreme Court and Hinduism
Chapter 2. The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism
Chapter 3. In the Name of God: Regulating Religion in Elections
Chapter 4. Good Citizens: Religion and Educational Institutions
Chapter 5. Boundaries of Faith: The Court and Conversion
Chapter 6. Imposing Legal Uniformity: The Court and Muslim Minority Rights
Chapter 7. Judging Religion: A Nehruvian in Court
Chapter 8. Conclusion
Afterword: Two Judgments and Other Anomalies
Select Bibiliography
Case Index
Subject Index
About the Author

Citation preview

‘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

Contemporary South Asia

Articles of Faith

Articles of Faith Religion, Secularism, and the Indian Supreme Court

RONOJOY SEN

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in India by Oxford University Press 2/11 Ground Floor, Ansari Road, Daryaganj, New Delhi 110 002, India © Oxford University Press 2019 The moral rights of the author have been asserted. First Edition published in 2010 Oxford India Paperbacks 2012 Oxford India Paperback Revised Edition 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. ISBN-13 (print edition): 978-0-19-948936-7 ISBN-10 (print edition): 0-19-948936-X ISBN-13 (eBook): 978-0-19-909528-5 ISBN-10 (eBook): 0-19-909528-0 Typeset in 11/13.2 in Adobe Jenson Pro by Excellent Laser Typesetters, Pitampura, Delhi 110 034 Printed in India by Replika Press Pvt. Ltd

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 significantly.38

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

certain model of contextual moral reasoning. It is a multi-value doctrine.’65 Another description of constitutional secularism is offered by Rajeev Dhavan, who disaggregates Indian secularism into three components: religious freedom, celebratory neutrality, and reformatory justice.66 Religious freedom covers not just religious beliefs, but also rituals and practices. Celebratory neutrality entails a state that assists both financially, and otherwise, in the celebration of all faiths. Reformatory justice involves regulating and reforming religious institutions and practices, as well as setting aside some core elements that are beyond regulation. However, the destruction of the Babri Masjid—a sixteenth-century mosque located in Ayodhya—led by groups aligned to the Hindu nationalist BJP in 1992, and the subsequent electoral success of the BJP over the last two decades have inspired scholars to question the premises and viability of the Indian secular state. Ashis Nandy and T.N. Madan, for instance, believe that the secular state was doomed to failure in India. Madan writes that ‘secularism in South Asia as a generally shared credo of life is impossible, as a basis for state action impracticable, and as a blueprint for the foreseeable future impotent’.67 To Madan, the ideology of secularism, with its origins in the West, is incapable of dealing with the all-embracing character of religion in India. Nandy goes even further and identifies secularism as part of a larger package consisting of development, mega-science, and national security, which is used by the state to silence its ‘non-conforming citizens’.68 He makes a distinction between religion as faith and religion as ideology, going on to posit that the ‘modern state always prefers to deal with religious ideologies rather than with faiths’.69 According to Nandy, ‘Secularism may once have been an emancipatory idea but for too long it has had a built-in principle of exclusion …’70 In Nandy’s view, the ideology of secularism in India is thoroughly discredited by frequently having to fall back on examples of tolerance such as Ashoka, Kabir, or Mahatma Gandhi, none of whom ‘drew their principles or values from the ideology of secularism’.71 He thus calls instead for a religious tolerance outside

the bounds of secularism. Kaviraj, however, points out that examples such as Ashoka as well as Akbar are significant ‘not because they represent the normal state of affairs, but because they constitute the extreme point of a wide continuum of techniques of toleration’.72 These contestations over the secular state raise important questions regarding the nature of Indian secularism, the constitutional provisions governing the relationship between the state and religion, and their actual implementation by the Indian state. The reformist element, with regard to religion in the Indian Constitution, makes the ‘principled distance’ argument somewhat problematic. One could question what ‘principled’ exactly amounts to and who decides its content. In their introduction to The Crisis of Secularism in India, the editors flag the unusual nature of Indian secularism: In the West secularism historically sought the separation of the spheres of state and religious authority, broadly to correspond to the domains of public and private life. The Indian state has chosen to interpret secularism differently: it has undertaken the charge to ensure the protection of all religions. It therefore makes a huge investment in matters of religion, unlike any nation in the West—for example, by administering religious trusts, declaring holidays for religious festivals, preserving the system of different personal laws for different communities, undertaking the reform of religious law, having secular courts interpret religious laws, and so on. This raises the problem of where the boundaries of state secularism are to be drawn.73

WHY THE COURT? This book addresses the tensions within India’s official secular policy by examining the relationship of one agency of the state—the Supreme Court—to religion. In a comparison between the management of diversity in India and Indonesia, Yuksel Sezgin and Mirjam Kunkler argue that the two countries have followed different approaches.74 According to them, whereas India has followed the strategy of ‘judicialization’ in managing religion, Indonesia has taken the path of ‘bureaucratization’. The different approaches have produced different outcomes. For India, Sezgin and Kunkler argue,

judicialization has meant that the country’s policy towards religion has strayed from its original intention. For Indonesia, however, bureaucratization has ensured that the policy towards religion has been much more in consonance with its nation-building project. While I do not entirely agree with what Sezgin and Kunkler see as the outcome of judicial intervention in India, judicialization of religion is critical to understanding the relation between the state and religion in India. The Supreme Court is, of course, one among several sites where the contestation over secularism is played out. This book examines how the Supreme Court defines and demarcates religion, religious practice, religious organizations, and religious freedom. The ways in which rulings transcend the boundaries of the court and influence the practice of and the public discourse on secularism are also examined. This book broadly looks at the following issues: (i) What interpretative traditions and legal doctrines have the courts developed in their judgments involving freedom of religion? (ii) How have the courts defined Hinduism and who qualifies as a Hindu? (iii) How have the courts decided what is ‘essential’ to religion and, hence, subject to Constitutional protection? (iv) Have the courts been true to the vision of the framers of the Constitution? (v) What are the effects of the judicial discourse on minorities? (vi) How does the jurisprudence on religion impact the Indian model of secularism? The primary research materials used for this study are Supreme Court judgments from 1950 onwards, when the Indian Constitution came into effect. However, I move away from a narrow or strictly ‘legalistic’ reading of court judgments, and place them in the wider context of the discourse on religion, nationalism, secularism, and minority rights. With this in mind, I look at the philosophical, political, and social context of the court judgments. As in any constitutional democracy, the Indian Supreme Court plays an important role in interpreting the Constitution. However, as in the United States, the line between interpretation of law and legislation often gets blurred in Supreme Court rulings. The basic structure doctrine, articulated by the Indian Supreme Court in the landmark Kesavananda case, means that the Court can nullify any

legislation that it thinks runs counter to the fundamental principles of the Constitution. The Court then becomes the final arbiter of the Constitution. Hence, one of the leading legal scholars in India describes the Indian Supreme Court as ‘probably the only court in the history of humankind to have asserted the power of judicial review over amendments to the Constitution’.75 He goes on to say about the Court: ‘The question is not any longer whether or not judges make law. Rather the questions are: what kind of law, how much of it, in what manner, within which self-imposed limits and to what willed results and with what tolerable accumulation of unintended results, may the judge make law?’76 The judiciary has been called upon on several occasions to arbitrate questions related to religion, and especially interpret Articles 25 and 26 of the Constitution, which enshrine individual and collective freedom of religion and culture. The courts have also been asked to adjudicate on various central- and state-level statutory laws touching on freedom of religion and culture. In the course of their judgments, both the Supreme Court and high courts have attempted to mark out the boundaries of religion, and, in the process, have strongly influenced the course of secularism in India. One of the reasons that the judicial verdicts assume crucial importance is because the courts are seen as one of the few institutions that can be trusted in a polity where corruption and lawlessness are pervasive. Lloyd and Susanne Rudolph have noted: As executives and legislature were perceived as increasingly ineffectual, unstable and corrupt, the supreme and high courts, the presidency, and the Election Commission became the object of a middle class public’s hope and aspirations, only partially fulfilled, that someone would defend a government of laws and enforce probity and procedural regularity.77

According to the Rudolphs, the courts have ‘played a critical role in approximating a framework of lawfulness and predictability that has had some success in protecting citizens’ rights, limiting malfeasance and safeguarding environmental and other public goods’.78 The faith in the judiciary is borne out by surveys and is in sharp contrast to most other state institutions, whose credibility is far

lower. In an all-India survey conducted in 1996, nearly 42 per cent of the people said they had a ‘great deal’ of trust in the judiciary as opposed to only 17 per cent for political parties and 20 per cent for elected representatives.79 A more recent survey puts the citizens’ faith in the courts at 72 per cent, compared to 48 per cent for political parties and 56 per cent for the civil service.80 This is, of course, less true for the lower judiciary where corruption is widespread. A 2005 survey found that 59 per cent of the respondents paid bribes through lawyers to get their cases expedited, 5 per cent to judges, and 30 per cent to court officials. Even the higher judiciary has been hit by corruption charges in recent times. Besides this, the judicial system is inundated by a mountain of cases—in end 2016 there were 30 million pending cases in the courts, of which the Supreme Court had a backlog of over 60,000 cases. That still does not take away from the fact that the Court not only plays an important adjudicatory role in a host of areas, but also actively intervenes and shapes public discourse. Judicial activism has affected religion as much as it has other diverse areas such as environment or federalism. One of the reasons why the judiciary can play this role is the legitimacy it enjoys in public perception and the weaknesses of India’s political institutions. Legal scholars such as Ran Hirschl have documented a global trend towards the judicialization of politics, which Hirschl calls ‘juristocracy’.81 This has led to frequent confrontations in India between the judiciary on the one hand, and the executive and legislature on the other.82

THE COURT AND RELIGION The most detailed explication of the Supreme Court’s views on secularism is available in the Bommai judgment.83 Although many see the judgment as a clear example of the court’s role in safeguarding secularism, it is debatable whether the judgment was good law or a clear exegesis of the secular state in India. In Bommai, the Supreme Court in 6 separate verdicts running into 550odd pages, while upholding the presidential proclamation dismissing

3 BJP-ruled state governments in the wake of the Babri demolition, declared secularism as part of the ‘basic structure’ of the Constitution. Six of the judges in the nine-judge bench also took the opportunity to spell out their views on secularism. What emerges from the separate judgments is an unclear, and often confusing, idea of the Court’s conception of secularism. For instance, Justice P.B. Sawant writing for himself and Justice Kuldip Singh makes a clear-cut distinction between the religious and secular. He writes, ‘Whatever the attitude of the state towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the state.’84 He adds, ‘The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the state.’85 Sawant concludes: Religious tolerance and equal treatment of all religious groups and protection of their life and property and of their places of worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism.86

Another judge on the bench, Justice K. Ramaswamy makes an explicit connection between secularism, on the one hand, and democracy, ‘positive’ religion, and national unity on the other. He writes, ‘The concept of the secular state is, therefore, essential, for successful working of the democratic form of Government.’87 Ramaswamy also has a definite idea of the sort of religion that should be permitted by the secular state: ‘Religion in the positive sense is an active instrument to allow the citizen for full development of his person, not merely in the physical and material but in the non-material and non-secular life.’88 In a similar vein, Justice B.P. Jeevan Reddy says, ‘Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.89 Ramaswamy, like Sawant, concludes that secularism is essential for the unity of the country. ‘The rise of fundamentalism and communalization of politics are anti-

secularism’, he writes. ‘They encourage separatist and divisive forces and become breeding grounds for national disintegration, and fail the Parliamentary democratic system and the Constitution.’90 Justice A.M. Ahmadi probably takes the most pragmatic approach by not attempting to define the concept of secularism in the Indian context. He merely states: Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added to the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of secularism was very much embedded in our constitutional philosophy. The term ‘Secularism’ has advisedly not been defined presumably because it is a very elastic term not capable of precise definition and perhaps left best undefined. By this amendment what was implicit was made explicit …91

It should be clear from this one ruling itself that there is no real consensus within the Court on what secularism entails. On the basis of a wide range of Supreme Court rulings, this study uses Dhavan’s description of secularism to show that the Indian state has pushed its reformist agenda at the expense of religious freedom and neutrality. There are two broad claims made. First, the Court rulings have had the effect of homogenizing and rationalizing religion and religious practices, particularly of Hinduism. Second, though the impetus for the Court’s rationalization and homogenization of religion has its origins in a liberal–democratic conception of secularism and the nation state, as exemplified by India’s first Prime Minister Jawaharlal Nehru and philosopher-President Sarvepalli Radhakrishnan, there is a significant overlap between the judicial discourse and the ontology of Hindu nationalism. This, it is argued, has significantly narrowed the space for religious freedom. It has also strengthened the hand of Hindu nationalists, whose ideology is based on a monolithic conception of Hinduism and intolerance of minorities. Thus, in the name of secularism, some would say a ‘circumscribed multiculturalism’92 has been put in place by the Indian state. The convergence between the Nehruvian Congress and Hindu nationalists is visible in the Constituent Assembly debates too. Although both groups differed in their conception of the Indian nation state, they agreed on the need for national unity to trump cultural or

religious diversity. Thus, Nehru was in principle against any concessions to minorities: ‘As a matter of fact nothing can protect such a minority or a group less than a barrier which separates it from the majority. It makes it a permanently isolated group and it prevents it from any kind of tendency to bring it closer to the other groups in the country.’93 Radhakrishnan, too, bluntly stated in the Assembly, ‘What is our ideal? It is our ideal to develop a homogenous democratic state.’94 The Nehruvian and mainstream Congress position differed from that of Gandhi’s ideas on diversity and ‘involved a clash between two versions of India’s identity as a nation’.95 As the Rudolphs point out, this boiled down to the crucial question ‘Was India … to be imagined as a culturally homogenous political community of equal but unmarked citizens or was it to be imagined as a culturally diverse political community of equal but marked citizens’?96 The Nehruvian preference for ‘unmarked citizens’ found resonance in members on the other side of the ideological divide such as Munshi, who appealed, Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified, and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country.97

The convergence between Nehruvians and the Hindu nationalists in the Constituent Assembly on privileging national unity leads Christophe Jaffrelot to comment that the two groups ‘share the same aim, that is to exclude religious communities from the public sphere, the former in the name of individualist values and the latter by virtue of their concern to see Indian identity embodied in Hindu culture’.98

THE THEMES COVERED There are a few important themes that emerge from the Court’s jurisprudence on religion: first, the idea that the religious can be neatly separated from the secular and that religion must be kept apart from the affairs of the state; second, the notion of religion as it

‘ought to be’ in contrast to the actual practice of religion; and third, secularism as an essential component of democracy, national unity, and integration. All these issues are central to any investigation of Court rulings on religion, and the homogenizing and rationalizing thrust of the Court with regard to religion, especially Hinduism. I pursue a critical analysis of these issues by examining the historical background to the judicial discourse on religion, tracing the Supreme Court’s position on religion and religious freedom, and exploring how the judgments become part of the political discourse on religion. I argue that the Court’s rulings have furthered the reformist agenda of the Indian state at the expense of religious freedom and neutrality. I also conclude that the Court has become an ally—inadvertently—of the Hindu nationalists in their aggressive demands for homogenization and uniformity. It is legitimate for the state to undertake reform of discriminatory practices such as untouchability, but not for judges to sit in judgment on the minutiae of religious practices and how religious institutions are run. This crucial distinction was made by John Locke in his A Letter Concerning Toleration in the seventeenth century. Locke made the point that the magistrate should be concerned only with ‘civil interests’ and not the ‘salvation of souls’ for three reasons. First, the civil magistrate does not have more authority over religion than any ordinary person. Second, the magistrate’s power lies only in ‘outward force’ whereas religion consists in the ‘inward persuasion of the mind’.99 Third, though laws and penalties can influence a man, it cannot help in the ‘salvation of their souls’.100 Locke says: As the magistrate has no power to impose by his laws the use of any rites and ceremonies as in any Church, so neither has he any power to forbid the use of such rites and ceremonies as are already received, approved, and practiced by any Church; because if he did so he would destroy the Church itself: the end of whose institution is only to worship God with freedom after its own manner.101

Importantly, he adds that ‘those things that are prejudicial to the common weal of a people in their ordinary use and are, therefore, forbidden by laws, those things ought not to be permitted to Churches in their sacred rites’. Indeed, this is akin to the ‘public

order, morality, and health’ caveat to the provisions of religious freedom in the Indian Constitution as well as most liberal constitutions. In Chapter 1, I examine how the Supreme Court has attempted to define Hinduism and the consequences of these attempts. The Court’s keenness to define religion, especially Hinduism, can be seen as flowing partly from Articles 25 and 26 of the Indian Constitution. I propose that the Supreme Court rulings about what does and does not qualify as Hindu are embedded in a discourse on classical or high Hinduism that originated with the nineteenthcentury reformation of Hinduism. Perhaps the most influential of these rulings was the Supreme Court’s 1966 judgment in Sastri Yagnapurushdasji v. Muldas Bhundardas102 or the Satsangi case. In this case Hinduism was memorably described as a ‘way of life’. This understanding of Hinduism would be used in several later court rulings. But in the mid-1990s—when the Nehruvian consensus on secularism had been severely shaken by the rise of the Hindu nationalists—the Supreme Court, in the controversial ‘Hindutva’ ruling,103 conflated an inclusivist discourse on Hinduism with the exclusivist version of Hinduism propounded by Hindu nationalists. Though the Hindutva judgment was viewed by some as an aberration, I argue that, paradoxically, it was a product of the dominant judicial discourse on Hinduism. I further contend that the inclusivist discourse failed to take into account the pluralism within Hinduism and aided in constructing a monolithic version of Hinduism. This overlap between the inclusivist and exclusivist discourses would be used by the Hindu nationalists in their campaign to legitimize Hindutva. Chapter 2 examines, first, how the Supreme Court has attempted to define religion with respect to the Constitution; and second, how the judiciary has drawn a distinction between the sacred and the secular, particularly in the case of Hinduism. Unlike the United States, the Indian Constitution combines freedom of religion clauses with a mandate to the state to intervene in religious affairs associated with ‘traditional’ Hinduism, such as untouchability and caste inequality. The courts are frequently asked to decide what constitutes an ‘essential part of religion’, and therefore off limits for

state intervention, and what is ‘extraneous or unessential’, and thus an area in which it is permissible for the state to interfere. Some legal scholars have labelled the court’s attempts to define what is fundamental to any religion the ‘essential practices’ doctrine.104 Since the essential practices test has been used, with a few exceptions, to judge the constitutionality of Hindu practices, this section primarily looks at the judicial discourse on Hinduism and Hindu practices. The essential practices test has been used by the Supreme Court to decide a variety of cases. In this section, I attempt to show how the court’s use of the essential practices doctrine has contributed to a rationalization of religion and religious practices. This has resulted in the sanction for an extensive regulatory regime for Hindu religious institutions and substantial limits on the independence of religious denominations. In Chapter 3, I look at the Supreme Court’s interventions in the sphere of election campaigns. In the matter of election campaigns, Section 123(3) of the Representation of the People Act prohibits election candidates from appealing for votes on the grounds of religion or religious symbols, as well as attempting to promote enmity on grounds of religion, race, community, or language. The Supreme Court has usually attempted to stamp out use of religion in election propaganda, with the notable exception of the Hindutva rulings. But even in the Hindutva rulings, a notion of the context in which the appeal to religion was being made was introduced. This allows the Court to decide when an electoral appeal is religious or not. The next chapter examines the Court’s interpretation of Articles 28–30. In interpreting Article 28 of the Indian Constitution, which prohibits religious instruction in state-run educational institutions, the Court in Aruna Roy v. Union of India said the study of religion did not violate the Constitution. The Court made a distinction between religious instruction and religious education or study of religion. It said the latter was permissible, and indeed desirable, while the former was banned. Though this decision was criticized, I argue that the Aruna Roy judgment was not a sharp departure from the

recommendations of many of the state-appointed education commissions of independent India. The second half of the chapter examines the contestations over Article 30, which deals with the rights of minority educational institutions. Though in some of the earlier cases, such as Sidhajbhai,105 the Court had ensured that the autonomy of minority institutions was sacrosanct, there has subsequently been a steady erosion of autonomy in cases such as Azeez Basha106 and St Xavier’s.107 In recent years, this has become particularly contentious with the TMA Pai108 judgment re-examining and overturning earlier rulings, which were more protective of the rights of minority institutions. Whether Article 30 trumps Article 29(2)— which says no citizen can be denied admission into any educational institution maintained or funded by the state on grounds of religion, race, language, or caste—has become a bone of contention. Chapters 5 and 6 discuss the impact of the judicial rulings on minorities. I first examine the Supreme Court’s rulings on conversion, which remain controversial. Though the word ‘propagate’ is very much a part of Article 25, the Court famously ruled in Rev Stanislaus v. State of M.P.109 that there was no such thing as a fundamental right to convert any person. This understanding was in contrast to a far more complex understanding of conversion enunciated in Chatturbhuj Jasani v. Moreshwar Parashram.110 If Stanislaus struck at one of the basic tenets of missionary religions, the Court has consistently refused to allow any challenges to the legality of the government order that bars Scheduled Castes who convert from Hinduism to get the benefits of reservation in different spheres.111 However, in some cases, the Court has allowed reconversion to Hinduism as a ground to claim reservation benefits. Thus, the courts have enforced a system that has considerable disincentives for converting to another religion from Hinduism. The other striking aspect of the conversion issue is the propensity of the Court to sit in judgment on whether a conversion is genuine or not. In Chapter 6, I look at the impact of court rulings on India’s largest minority, the Muslims, primarily through the prism of personal laws

and the uniform civil code issue. The Supreme Court’s intervention in Muslim personal law was most controversial in the now famous Shah Bano case.112 Writing for the Court, Chief Justice Y.V. Chandrachud regretted that Article 44 of the Constitution, a directive principle which calls for a uniform civil code, had remained a ‘dead letter’. In a later case, Sarla Mudgal v. Union of India,113 the Supreme Court went further and categorically stated that there was no necessary connection between ‘religion and personal law in a civilized society’. Unlike the other directive principles, with regard to Article 44 the Court has been faced with a situation where two fundamental rights potentially clash: equality before law and the right to religious freedom, as perceived by sections of the Muslim minority. In both the cases of Shah Bano and Sarla Mudgal, the Supreme Court linked the uniform civil code with national unity and integration. Hence, the Court said in Shah Bano that a ‘common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies’.114 The Court in Sarla Mudgal even admonished the Muslims for not giving up their minority ‘sentiments’ for the ‘cause of the national unity and integration’.115 I propose that the Court’s project of homogenizing religion is part of the judicial reasoning in the personal law cases. At the same time, the Court has sought to introduce the notion of equality and women’s rights into cases dealing with personal law. Chapter 7 focuses on a former Chief Justice of India, P.B. Gajendragadkar. The obvious question: Why Gajendragadkar? The primary reason for choosing Gajendragadkar is that he authored several leading judgments on religion, including the Satsangi case. However, there are a few other reasons for this choice. First, Gajendragadkar has left behind a substantial body of extra-judicial writings, mostly collections of lectures, as well as his autobiography. Second, he was a judge during a period when many of the fundamental rights enunciated in the Indian Constitution were being first interpreted by the courts. Finally, Gajendragadkar wrote judgments on a host of important issues ranging from labour laws to personal laws to caste reservations. I argue that Gajendragadkar—

who was very Nehruvian in his commitment to the marginalization of religion in the public sphere—is a key figure in the tendency to rationalize and ultimately homogenize Hinduism. Gajendragadkar’s rulings can be analysed as being inspired by what was, for the early decades of independent India, the hegemonic Nehruvian world view. Though Gajendragadkar believed that the ideal judge was one who could rise above personal philosophy and beliefs, I argue that Gajendragadkar’s rulings were a product of his rationalist and secularist ideology. It is noteworthy that Gajendragadkar was a committed votary of an instrumentalist conception of law and the use of law as social engineering. Gajendragadkar justified social engineering by appealing to the notion of ‘public good’, which meant that the courts became the spokesmen for what constituted ‘true’ religion. This would also result in an implicit homogenization of religion. This book is not an argument for unfettered freedom of religion and religious practices. The state has rightly prohibited discriminatory practices that have their origins in religion and clash with other freedoms granted by the Indian Constitution. The Constitution is also clear that freedom of religion is subject to ‘public order, morality, and health’. Indeed, the state or courts have sometimes not done enough to curb displays of religion that violate laws or encroach on individual freedoms. At the same time, the Court has entered into issues involving religion that have no clearcut answers and could be said to be outside the legal domain. This book warns against the pitfalls of such an approach.

1 Defining Religion The Supreme Court and Hinduism

The Court’s proclivity for defining religion, especially Hinduism, can be seen as flowing partly from Articles 25 and 26—often referred to as the freedom of religion clauses—of the Indian Constitution. Article 25 guarantees the right to ‘profess, practice and propagate religion’, but also permits the state to regulate ‘economic, financial, political, or other secular activity associated with religious practice’, as well as provide for ‘social welfare and reform’ of Hindu religious institutions.1 Article 26 guarantees religious denominations, among other things, freedom to manage their religious affairs.2 Since the ‘wording of Articles 25 and 26 establishes the primacy of public interests over religious claims and provides a wide scope for governmentally sponsored reforms’,3 the Supreme Court has often had to adjudicate on which religious denomination or institution legally qualifies as Hindu. The Supreme Court rulings on what does and does not qualify as Hindu are embedded in a discourse on classical or high Hinduism that originated with the nineteenth century reformation of Hinduism. For the greater part of its existence in independent India, the Court appropriated this discourse about classical Hinduism to emphasize the inclusive and tolerant qualities of Hinduism, as well as to advocate reform of Hinduism. Perhaps the most influential of these rulings was the Supreme Court’s judgment in Sastri Yagnapurushdasji v. Muldas Bhundardas4 or the Satsangi case. In this case, Hinduism was memorably described as a ‘way of life’.

This understanding of Hinduism would be used in several later court rulings. However, in the mid-nineties—when the Nehruvian consensus on secularism had been severely shaken by the rise of the Hindu nationalists—the Court, in the controversial ‘Hindutva’ ruling,5 conflated an inclusivist discourse on Hinduism with the exclusivist version of Hinduism propounded by Hindu nationalists. Though the Hindutva judgment was viewed by some as an aberration, I argue it was paradoxically a product of the dominant judicial discourse on Hinduism.

GENEALOGY OF ‘HINDUISM’ It is now commonly accepted that the use of the term ‘Hinduism’ or ‘Hindu’ to denote a single religious community is of recent origin. As historian Romila Thapar points out, ‘the first occurrence of the term “Hindu” is as a geographical nomenclature’.6 The earliest mention of Hindu can be found in the inscriptions of the Achaemenid empire that refer to the frontier region of the Indus or Sindhu as ‘Hi(n)dush’. Much later, Arabic texts would refer to the land across the Sindhu or Indus river as ‘Al-Hind’. W.C. Smith writes: The term hindu, and its dialectical alternative sindhu, are the Indo-Aryan word for ‘river’, and, as a proper noun, for the great river of the northwest of the subcontinent, still known locally as the Sindh and in the West through the Greek transliteration as ‘Indus’. As a designation for the territory around that river (that is, meaning roughly, ‘India’) the word was used by foreigners but not internally, and indeed it (and the Persian counterpart ‘Hindustan’, introduced and used by Muslims) is still primarily an outsider’s name for the country.7

It was only from the nineteenth century onwards that the term Hinduism came to be in vogue.8 In large measure it was introduced by British scholars, missionaries, and administrators. However, as Robert Frykenberg notes, the term Hindu was used by the British in a negative sense to ‘characterize all things in India (especially elements and features found in the cultures and religions of India) which were not Muslim, not Christian, not Jewish, or, hence, not Western’.9 In this sense, as Frykenberg, as well as Heinrich von Stietencron, point out ‘Hindu’ merely supplanted the earlier term

‘gentoo’ which was used to designate heathens.10 This meant that the multiplicity of beliefs, practices, and doctrines within Hinduism was subsumed under one omnibus term. However, the plurality within Hinduism continued to confound the ‘Western love of definition and neat pigeon-holing’.11 In fact, the narrative of Hinduism confounding outsiders has a long history: the famous medieval traveler Al-Biruni (CE 973–1048) was clearly perplexed during his travels in India by the diversity among Hindus.12 One of the reasons for this sense of confoundment was that, unlike other world religions, Hinduism is ‘not a linear progression from a founder through an organizational system’.13 Instead, Hinduism can be read as a ‘mosaic of distinct cults, deities, sects, and ideas and the adjusting, juxtaposing, or distancing of these to existing ones, the placement drawing not only on belief and ideas but also on the socio-economic reality’.14 Faced with what appeared to them to be a bewildering mosaic, Western scholars often resorted to metaphors like the ‘jungle’ or ‘sponge’ to describe Hinduism.15 At the same time, the British made a distinction between the living religion of the Hindus and what was characterized as a purer Vedic religion. P.J. Marshall points out that from the latter half of the eighteenth century the Europeans had begun to make the distinction, which was to have so long a life, between what they regarded as ‘popular’ Hinduism and ‘philosophical’ Hinduism. Popular cults were described to be condemned or ridiculed, but most writers were also prepared to admit the existence of metaphysical assumptions and ethical doctrines in Hinduism which they could approve because they seemed to be similar to western concepts.16

Through the nineteenth century European scholars contributed profoundly to the modern construction of Hinduism by first ‘locating the core of Indian religiosity in certain Sanskrit texts’, and second, by defining Hinduism based upon ‘contemporary Western understandings of the Judeo-Christian traditions’.17 Needless to say, the fixation with defining Hinduism was not confined to the Western scholar. The definition or redefinition of Hinduism by Hindu intellectuals was most often a response to the

relentless critiques of European missionaries and Orientalists. Hence, the Bengali novelist Bankimchandra Chattopadhyay (1838– 94), a crucial figure in the history of Hindu nationalism, made a fervent appeal to discover the essentials of Hinduism: ‘Let us rid our conception of Hinduism of this “tangled jungle of ghosts, demons, and saints”, and such other articles of belief which are to be found in every country and among peoples of all creeds, and which are no more essential parts of Hinduism as they are of Christianity’.18 At the same time, the Orientalist discourses were appropriated by Indians in the nineteenth century, and applied in such a way as to undercut the colonialist agenda. Thus, Chattopadhyay writes, ‘The researches of European scholars have converted what was once unintelligible nonsense to a subject of accurate scientific study. What was hitherto unnecessary and meaningless has now been shown to be a necessary condition of primitive culture, and full of deep signification’.19 The search by Hindu intellectuals for a more pure form of Hinduism was initiated by Rammohun Roy (1772–1833), who is recognized as a seminal figure in the reform of Hinduism and hailed as the ‘father’ of modern India. Roy, who was a passionate critic of polytheism, idolatry, and practices like sati, identified the Vedas and Upanishads as the true sources of Hinduism. He writes: The whole body of Hindu Theology, Law, and Literature, is contained in the Veds, which are affirmed to be coeval with the creation … But from its being concealed within the dark curtain of the Sungscrit language, and the Brahmins permitting themselves alone to interpret, or even to touch any book of the kind, the Vedant, although perpetually quoted, is little known to the public: and the practice of few Hindoos indeed bears the least accordance with its precepts.20

By translating the Sanskrit texts into Bengali, Roy wanted to strike a blow to those who ‘prefer custom and fashion to the authorities of their scriptures, and therefore continue, under the form of religious devotion, to practice a system which destroys, to the utmost degree, the natural texture of society, and prescribed crimes of the most heinous nature …’21 In a similar vein, a generation later Chattopadhyay appealed for a reformulation of Hinduism: ‘It [the definition of Hinduism] will exclude, as I have advanced, much that

is popularly considered to be a portion of Hinduism even by Hindus themselves … It is precisely popular delusions of this sort that have encrusted Hinduism with the rubbish of ages—with superstitions and absurdities which subvert its higher purposes; and which it is the duty of every true Hindu, actively to assail and destroy’.22 This ‘cleansing’ of Hinduism and an adoption of, what Thapar has referred to as, the Semitic model would be a recurrent theme among Hindu reformers in the nineteenth century and later. According to Frykenberg, Indian reformers and leaders from Roy to Jawaharlal Nehru used the terms Hindu and Hinduism in the ‘Brahminical’ or ‘classical’ sense. Ashis Nandy et al. describe the primary feature of the ‘new Hinduism’ of the nineteenth century thus: It defensively rejected or devalued the little cultures of India as so many indices of the country’s backwardness and as prime candidates for integration within the Hindu/national mainstream. Instead, the new Hindus sought to chalk out a new pan-Indian religion called Hinduism that would be primarily classical, Brahmanic, Vedantic and, therefore, not an embarrassment to the modern or semi-modern Indians in touch with the more ‘civilized’ parts of the world.23

The brief discussion of the genealogy of the term ‘Hinduism’ makes it apparent that the Supreme Court was entering into a contested terrain when it attempted to define Hinduism. As Arvind Sharma puts it in an introduction to an anthology on Hinduism, ‘The problem of defining Hinduism has been endemic in the study of Hinduism since the term Hinduism was coined and introduced early in the nineteenth century. It has, however, increasingly become more acute’.24 In the subsequent discussion of the judicial discourse on Hinduism, I intend to show that the Court assigned a critical role to many of the dominant assumptions of the reformist and neoHinduism in the nineteenth and early twentieth century. At this point, it might be useful to make a distinction between two strands of reformist Hinduism: an ‘inclusivist’ and an ‘exclusivist’ model. The most prominent proponents of an inclusivist Hinduism were Swami Vivekananda (1863–1902) and Sarvepalli Radhakrishnan (1888–1975). Vivekananda, the founder of the Ramakrishna Mission, probably did the most to shape the discourse on Hinduism in modern India as well as popularize Hinduism in the

West. Radhakrishnan, a distinguished philosopher who taught at Oxford25 and later became President of India (1962–7), would develop many of Vivekananda’s ideas on Hinduism. Both of them forcefully argued for Hinduism as a universal and tolerant religion founded on the Vedas. These ideas would play a central role in the Court’s understanding of Hinduism. However, I argue that the Court, by adopting the inclusivist model of Hinduism, also contributed to the construction of a homogenous Hinduism that was inimical to variations in beliefs, practices, and doctrines. In this paradoxical sense, the Court’s understanding of Hinduism overlapped with the exclusivist strand associated with the founder of contemporary Hindu nationalism, Vinayak Damodar Savarkar (1883–1966) and his notion of ‘Hindutva’ (Hinduness), a strand which I will discuss at greater length below. Before turning to an analysis of the Court’s definition of Hinduism, I will briefly outline the inclusivist and exclusivist models of Hinduism. One must keep in mind, however, that there are significant common features in the models which contributed in part to the Court’s conflation of Hinduism with Hindutva.

INCLUSIVIST HINDUISM The Frenchman Francois Bernier, who visited India between 1656 and 1668, wrote of the pluralism of Hinduism and tolerance of the Hindus.26 However, the conceptual framework for the inclusive model of Hinduism was laid at the end of the nineteenth century by the eminent Oxford Sanskritist Monier Monier-Williams (1819–99).27 In his influential book, Religious Thought and Life in India, MonierWilliams writes, ‘It [Hinduism] claims to the one religion of humanity, of human nature, of the entire world. It cares not to oppose the progress of any other system. For it has no difficulty in including all other religions within its all-embracing arms and ever-widening fold’.28 He describes the Hindu religion as one ‘based on the idea of universal receptivity’ which has ‘first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds’.29 In a more recent reformulation, the German Indologist

Paul Hacker, argued that the inclusivism (inklusivismus) associated with Hinduism is often confused with tolerance. According to Hacker, inclusivism ‘consists in claiming for, and thus including in, one’s own religion what really belongs to an alien sect’.30 He points out that ‘it would perhaps be more accurate to speak of inclusivism in many cases where we are inclined to see Hindu tolerance’.31 Hacker singles out Vivekananda and Radhakrishnan as the most notable practitioners of this method of inclusivism. Both Vivekananda and Radhakrishnan were also leading proponents of Advaita Vedanta.32 Though Hacker’s additional assertion that there was inclusivism rather than tolerance in Indian tradition has been contested, his claim about the displacement of tolerance by inclusivism is useful in discussing the thoughts of Vivekananda and Radhakrishnan. Perhaps the most powerful articulation of the inclusivist model of Hinduism was Vivekananda’s now legendary address at the Parliament of Religions in Chicago in 1893 where he declared: ‘I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration but we accept all religions as true’.33 This theme of the tolerance and universality of Hinduism, specifically Vedantic Hinduism, would find pride of place in several of Vivekananda’s speeches. At another lecture in America, Vivekananda clearly outlined his idea of an inclusivist Hinduism: Ours, as I have said, is the universal religion. It is inclusive enough, it is broad enough to include all ideals. All the ideals of religion that already exist in the world can be immediately included, and we can patiently wait for all the ideals that are to come in the future to be taken in the same fashion, embraced in the infinite arms of the religion of the Vedanta (italics added).34

Thus, the infinite capacity to accommodate differences and dissent becomes the principal feature of Hinduism. Sect after sect arose in India and seemed to shake the religion of the Vedas to its very foundations, but like the waters of the seashore in a tremendous earthquake it receded only for a while, only to return in all-absorbing flood, a thousand times more vigorous, and when the tumult of the rush was over, these sects were all

sucked in, absorbed, and assimilated into the immense body of the mother faith.35

According to Vivekananda, the Hindu religion was founded on the Vedas which ‘are a series of books which, to our minds, contain the essence of all religion’. More importantly, he believed that only Vedanta could be the basis of a universal religion. Our claim is that the Vedanta only can be the universal religion, that it is already the existing universal religion in the world, because it teaches principles and not persons. No religion built upon a person can be taken up as a type by all the races of mankind … Now, the Vedantic religion does not require any such personal authority. Its sanction is the eternal nature of man, its ethics are based upon the eternal spiritual solidarity of man, already existing, already attained and not to be attained.36

Despite his professed openness to other religions, Vivekananda believed in the superiority of Hinduism. At a speech in Madras, he said, ‘Ours is the religion of which Buddhism with all its greatness is as rebel child, and of which Christianity is a very patchy imitation’.37 Harking back to the theme that Vedantic religion represented eternal truths, Vivekananda emphasized that only Hinduism had the potential of being a universal religion: You hear claims made by every religion as being the universal religion of the world. Let me tell you in the first place that perhaps there never will be such a thing, but if there is a religion which can lay claim to be that, it is only our religion and no other, because every other religion depends on some person or persons … But the truths of our religion, although we have persons by the score, do not depend upon them.38

For Vivekananda, the Vedas were also the fundamental unifying force among Hindus belonging to different sects. Addressing a gathering in Lahore in 1897 Vivekananda spoke on ‘The Common Bases of Hinduism’. Perhaps all who are here will agree on the first point that we believe the Vedas to be the eternal teachings of the secrets of religion. We all believe that this holy literature is without beginning and without end, coeval with nature, which is without beginning and without end; and that all our religious differences, all our

religious struggles must end when we stand in the presence of that holy book; we are all agreed that this is the last court of appeal in all our spiritual differences.39

In keeping with his belief in a higher religion, Vivekananda castigated, as Tapan Raychaudhuri puts it, the ‘mindless imbecilities of popular Hinduism’.40 To quote once again from Vivekananda’s speech in Madras, The fact is that we have many superstitions, many bad spots and sores on our body—these have to be excised, cut off, and destroyed—but these do not destroy our religion, our national life, our spirituality. Every principle of religion is safe, and the sooner these black spots are purged away, the better the principles will shine, the more gloriously.41

Many of Vivekananda’s ideas on Hinduism, especially its capacity to assimilate, its unique role as a universal religion and the centrality of the Vedas, would be distilled by Radhakrishnan to define Hinduism as a ‘way of life’ rather than a religion. Radhakrishnan has written how, as a young student, he was profoundly affected by Vivekananda and his mentor Ramakrishna Paramahansa. In the Upton lectures at Oxford in 1926, Radhakrishnan famously described Hinduism as, ‘Hinduism is more a way of life than a form of thought. While it gives absolute liberty in the world of thought it enjoins a strict code of practice. The theist and the atheist, the skeptic and the agnostic may all be Hindus if they accept the Hindu system of culture and life’42 (emphasis added). Radhakrishnan goes on to compare Hinduism to a ‘fellowship’ by saying, ‘Hinduism is not a sect but a fellowship of all who accept the law of right and earnestly seek for the truth’.43 Radhakrishnan links the very difficulty of defining Hinduism, or finding common characteristics, to its ability to assimilate and absorb external influences: ‘The ease with which Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact is as great as the difficulty we feel in finding common features binding together its different forms’.44 This is what anthropologist N.K. Bose called the ‘Hindu mode of absorption’.45 This assimilative quality of Hinduism, according to Radhakrishnan,

has enabled it to withstand the onslaught of different people and ideas that have poured into India since the earliest times. Though peoples of different races and cultures have been pouring into India from the dawn of history, Hinduism has been able to maintain its supremacy, and even the proselytizing creeds backed by political power have not been able to coerce the large majority of Indians to their views.46

Thus Hinduism has ‘come to be a tapestry of the most variegated tissues and almost endless diversity of hues’.47 For Radhakrishnan, like Vivekananda, the Vedas and Vedanta remained the spiritual core of Hinduism through its entire history of development. Though Hinduism has continued to develop and grow through the ages, it is ‘not to be dismissed as a mere flow and strife of opinions, for it represents a steady growth of insight, since every form of Hinduism and every stage of growth is related to the common background of the Vedanta’.48 He writes that ‘those parts of the new faith which are not in conformity to the Vedic Canon tend to be subordinated and gradually dropped out’.49 Again, like Vivekananda, Radhakrishnan believed that in spite of the surface differences there was a fundamental unity among Hindus. The inchoate nature of Hinduism does not deter Radhakrishnan from asserting, ‘In spite of the fact that Hinduism has no common creed and its worship no fixed form, it has bound together multitudinous sects and devotions into a common scheme’.50

EXCLUSIVIST HINDUISM The term ‘neo-Hinduism’ has been used to describe the thought and philosophy of a whole range of Hindu reformers and ideologues, including Bankimchandra Chattopadhyay, Swami Dayanand, Vivekananda, Radhakrishnan, and Mahatma Gandhi. According to Paul Hacker, neo-Hinduism was characterized by an invoking of the ‘Hindu tradition’ in response to the encounter with the West. However, a crucial element of neo-Hinduism was a ‘reinterpretation’ of tradition.51 Some scholars have argued that the differences among the neo-Hindus were marginal, while others are of the view

that there were fundamental differences in the ideology of the several important figures clubbed under the neo-Hindu label.52 My view is that a broad distinction can be made between an inclusivist and an exclusivist discourse about Hinduism. At the same time, inclusivism and exclusivism are not watertight categories. Some of the important elements for the framework of the exclusivist formulation of Hinduism were provided by nineteenth century figures such as Dayanand (1824–83) and Chattopadhyay. Two features of Chattopadhyay and Dayanand’s work would play a significant role in Savarkar’s Hindutva ideology: the idea of a Hindu rashtra or nation (as opposed to a religion or civilization), and the distinction between a ‘Hindu’ (which included Buddhists, Jains, and Sikhs) and the ‘Other’ represented by Muslims and Christians. As several recent studies have shown, Chattopadhyay was a crucial figure in the nineteenth century response to colonial rule.53 Besides his novels like Anandamath, which is famous for the celebrated patriotic hymn ‘Bande Mataram’ and is peppered with anti-Muslim rhetoric,54 Chattopadhyay contributed significantly to laying the ideological foundations of a ‘national religion’ based on Hindu ideals. In one of his later works, Krishnacharitra, Chattopadhyay sought to reinterpret Krishna as a ‘respectable, righteous, didactic, “hard” god, protecting the glories of Hinduism’.55 Dayanand, on the other hand, was much more involved in the actual reform and organization of Hinduism. He believed that a regeneration of the Hindu community was possible by going back to the Vedic texts, and with this in mind he founded the Arya Samaj in 1875. Daniel Gold has observed that the Samaj ‘presents one of the closest parallels to Western fundamentalism of all the Indian groups … a definite religious group with its own leaders, guiding texts and sacraments’.56 At the same time, Dayanand made a concerted effort to establish the superiority of Vedic Hinduism57 vis-à-vis Islam and Christianity58 in works like Satyarth Prakash59 as well as mobilize Hindus around issues such as ‘reconversion’ (suddhi), cow protection, and the Hindi language. If Chattopadhyay and Dayanand foreshadowed exclusivist Hinduism, then undoubtedly the locus classicus of this variety of Hinduism was Savarkar’s Hindutva. Savarkar, who was sent to jail

by the British government in 1910 for revolutionary activities, wrote Hindutva while in prison.60 The treatise, which was published in 1923, was the product of a period when ‘the arrival of pan-Indian electoral politics had created a space for a political definition of the Hindus that could be more exclusivist’.61 Like many Hindu intellectuals before him, Savarkar engaged with the problem of how to define ‘Hinduism’ and ‘Hindu’. In tracing the origin of the term ‘Hindu’, Savarkar refused to accept standard interpretations that held that the term was coined by outsiders to describe the people living across the Indus river. In his seminal text, Hindutva, he wrote, ‘Thus Hindu would be the name that this land and the people that inhabited it bore from time immemorial that even the Vedic name Sindhu is but a later and secondary form of it’.62 The key innovation of Savarkar was that ‘the concept of Hindu is given a predominantly territorial component; a concept of holy land is specifically introduced in a fashion that would create a stratarchy of Indians’.63 ‘We have found,’ Savarkar writes, ‘the first important essential qualification of a Hindu is that to him the land that extends from Sindhu to Sindhu is the Fatherland (Pitribhu), the Motherland (Matribhu) the land of his patriarchs and forefathers’.64 More importantly, Savarkar specified that the ‘Dharma of a Hindu being so completely identified with the land of the Hindus, this land to him is not only a Pitribhu but a Punyabhu, not only a fatherland but a holyland’.65 This meant that Muslims and Christians, who might have been born in the ‘common Fatherland’, could not be regarded as Hindus: ‘For though Hindustan to them is Fatherland as to any other Hindu yet it is not to them a Holyland too. Their Holyland is far off in Arabia or Palestine’.66 Savarkar coined the word ‘Hindutva’ to substitute for Hinduism which, in his book, ‘meant a theory or code more or less based on spiritual or religious dogma or system’.67 According to Savarkar, it was of paramount importance to distinguish between Hinduism and Hindutva: ‘Hinduism is only a derivative, a fraction, a part of Hindutva … Hindutva embraces all the departments of thought and activity of the whole Being of our Hindu race’.68 Savarkar elaborated this notion by ascribing three ‘essentials’ to Hindutva—a common

nation (rashtra), a common race (jati), and a common civilization (sanskriti). This meant that religious belief and practice was ascribed a secondary status in Savarkar’s conception of Hindutva. Hence, Chetan Bhatt observes: The displacement of ‘Hinduism’ by Hindutva represented a substitutionist logic that strictly demoted religion or religious belief. This was both an essential step in his primarily non-religious, territorial and racial conception of Hindutva and its most contradictory, because at some stage, Muslims and Christians had to be excluded from the Hindu nation precisely because of Savarkar’s view of the radically different nature of their religion that was seen as coextensive with their identities.69

According to Ashis Nandy, the impact of Savarkar’s thinking was not limited to Hinduism. Savarkar, whom many see as a minor pawn of South Asian history, did change not only South Asian Hinduism but also South Asian Islam and Buddhism. All three had to accommodate strains that have more in common with house-broken versions of Christianity in Europe and North America than with home-grown, South Asian Hinduism, Islam and Buddhism.70

The exclusivist logic of Savarkar was extended by M.S. Golwalkar (1906–73), the most prominent ideologue of the Rashtriya Swayamsevak Sangh (RSS).71 Founded in 1925, the RSS aimed to revitalize India’s cultural life by organizing branches (sakhas) where the country’s youth could learn discipline and devotion to the nation. In 1938, two years after he became sarsanghchalak (supreme director) of the RSS, Golwalkar published We or Our Nationhood Defined. Regarding the origins of the Hindus, Golwalkar declared in his book that Hindus came ‘into this land [Hindusthan] from nowhere, but are indigenous children of the soil always, from times immemorial and are natural masters of the country’.72 Borrowing from extant notions of nationalism, Golwalkar stressed that the ‘Hindu’ nation was founded on a defined territory, race, religion, culture, and language. This concept of the Hindu nation was marked by exclusivity: ‘All those not belonging to the national i.e. Hindu Race, Religion, Culture, and Language naturally fall out of the pale

of “National” Life’.73 Golwalkar’s message to the non-Hindus was unambiguous and draconian: The non-Hindu peoples in Hindusthan must either adopt the Hindu culture and language, must learn to respect and hold in reverence Hindu religion, must entertain no idea but those of glorification of the Hindu race and culture i.e. they must not only give up their attitude of intolerance and ungratefulness towards this land and its agelong traditions but must also cultivate the positive attitude of love and devotion instead—in one word they, must cease to be foreigners, or may stay in the country wholly subordinated to the Hindu nation, claiming nothing, deserving no privileges, far less any preferential treatment—not even citizens’ rights.74

In keeping with this line of thinking, Golwalkar made an ominous reference to the example of Nazi Germany and how it had shown that it was impossible ‘for Races and cultures, having differences to the root, to be assimilated into one united whole, a good lesson for use in Hindusthan to learn and profit by’.75 Balraj Madhok76 was a figure of the next generation of Hindu nationalism. He formulated his interpretation of Hindutva as a leader of the Bharatiya Jan Sangh party. Madhok was motivated by a desire to widen the appeal of Hindutva. His thinking was affected by post-nationalist, post-independence electoral, and party competition. The Jan Sangh,77 which was the predecessor to the Bharatiya Janata Party (BJP), was founded in 1951. Madhok made an effort to downplay Hindutva and to highlight the term ‘Bharatiya’, a Sanskrit word for Indian. He wrote, ‘At the same time there is no sense in making a fetish of the word Hindu. Instead of forcing it on those who do not like it today, it should be popularized as a synonym of “Bharatiya” in writing and speaking’.78 However, he was clear that by the Indian nation he meant Hindu rashtra. But at the same time he took a more accommodating approach than Savarkar or Golwalkar by stressing that ‘Christians and Muslims living in India are also Hindus if India and Indian culture commands their first and foremost allegiance’.79 According to Arvind Sharma, this signalled a subtle shift in the understanding of Hindutva: ‘During the period when the Jan Sangh functioned as a party [1951–79], the concept of Hindutva underwent an ideological shift. It took the form of identifying India

with Hindutva, rather than Hindutva with India’.80 The brief introduction on the discourse and discursive formations with respect to Hindu, Hinduism, Hindutva, and Hindu rashtra, is essential to analysing the Court’s definition and understanding of Hinduism.

THE SATSANGI CASE The first case in independent India in which the Supreme Court famously attempted to define Hinduism was Yagnapurushdasji v. Muldas.81 The 1966 case involved the Satsangis or followers of Swaminarayan (1780–1830), who claimed that their temples did not fall under the purview of the Bombay Harijan Temple Entry Act, 1948. The Act provided that every Hindu temple shall be open to Harijans or untouchables. By the time the case reached the Supreme Court via a trial court and the Bombay High Court, the Central Untouchability (Offences) Act of 1955 had already come into effect. The case made by the Satsangis was that the ‘Swaminarayan sect represents a distinct and separate religious sect unconnected with the Hindus and Hindu religion, and as such, their temples were outside the purview of the said Act’.82 The Satsangis claimed separate status on four grounds. First, they argued that Swaminarayan, the founder of the sect, considered himself as supreme God. Second, they urged that the Satsangi temples could not be regarded as Hindu temples since they were used to worship Swaminarayan and not any traditional Hindu deity. Third, they pointed out that the Satsangis propagated the idea that worship of any god other than Swaminarayan was a betrayal of faith. Finally, they contended that there was a procedure of initiation (diksha) into the Swaminarayan sect by which a devotee assumed a distinct and separate identity. The Court rejected the contention of the Satsangis, relying primarily on a description of their religious practices by MonierWilliams in his Religious Thought and Life in India. Based on its reading of Monier-Williams and reports of the Gazetteer of the Bombay Presidency, the Court concluded: ‘In our opinion, the plea raised by the appellants that the Satsangis who follow the Swaminarayan sect form a separate and distinct community different

from the Hindu community and their religion is a distinct and separate religion different from Hindu religion is entirely misconceived’.83 However, the examination of the religious practices of the Satsangis was somewhat incidental to the Court’s ruling. Yagnapurushdasji was far more critical for the Supreme Court’s construction of Hinduism, a construction that has since become hegemonic in judicial discourse. Writing for the Court, Chief Justice P.B. Gajendragadkar—who had already authored some of the most important judgments on the question of freedom of religion— enquired ‘What are the distinctive features of Hindu religion’.84 At the same time, he admitted that the question ‘appears to be somewhat inappropriate within the limits of judicial enquiry in a court of law’,85 but he did not allow that to deter him. Drawing primarily from English language sources, the Court put forward the view that Hinduism was ‘impossible’ to define: ‘When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one God; it does not subscribe to any one dogma; it does not believe in one philosophic concept; it does not follow any one set of religious rites’. Confronted with this amorphous entity, the Court concluded, ‘It [Hinduism] does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more’ (emphasis added).86 Once the civilizational or cultural view of Hinduism was posited, it was not difficult for the Court to construct an all-encompassing version of Hinduism that included a variety of creeds and sects. Hence, any reform movements, including Buddhism, Jainism, and Sikhism, were seen as merely different sects within Hinduism. The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir started Jainism; Basava became the founder of Lingayat religion, Dhyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of Ramakrishna and Vivekananda,

Hindu religion flowered into its most attractive, progressive and dynamic forms. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views: but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.87

Gajendragadkar’s view is, in fact, enshrined in the Constitution where Explanation II appended to Article 25 says that the ‘reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion’. It is noteworthy that the Court could well have decided Yagnapurushdasji without going into a detailed exegesis of Hinduism. As Marc Galanter has pointed out in his analysis of Yagnapurushdasji, the Court could have decided the case with reference to Article 25(2)(b) of the Constitution, which empowers the state to overcome caste and denominational barriers within Hinduism.88 In any case, in an earlier judgment, the Court had said temple-entry acts prevail over denominational claims to exclude outsiders.89 In Yagnapurushdasji, the Court used a variety of sources to define Hinduism. Robert Baird describes the Court’s reasoning thus: ‘All of the authorities to whom appeal is made stress the wide range of Hindu belief and practice. That which had been the obstacle to constructing a model of Hinduism which would fit the concrete data is turned into one of its major characteristics—it is inclusive’.90 Radhakrishnan, in particular, plays a crucial role in shaping the Court’s conception of Hinduism. At the outset, Gajendragadkar quotes a question posed by Radhakrishnan to get at a definition of Hinduism: ‘To many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley of rites, or a mere map, a geographical expression?’91 To this question, the Court offers a geographical solution provided by Radhakrishnan. ‘The Hindu civilization is so called since its original founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North-West Frontier Province and the Punjab’.92 According to the Court, Radhakrishnan’s definition of Hindu implied residence in a welldefined geographical area. ‘Aboriginal tribes, savage and half-

civilized people, the cultured Dravidians, and the Vedic Aryans were all Hindus as they were the sons of the same mother’.93 The next step in the Court’s construction of Hinduism to emphasize on its assimilative and tolerant character, a dominant idea in Radhakrishnan’s conception of Hinduism: ‘Naturally enough it was realized by Hindu religion from the very beginning of its career that truth was many-sided and different views contained different aspects of truth which no one could fully express. This knowledge inevitably bred a spirit of tolerance and willingness to understand and appreciate the opponent’s point of view’.94 The Court also mentions Monier-William’s passage on Hinduism’s ability to assimilate ‘something from all creeds’,95 which has been cited earlier. In formulating this overarching, all-embracing Hinduism, the Court privileges another of Radhakrishnan’s major ideas: the ‘acceptance of the Vedas as sole foundation of the Hindu philosophy’. Thus Gajendragadkar writes: ‘Beneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu philosophers … lie certain broad concepts which can be treated as basic. The first among these basic concepts is the acceptance of the Veda as the highest authority in religious and philosophic matters’.96 The Court even comes up with a working definition of Hinduism as formulated by Bal Gangadhar Tilak: ‘Acceptance of the Vedas with reverence; recognition of the fact that the means to salvation are diverse; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion’.97 The importance of Yagnapurushdasji was that the Court, drawing heavily from the ideas of Radhakrishnan and his intellectual predecessors, was interpreting Hinduism as an inclusivist religion. In this sort of usage, as noted earlier, certain features of Hinduism are most important: tolerance, universality, a classical core, and a search for a fundamental unity. The Court’s views on Hinduism and its inclusive nature recurred in subsequent judgments. In several important later judgments, the Supreme Court relied on the construction of Hinduism as elaborated in Yagnapurushdasji. For instance, in Ganpat v. Returning Officer, the Court declares:

It is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths.98

The inclusive model of Hinduism has also been used to determine who qualifies as a Hindu for legal purposes. As Robert Baird notes with respect to the application of personal law, the Court has held that the Jains,99 who consider themselves distinct from Hindus, and the Lingayats,100 a ‘lower caste’ within Hinduism, would be treated as Hindus. Recently, a section of the Jain community sought minority status under Section 2(c) of the National Commission for Minorities Act. In Bal Patil v. Union of India,101 the Supreme Court ruled that ‘before the Central Government takes [a] decision on the claims of Jains as a minority under Section 2(c) of the Act, the identification has to be done on a state to state basis’. But as is so common with the Court, it went on to discuss the relation of Jainism to Hinduism: ‘The so-called minority communities like Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious philosophies’. In language reminiscent of Yagnapurushdasji, the Court said, ‘The word “Hindu” conveys the image of diverse groups of communities living in India. If you search for a person by name Hindu, he is unidentifiable’. It concluded: There is a very serious debate and difference of opinion between religious philosophers and historians as to whether Jains are of Hindu stock and whether their religion is more ancient than the Vedic religion of Hindus. Spiritual philosophy of Hindus and Jains in many respect(s) is different but the quintessence of the spiritual thought of both the religions seems to be the same … Thus, ‘Hinduism’ can be called a general religion and common faith of India whereas ‘Jainism’ is a special religion formed on the basis of quintessence of Hindu religion.102

Ramakrishna Mission Case Since Yagnapurushdasji, claims put forward by different Hindu sects to be regarded as a separate religion have not found favour with the Court. Among the more prominent cases was the denial of separate religion status to the Arya Samaj103 and Ramakrishna Mission (RKM).104 Let us briefly examine the Ramakrishna Mission case which was interesting for two reasons: first, the Calcutta High Court accepted the claim of the Mission to be a separate religion, but the Supreme Court eventually reversed the decision; and second, the Mission’s argument was that Hinduism did not qualify as a universal religion. Unlike the Satsangi case, where the entry into temples was at stake, the Ramakrishna Mission case revolved around the limits of state action with regard to institutions run by the Mission. In settling the case, the Court examined the doctrinal content of Ramakrishna and Vivekananda’s teachings to decide whether their followers could be classified as Hindus. In the Ramakrishna Mission case, the issue at hand was the West Bengal government’s right to interfere in the administration and appointment of teachers to educational institutions run by the RKM. When the case first came up for hearing before a single judge of the Calcutta High Court, and subsequently before a division bench,105 the lawyers representing RKM argued that ‘Ramakrishnaism’ was a minority religion and hence covered by Article 30,106 which guarantees minorities control over educational institutions. In fact, the lawyers turned around the Court’s model of inclusivism elaborated in Yagnapurushdasji and argued that ‘Ramakrishnaism’ was a world religion while Hinduism was not. The cult or religion of Shri Ramakrishna Paramahansadeb is that all beings are the manifestations of God and all religions are but different paths of reaching God … There is no necessity of one surrendering his own religion, be he a Hindu or a Christian or Muslim or Jew in order to be a follower of the cult or religion of Shri Ramakrishna … Thus in fact, Thakur Shri Ramakrishna preached a World Religion which is quite different from all other religions.107

The argument by the RKM lawyers was that Ramakrishna founded a ‘universal’ religion which was ‘meant not for the members of any

particular caste, creed or religion but for the entire mankind’.108 The RKM lawyers pointed to the life of Ramakrishna and his famed experimentation with different religions as the prime example of his universal beliefs: ‘Sri Ramakrishna practiced Hinduism and particularly Bhakti Yoga—the Path of Love. He, however, did not stop there and instead of confining himself within Hinduism and experimenting with other paths according to the tenets of Hinduism, embarked upon altogether novel experiments in accordance with the principles of other religions’.109 Thus Ramakrishna, for a brief period, ‘practiced Islam as a devout Muslim’ and had visions of Christ when he went into a trance. Contrary to the Satsangi ruling, the Calcutta High Court agreed that as compared to Hinduism, ‘Ramakrishnaism’ was far more inclusive and labelled it as a ‘Religion Universal’. The Court declared, ‘In order to be a follower of Sri Ramakrishna, non-Hindus are not required to embrace Hinduism and to undergo Suddhi or other form of purification. He could continue to profess and practice his own religion and at the same time be a follower of Sri Ramakrishna’s faith’.110 Contrasting ‘Ramakrishnaism’ with Hinduism, the Court said: ‘Hindu religion does never admit any person professing another faith and religion such as Muslim, Christian [sic] or Buddhism etc. in it unless such person gives up his religion to embrace Hinduism’.111 However, a follower of Ramakrishna is Catholic in his beliefs: A traditional Hindu claims to be a Hindu and Hindu only, and believes in the Vedas only, and not in the scriptures of any other religion … But a follower of the cult or religion of Shri Ramakrishna, coming originally from the Hindu fold, though a Hindu, claims to be something more at the same time. As a follower of Shri Ramakrishna’s Religion Universal, along with the Vedas, he accepts also the Holy Koran, the Holy Bible and all other religious scriptures to be true.112

Further, the Court contended that Ramakrishnaites reject an ‘integral part of Hindu religion’—the caste system.113 In light of the Satsangi ruling, and specifically Gajendragadkar’s mention of Ramakrishna and Vivekananda as reformers working within the ambit of Hinduism, there was every chance that the

Calcutta High Court judgment would be appealed in the Supreme Court. Indeed ten years later, the Supreme Court overturned the high court ruling. In an article written well before the Supreme Court judgment, Baird correctly predicted: The inclusive model of Hinduism utilized in the Satsangi and succeeding cases could have accommodated the followers of Ramakrishna as well. But, in the interests of preserving the religious control of the College, the Calcutta High Court modified that model so that the Ramakrishnaites became distinct … But in the light of Supreme Court statements on Hinduism as a religious category it is difficult to see the Supreme Court affirming this decision.114

Not surprisingly, the Supreme Court based its decision on Yagnapurushdasji and the ‘features of Hindu religion’ outlined by the earlier ruling. After quoting copiously from Yagnapurushdasji, the Court opined that the Calcutta High Court rulings ‘directly conflict with the aforementioned views of the Constitution Bench of Hindu religion in the case of Yagnapurushdasji Shastri’.115 The Court also referred to the opinions of Vivekananda and writings on Ramakrishna to conclude that they were not founders of a separate religion. Thus, from what is said of Ramakrishna and Swami Vivekananda and of their religion by great world thinkers and philosophers, the glory of Ramakrishna is that he preached and made his principal disciple Swami Vivekananda to preach the religion of the Vedanta which is the religion of the Hindus …116

However, the Court did accept that RKM could be ‘regarded as a religious denomination within Hindu religion’,117 and could claim the fundamental rights guaranteed by Article 26. The Ramakrishna Mission case is a clear example that given the inclusivist model of Hinduism outlined in Yagnapurushdasji, it is virtually impossible for any religious sect to seek exit. Just as the RKM was accorded the status of a denomination within Hinduism, other sects such as the Arya Samaj have successfully fought for the right to be recognized as a denomination. However, the status of a minority religion has been denied in all cases.

The Hindutva Ruling The ‘Hindutva judgments’ is the collective name given to seven decisions handed down by the Supreme Court in 1996. The cases involved twelve members of Hindu nationalist parties such as the BJP and Shiv Sena. The members, who included Shiv Sena chief Bal Thackeray and then Maharashtra chief minister Manohar Joshi, were charged with violating Section 123 of the Representation of People Act, 1951 (RPA) by appealing to Hindutva. Section 123(3) prohibits election candidates from appealing for votes on the grounds of religion or religious symbols, among other things. Section 123(3A) prohibits attempts to promote enmity on grounds of religion, race, community, or language. On the specific question of whether an appeal to Hindutva constitutes a violation of the RPA, the main opinion of the Court was delivered in Prabhoo v. Kunte118 in which Ramesh Yeshwant Prabhoo, then mayor of Bombay, and his election agent Thackeray, faced corruption charges for appealing for votes or promoting enmity, on religious grounds. The Court first dealt with the question of the constitutionality of Section 123 of the RPA, which was challenged by the appellants. The Court upheld the constitutionality of the relevant sections of the RPA on the grounds that they were ‘enacted so as to eliminate from the electoral process, appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed of any civilized political and social order’.119 Writing for the Court, Justice J.S. Verma said: ‘Under the guise of protecting your own religions, culture or creed you cannot embark on personal attacks on those of others or whip up low hard instincts and animosities or irrational fears between groups to secure electoral victories’.120 On the basis of speeches by Thackeray,121 the Court held that there was an appeal to voters to elect Prabhoo because he was a Hindu. The Court also held that one of Thackeray’s speeches included derogatory references to Muslims. On these counts, the Court concluded that Prabhoo and Thackeray were guilty of corrupt practices. However, in another of the Hindutva cases, the court acquitted Manohar Joshi—possibly the most high profile candidate

accused of corrupt practices. The chief minister was found not guilty for declaring in a public speech that the ‘first Hindu state will be established in Maharashtra’. The Court in this instance ruled: ‘A mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the grounds of his religion but the expression, at best, of such a hope’.122 The most important aspect of the ruling was the discussion on the legitimacy of appealing to ‘Hindutva’ during the election campaign. In discussing Hindutva, Justice Verma first went over the definition of Hinduism presented in Yagnapurushdasji. Basing his opinion on his reading of the inclusivist Hinduism of Yagnapurushdasji, and on another later decision, Verma proceeded to conflate Hindutva with Hinduism by arguing that Hindutva was a ‘way of life’ and could not be equated with ‘narrow fundamentalist Hindu religious bigotry’.123 Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this Court that the words ‘Hinduism’ and ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith (emphasis added).124

In conflating Hindutva with Hinduism, the Court ignored the sacred soil and birth/race aspects of Hindutva, as defined by Savarkar and Golwalkar. The Court, however, went further. Quoting from a book on Indian Muslims,125 Verma then went on to opine that ‘the word “Hindutva” is used and understood as a synonym for “Indianisation”, i.e. development of uniform culture by obliterating the differences between all the cultures co-existing in the country’.126 According to the Court, the terms Hinduism and Hindutva by themselves did not violate the provisions of the RPA. Considering the terms ‘Hinduism’ or ‘Hindutva’ per se as depicting hostility, enmity or intolerance towards other religious faiths or professions, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the discussions in earlier authorities of this Court … It is indeed

very unfortunate, if in spite of the liberal and tolerant features of Hinduism recognized in judicial decisions, these terms are misused by anyone during the elections to gain any unfair political advantage.127

Unfortunately, these terms could be, and arguably were, misused in the way specified. Though Verma conflated Hinduism and Hindutva, he was silent on the antecedents of Hindutva. For example, he did not consider Savarkar and Golwalkar’s use of sacred soil and race to include some and exclude others as foreigners. However, the intense debate generated by the Hindutva judgment brought out some of the important ramifications of the ruling. Commentators were troubled by the fact that the Court, by inferring the meaning of Hindutva from Hinduism, had ‘obscured the historical background as well as the contemporary political context’128 of Hindutva. It was argued that the Court failed to ‘recognize that Hindutva as an expression has a special meaning and is associated with the social and political philosophy of Savarkar and Golwalkar’.129 It was further pointed out that the judgment implied that ‘Hinduism, the religion of the majority of Indians, comes to reflect the way of life of all Indians’.130 At the other end of the spectrum, the Hindu nationalists were jubilant. Soon after Prabhoo, an editorial in the Organiser—the journal of the RSS—stated, ‘The apex court has fully and unambiguously endorsed the concept of Hindutva which the [BJP] has been propounding since its inception’.131 A contemporary Hindu nationalist ideologue and a minister of the BJP-led National Democratic Alliance (NDA) government, Arun Shourie, argued, ‘The Court accepted, indeed adopted in toto the definition of Hindu, of Hindutva which the RSS and BJP have been maintaining is what they have meant whenever they have used these expressions’.132 The BJP referred to the judgment in the party’s 1999 election manifesto: ‘Every effort to characterize Hindutva as a sectarian or exclusive idea has failed as the people of India have repeatedly rejected such a view and the Supreme Court, too, finally, endorsed the true meaning and content of Hinduism as being consistent with the true meaning and definition of secularism’.

HINDUISM AND HINDUTVA The conflation of Hinduism with Hindutva in Prabhoo hinged on the crucial use of the ‘way of life’ metaphor. It is, therefore, appropriate to see how this metaphor bridges the inclusivist and exclusivist discourses on Hinduism. As indicated earlier, Radhakrishnan was a key figure in describing Hinduism as a ‘way of life’ rather than a religion based on dogma. In Yagnapurushdasji, Gajendragadkar drew on Radhakrishnan’s writings to describe Hinduism as a ‘way of life’. It is interesting to note that around the same time as Yagnapurushdasji, the connection between Hindutva and a ‘way of life’ was already being made. In a book published in 1969, Balraj Madhok uses the ‘way of life’ metaphor to put forward the view that it is ‘wrong to talk of Hinduism as a religion in the sense in which Islam and Christianity are religions’. Why is this? Taking the cue from Radhakrishnan, Madhok writes: Hinduism is not a very happy expression because it creates confusion in the people’s minds about the word Hindu. It creates the impression of its being a creed or religion, a particular dogma and form of worship, which it is not. It comprehends [sic] within itself all the forms of worship prevalent in India which do not interfere with the worshipper’s loyalty to India, her culture and tradition, history and great men.133

While Madhok uses Radhakrishnan’s all-inclusive definition of Hinduism as a religion without ‘any dogmatic creed’, he also adds a clause of ‘loyalty’ to the Hindu nation. In a later work, Madhok again takes recourse to Radhakrishnan to explicitly make a connection between Hindutva and a ‘way of life’, and also to employ Hinduism and Hindutva as interchangeable categories: ‘Hinduism or Hindutva represents a specific way of life and a cultural tradition in which different beliefs and thoughts have been flourishing and co-existing side by side since the dawn of history’.134 The shift from the inclusivist to the exclusivist discourse, as executed by Verma and by Madhok, is possible because at heart of both the discourses lies a project to homogenize Hinduism and deprive it of its pluralistic character. This is quite apparent in Savarkar’s formulation of Hindutva. One of the fundamental

principles of Hindutva was to give it a much broader scope than Hinduism, which Savarkar saw as religious or spiritual dogma. A major concern of Savarkar in formulating the concept of Hindutva ‘was to avoid the political fall-out of an excessively narrow definition of Hinduism’.135 As Savarkar writes in Hindutva: This is Hindudharma—the conclusion of the conclusions arrived at by harmonizing the detailed experience of all the schools of religious thought— Vaidik, Sanatani, Jain, Baudda [sic], Sikha or Devasamji. Each one and every one of these systems or sects which are the direct descendants and developments of the religious beliefs, Vaidik and non-Vaidik, that obtained in the land of the saptasindhus or in the other unrecorded communities in other parts of India in the Vedic period, belongs to and is an integral part of Hindudharma.136

Tapan Basu and his co-authors point out with regard to Hindutva: ‘Exclusion, however, goes along with a supreme internal catholicity. All differences of ritual, belief, and caste are irrelevant: what matters is not content but origin in (a vaguely and arbitrarily defined) Bharatvarsha. Monists, monotheists, polytheists and atheists, Sikhs, Arya Samajists, and advocates of Sanatan Dharma, are all equally good Hindus for Savarkar’.137 The Indian Constitution and the Hindu Code Bill (which is comprised of four different Acts) too, take an undifferentiated view of Hinduism: it includes anyone who is not a Muslim, Christian, Parsi, or Jew is included under ‘Hindu’ as a legal category.138 Arvind Sharma notes that the ‘Indian government, both in the language of the Indian Constitution adopted in 1950, and subsequent legislation, has virtually adopted the Hindutva definition of a Hindu—as one who belongs to any religion of Indian origin’.139 At one level, it could be argued, the Court with its inclusive model was merely reinforcing the constitutional (and legislative) view of Hinduism. However, the Court —with the Hindutva ruling—goes beyond the constitutional stipulation, and uses the inclusive model to identify Hinduism (as well as Hindutva) with ‘Indianization’ and development of a ‘uniform culture’. The Court could make the argument about a ‘uniform culture’ because there is an implicit case for uniformity and homogenization in the inclusivist model of Hinduism. Hacker identifies ‘a peculiar

mixture of doctrinal tolerance and intolerance’ as a crucial aspect of neo-Hindu thought. Thus, the inclusivism of the neo-Hindus can be characterized as appropriation of differences rather than recognition of differences. This ‘intolerance’ to difference is very much a part of the judicial discourse, and is best captured by Gajendragadkar’s summing up of Yagnapurushdasji: It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.140

This aversion to ‘superstition’ and popular practices, and a search for the ‘true teachings’ of Hinduism is an important element in the thinking of most Hindu reformers, starting from Rammohun Roy in the early nineteenth century. Radhakrishnan unequivocally states, ‘In the name of toleration we have carefully protected superstitious rites and customs’.141 Though he argues that Hinduism’s method of assimilation is ‘essentially democratic’,142 there is a hierarchical structure determining the entire process: ‘Every God accepted by Hinduism is elevated and ultimately identified with the central Reality which is one with the deeper self of man … Hinduism absorbs everything that enters into it, magic or animism, and raises it to a higher level’.143 The ‘central reality’ of Hinduism is represented by the Vedas which Radhakrishnan (and indeed many of the earlier Hindu reformers) believe is the ‘basis of Hindu religion’.144 Because of the Vedic core of Hinduism, Radhakrishnan could assert that ‘differences among the sects of Hindus are more or less on the surface’, and that the Hindus ‘as such remain a distinct cultural unit, with a common history, a common literature and a common civilization’.145 In a similar vein, Gajendragadkar finds a ‘subtle indescribable unity’ within the ‘divergence’ of Hinduism. In the Court’s definition of Hinduism in Yagnapurushdasji, too, ‘acceptance of the Vedas’ is a key element. The appeal to the Vedas is convenient because the ‘Vedic texts contain no Hindu dogma, no basis for a “creed” of Hinduism, no clear guidelines for the “Hindu

way of life”’.146 It is precisely the open-endedness of the Vedic texts which make them the perfect ally of Hindu reformers, as well as the Court, in their quest to construct a more homogenized and rational Hinduism.

BLURRING OF CATEGORIES It can be argued that the convergence of the inclusivist and exclusivist discourses on interpreting Hinduism as a ‘way or life’, and on the project of homogenizing Hinduism, is a possible explanation for the Court’s conflation of Hinduism and Hindutva. However, it is also vitally important to note that this homogenization of Hinduism was inspired by fundamentally different visions. In the case of Radhakrishnan, regeneration of Hinduism—in his words placing ‘the whole Hindu population on a higher spiritual plane’147— was his primary goal. Similarly, Gajendragadkar was interested in changing the ‘whole social and religious outlook of the Hindu community’.148 In contrast, Savarkar was putting forth a territorial and racial conception of Hinduism. Religion per se has little connection with Savarkar’s conception of Hindutva: he was not primarily concerned with reform of Hinduism, but with the political goal of creating a Hindu nation. Hence, when Justice Verma equated Hinduism with Hindutva, he was not only collapsing the inclusivist and exclusivist models, he was also giving a highly political dimension to the judicial discourse on Hinduism.149 While Prabhoo was welcomed by the Hindu nationalists as a vindication of Hindutva, Verma’s additional move of equating Hindutva with ‘Indianization’ gave the Court’s seal of approval—in a sense—to the Hindu nationalists’ conception of the nation. This is clearly illustrated in the ‘Vision Document’ released by the BJP prior to the general elections in India in 2004. Under the sub-heading ‘Cultural Nationalism’, the document states, ‘Contrary to what its detractors say, and as the Supreme Court itself has decreed, Hindutva is not a religious or exclusivist concept. It is inclusive, integrative, and abhors any kind of discrimination against any section of the people of India on the basis of their faith’.150 The

BJP, following the Verma judgment, says ‘Indianness, Bharatiyata and Hindutva’ must be treated as synonyms.151 Madhok’s strategy of using ‘Hindutva’ and ‘Bharatiya’ as interchangeable categories is now very much the centerpiece of the BJP’s ideology. The vision document and recent speeches and interviews by Hindu nationalist leaders suggest that the language of inclusivism is being used to justify Hindutva and what is in reality an exclusivist agenda. In early 2004, the RSS chief K.S. Sudarshan referred to Yagnapurushdasji, and said since the Supreme Court had said the term ‘Hindu’ referred to a way of life and not a religion, Muslims and Christians should be considered Hindus.152 In his first appearance after taking over as RSS supremo in 2009, Mohan Bhagwat said, ‘All the inhabitants of Hindustan are Hindus by virtue of their culture and way of life’.153 In a significant blurring of the boundaries of inclusivism and exclusivism, BJP leader and former Prime Minister Atal Behari Vajpayee said in an interview, ‘Hindus cannot be fundamentalists. The Hindu worldview, we must remember, is inclusivist, as opposed to the exclusivist worldview of other faiths’.154 BJP President, L.K. Advani, too, said after the 2009 elections that Hindutva was an ‘inclusive, tolerant philosophy’.155 Thus, the inclusivist discourse on Hinduism, as understood by Radhakrishnan or Gajendragadkar, has lent itself to interpretations that build on their failure to recognize India’s plural and syncretistic culture. Unsurprisingly, the person who epitomized religious tolerance in modern India—Mahatma Gandhi—and that too from a Hindu perspective, has been a conspicuous absence in the judicial discourse. Gandhi, like Radhakrishnan, thought of Hinduism as an ‘all-embracing inclusiveness’.156 However, Gandhi’s understanding of Hinduism differed markedly from Radhakrishnan’s: ‘I feel for and about Hinduism with all its faults and limitations. Nothing elates me so much as the music of the Gita or the Ramayana by Tulsidas, the only two books in Hinduism I may be said to know … I am a reformer through and through. But my zeal never takes me to the rejection of any of the essential things of Hinduism’.157 It is this pluralist conception of Hinduism,158 and its noisy multiplicity, that

both Nehruvian rationalists as well as Hindu nationalists are uncomfortable with.159

2 The Doctrine of Essential Practices The Judges Shape a Rational Hinduism

American courts have usually tried to avoid sitting in judgment on ‘religious error’ or ‘religious truth’.1 The Indian Supreme Court has travelled an opposite path, seeking to cleanse Hinduism of what it reads as superstition, and providing it with a modernist and rationalist definition of religious error and religious truth. I examine first how the courts have attempted to define religion in respect to the Constitution; and second, how the courts in adjudicating cases related to Hinduism have drawn a distinction between the sacred and the secular. Unlike the way it is in the United States, the Indian Constitution combines freedom of religion clauses with a mandate to the state to intervene in religious affairs. Article 25 allows the state to regulate or restrict any ‘economic, financial, political, or other secular activity which may be associated with religious practice’. It also provides for ‘social welfare and reform’ of Hindu religious institutions. Articles 152 and 173 also prohibit untouchability and practices associated with caste inequality. Beginning with the Madras Hindu Religious and Charitable Endowment Acts in 1951, where a new department headed by a commissioner was created to supervise temples and maths, several other states have followed suit. In 1960, the Central Government appointed a Hindu Religious Endowments Commission to report on the administration of Hindu religious endowments. In its report submitted in 1962, the panel recommended enactment of legislation for state supervision of temples in states which did not already have such laws. Legal

challenges to these laws have meant that the courts are frequently asked upon to decide what constitutes an ‘essential part of religion’.4 The most striking aspect of the essential practices doctrine is the attempt by the Court to fashion religion in the way a modernist state would like it to be, rather than accept religion as represented by its practitioners. The essential practices test has been used by the Court to decide a variety of cases. These can broadly be classified under a few headings. First, the Court has made recourse to this test to decide which religious practices are eligible for constitutional protection. Second, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations. In this chapter, I intend to show how the Court’s use of the essential practices doctrine has served as a vehicle for legitimizing a rationalized form of high Hinduism, and delegitimizing usages of popular Hinduism as superstition.5 In doing so, the court has gone beyond the regulation of religion and social reform envisaged by Article 25. This has resulted in the sanction for an extensive regulatory regime for Hindu religious institutions, and substantial limits on the independence of religious denominations. Several studies have noted the unusual role of the Indian courts in interpreting religious doctrine and acting as the vanguard of religious reform. J.D.M. Derrett has written about the paradox of the Court playing the role of religious interpreter: ‘The courts can discard as non-essentials anything which is not proved to their satisfaction—and they are not religious leaders or in any relevant fashion qualified in such matters—to be essential, with the result that it would have no constitutional protection’.6 Rajeev Dhavan and Fali Nariman offer a more scathing assessment: With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.7

They further point out, ‘Both the government and judiciary tend to overlook the simple fact that under the guise of regulatory control, religious endowments are, and have been, nationalized on a massive scale … The nationalization of religious endowments, temples and places of learning sits uneasily with both the guarantee of religious freedom and secularism’.8 In a similar vein, Marc Galanter asks whether the Constitution has given the Court a mandate to ‘participate actively in the internal reinterpretation of Hinduism’.9 Moreover, by employing a rationalist definition of religion and classifying any religious practice that falls outside this grid as ‘superstition’ or ‘accretion’, the Court has often dispensed with pluralism and popular practices. This has been particularly true for Hinduism, since the Constitution for all practical purposes can be seen as a ‘charter for the reform of Hinduism’.10 Thus, Pratap Bhanu Mehta comments: Hinduism lacks not only a caliphate but a Vatican as well. What agency was there, then, with the power and the legitimacy to undertake the overhaul of religious traditions? … In post-independence India, the answer turned out to be obvious: Only the modern state, with institutions legitimized by universal suffrage, could take up the work of reforming Hinduism.11

There are others, such as Gurpreet Mahajan, who believe that the intervention of the Court is much more benign. She argues that the intervention of the state in the religious sphere has been limited. According to Mahajan, ‘The Indian Constitution as well as subsequent interventions of the Supreme Court have tried to ensure that religious organizations and groups are not discriminated against in the public domain’.12 She adds, ‘The primacy accorded to religious practice by the Constitution and the Supreme Court has severely limited the “modernizing interventions” of the Indian state. With the singular exception of removing untouchability, religious practices have not been “reformed” by state intervention. If anything they have been legitimized and protected in most instances’.13

THE COLONIAL COURTS

Though the colonial regime vacillated with respect to defining religion, the colonial judges foreshadowed the essential practices test in that they favoured a more uniform, brahmanical law over customary and popular law. Warren Hastings’ 1772 regulation14 would also set in motion a far-reaching project to codify Hindu and Muslim personal law by translating Sanskrit and Persian legal texts into English. The first such translation was A Code of Gentoo Laws; or, Ordinations of the Pundits by Nathaniel Brassey Halhed,15 which was published in 1776. The works of William Jones (1746–94) and Henry Thomas Colebrooke (1765–1837) would follow soon. Jones, founder of the Asiatic Society and one of the greatest British Orientalists, was a crucial figure in the codification of Hindu and Muslim law.16 According to Bernard Cohn, ‘Jones and others believed there was historically in India a fixed body of laws, codes, that had been set down by “law givers” and that over time had become corrupted by accretions, interpretations, and commentaries’.17 The endeavours of Jones and his followers marked the onset of brahmanization or rationalization of law. In this enterprise of ‘fixing’ Hindu and Muslim law, the collaboration of pandits and maulavis was seen as indispensable and a serious obstacle at the same time. This was because, as W.H. Macnaughten eloquently put it, ‘To the Pundits is chiefly attributable the perplexity of the system which it is their province to expound’.18 Hence, Jones and his successors wanted to create an ‘Ur-text that would simultaneously establish the Hindu and Muslim law and free the British from depending on fallible and seemingly overtly susceptible pandits and maulavis for interpretations and knowledge had to be found or reconstituted. The task also had to be accomplished somehow by using the knowledge that their Indian guides, the mistrusted pandits and maulavis, seemed to monopolize’.19 The project of codification would be transformed with the arrival of the Utilitarians. Unlike the Orientalists, Utilitarians like James Mill and Thomas Babington Macaulay saw Indian civilization occupying the lowest rung in the civilizational scale.20 Macaulay’s 1835 ‘Minute on Education’, which advocated educating Indians in the English

language rather than Sanskrit or Persian, was a watershed event in charting a different course from the Orientalists.21 Macaulay’s attitude to law is summed up by his remark during the debates in 1833 in the House of Commons over the renewal of the East India Company’s Charter: ‘We do not mean that all the people of India should live under the same law: far from it. Our principle is simply this—uniformity where you can have it—diversity where you must have it—but in all cases certainty’.22 The onward march of codification was, however, interrupted by the 1857 Uprising. Queen Victoria’s 1858 proclamation, after the Crown took over the Indian empire, pledged a doctrine of non-interference in Indian religious practices. Though uniform codes of civil and criminal law were enacted after 1857, the domain of personal law was largely left untouched. This preoccupation with ‘certainty’ and ‘uniformity’ would have a deep impact on the development of law in India, especially in relation to religious practices. One significant effect was the increasing preponderance of brahmanical or ‘high-culture classic texts’ in Court judgments on Hindu practices or customs. As the Rudolphs point out, ‘The main force encouraging Brahmanical law was the need for a legal order with greater generality and reach. The more cosmopolitan and uniform high-culture law was better able to meet the requirements of the times than was the more parochial and diverse customary law of village society’.23 The tension between the thrust for uniformity and jurisprudential techniques of the native legal experts would eventually result in the discontinuation of their services in 1864. Hence Derrett observes, ‘As it was, the British administrators insisted upon clarity, certainty and finality in terms foreign to Hindu tradition, and if the pandit was true to his sastra he could not at the same time substitute the new attempts at legislation for his own old authorities. Perhaps the attempts were doomed to failure’.24 By the middle of the nineteenth century, a substantial case law had built up allowing the colonial judges to invoke the principle of stare decisis. This was also symptomatic of the gradual infiltration of English common law techniques into the Indian courts. From as

early as 1781, the English judges used to apply the principles of ‘justice, equity, and good conscience’25 whenever there was a perceived a gap in law. By the end of the nineteenth century, Cohn comments that the ‘publication of authoritative decisions in English had completely transformed “Hindu law” into a form of English case law’.26 This meant that once a line of decisions had been established, the courts were reluctant to amend it even if there was contrary evidence from the native experts or in the scriptures. There were, nevertheless, critics like J.H. Nelson,27 a civilian district judge in Madras, who spoke out against the move towards uniformity. However, they were at best, marginal voices at a time when a contemporary legal expert observed that ‘both the legislation and custom itself have been remodelled by a century of judicial decisions’.28 The dominance of precedents and high-culture texts meant that local customs and popular religion were continually undermined. Though in 1868 the Privy Council upheld the primacy of custom over written law,29 recognition of customs was not considered a ‘viable option’ and there was a ‘strong presumption in favour of the official Hindu Law’.30 Robert Lingat comments, ‘But though it was recognized that custom took precedence over the law of the sastras, the difficulty of its proof when the existence of custom had to be established, and the infinite diversity of customary rules forced the judges, more often than not, to fall back on the precepts of smritis … ’31 Hence, Derrett notes that the ‘British period saw the elimination of a great many customs diverging from the Anglo-Hindu law’.32 The courts in independent India, especially in dealing with cases related to religion or religious practice, have operated under the shadow of the overriding principles of colonial courts: uniformity as exemplified by precedents and high culture texts, and the marginalization of custom and popular practices. Of course, the most significant difference from the colonial period is that the postcolonial state has the Constitutional sanction to intervene in, and reform, Hindu institutions through legislation. The British did—at least till 1857—pursue a policy of reforming Hindu practices. Even in the post-1857 period, as the Rudolphs argue, the rationalization and

codification of religion continued in a more subtle way. However, the dilemma of the colonial state was expressed by the Law Commission in 1855: ‘The Hindu and Mohamedan law derive their authority respectively from the Hindoo and Mahomedan religion. It follows that a British legislature cannot make Mahomedan or Hindu law’.33 The post-colonial state is under no obligation to steer clear of the controversial task of rationalizing religion. However, the enlarged scope of state intervention in management of Hindu religious institutions and practices has meant that the post-colonial courts have been asked on numerous occasions to arbitrate on the legitimacy and limits of state legislation, and to interpret the freedom of religion clauses in the Constitution. This has meant that the courts occupy a critical space in defining the content of religion, in legitimizing certain religious practices, and in marginalizing other practices. This has also resulted in the courts becoming the focal point for the tension between the reformist values of the Constitution and the traditional sources of legal and religious authority. In the following sections, I survey some of the important cases that will help map the judicial discourse on religion, especially the essential practices doctrine, and highlight the internal contradictions and tensions of this discourse.

DEFINING ESSENTIAL PRACTICES As we have seen, the essential practices doctrine was a derivative discourse of the colonial-era doctrine of ‘justice, equity and good conscience’. After independence, it was first articulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt,34 also known as the Shirur Mutt case. It is important to consider this case in some detail since it is has become obligatory to cite Shirur Mutt in most cases related to reform of Hindu religious institutions. Not only was the meaning of religion—as protected by the Constitution— enunciated in Shirur Mutt, but also guidelines as to who qualified as a religious denomination were set forth.

In Shirur Mutt, the petitioner, the superior or mathadhipati (also referred to as mahant) of Shirur Mutt, challenged the Madras Hindu Religious and Charitable Endowments (HRCE) Act, 1951,35 on the principal ground that it infringed upon Article 26 of the Constitution. Before dealing with the provisions of the Act the Court asked a central question: ‘Where is the line to be drawn between what are matters of religion and what are not?’36 To come up with a working definition of religion, Justice B.K. Mukherjea (who later went on to become the chief justice from 1954 to 1956) wrote the judgment, drawing on examples from the United States and Australia. He rejected the definition of religion offered by the US Supreme Court in Davis v. Beason: ‘The term religion has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter’.37 The Court pointed out the inadequacy of this definition in the Indian context by noting that there are major religions like Buddhism or Jainism ‘which do not believe in God or in any Intelligent First Cause’.38 Instead, Mukherjea drew on the Adelaide Company v. Commonwealth judgment in Australia, in which the Court said the Constitution not only protected ‘liberty of opinion’ but also ‘acts done in pursuance of religious belief as part of religion’.39 Collapsing the belief-practice dichotomy, he observed: A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual wellbeing, but it would not be correct to say that religion is nothing else but a doctrine or belief. 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 …40

It should be mentioned here that this definition of religion, which included rituals and ceremonies as ‘integral’, was significantly different from the definition offered by the Bombay High Court in an earlier case. In Ratilal Panachand v. State of Bombay,41 where the constitutional validity of the Bombay Public Trusts Act of 1950 had

been challenged, Chief Justice M.C. Chagla observed that ‘whatever 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’. In the same judgment, Chagla stated, ‘Essentially religion is a matter of personal faith and belief, of personal relation of an individual with what he regards as his Maker or his Creator or the higher agency which he believes regulates the existence of sentient beings and the forces of the Universe’.42 The definition from Shirur Mutt cited earlier shows that the high court’s narrow definition of religion was rejected by Mukherjea. Subsequently, the Ratilal judgment, too, was overturned by Mukherjea when the case came up for hearing before the Supreme Court. According to Mukherjea, the American and Australian Constitutions did not impose any limitation on the right to freedom of religion. It was the American and Australian courts that introduced the limitations on the grounds of ‘morality, order and social protection’.43 Mukherjea, however, believed that the Indian Constitution was an improvement on other Constitutions since it clearly laid out what could be regarded as religion: Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not.44

According to the Court, ‘what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself’.45 This ‘essential part’ of religion is protected by the Constitution: ‘Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters’.46 However, the state can legitimately regulate religious practices when they ‘run counter to public order, health and morality’, and when they

are ‘economic, commercial, or political in their character though they are associated with religious practices’.47 Shirur Mutt was also a landmark judgment because it validated a major portion of the Madras HRCE Act, 1951, which was the first state legislation to put into place an elaborate regulatory mechanism for Hindu temples and maths. Several other states followed with similar legislation, which were also taken to court, but Shirur Mutt has remained the model for the Court. There is no need here to go into the details of the Shirur Mutt judgment regarding the Madras HRCE Act except to note that the Court did recognize that a mathadhipati or mahant was not a ‘mere manager’, but he ‘has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by customn …’48 The Court further said that since the mathadhipati was the head of a spiritual fraternity, he could not be treated as ‘a servant under a state department’. With regard to the powers of the government bureaucrats to interfere in affairs of the math, the Court struck down certain provisions, including the right of unrestricted entry into religious institutions for the Commissioner, HRE, or his subordinates. The Court said, ‘It is well known that there could be no such thing as an unregulated and unrestricted right of entry into a public temple or religious institution for persons who are not connected with the spiritual functions thereof’.49 The Court also struck down a section that required a head of a religious institution to be guided by bureaucrats on how to spend the funds of the institution. However, it is noteworthy that the Court, in large measure, gave its approval to the elaborate apparatus of state control of Hindu temples and religious institutions. The primary contribution of Shirur Mutt to the legal discourse on religion was the recognition that ‘protection under Articles 25 and 26 was not limited to matters of doctrine or belief only but extended to acts done in pursuance of religion and therefore contained guarantees for rituals, observances, ceremonies and modes of worship’.50 Another important principle enunciated by Mukherjea was the ‘complete autonomy’ granted to religious denominations to decide which religious practices were essential for them. Mukherjea

reiterated this point in Ratilal, which was decided by the Supreme Court the same year as Shirur Mutt: Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines … No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.51

Finally, Shirur Mutt is a landmark case because it contained a contradictory trend—though the judgment is celebrated for widening the definition of religion to include rituals and practices, at the same time, it sanctioned an elaborate regulatory regime for religious institutions. This anomaly has been noted by P.K. Tripathi: ‘In the final analysis, therefore, Articles 25 and 26 do not emerge from the judgment in the Swamiar [Shirur Mutt] case as very effective weapons of attack on social legislation affecting the management of religious institutions’.52

THE TEXTUAL TURN Although a broad definition of religion was laid out in Shirur Mutt, the subsequent judgments of the Supreme Court would circumscribe the religious practices that were guaranteed constitutional protection. Even before the essential practices doctrine was formally pronounced in Shirur Mutt, the Supreme Court had occasion to pass judgment on whether an attempt to create an unusual perpetuity was in consonance with Hinduism. The central issue in Saraswathi Ammal v. Rajagopal Ammal53 was not interpretation of the freedom of religion clauses or reform of a religious institution. The issue at stake was the right of a woman to set up a perpetuity to have worship conducted at the samadhi (a site where a state in which there is no longer consciousness of self or of any object is reached) of her deceased husband. Speaking for the Court, Justice Jagannadhadas exercised the right of the Court to decide whether this practice was Hindu or not. However, instead of making the essential versus non-essential argument made in Shirur Mutt, Jagannadhadas preferred to refer to the Hindu scriptures. The Court

said, ‘To the extent … that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit it must be shown to have a shastraic basis so far as Hindus are concerned’. The Court went on to say that the ‘heads of religious purposes determined by belief in acquisition in religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society’.54 Though the case is not so significant in the development of the essential practices doctrine, the Court was making certain points which were of enormous significance to the future judicial discourse on religion. First, the Court was referring, like the colonial judges, to the sacred texts or shastras to judge the legitimacy of a religious practice. Second, contrary to Shirur Mutt, the Court was not willing to accept the claim of an individual or group regarding a religious practice. Third, the Court was bringing to the fore the need to judge religious practices by the rules of ‘modern society’. The interpretation of the court, which differs markedly from the Shirur Mutt judgment, shows the contradictions between a court committed to modernization of religion, and the need to appeal to traditional authorities to justify its decisions. It also shows the willingness of the Court to put ‘public policy’ before an individual or community’s religious practice. The contradictions between traditional texts and the reformist values expressed in the Constitution would become more apparent in Sri Venkatramana Devaru v. State of Mysore.55 One reason why this case is interesting is that the Court had to weigh the religious freedom of a group against the right of the state to reform a religious practice. However, what is more directly relevant to this analysis is the way the Court tackled the primary subject of the case— unrestricted right of entry of Harijans (untouchables) into a temple founded by Brahmins—by seeking evidence from the Hindu scriptures. The issue before the Court was the applicability of the Madras Temple Entry Authorization Act, which was intended to remove the bar on Harijans from entering the Shri Venkatramana temple founded by the Gowda Saraswath Brahmins. The original suit was filed by the trustees of the temple in 1949, a year before the Constitution came into effect. Originally, the appellants claimed that

the temple was a private one, and therefore exempt from the Act. However, once the Constitution was in force, the appellants also claimed that the temple was, in addition, a denominational one and hence, entitled to protection under Article 26. Justice Venkatarama Aiyar speaking for the Court, presented the primary question thus: The substantial question of law, which arises for decision in this appeal, is whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Art. 26(b) is subject to and can be controlled by, a law protected by Art. 25(2)(b), throwing open a Hindu temple to all classes and sections of Hindus.56

The Court accepted the claims of the appellants that the Shri Venkatramana temple was indeed a ‘denominational temple founded for the benefit of the Gowda Saraswath Brahmins’.57 The Court proceeded to consider whether the Gowda Saraswaths, exercising the right of a religious denomination under Article 26(b), were ‘entitled to exclude other communities from entering into it for worship on the ground that it was a matter of religion’.58 This immediately brought into play the essential practices doctrine to determine ‘whether exclusion of a person from entering into a temple for worship is a matter of religion according to the Hindu Ceremonial Law’.59 Here, it must be mentioned that the then solicitor-general of India, C.K. Daphtary, who had appeared in the case for the state, had argued that exclusion of persons from temples was not a matter of religion. Unlike in Saraswathi Ammal and later cases the Court did not resort to a modernist rhetoric. Instead, it relied on a scriptural exegesis and case law to examine the practice of excluding Harijans from worshipping in temples, which can be regarded as one of the practices defining untouchability. Justice Aiyar first took up the question of idolatry in Hinduism and commented that there was a difference of opinion as to ‘whether image worship had a place in the religion of the Hindus as revealed in the Vedas’.60 He said the hymns of the Upanishads describe the Supreme Being as ‘omnipotent, omniscient, and omnipresent’, but the later Puranas establish the notion of the Trinity with Brahma, Vishnu, and Shiva as

manifestations of the three aspects of creation, preservation, and destruction. The Court viewed the Puranic period as the time when ‘daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu’.61 The construction of temples meant that increasing ‘attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein, and conduct of the worship of the deity’.62 This was also the time when treatises devoted to the ceremonial law of worship were written. The Court identified the twenty eight Agamas as the principal texts for temple practices—specifying rules as to how a temple is to be constructed, where the idols are to be placed, and where the worshippers should stand. Having traced the evidence in the Hindu texts, the Court invoked a 1915 Madras High Court judgment63 to close the issue of exclusion in Hindu temples. The judgment had this to say about the Agamas: ‘In the Nirvachanapaddhati it is said that Sivadwijas should worship in the Garbagriham, Brahmins from the ante chamber or Sabah Mantabam, Kshatriyas, Vysias and Sudras from the Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram’.64 This judgment was affirmed by the Privy Council in Sankarlinga Nadan v. Raja Rajeswara Dorai, in which it ruled that a trustee who admitted into a temple persons who were not entitled to enter the premises, as prescribed in the Agamas, were guilty of breach of trust. Based on his reading of the sacred texts and case law, Aiyar concluded: ‘Thus, under the ceremonial law pertaining to temples, who are entitled to enter them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion’.65 The Court, however, did not bring into play Article 17, which abolishes untouchability. The Court opined that Article 17 did not apply to denominational temples: ‘There is, it should be noted, a fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding

persons from denominational temples on the ground that they are not objects within the benefit of the foundation’.66 This meant that, according to the Court, the right of the Gowda Saraswaths to exclude persons from worshipping in the temple guaranteed by Article 26(b) clashed with the right of the state to open public temples to all Hindus under Article 25(2)(b). In Aiyar’s words, the case involved ‘two provisions of equal authority, neither of them being subject to the other’.67 The Court found a way out of this impasse by giving Article 25(2)(b) precedence over Article 26, by pointing out that the language of Article 25(2)(b) implied the limitations were applicable to all Hindu religious institutions, including denominational ones. The Court referred to this as the rule of ‘harmonious construction’, and sought to ameliorate the ruling by stating that the state’s right to intervene in religious institutions was subject to limitations. In a minor concession to the appellants, the Court said ‘that during certain ceremonies on special occasions it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded’.68 The Devaru ruling, in theory, followed the essential practices doctrine of Shirur Mutt by accepting that religion encompassed rituals and practices. However, the other cardinal principle laid out in Shirur Mutt regarding the ‘autonomy’ of a religious denomination to decide what ceremonies are essential, was breached. Devaru clearly illustrated that it was the Court which was to decide what practices are essential to any religion. What was striking about Devaru was the way it referred to Hindu scriptures to justify the exclusion of lower castes from the temple during special ceremonies when it could have easily referred to other discourses within Hinduism, notably the Bhakti tradition,69 to argue the opposite case. However, having found a textual basis for excluding lower castes, the Court could not possibly legitimize that practice, since it clashed with the state’s avowed intention to stamp out caste discrimination. Hence, the Court strategically used a ‘harmonious construction’ to find an acceptable solution. The Court’s role in deciding what was ‘essential’ to any religion would be enhanced in subsequent cases.

So also would the explicit reliance on a modernist rhetoric and a reduced dependence on scriptures.

REDEFINING ESSENTIAL PRACTICES Two cases in the early 1960s would substantially reformulate the essential practices doctrine. The rulings in both these cases were handed down by P.B. Gajendragadkar, who later went on to become chief justice of India in 1964–6. The first of these cases was Durgah Committee v. Hussain Ali.70 In this case, the khadims71 of the shrine of Moinuddin Chishti in Ajmer challenged the Durgah Khawaja Saheb Act of 1955. Among other things, the khadims contended that the Act abridged their rights as Muslims belonging to the Sufi Chishtia order. The khadims maintained that their Fundamental Rights guaranteed by several constitutional provisions, including Articles 25 and 26, had been violated. Unlike Justice Aiyar in Devaru, Gajendragadkar did not make any reference to the scriptures. Instead, he skilfully constructed a ‘secular’ history of the Ajmer shrine to ‘ascertain broadly the genesis of the shrine, its growth, the nature of the endowments made to it, the management of the properties thus endowed, the rights of the Khadims …’72 After surveying the history of the shrine from the preMughal to the contemporary period, the Court concluded that the administration of the shrine ‘had always been in the hands of the official appointed by the state’.73 The Court, however, conceded that the Chishtia sect could be regarded as a religious denomination. However, this did not eventually have any impact on the Court’s decision, which upheld the validity of the Durgah Khawaja Saheb Act and dismissed the constitutional challenges to the Act. In doing so, Gajendragadkar issued a ‘note of caution’ that would not only highlight the role of the Court in deciding what was an ‘essential and integral’ part of religion, but also make a distinction for the first time between ‘superstitious beliefs’ and religious practice. Whilst we are dealing with this point it may not be out of place to incidentally strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion

as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other (emphasis added).74

This extraordinary statement by the Court pushed the essential practices doctrine in a new direction. The Court was not only going to play the role of the gatekeeper as to what qualified as religion, but now it was also taking up the role of sifting superstition from ‘real’ religion. This was a clear statement of the Court’s role—which had not been so overt until that point—in rationalizing religion and marginalizing practices that did not meet the Court’s test. This redefinition of the essential practices test and the enhanced role of the Court in rationalizing religion would be articulated by Gajendragadkar in two more landmark cases that were decided soon after Durgah Committee. The first was Shri Govindlalji v. State of Rajasthan,75 in which Tilkayat Govindlalji, the traditional spiritual head of the Nathdwara temple in Rajasthan, challenged the constitutionality of the Nathdwara Temple Act. One of the grounds for challenging the Act was infringement of Articles 25, 26(b), and 26(c), since the temple authorities claimed that it was privately owned and managed by the Tilkayat as head of the Vallabh denomination. By reconstructing the doctrine of the Vallabh school and the history of the temple, the Court held that the temple was private and that the Tilkayat was ‘merely a custodian, manager, and trustee of the temple’. The Court endorsed the Act, laying special emphasis on a firman (order) issued by the ruler of Udaipur in 1934 which declared that the royal court had absolute rights to supervise the temple and its property and even depose the Tilkayat if necessary. While the outcome of Govindlalji was unexceptional, given the history of the Court in sanctioning state regulation of religious

institutions, Gajendragadkar in his judgment explained why the claims of a community regarding their religious practices could not always be accepted. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would therefore break down. The question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.76

Though Gajendragadkar admitted that this approach may present some difficulties since ‘sometimes practices, religious and secular, are inextricably mixed up’, he was confident that the Court would be able to distinguish between religious and what was ‘obviously’ a secular matter. Gajendragadkar thus rejected the argument of the senior advocate representing the appellants, who quoted from the Australian court ruling in Jehovah’s Witness v. Commonwealth: ‘What is religion to one is superstition to another’. The Court dismissed this proposition as of ‘no relevance’. If an obviously secular matter is claimed to be [a] matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim … a claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art. 25(1) and Art. 26(b).77

This line of thinking would reach its culmination in Shastri Yagnapurushdasji which was yet another case involving a religious group—this time the Satsangis—seeking protection from the Bombay Harijan Temple Entry Act. Unlike some of the denominations discussed earlier, the Satsangis claimed the status of a separate religion as followers of Swaminarayan. In his judgment, which has been discussed in the last chapter, Gajendragadkar said,

‘the genesis of the suit … is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion. …’78 Though Durgah Committee and Govindlalji represent the dominant trend, there were differences of opinion on the Bench about the reformist and rationalist thrust of the Court. Saifuddin Saheb v. State of Bombay,79 which is chronologically placed between Durgah Committee and Govindlalji, illustrated the split in the Court on how far the judiciary should interfere in and reform religion. It must be noted that the justices did not disagree on the essential practices doctrine, but they did not disagree on the extent to which it should be applied. In Saifuddin, the Bombay Prevention of Excommunication Act of 1949 had been challenged by the Dai-ulMutlaq, who was the religious head of the Dawoodi Bohra community. The majority judgment, delivered by Justice K.C. Dasgupta declared the Act unconstitutional by holding that ‘excommunication cannot but be held to be for the purpose of maintaining the strength of the religion’.80 In a concurring judgment, Justice N.R. Ayyangar wrote, ‘The power of excommunication for the purpose of ensuring the preservation of the community, has therefore prime significance in the religious life of every member of the group’.81 However, in a strong dissent, Chief Justice B.P Sinha pointed out that even if excommunication was a matter of religion, the Act would still be valid since it was in the interest of ‘public welfare’.82 In language reminiscent of Gajendragadkar, Sinha wrote: The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.83

Citing the essential practices doctrine, Sinha argued that the actions of the Dai ‘in the purely religious aspects are not a concern of the courts’.84 Sinha, like Gajendragadkar, was confident of separating

‘pure’ religious practices from those that fell within the ‘secular’ realm. He argued that the Dai’s right to excommunicate affected the ‘civil rights of the members of the community’, and on this ground he argued for upholding the Bombay Act. The series of rulings in the early 1960s firmly established the principle that it was the Court’s task to ascertain what constituted religious doctrine and practice. The Gajendragadkar rulings went further and specified that even practices that can be accepted as religious might be classified as superstition or irrational. Some scholars point out that redefinition of the essential practices doctrine was partly fuelled by fears that Devaru and Saifuddin had widened the scope of religion in the public sphere and consequently impeded social reform.85 Dhavan and Nariman’s assessment in 1997 sums up the situation as it was after Yagnapurushdasji: ‘Judges are now endowed with a three step inquiry to determine, in tandem, whether a claim was religious at all, whether it was essential for the faith and, perforce, whether, even if essential, it complied with the public interest and reformist requirements of the Constitution’.86

ESSENTIAL PRACTICES ENTRENCHED The role of the Court in determining what constitutes religion and essential religious practice has remained undiminished since the formative years of this doctrine. Subsequent rulings have built on case law, but hardly ever reconsidered the doctrine of essential practices. The most prominent effect of this doctrine has been the widening net of state regulation over temples. Another significant effect has been the marked disinclination of the Court to accept more recent religious groups as a ‘proper’ religion or even religious denomination. Consequently, the religious practices of these groups have not been able to pass the essential practices test. Of course, given the all-encompassing definition of Hinduism in Yagnapurushdasji, it is unlikely any sect within Hinduism is ever going to get the court’s approval as a separate religion. This was quite clearly illustrated in the case of the Ramakrishna Mission, which was accorded a ‘religious minority’ (that is given separate

religion status) by the Calcutta High Court, only to have it changed to religious denomination status by the Supreme Court. Before looking at regulation of religious institutions, I will briefly touch on two cases from the 1980s in which the Court had to make a decision on the claim of an established group for a religious denomination status, and in the second, the Court had to decide whether a religious practice was essential or not. The first case involved the followers of the spiritual leader Sri Aurobindo (1872– 1950) and the second concerned the group known as Ananda Margis.87 In S.P. Mittal v. Union of India,88 the legitimacy of the Auroville89 Act of 1980 (Emergency Provisions Act) was challenged. One of the questions before the Court was whether the Aurobindo Society qualified as a religious denomination, and hence, came under the protection of Article 26. After discussing the meaning of religion, and quoting extensively from Aurobindo’s writings as well as secondary sources, Justice R.B. Misra writing for the majority, ruled ‘there is no room for doubt that neither the Society nor Auroville constitutes a religious denomination and the teachings of Sri Aurobindo only [represent] his philosophy and not a religion’.90 The inconsistency of the majority position was pointed out by Justice O. Chinnappa Reddy in his dissenting opinion. Reddy argued that religion cannot be ‘confined to the traditional, established, well-known or popular religions like Hinduism, Mohammedanism, Buddhism, and Christianity’.91 According to Reddy, religion and religious denomination must be interpreted in a ‘liberal, expansive way’. He referred to Shirur Mutt stating that the different sects under Hinduism could be designated as religious denominations. In keeping with this view, Reddy wrote, ‘But this fact stands out prominently that whatever else he [Aurobindo] was, he truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice’.92 However, Reddy maintained that Auroville was not a place of worship but a township. A year after the Supreme Court ruled that Aurobindo was not a religious teacher, the Court decided that the Ananda Margis were a religious denomination. However, in Jagadishwaranand v. Police Commissioner, Calcutta,93 the Court refused to accept the tandava

dance as an essential practice of the Ananda Margis. Writing for the Court, Justice Ranganath Misra reasoned, ‘Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis’.94 Interestingly, a single Bench of the Calcutta High Court, in a rare occurrence, took a contrary line when asked to reconsider the case.95 Justice Bhagabati Prasad Banerjee wrote: The concept of tandava dance was not a new thing which is beyond the scope of the religion. The performance of tandava dance cannot be said to be a thing which is beyond the scope of religion. Hindu texts and literatures provide [for] such dance. If the Courts started enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be.96

This was a strong indictment of the essential practices doctrine followed by the Supreme Court since the 1960s, and a plea for reconsideration of the Court’s role in determining the rationality of religious practices. That was not the end of the story of the Ananda Margis. In March 2004, the Supreme Court again took up the issue and further narrowed the scope of essential practices to mean the foundational ‘core’ of a religion. The majority judgment said, ‘Essential part of a religion means the core belief upon which a religion is founded and those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts of practices that the superstructure of religion is built, without which a religion will be no religion’.97 However, Justice A.R. Lakshmanan contested this definition of essential practices and wrote in his dissent, ‘If these practices were accepted by the followers of such spiritual head as a method of achieving their spiritual upliftment, the fact that such practice was recently introduced cannot make it any the less a matter of religion’.98

TEMPLE TAKEOVER AND DHARMA

The essential practices test was one of the major tools whereby the Supreme Court sanctioned a complex regulatory regime for Hindu temples. As has been noted earlier, in Shirur Mutt, the Court gave its approval to the bulk of the Madras HRCE Act, 1951. Soon after the Madras Act, most states in India put regulatory mechanisms in place for Hindu religious institutions. Though many of these state laws were challenged, they were usually approved by the Court with minor alterations. One of the consequences of this has been the bureaucratization of religion with state-appointed officers taking over the running of temples at the expense of traditional authorities. The undermining of traditional heads of temples such as the Nathdwara or the Jagannath temple at Puri99 had already begun from the 1960s. Temple functionaries like the archakas (priests) and other intermediaries like pandas, and sevaks (attendants) have also been severely affected. E.R.J. Swami v. State of T.N.100 was one of the first cases where the hereditary principle for temple priests was held to be void. Writing for the Court in Swami, Justice D.G. Palekar ruled that the archaka was appointed by the managers of the temple (dharam karta or shebait) and the fact that after his appointment the archaka ‘performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion’.101 A spate of litigation in the 1990s centred on major Hindu shrines like Tirupati, Vaishno Devi, Jagannath temple, and the Kashi Vishwanath temple.102 The majority of the judgments, in which challenges to the extensive state regulation of these temples were dismissed, were handed down by Justice K. Ramaswamy. This has led Dhavan and Nariman to observe, ‘If the regulatory impetus provided by Justice B.K. Mukherjea in the fifties was enlarged by Justice Gajendragadkar in the sixties, the latest judgements of Justice K. Ramaswamy have enthusiastically supported the “nationalization” of some of India’s greatest shrines.’103 Instead of examining in detail the separate judgments on temple regulation, I look at one case which best sums up Ramaswamy’s understanding of the nature of religion and the essential practices doctrine. In A.S. Narayana Deekshitulu v. State of A.P.,104 the petitioner was the chief priest of Thirumala Tirupati, which is one of the richest

temples in India. The petitioner contended that the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act of 1987 by abolishing hereditary succession among archakas, prescribing regulations for appointment of archakas, and taking away their right to a share of offerings made to the deity, infringed upon Articles 25 and 26 of the Constitution. The Court dismissed the petition and upheld the Act with a few minor qualifications. However, in the course of the judgment Ramaswamy (like Mukherjea in Shirur Mutt and Gajendragadkar in Yagnapurushdasji) engaged in an elaborate discussion on the nature of religion in the Indian context. Quoting from texts such as the Vedas, Upanishads, and the Gita, and using modern thinkers and writers such as Aurobindo, Vivekananda, Radhakrishnan, Shankar Dayal Sharma, and even Richard Dawkins, Ramaswamy attempted to construct a notion of religion significantly different from Shirur Mutt. Taking the cue from Aurobindo’s distinction between ‘true religion’, which is spiritual, and ‘religionism’, which is narrow and focussed on ceremonies, Ramaswamy proposed: The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed … It is essential that the value of law must be tested by its certainty in reiterating the Core of Religious Experience and if a law seeks to separate the non-essential from the essential so that the essential can have a greater focus of attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat missionary.105

Ramaswamy drew a parallel between a ‘higher’ or ‘core’ religion, and the concept of dharma. According to Ramaswamy, it is dharma rather than conventional religion that is protected by the Constitution. How then is dharma to be understood in terms of the Constitution? ‘Dharma is that which approves oneself or good consciousness or springs from due deliberation for one’s own happiness and also for welfare of all beings free from fear, desire, cherishing good feelings and sense of brotherhood, unity and friendship for integration of Bharat. This is the core religion which

the Constitution accords protection’.106 Interestingly, this extraordinary position was supported by Justice B.L. Hansaria the other judge on the Bench, in a separate judgment: ‘The word religion, as presently understood, is comprised of rituals, customs, and dogmas surviving on the basis of fear and blind faith; whereas dharma encapsulates those great laws and disciplines that uphold, sustain, and ultimately lead humanity to the sublime heights of worldly and spiritual glory’.107 The idea of a higher religion, according to Ramaswamy, is fundamental to the essential practices doctrine and the secular Constitution. He states: In secularizing the matters of religion which are not essential and integral parts of religion, secularism, therefore, consciously denounces all forms of supernaturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute to some degree to the process of secularization of the matters of religion or religious practices.108

Ramaswamy finds congruence between the ‘secularization’ of religion and the religious freedom guaranteed by the Constitution: ‘The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order’.109 The unusual redefinition of religion and religious freedom in Narayana is far removed from what Mukherjea, in 1954, had originally proposed in Shirur Mutt. The distinction between ‘essential’ religion and ‘superstition’ had been articulated by Gajendragadkar. But the conception of religion as dharma which can foster an egalitarian society and a unified nation is certainly a novel position, so far as the Supreme Court was concerned. The introduction of dharma could represent, following the suggestion of a legal scholar, a move towards the creation of ‘postmodern Hindu laws’.110 Indeed, the Court’s conception of the role of dharma has striking similarities with the idea of dharma as articulated by Deen

Dayal Upadhyaya (1916–65), whose Integral Humanism considered to be the ‘guiding philosophy’ of the BJP.

is

Nowadays the word ‘secular state’ is being used as opposed to theocratic state. The adoption of this word is mere imitation of the western thought pattern. We had no need to import it … There is some misunderstanding arising out of this. Religion was equated with Dharma and then secular state was meant to be a state without Dharma. Some said ours is a state (without Dharma), whereas others trying to find a better sounding word called it Dharmanipeksha (indifferent to Dharma state). But all these words are fundamentally erroneous. For a state can neither be without Dharma nor can it be indifferent [to] dharma …111

POPULAR RELIGION V. HIGH RELIGION The foregoing discussion of the case law on the definition of religion and the essential practices doctrine enables us to make a few hypotheses about the nature of the Court’s intervention in the place of religion in the public sphere. The post-colonial court is at the vanguard of the state’s project to reform and rationalize religion. The essential practices doctrine can plausibly be traced to the famous statement by B.R. Ambedkar, often referred to as the Father of the Indian Constitution, in the Constituent Assembly during debates on the proposed codification of Hindu law: ‘The religious conceptions in this country are so vast that they cover every aspect of life from birth to death … 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 (emphasis added)’.112 With the adoption of the essential practices doctrine, the Supreme Court seems to have taken up this project in right earnest. Though appropriation of the role of interpreter of religious doctrine is most unusual for courts in secular constitutional polities, in the Indian context, this role has been facilitated by the lack of a unitary ecclesiastical organization for Hinduism. This has given the opportunity, as Galanter points out, to the judiciary to embark on an ‘active reformulation of Hinduism under government auspices in the name of secularism and progress’.113 This leads the Court—

especially the more activist judges—to insist on religion without, what the Court in its wisdom designates, as superstition and irrationality. This attitude comes through even in cases not strictly related to the freedom of religion clauses such as Ziyauddin Bukhari v. Ramdass Mehra,114 a case involving the application of Representation of People Act. However, it is important to note that while Ambedkar was an outspoken critic of traditional Hinduism, many of the Supreme Court judges approach Hinduism, and indeed religion, from a different angle. Many of the judges, unlike Ambedkar, were inspired by a Vedic rationalist Hinduism, a Hinduism purged of its alleged ‘irrational’ rituals and practices. This is apparent from the authorities that are cited in the Court’s construction of Hinduism and Hindu practices. Some of the names that figure prominently in the judicial discourse are Vivekananda and Radhakrishnan—namely personalities identified with a reformist and universal Hinduism. Vivekananda’s distaste for popular Hindu practices finds an echo in the Court rulings. The use of sacred texts by the Court to ascertain the legitimacy of a practice is similarly skewed towards the canonical, rationalist versions of high-culture texts such as the Vedas and Upanishads. Apart from the interpretation of Hindu practices, it can be argued that the dominant figures of the Hindu reformation play a key role in the agenda of temple reform. Admittedly, corruption, embezzlement of funds, and mismanagement of property were major factors in the justification of state intervention in temple management. In addition, the experience during British rule of devolving temple management in the hands of semi-autonomous temple committees in Tamil Nadu had not been a happy one. However, there is no reason to believe that the state would be any better at running temples. As Pratap Bhanu Mehta points out: State takeover of temples violates the freedom of communities to manage their affairs. It is also an imprudent policy. Having politicians and civil servants sit on the board of these temples is not a recipe for either healthy politics or healthy religion. It is often claimed that religious endowments are corrupt and need regulation. But it is not clear that the state will be any less corrupt.115

Besides these administrative concerns, judges like Gajendragadkar and Ramaswamy speak in a language very similar to Sarvepalli Radhakrishnan and his idea of a ‘pure’ Hinduism. According to Radhakrishnan, ‘At the moment, however, temples present an air of dull acquiescence and tedious routine. To attempt to abolish temples, which are so passionately loved and affectionately revered, is vain. But we must improve the tone and the atmosphere … Worship in temples must be of the purest form’.116 Many of the court judgments echo Radhakrishnan. If figures like Vivekananda and Radhakrishnan make frequent appearances in Court judgments, there are also some notable absences. This is perhaps best illustrated in the marginalization of Vivekananda’s teacher and guru, Ramakrishna Paramahansa. Ramakrishna, who can be located in the Bhakti tradition and was characterized by mysticism and unreason (pagalami), is a sharp contrast to his disciple Vivekananda, who established a Hindu monastic order to achieve social and religious reform. The contrast between these two figures is vividly expressed, as Sumit Sarkar has noted, in the Dakshineswar temple (where Ramakrishna lived for over thirty years) and the Belur Math, founded by Vivekananda. Sarkar writes, The temple [Dakshineswar], like any major Hindu sacred site, is thronged with crowds which cut across class divides, noisy, colorful, not over-sensitive to dirt … Belur Math is much more of an upper middle class devotional-cum-tourist spot: almost aggressively hygienic, it is full of guards and notices warning visitors from bathing in the river or spoiling the lawns.117

This study in contrast, in a way, admirably captures the approach of the Supreme Court and its essential practices doctrine. The essential practices doctrine can then be seen as the Court’s attempt to discipline and cleanse religion or religious practices that are seen as unruly, irrational, and backward by putting the state in charge of places of religious worship. But as Dhavan and Nariman point out, ‘Religious faiths have to be run by their followers and not by bureaucrats. The followers have to emerge from the faith and not be appointed by the State or statute’.118 The Court has systematically appealed for legitimation to authoritative figures associated with

Vedic rationalism, as well as to privilege canonical texts within this tradition. By doing so, the Court not only has narrowed the ‘institutional space for personal faith’,119 but also marginalized popular religion by treating it, in Ashis Nandy’s words, as ‘parts of an enormous structure of irrationality and self-deceit, and as sure markers of an atavistic, regressive way of life.’120

3 In the Name of God Regulating Religion in Elections

In Chapter 1, I examined the Hindutva ruling to illuminate the Court’s understanding of Hinduism. Here, I look at the broader question of how religion and religious propaganda in election campaigns are regulated. The relevant portion of the Representation of the People Act (RPA)—the legislation governing the conduct of Indian elections —passed in 1951 that relates to regulating religion are various provisions of Section 123,1 which we encountered in the discussion of the Hindutva cases in Chapter 1. Section 123(3) deems as ‘corrupt practice’ election candidates or their agents appealing for votes on the grounds of religion or religious symbols among other things; Section 123(2)(a)(ii) defines as corrupt practice attempts to induce a candidate or voter to believe that he would become an object of ‘divine displeasure or spiritual censure’; and Section 123(3A) considers as corrupt practice attempts to promote enmity on grounds of religion, race, community, or language. More recently, Section 123(3B) does the same for candidates propagating the practice of sati or glorifying it. In addition, Section 125 of the RPA makes attempts to promote enmity or hatred on the ‘grounds of religion, race, caste, community or language’ a punishable offence.2 The Election Commission (EC)’s Model Code of Conduct, too, disallows ‘any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic’. However, violations of the Model Code cannot be taken to court—only the Election

Commission is empowered to hear such cases and pass its verdict. Thus, during the 2007 Gujarat Assembly elections, following a complaint against a speech by the state Chief Minister Narendra Modi, the then Chief Election Commissioner N. Gopalaswami said, ‘The code has no legal force. It is a “moral” code created by political parties in the hope that the polity would refine itself. The EC hasn’t mandated it; it has merely been appointed as the arbiter. There is no punishment—only a rebuke is possible’.3 Though use of religious metaphors and symbols in elections has always been a thorny issue, it has become particularly controversial since the BJP and its allies, such as the Shiv Sena, gained national prominence from the late 1980s. During the 2009 Lok Sabha elections, there was the high-profile case involving Varun Gandhi, a BJP candidate, who in one of his campaign speeches allegedly made several incendiary statements about Muslims. The EC took the unusual step of calling on the BJP not to field Varun Gandhi as a candidate, which was ignored by the BJP. This led some commentators to demand more teeth for the model code.4 One of the landmark events in the contestation over religion in election campaigns remains, of course, the legal battle over the appeal to ‘Hindutva’, which has been discussed in some detail in Chapter 1. Below I look at earlier cases to illustrate how the use of religion in election campaigns is regulated.

REGULATING RELIGIOUS CONTENT IN CAMPAIGNS Soon after the Indian republic was founded, Section 124(5) of the un-amended RPA—banning ‘systematic appeal to vote or refrain from voting on grounds of caste, race, community or religion’— which corresponded to Section 123(3) of the Act as it stands now, was challenged on the grounds that it violated the fundamental right to freedom of speech. However, a five-judge bench ruled in Jamuna Prasad Mukhariya v. Lacchi Ram5: These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right

created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute.6

One of the earliest cases to deal with a petition related to Section 123 of the RPA was Ram Dial v. Sant Lal 7 in 1959. The issue before the court was the disqualification of Ram Dial, who had been elected from a constituency in Punjab, on the grounds that Namdhari Sikh voters were exhorted to vote for Dial by a religious diktat from their supreme religious leader. One of the key pieces of evidence placed before the Court was a poster which said: ‘Every Namdhari of this Halqa is commanded by the Shri Sat Guru that he should make every effort for the success of Shri Ram Dayal Vaid, a candidate for the Punjab Vidhan Sabha, by giving his own vote and those of his own friends and acquaintances, it being our primary duty to make him successful in the election’.8 An election tribunal, and subsequently, the Punjab High Court both ruled that the command of the religious guru could be seen as ‘undue influence’ as understood in Section 123(2) of the RPA, and declared the election of Dial void. The Supreme Court, deciding on Dial’s appeal, agreed with the judgments of the tribunal and the high court and ruled that the religious leader ‘practically left no free choice to the Namdhari electors not only by issuing the hukum or farman … but also by his speeches to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure’.9 A similar case was Kanti Prasad Yagnik v. Purshottamdas Patel,10 where the election of Patel to the Gujarat State Assembly was challenged because of appeals made on his behalf by a religious guru, Shambu Maharaj. In several speeches Shambu Maharaj raised the divisive issue of cow slaughter and linked it to the election symbol of the opposing Congress candidate, which was a pair of bullocks. The Court did not find fault with some of his speeches and said the ‘law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion’.11 However, it did find one of Shambu Maharaj’s

speeches infringing Section 123: ‘Every year we get … natural calamity like excessive rain, or failure of rain or earthquake. This happens because they [the Congress] ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered’.12 The Court ruled that this constituted an ‘attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued.’13 One of the more important early cases related to the RPA came from Punjab before the Supreme Court. This case is important because the court clearly laid out the reasons why Section 123(3) of the RPA was required. In Kultar Singh v. Mukhtiar Singh,14 Kultar Singh, an Akali Dal candidate, was alleged to have made election speeches as well as circulated posters and pamphlets that appealed to voters to vote for him on grounds of religion. These allegations were upheld by the election tribunal and his election invalidated. The Punjab High Court, however, found him guilty of corrupt practices for only one of the posters that he had distributed. On appeal, the Supreme Court had to decide whether that one poster contravened Section 123. At the outset, the Court said that if a Sikh candidate appealed to voters to vote for him because he was a Sikh it would amount to a corrupt practice. The Court was also at pains to show that Section 123(3) was a ‘healthy and salutary provision which is intended to serve the cause of secular democracy’.15 Speaking for the Court, Chief Justice P.B. Gajendragadkar went on to say: In order that the democratic process should thrive and succeed, it is of utmost importance that our elections to parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community or language. If these considerations are allowed any sway in election campaigns, they would vitiate the secular atmosphere of democratic life, and so Sec 123(3) wisely provides a check on this undesirable development by providing that an appeal to any of these factors … would constitute a corrupt practice …16

On the charges against Kultar Singh, the Court had to first address the tricky issue of his party affiliation. The Akali Dal, to which Kultar Singh belonged, is a party with an explicitly religious and ethnic

agenda. The court admitted that there are parties whose ‘membership is either confined to, or predominantly held by, members of particular communities or religions’.17 It further said, So long as law doesn’t prohibit the formation of such parties and in fact recognizes them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidates of such parties for votes may, if successful, lead to their election and in an indirect way may conceivably be influenced by considerations of religion, race, caste, community or language.18

In the Court’s words, this ‘infirmity’—influences of religion, race, caste, community, or language—cannot be avoided so long as such parties are allowed to exist and contest elections. The court also made an allowance for the charged atmosphere of election campaigning: ‘It would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles [sic] or exaggerated language …’19 The Court then turned its attention to the pamphlet that had been declared illegal by the high court. The pamphlet in question appealed to every Sikh voter to vote for the representative of the Akali Dal, which would lead to a victory of the panth and the formation of a Punjabi suba. It had been contended before, and accepted by both the election tribunal and high court, that the word ‘panth’ meant the Sikh religion. Though the Supreme Court said that ‘panth’ in the abstract could mean the Sikh religion, it decided that in the present circumstances it meant merely the Akali Dal party. The court ruled ‘the Panth in this context must mean the Akali Dal Party; and in the end when the pamphlet refers to the victory of the Panth and the honour of the Panth, it must be taken to refer to the victory and honour of the Akali Dal Party’.20 A few years later, the Court chose to give another candidate similar latitude. In Kanti Prasad v. Purshottamdas,21 the Court said the ‘law does not place any bar on describing a party as irreligious or saying that because that political

party is irreligious natural calamities have resulted because of its disregard of religion’.22 Exactly two decades after Kultar Singh, another case related to transgressions by an Akali Dal candidate would come up before the Supreme Court. Though the issues before the court were similar in nature in Harcharan Singh v. Sajjan Singh,23 the outcome was different. Here, the court had to examine appeals made in favour of Akali Dal candidate Sajjan Singh, which said that his nomination was supported by the Akal Takht (Sikhism’s highest religious body), and that to vote against him would be to go against the Sikh religion. The high court had exonerated him of the charges. However, the Supreme Court took a different view. After sifting through speeches made by prominent Akali leader and former chief minister Parkash Singh Badal, Sajjan Singh himself, and articles in a party publication, Akali Times, the Court found Sajjan Singh guilty. It said: Taking into account the totality of the evidence in the background of the fact that some communications from Akal Takht, call it Hukamnama or any other name, were issued and the issues of editorials of Akali Times, which were mentioned by Parkash Singh Badal … we are of the opinion that in this case appeal in the name of religion was made …24

Just as with Sikh candidates appealing to divine authority to sway voters, there have been similar cases involving Muslim candidates. The first such case, Abdul Hussain Mir v. Shamsul Huda,25 was an unusual one where the election of a candidate in Assam—whose mother was a tribal who had converted to Islam and father was a Muslim—was challenged on the ground that he had canvassed on the basis of mixed religious parentage. Speaking for the Court, Justice V.R. Krishna Iyer said that ‘religious appeal or communal appetite in a bigoted and backward population is stronger’26 than in cosmopolitan areas. He, however, added that ‘mere reference to one’s tribe, ancestry or genetic commingling may not be tainted with the legal vice of religious or communal appeal’.27 Indeed, he felt that a secular candidate may appeal to the electorate on ‘the basis that he was an inter-caste or inter-racial or inter-religious product and as such a symbol of communal unity’.28

In what would be a familiar refrain, the Court lamented the lack of a secular culture: It is a matter for profound regret that political communalism far from being rooted out is foliating and flourishing largely because parties and politicians have not the will, professions apart, to give up the chase for power through politicizing communal awareness and religio-cultural identity. The Ram-Rahim ideal and the secular ideology are often the stuff of Indian politician’s election haberdashery, not his soul-stuff. Micro- and mini-communal fires are stoked by some candidates and leaders whose overpowering love for seats in the legislature is stronger than sincere loyalty to the secular electoral processes. Law can efficiently regulate and control if wider social legitimation is forthcoming.29

The major case related to Muslim candidates was Z.B. Bukhari v. B.R. Mehra,30 which had some similarities to the cases involving Akali Dal candidates. Here, the two Muslim candidates involved were from the Muslim League and the Congress party. The issue before the court was the disqualification of Bukhari, the Muslim League candidate, for allegedly making speeches that were designed to make voters believe that they would incur ‘divine displeasure’ if they voted for his rival candidate S.C. Chagla. The high court had pronounced Bukhari guilty. Like Gajendragadkar in Kultar Singh, Justice M.H. Beg, who delivered the judgment, first examined the rationale for Section 123. He came out with a strong statement in favour of electoral laws curbing intemperate language: It seems to us that Section 123, sub-sections (2), (3) and (3A) were enacted so as to eliminate from the electoral process appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of any civilized political and social order … Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of others or whip up low hard instincts and animosities or irrational fears between groups to secure electoral victories.31

The specific issue that the Court had to rule on was speeches by Bukhari aimed at persuading voters not to vote for his rival Congress candidate on the ground that he was not a true Muslim. One of the points raised by Bukhari was that Muslim personal law was considered a personal matter by his rival, whereas it was actually a religious question. Bukhari threatened open rebellion if

Muslim personal law was amended by the Congress party. In another speech, Bukhari alleged that his rival was not faithful to Islam because he had advocated inter-religious marriages. The Court found Bukhari guilty and minced no words in condemning him: We do not consider such speeches to have any place in a democratic set-up under our Constitution. Indeed, they have none in the world of modern science which has compelled every type of religion, for its own survival, to seek securer foundations than child-like faith in and unquestioning conformity or obedience to an invariable set of religious beliefs and practices.32

It added that election candidates ‘cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions and practices’.33 After this strong indictment, the court unsurprisingly found Bukhari guilty of corrupt practices. It ruled, ‘The appellant [Bukhari] wanted votes for himself on the ground that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds that the High Court had rightly found the appellant guilty …’34 Yet another case involving Muslim candidates was Ebrahim Sulaiman Sait v. M.C. Muhammad.35 The Kerala High Court had annulled the election of Sait, a Muslim League candidate, for violating Section 123(3A) of the RPA. In an election speech, Sait was alleged to have accused his opponent, a candidate of a dissident wing of the Muslim League, of being supported by ‘antireligious league people’ who had killed many Muslims and burnt mosques. He added that these parties should not entertain hopes of getting the votes of any Muslim. Though the Court found the tone of this speech undeniably communal’, Justice A.C. Gupta said that it did not fall foul of the RPA since it sought to criticise the wrong policies of the dissident Muslim League ‘in aligning with parties that were allegedly responsible for atrocities against Muslims and not just to emphasise the atrocities’.36

BATTLE OVER SYMBOLS

Alongside use of religion in election campaigns, the courts have also had to adjudicate on whether electoral symbols had religious connotations or not. One of the first such cases was Shubhnath Deogram v. Ram Narain Prasad,37 where the issue before the court was the allotting of a rooster or a cock symbol to a member of the Ho tribe, in what is now Jharkhand. The rooster is used as a sacrificial bird among tribals or Adivasis. The majority opinion of the court held that the rooster symbol was an appeal to religion. It said voting for the rooster would please the deities and failure to do so would displease them. However, Justice Subba Rao dissented by making a distinction between seeking votes by appealing to religion and merely drawing on religious traditions: A distinction must, therefore, be drawn between canvassing on grounds of religion and seeking of votes in graphic or picturesque language with analogies from religious lore: to illustrate, a candidate may appeal to the electorate … and say that he would sacrifice his life in the cause of his constituency just like Christ sacrificed his life to redeem the world … those similes are drawn from religion, but they do not embody an appeal, directly or indirectly, to vote for the candidate on grounds of religion.38

It was the minority view of Subba Rao that found favour with the Court when the issue of whether an election symbol had a religious element or not came up again in Ramanbhai Patel v. Dabhi Ajithkumar.39 The main question before the Court was whether the description of his election symbol—a star—by a Swatantra Party candidate as a Dhruva or Pole star, infringed on Section 123 of the RPA. Further, he had distributed pamphlets which had said, among other things, that ‘Dhruva means one devoted to religion’. Overruling an earlier ruling by the Gujarat High Court, Justice Mudholkar said, It is said that the remembrance and repletion of Dhruva’s name has religious efficacy. The prevalence of such a belief amongst the Hindus has not been established and therefore there is no basis for saying that the mere mention of the Dhruva star will arouse the religious sentiments of Hindus amongst the electorate.40

The Court made a distinction between objects or animals that might have an association with particular Hindu deities, such as a trident

or snake, and religious symbols: For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way, as to show that votes are being solicited in the name of that deity or as would indicate the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion.41

The Court concluded: We have already said what Dhruva stands for. To say, therefore, the voters who saw or read these leaflets were likely to conjure up in their minds the picture of a highly religious person and, therefore, their religious sentiments may have been aroused would be too far fetched a conclusion to be justified’.42

The Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta43 followed a similar line of reasoning. Here, the Court had to decide whether the use of, or appeal to, the ‘Om’ symbol—which was printed on a flag used during campaigning—by election candidate Sidhanti, amounted to corrupt practice. First, the Court looked into whether the word ‘Om’ had any religious significance. Unlike Ramanbhai, where the Court found no religious significance to Dhruva, it said, ‘“Om” it may be admitted is regarded as having high spiritual or mystical efficacy; it is used at the commencement of the recitations of religious prayers’.44 However, speaking for the Court, Justice Shah did not equate ‘Om’ with a religious symbol. He said: A symbol stands for or represents something material or abstract. In order to be a religious symbol, there must be a visible representation of a thing or concept which is religious. To ‘Om’ high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything else. It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word ‘Om’ can be called a religious symbol.45

In contrast, in one of the Hindutva cases, Suryakant Venkatrao Mahadhik v. Saroj Sandesh Naik,46 Justice Verma held that the use of Hindutva violated the RPA. The election of Mahadhik, who was a Shiv Sena candidate, had been invalidated by the Bombay High Court on the ground of infringing Section 123. On appeal, the

Supreme Court ruled that disqualifying Mahadhik was justified by the ‘context’ in which his speech was made and ‘the manner in which it was meant to be understood by the audience’. The Court said that Mahadhik’s speech was ‘an appeal by a Hindu to a congregation of Hindu devotees in a Hindu temple during a Hindu religious festival with emphasis on the Hindu religion for giving votes to a Hindu candidate espousing the cause of Hindu religion’.47 According to the Court, the use of Hindutva ‘at the time, place and occasion has to be understood only as an appeal on the ground of Hindu religion’.48

PARADOX OF ELECTION LAWS Much of the debate on use of religion and religious symbols in elections has centred on the Court’s role in conferring legitimacy on the use of Hindutva in the public sphere. However, there was the equally important—but somewhat neglected—question of the legitimacy of curbing religious speech in the public sphere, and what provisions in legislation such as the RPA meant for Indian democracy and secularism. While a coherent argument can be made for penalizing hate speeches not just during elections but in general, the rationale for Section 123 is more complicated. The RPA in many ways mirrors the impulse, as David Gilmartin points out in a paper on the Election Commission, of imposing a ‘special moral discipline’ on the process of elections and election campaigning.49 Section 123 is also representative of a basic ideal of Indian constitutional secularism—the desire to let all religions co-exist and prosper, and even get state patronage without any of them provoking or maligning each other. Oddly enough, this benign—or celebratory as some would prefer to call it—vision of pluralist secularism is accompanied by a fear of religion as representing atavistic tendencies, from which ‘ignorant’ citizens should ideally be protected against. This comes out strongly in the court judgments. In Bukhari, for instance, religious appeals by election candidates were seen as arousing ‘irrational passions’. In Ram Dial, both the high court and apex court were of the opinion that the diktat by the religious guru would have such an impact on

the ‘illiterate, ignorant, credulous and unsophisticated’ villagers as to count as ‘undue influence’. This could be seen as a legacy of Nehruvian secularism, where religion was accommodated but also seen as something that had a limited and even pernicious role in modern India. This of course had a lot to do with the terrible violence that followed the partition of the Indian subcontinent in 1947. There was also an element, as V.S. Rekhi puts it, of the courts internalizing the tradition of colonial administrators labelling religion as superstition and distinguishing it from rational/profane matters.50 As Gilmartin points out, most British officials ‘viewed religion as a threat to free conscience’.51 There are a few noteworthy aspects to the court’s intervention in religious appeals during election campaigns. One is the basic premise that some voters do not have agency. According to Pratap Bhanu Mehta, the RPA treats religious appeals as something that impair one’s ‘capacity to choose’. He says what comes across prominently in the case law concerning the RPA is that ‘religious speech appeals to the emotions, and impairs reason. It controls people rather than they controlling it’.52 Hence, in Ram Dial, the Court said that the religious leader’s command practically left voters with no free choice. This then gives the Indian state a license to step in and regulate religious exchange. Two, by regarding some appeals to religion as legitimate and introducing a contextual notion of the validity of religious appeals, the court has, unsurprisingly, shown a lack of consistency in its rulings. It has also made the court the final arbiter of what constitutes religion in election appeals. This is quite apparent in the two rulings related to electoral appeals by Akali Dal candidates. In Kultar Singh, the Court interpreted the appeals to the panth by the Akali candidate as not invoking the Sikh religion, but merely the Akali Dal party. In contrast, in Sajjan Singh, the court ruled that the diktat by the Akal Takht was a violation of the RPA. Indeed, there is a fundamental tension between the RPA and parties such as the Akali Dal which were founded on religious and ethnic principles. The Court recognized this in Kultar Singh when it said that so long as parties based on religion and community are permitted, their election campaigns could ‘indirectly’ be coloured by religion, race, caste, community, or

language. So it was left to the Court to decide where election appeals by such parties transgressed the law. This was the situation in the Hindutva cases where the court came to very different conclusions when deciding on the election campaigns by the BJP and Shiv Sena candidates. Thus, Manohar Joshi was let off by the court for espousing Hindutva and expressing the hope that a Hindu state would be established. However, Mahadhik was found guilty because of the setting—a Hindu temple during the time of a Hindu festival—of his appeal to Hindutva. The shifting context of deciding which appeal qualifies as religious, in a way, ensures that court rulings on the RPA are unlikely to have any consistency. Finally, there is the question of the uneasy relationship between the restrictions imposed by the RPA and liberal democratic norms of free speech. The parliamentary debates in 1951 on the RPA reveal very little about the thinking behind Section 123. When a question was raised in Parliament about barring religious symbols, B.R. Ambedkar—the prime mover behind the RPA—replied: ‘I think that elections ought to be conducted on issues which have nothing to do with, for instance, religion or culture. A political party should not be permitted to appeal to any emotion which is aroused by reason of something which has nothing to do with the daily affairs of the people’.53 He added somewhat enigmatically ‘any emotion other than political emotion should not be permitted’. This sort of a blanket ban on references to religion or culture, in a context where such issues are very much a part of the public discourse, is a little puzzling. Gary Jacobsohn explains this anomaly by saying that the idea that religion should be excluded from election campaigns made sense only if ‘it was intended to express a normative rather than an empirical point’.54 If that were the case, there is a significant gap between the ideals of the legislation and the reality of elections. Indeed, there is a school of thought that believes that election laws or rules have hardly had an impact on actual ‘electioneering’ in India.55 This is reflected in media reports on the influence wielded by religious leaders or groups on the electoral process.56 The courts, of course, have had to deal with this anomaly in cases involving the RPA. But in most of the cases, judges have

skirted this central issue and resorted to examining the context of the appeals. However, in the much-criticized Prabhoo ruling, Justice Verma could be seen as upholding liberal values of free speech. Indeed, no less a legal luminary than Ronald Dworkin praised Verma for his judicial reasoning in the Hindutva cases when he was in India soon after the judgment had been passed. As Gilmartin points out, the contradiction ‘between the legal protection of free will of the voter and the cultural demands of Indian society’57 is nowhere more evident than in matters of religion. This contradiction is central to the Court’s intervention on appeals to religion during Indian elections. Nearly sixty years of jurisprudence in independent India on this issue shows that the paradox is very much alive, and is likely to continue to haunt Indian democracy. It also illustrates the practical difficulties of regulating religious appeals in the electoral arena.

4 Good Citizens Religion and Educational Institutions

Just as with elections, the courts have had to intervene on several occasions on the issue of religion in educational institutions. The issue of religion in educational institutions can be divided into two separate, but not entirely unrelated, areas. One involves interpretation of Article 281 of the Indian Constitution which prohibits religious instruction in state-run educational institutions. The other is Article 302 which confers the right on religious, as well as linguistic, minorities to establish and administer educational institutions. This, of course, falls squarely in the domain of minority rights which is dealt with in some detail in the chapter on the uniform civil code. While the case law for Article 28 is relatively sparse, the rights of minority institutions have been bitterly contested. This has been particularly true in the recent past, especially so with regard to application of quotas in minority institutions. In the first section, I look at Court rulings on Article 28, while I consider some of the issues arising out of Article 30 in the next section.

TEACHING RELIGION How has the Supreme Court interpreted Article 28? The crucial ruling in this area is Aruna Roy v. Union of India,3 in which a public interest petition challenged the National Council of Educational Research and Training’s (NCERT) National Curriculum Framework for School Education (NCFSE) on the ground that it violated the

constitutional principles of secularism, among other things. In the Aruna Roy judgment of 2002 and an earlier case, DAV College v. Punjab,4 the Supreme Court laid out what was permissible with regard to religion in school and university texts, and curriculum. The Court made a critical distinction between ‘religious instruction’ and ‘religious education’, with the latter being permitted in the educational curriculum. The origins of this distinction can be traced by looking at the Constituent Assembly debates on Article 28. Reports by government-appointed commissions in independent India, such as the Radhakrishnan Commission and Kothari Commission, are also indispensable in looking at how the state has dealt with the issue of religion in schools and universities, and how it has framed the question of teaching religion. The Aruna Roy case is the latest, as well as the most detailed, discussion of what can be legitimately taught as religion in educational institutions. The NCFSE was formulated in 2000 when the BJP was heading a coalition government at the Centre. Among other things, the petitioners objected to some specific proposals in the NCFSE—in the section titled ‘Education for Value Development’—which they contended violated Article 28. One was the proposition that there had been an erosion of ‘essential’ values and that ‘value based education would help the nation fight against all kinds of fanaticism, ill will, violence, fatalism, dishonesty, avarice, corruption and drug abuse’.5 The bone of contention, however, was a related proposal: ‘Another significant factor that merits urgent attention now is religion. Although it is not the only source of essential values, it certainly is a major source of value generation. What is required today is not religious education but education about religions, their basics, the values inherent therein and also a comparative study of the philosophy of all religions’.6 The NCFSE went on to qualify this proposal by saying that ‘education about religions must be handled with extreme care … All religions therefore have to be treated with equal respect (Sarva Dharma Sam[a]bhav[a]) and that there has to be no discrimination on the ground of any religion (panthanirapekshata)’. Speaking for the Court, Justice M.B. Shah rejected the contention that NCFSE infringed upon Article 28 on three grounds. First, it

referred to several government-appointed commissions and reports, which advocated value-based education. It mentioned, in particular, the S.B. Chavan Committee, which said that religion is the ‘most misused and misunderstood concept’ and that ‘the basics of all religions, the values therein, and also a comparative study of the philosophy of all religions should begin at the middle stage in schools and continue up to the university level’.7 The Court was in full agreement with this view and said ‘religion is the foundation for value-based survival of human beings in a civilized society’. Second, the Court said that study of religions was in consonance with Article 51-A of the Constitution, which, among other things, declares that it shall be the duty of every citizen to ‘promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities …’ Third, the Court referred to the DAV College case where the petitioner argued that provisions for teaching Guru Nanak’s philosophy infringed upon Article 28(1). There the Court made a distinction between religious instruction and study of religions. It said, ‘To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instruction’.8 In a concurring judgment, Justice Dharmadhikari said, ‘The academic study of the teaching and the philosophy of any great saint such as Kabir, Guru Nanak and Mahavir was held to be not prohibited by Article 28(1) of the Constitution’.9 He, however, admitted that there was a ‘very thin dividing line’ between imparting of religious education and study of religions. Dharmadhikari gets around this problem by positing that the Indian concept of dharma differs from religion as understood in the West. According to him, in the concept of dharma ‘different faiths, sects and schools of thoughts merely are different ways of knowing truth which is one’.10 This allows for the teaching of religious education, which would mean ‘approaching the many religions of the world with an attitude of understanding’. He stressed that this understanding of religion is essential for a multireligious society such as India.

Situating the Aruna Roy Judgment The Aruna Roy judgment was greeted by a chorus of disapproval from sections of the media and some commentators, while the BJP welcomed it. The former feared that the state was preparing the ground for religious instruction in schools and that it was a blow to secularism in India. Martha Nussbaum is scathing in her criticism of the judgment: ‘Justice Manharlal Bhikalal Shah’s majority opinion is one of the weakest pieces of legal argumentation that has recently emerged from the Supreme Court of India’.11 However, this sort of reading ignored the realities of constitutional secularism in India and its many inherent contradictions. Indeed, Aruna Roy is one of many judgments that mirror the complexities and contradictions of the Indian secular state. Article 28 itself, like the freedom of religion clauses, does a fine balancing act. Though Article 28(1) says that no religious instruction shall be provided in wholly state-funded educational institutions, Article 28(2) allows religious instruction in state-run institutions established by endowments or trusts which require that religious instruction be imparted. At the same time, there cannot be any compulsion for students to attend religious instruction. In Aruna Roy, the Court was, however, not concerned with the propriety of religious instruction. It sought to make a distinction between religious instruction and religious education or study of religion. This distinction, the Court pointed out, could be traced back to the Constituent Assembly Debates. Following several proposed amendments and a lengthy debate on Article 22, which was to become Article 28 in the Constitution, B.R. Ambedkar had argued in the Constituent Assembly: ‘It is therefore not proper to say that by this article we have altogether barred religious instruction. Religious instruction has been left to be taught and given by each community according to its aims and objects subject to certain conditions. All that is barred is this, that the state in the institutions maintained by it wholly out of public funds, shall not be free to give religious instructions’.12 When asked by an Assembly member Lakshmi Kanta Maitra, if teaching of the Vedas, Upanishads, and shastras counted as religious instruction, Ambedkar answered that ‘Religious

instruction must be distinguished from research or study. Those are quite different things. Religious instruction means this. For instance, so far as Islam religion is concerned, it means that you believe in one God, that you believe that Pagambar the Prophet is the last Prophet and so on, in other words, what we call “dogma”’.13 However, when another member of the Assembly wanted this explanation of religious instruction included in the Constitution, Ambedkar said the ‘courts will decide when the matter comes up before them’.14 The distinction between religious instruction and religious education is also present in reports drafted by prominent government-appointed commissions, including the Radhakrishnan and Kothari reports. The Radhakrishnan report, which was written at the same time as the Constituent Assembly debates were on, recalled Ambedkar’s statement quoted above. It then went on to say: ‘There is a difference between the preaching of dogma and a philosophical study of religion. While the former is precluded, the latter is permitted. There shall be no sectarian indoctrination in State institutions. But history of religion and of religious institutions, comparative religion, philosophy of religion can all be studied even in institutions maintained wholly out of State funds’.15 The Kothari Commission report, which remains a seminal document on education in post-independent India, makes similar recommendations. It makes a distinction between ‘religious education’ and ‘education about religions’: ‘The former is largely concerned with the teaching of the tenets and practices of a particular religion, generally in the form in which the religious group envisages them, whereas the latter is a study of religions and religious thought from a broad point of view—the eternal quest of the spirit’.16 It makes the point that it is necessary for a ‘multireligious democratic State to promote a tolerant study of religions so that its citizens can understand each other better and live amicably together’.17

RELIGIOUS EDUCATION V. STUDY OF RELIGION

The Court, in its judgment, was making a larger argument about the nature of the secular state in India where religious education— based on a notion of religious pluralism—is essential. The Court admits that the experiment is ‘delicate’, but if undertaken in good faith, it is fully compatible with secularism when it is not understood to ‘mean neutrality of the State towards all religions and bereft of positive approach towards all religions’.18 The judgment raises at least two important questions: one, how does it fit into the overall trend of court rulings on religion? Two, what does it say about the nature of Indian secularism? First, it could well be argued that the case of Aruna Roy outlies so far as court rulings on the freedom of religion are concerned. In Aruna Roy, the Court seems to deviate from an overt attempt at homogenization of religion. Dharmadhikari explicitly talks about education being based on religious pluralism, which is opposed to exclusivism and is supportive of inclusivism. Second, how does one place Aruna Roy in the wider context of Indian secularism? If Indian secularism is seen as oscillating between sarvadharma samabhava and dharma nirapekshata, this judgment consciously aims at the former. This is stated by Dharmadhikari: ‘The real meaning of secularism in the language of Gandhi is sarva dharma samabhav meaning equal treatment and respect of all religions, but we have misunderstood the meaning of secularism as sarva dharma samabhav meaning negation of all religions’.19 To back up his views, Dharmadhikari quotes Mahatma Gandhi from a 1928 article in Young India, where he says, ‘A curriculum of religious education should include a study of the tenets of faiths other than one’s own. For this purpose the students should be trained to cultivate the habit of understanding and appreciating the doctrines of various great religions of the world in a spirit of reverence and broadminded tolerance’.20 Aruna Roy could be seen as a judgment that is characteristic of the celebratory neutrality of Indian constitutional secularism. However, the ruling and the logic on which it is based raises a few awkward questions. For one, the Court assumes that religion is the ‘foundation for value based survival of human beings in a civilized society’. This is, as Nussbaum points out, a disturbing ‘slide from

ethical values to religious values’.21 Two, a problematic aspect of the judgment is the assumption that the study of different religions is worthy in so far as it furthers the strength and unity of the nation. Dharmadhikari states, ‘The lives of Indian people have been enriched by integration of various religions and that is the strength of this nation. Whatever kind of people came to India either for shelter or as aggressors, India has tried to accept that the best part of their religions. As a result, a composite culture gradually developed in India and enriched the lives of Indians’.22 Questions can, however, be raised on whether a composite culture is favourable to a multiplicity of faiths and freedom of religion. A similar charge can be made against the Radhakrishnan report, which says that the Indian Constitution has the ‘makings of a national faith, a national way of life which is essentially democratic and religious’.23 The Court internalizes much of this rhetoric in the Aruna Roy ruling, and earlier landmark judgments such as Bommai24. Finally, the Aruna Roy ruling must also be seen in the light of the fact that it validated teaching of religion at a time when a Hindu nationalist party was in power, and the secular state was in crisis. According to Nussbaum, ‘The whole opinion is disquieting, perhaps a sign of degenerating legal skills on [sic] the Court, perhaps also a more disturbing sign of growing politicization’.25 It must, however, be pointed out that both the NCFSE’s recommendations and the Court judgment did not radically differ from the reports prepared during the heyday of the Nehruvian era. This only goes to show that there are certain assumptions about the nation, and a limit on religious pluralism, which are common to both Nehruvian secularism and Hindu nationalism. The NCFSE reviewed by the Congress-led United Front that framed the government in 2004, and a revised National Curriculum Framework (NCF) was formulated by the NCERT in 2005. The NCF, which has drawn praise from several quarters, mentions as one of its guiding principles: ‘India is a multicultural society made up of numerous regional and local cultures. People’s religious beliefs, ways of life and their understanding of social relationships are quite distinct from each another. All the groups have equal rights to co-

exist and flourish, and the education system needs to respond to the cultural pluralism inherent in our society’.26 As a statement of intent, this is much improved compared to the NCFSE. However, how the state education system will tackle religious and cultural pluralism within the framework of Indian constitutional secularism remains an unsettled issue.

CONTESTING ARTICLE 30 If Article 28 has not been relatively less contested, the rights of minority educational institutions continue to be one of the most litigated areas of constitutional law. The fight has not been so much over religion per se, but over the autonomy of educational institutions run by religious minorities. My aim in this section is to provide a broad survey of the Court’s interpretation of Article 30(2), and not enter the nitty-gritty of administration and regulation of minority institutions. One of the first cases where the limits of Article 30(1) were tested arose out of a reference made by the President of India under Article 143, where the Supreme Court had to consider the constitutional validity of certain provisions of the Kerala Education Bill, 1957.27 On Article 30(1) the Supreme Court said: Our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion … So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own …28

However, the Court tried to balance the claims of autonomy by a minority institution with the state’s desire to regulate, particularly when it was giving aid. The Court observed that the constitutional right of a minority to administer an educational institution of their choice did not necessarily militate against the claim of the state to insist that in order to grant aid it may prescribe reasonable regulations to ensure the excellence of institutions to be aided. However, the state could not grant aid in such a manner as to take away fundamental rights of the minority community under Article

30(1). In discussing the interplay between Article 29(2), which says no citizen can be denied admission into any educational institution maintained or funded by the state on grounds of religion, race, language or caste, and Article 30(1), the Court said: The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular community. In our opinion, it is not possible to read this condition into Article 30(1) of the Constitution29 [emphasis added].

A few years later, in Rev Sidhajbhai v. State of Bombay,30 in which a government order mandating that 80 per cent of the seats in a Christian-run teacher’s training college be filled by governmentnominated teachers was challenged, the Court said, ‘Unlike Art. 19, the fundamental freedom under clause(1) of Art. 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art. 19 may be subjected to’.31 However, it added that regulations could be imposed ‘in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order’.32 The Court outlined strict guidelines under which state regulation could take place: ‘The regulations must satisfy a dual test—the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it’. Further, the Court warned: The right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institution but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a ‘teasing illusion’.33

EROSION OF AUTONOMY What the Court was warning against in Sidhajbhai came true in a series of subsequent rulings. One of these was Azeez Basha v. Union of India,34 which related to Aligarh Muslim University (AMU). Here, the Court had to decide on whether the AMU—a central university established under the Aligarh Muslim University Act 1920 —was a minority institution. The 1920 Act intended to ‘establish and incorporate a teaching and residential Muslim University at Aligarh’. Section 23 of the Act provided for the constitution of the university court consisting of only Muslim members. Under Section 9 of the Act, the university court had power to make statutes to ensure that instruction in the Islamic religion would be compulsory for Muslim students. The Act was amended in 1951, after Independence. Section 9 was scrapped since it infringed Article 28, which did not permit compulsory religious instruction in any government-aided educational institution, as was Section 23. Subsequently, in 1965, the Act was further amended where the university court ceased to be the supreme governing body and was converted into an advisory body. This amendment was challenged in Azeez Basha on the ground that it violated Article 30(1). Disregarding the history of the Aligarh Muslim University (AMU)— which originated as the Mohammedan Anglo-Oriental College meant for imparting education to Muslims—the Supreme Court declared that AMU was established by an Act and not by the Muslim minority. Hence, the Court ruled that the 1968 Act did not violate Article 30(1). A five-judge bench headed by Chief Justice K.N. Wanchoo said: The Aligarh University not having been established by the Muslim minority, any amendment of the 1920 Act by which it was established, would be within the legislative power of Parliament subject of course to the provisions of the Constitution. The Aligarh University not having been established by the Muslim minority, no amendment of the Act can be struck down as unconstitutional under Art. 30(1).35

However, responding to petitions by various Muslims bodies as well as the staff of AMU, Parliament passed the Aligarh Muslim University (Amendment) Act in 1981 which said that the university

was ‘the educational institution of their choice established by the Muslims of India, which originated as the Mohammedan AngloOriental College Aligarh and which was subsequently incorporated as the Aligarh Muslim University’. Clause 5(2) of the Act also stated that the university was ‘to promote especially the educational and cultural achievement of the Muslims of India’. This, too, has been dragged to court with the Allahabad High Court ruling that AMU is not an educational institution established by the Muslim minority under Article 30(1). The university’s appeal is pending before the Supreme Court. While the minority status of AMU is yet to be fully resolved, there has been a gradual erosion of the autonomy of educational institutions run by religious minorities. Some would say this began with St Xavier’s College v. State of Gujarat,36 where the Court had to consider the constitutional validity of certain provisions of the Gujarat University Act, 1949. On the scope of Article 30(1), Chief Justice A.N. Ray said: Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the rights on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.37

However, in a departure from earlier rulings, Ray went on to link Article 30(1) with the ‘unity’ of the country: The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country … General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.38

Commenting on the character of a minority institution, Ray made an important observation: ‘A minority institution should shine in exemplary eclecticism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character’.39

The line of argument was extended in St Stephen’s College v. University of Delhi40 in which the admission policy of the college— which differed from the university norms and favoured Christian applicants—was challenged. Though the Court upheld the admission policy of the college, it frowned upon the practice of giving preference to candidates of a particular religion. It said: In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a ‘melting pot’ in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.41

On the question of preference for minority students, the Court, for the first time, imposed a cap on the intake of minority students at 50 per cent. It said: The minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the university standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community.42

REVISITING ARTICLE 30 This issue of admissions in minority institutions, and the extent of the rights of minority institutions, would be revisited controversially in TMA Pai Foundation v. State of Karnataka.43 Following the Unni Krishnan v. Andhra Pradesh44 judgment, in which the Court had dealt with admissions and fees in medical and engineering colleges, an eleven-judge bench was constituted to look into the ‘true scope and interpretation of Article 30(1)’ in TMA Pai. The majority

judgment, delivered by Chief Justice B.N. Kirpal dwelt on, among other things, the interplay between Article 29(2) and Article 30(1), and concluded that Article 30(1) cannot be delinked from Article 29(2). It said: The right to establish and maintain educational institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them.45

Commenting on Sidhajbhai, Kirpal said: In Sidhajbhai Sabhai’s case, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted herein above. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf.46

The Court also delved into the issue of regulating the admission of non-minority members to a minority institution. Referring to the Kerala Education Bill case, the Court said: It will be seen that the use of the expression ‘sprinkling of outsiders’ in that case clearly implied the applicability of Article 29(2) to Article 30(1); the Court held that when a minority educational institution received aid, outsiders would have to be admitted. This part of the state’s contention was accepted, but what was rejected was the contention that by taking outsiders, a minority institution would cease to be an educational institution of the choice of the minority community that established it.47

Taking issue with the cap on reservations for non-minority students, Kirpal said: Though we accept the ratio of St. Stephen’s, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage

stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.48

He added that it would be open to the state ‘to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats’.49 He concluded by saying that ‘Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation’.50 However, Justice Ruma Pal delivered a dissenting judgment on the question of the applicability of Article 29(2) to Article 30(1). As she put it, the primary question was: ‘Does the receipt of state aid and consequent admission of non-minority students affect the rights of minorities to establish and administer educational institutions of their choice?’51 According to Pal, the starting premise of the discussion should be the fact the Indian Constitution does not proceed on the ‘melting pot theory’, but favours a ‘salad bowl’.52 Regarding the link between state aid and autonomy of minority institutions, Pal said, ‘An institution set up by minorities for educating members of the minority community does not cease to be a minority institution merely because it takes aid. There is nothing in Article 30(1) which allows the drawing of a distinction in the exercise of the right under that Article between needy minorities and affluent ones’.53 On the interplay between Article 29(2) and Article 30(1), Pal sharply differed from the majority judgment: Even on general principles of interpretation, it cannot be held that Article 29(2) is absolute and in effect wipes out Article 30(1). Article 29(2) refers to ‘any educational institution’—the word ‘any’ signifying the generality of its application. Article 30(1) on the other hand refers to ‘educational institutions established and

administered by minorities’. Clearly, the right under Article 30(1) is the more particular right … it must be held that Article 29(2) does not override the educational institutions even if they are aided under Article 30(1).54

Making a strong plea for treating Article 30(1) as an independent clause, she said, ‘To say that Article 29(2) prevails over Article 30(1) would be to infringe and to a large extent wipe out this right. There would be no distinction between a minority educational institution and other institutions and the rights under Article 30(1) would be rendered wholly inoperational’.55

LIMITS OF AUTONOMY The issues raised by TMA Pai have refused to go away. In a subsequent case, Islamic Academy v. State of Karnataka,56 which was primarily concerned with the admission process and fee structure of private unaided institutions, the Court said: Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages … Even though the government may have the right to take over management of a non minority educational institution, the management of a minority educational institution cannot be taken over because of the protection given under Article 30.57

Here too, there was a dissenting judgment with Justice S.B. Sinha saying: The doubt, if any, that the minorities have a higher right in terms of Article 30(1) of the Constitution of India may be dispelled in clearest terms inasmuch as the right of the minorities and non-minorities is equal. Only certain additional protection has been conferred under Article 30(1) of the Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to the members of their own community whether based on religion or language.58

However, the Court put in place a controversial monitoring system for both private and non-private professional colleges saying, ‘We now direct that the respective State Governments do appoint a

permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed’.59 It added that the ‘different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments.’60 The issue of unaided minority institutions, particularly with respect to quotas, would once again come up in P.A. Inamdar v. State of Maharashtra.61 Here, a seven-judge bench headed by Chief Justice R.C. Lahoti revisited the issue as it felt that ‘some of the main questions have remained unsettled even after the exercise undertaken by the Constitution Bench in Islamic Academy in clarification of the eleven-judge Bench decision in Pai Foundation’.62 Lahoti spelled out four questions that the Court was concerned with: (i) to what extent should the state regulate unaided minority and non-minority institutions; (ii) whether unaided institutions could devise their own admission procedures; (iii) whether fees could be regulated; and (iv) could admissions and fees be regulated by stateappointed committees. Here, we are mainly concerned with the first question. Taking a different view on TMA Pai as compared to Islamic Academy, the Court said: As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill … is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by State … This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation.63

UNITY OVER DIVERSITY The legitimacy of such regulation has to come to a head on the issue of quotas in both aided and unaided minority institutions. While some feel that a 50 per cent cap on minority students, as proposed in St Stephen’s, was an encroachment on the rights of

minority institutions, in TMA Pai, the Court said that the ceiling too could not be cast in stone. When the quotas were extended to private institutions, it stirred a controversy. The Islamic Academy and Inamdar judgments had different views on what the Constitutional Bench had said in TMA Pai. Inamdar overruled Islamic Academy on the question of allowing reservation in unaided institutions. This prompted the government—with the backing of most political parties—to intervene by enacting the 93rd Constitutional amendment in 2006. The amendment added Clause 5 to Article 15, empowering the state to make special provisions for the advancement of Other Backward Classes, Scheduled Castes, and Scheduled Tribes in admission to educational institutions, including private ones, irrespective of whether they were aided or not. However, minority institutions were exempt from this clause. While this meant that unaided minority institutions were not bound by Article 15(5), the larger tensions around Article 30 remained unresolved. The judicial pronouncements on Article 30 represent a struggle between the autonomy of minority institutions and state interference. Dhavan and Nariman point out: The Supreme Court’s approach to minority rights and institutions has been far from consistent. Beginning with a far greater sensitivity in favour of these rights in the early years, it has gradually permitted extensive regulatory ingresses into the working of minority institutions … This ingress has been spurred on for ideological reasons and a somewhat myopic view that minority institutions should play a less autonomous role in matters of education; that all persons must join a particular assimilationist version of the mainstream of Indian life.64

While certain kinds of regulation for state-aided educational institutions have rightly been held legitimate by the Court in the initial years, the line of thinking beginning with St Xavier’s had led to a whittling down of the rights provided by Article 30(1). In St Xavier’s, Chief Justice Ray urged minority institutions not to proclaim their ‘minority character’ for the sake of the country’s unity. Again in St Stephen’s, the Court said educational institutions must be a ‘melting pot’ where students of every community should be represented. And most recently in TMA Pai, Chief Justice Kirpal

spoke of uniting to form a ‘strong nation’. The ‘melting pot’ and ‘unity’ metaphors are problematic for a nation as diverse and pluralist as India. This was pointed out in her dissenting judgment in TMA Pai by Pal who said it was the ‘salad bowl’—where groups coexist and celebrate their identity, rather than the melting pot—where groups are expected to submerge their identities—which is the foundation of the Indian Constitution and state. While it could be that the ‘melting pot’ phrase was a throwaway line by the Court, the ‘unity’ metaphor is a recurrent one in many Court judgments. It could well be argued that the Court’s understanding of what this unity or national interest entails has been at the root of curtailing the rights of minority educational institutions, something that Sidhajbhai warned against more than four decades ago.

5 Boundaries of Faith The Court and Conversion

The issue of religious conversion remains contentious in independent India and has frequently come up before the courts. There is an urgency to this question as it figures prominently in the discussion on secularism, as well as the debate on caste-based quotas in India. Some states, those governed by the BJP and the Congress, have over the past few years, introduced legislation to regulate conversion, though such laws first made their appearance in the 1960s. There is also ongoing litigation in the courts on whether Dalit or Scheduled Caste converts to Christianity should be granted reservations benefits, something that is not mandated by the Constitution at present. The court rulings on conversion cannot be divorced from the politics of conversion that is prevalent in modern India. Since the rise of the Hindu nationalists, as a political force in the 1990s there have been several incidents of violence against Christians and missionaries, who often work in the poorest districts of India. In 1998, Dangs, a tribal-dominated district in Gujarat, became a flashpoint for atrocities against Christians. As Gauri Viswanathan points out, ‘The violence against Christians in Gujarat and elsewhere since late 1998 was caused by the perception that missionaries were targeting poor tribals to convert them to Christianity, often by imparting literacy skills to them. Radical Hindu groups interpret Christian conversion as an inducement, an enticing avenue of escape from grinding poverty’.1

The horrific incident where Australian missionary Graham Staines and his two sons were burnt alive in Orissa in 1999 was just one of the events that marked the upsurge in violence against Christians. During the same period, there had been a rise in instances of mass ‘reconversion’ to Hinduism organized by Hindu fundamentalist groups. Reconversion is, of course, not a new phenomenon and can be traced back to the ‘shuddhi’ (purification) movements begun by the Arya Samaj in the late nineteenth century.2 The tensions over conversion once again resurfaced in a violent manner in 2008 in Kandhamal district in Orissa, a state governed by the Biju Janata Dal, an ally of the BJP. The violence was triggered by the murder of a Vishva Hindu Parishad (VHP) leader, Swami Laxmanananda Saraswati, who ran an ashram in the district. Following his death, Christians were targeted, ostensibly by Bajrang Dal3 activists, and their homes torched forcing over 22,000 of the 1.17 lakh Christians in the district to take refuge in relief camps.4 Around the same time, there were attacks on churches and prayer halls in Karnataka, a BJP-governed state. Though Christian missionaries and Christian converts have been the primary targets of Hindu nationalist groups, Islamic conversions have also occasionally caused tension. In 1981, several families of lower caste Hindus converted to Islam in Meenakshipuram in Tamil Nadu sparking off a national controversy.5 And ever since several thousand Dalits followed Ambedkar in converting to Buddhism in 1956, there have been periodic waves of conversion to Buddhism. However, in the main, it’s Christian conversions that have been a bone of contention in independent India.

CONVERSION IN COLONIAL INDIA It is often forgotten that Christianity and missionary conversions existed in India long before the British came. The origins of Christianity in India go back to the first century CE. However, the public discourse on conversion in independent India has been profoundly influenced by the acrimonious debate on conversion during the colonial period.6 Indeed, very early on, the tone was set

by Rammohun Roy who wrote in 1822 during a debate with Baptist missionary Joshua Marshman that a majority of Christian converts in India converted not because of a ‘conviction of the truth and reasonableness of those dogmas’.7 There was, at the same time, a close identification of Christianity with colonial rule. Thus, Mahatma Gandhi wrote in 1929, ‘Christianity in India has been inextricably mixed up for the last one hundred and fifty years with British rule. It appears to us as synonymous with materialistic civilization and imperialistic exploitation by the stronger white races of the weaker races of the world’.8 Gandhi’s dim views on conversion and his debates with Christian missionaries are well known. He had stated in an article in Young India in 1931: ‘Every nation considers its own faith to be as good as that of any other. Certainly the great faiths held by the people of India are adequate for her people. India stands in no need of conversions from one faith to another’.9 Later he wrote, ‘Why should a Christian want to convert a Hindu to Christianity and vice versa? Why should he not be satisfied if the Hindu is a good or godly man? If the morals of a man are a matter of no concern, the form of worship in a particular manner in a church, a mosque or a temple is an empty formula …’10 However, it would be a mistake to club Gandhi with the Hindu nationalists on the matter of conversion. Gandhi’s views stemmed from a specific understanding of an inclusive Hinduism, which was very different from the Arya Samaj or the sangh parivar. Hinduism is not an exclusive religion. In it there is room for the worship of all the prophets of the world. It is not a missionary religion in the ordinary sense of the term. It has no doubt absorbed many tribes in its fold, but this absorption has been of an evolutionary imperceptible character. Hinduism tells everyone to worship God according to his own faith or dharma, and so it lives at peace with all the religions.11

Rudolf Heredia explains Gandhi’s opposition to conversion in terms of the latter’s understanding of religion, particularly of Hinduism: ‘He [Gandhi] was all for an atmaparivartan, a change of heart, but not for a dharmantar, a change of religious tradition. He was a reformer not a proselytizer. Indeed, to both converters and converts he

represents a most genuine challenge to a deeper and more honest introspection’.12 Though Christian missionaries continually pressed the colonial state for an unfettered right to propagate their religion, missionaries were allowed to function only from 1813, and with restrictions, till 1833. Following the 1857 uprising, the colonial state decided to follow a policy of religious neutrality, as spelled out in Queen Victoria’s proclamation in 1858. During British rule, converts to Christianity could avail of the benefits of the laws of marriage and succession enacted for Christians. Among these were the Succession Act, 1865, the Native Converts Marriage Dissolution Act, 1866, the Divorce Act, 1869, and the Christian Marriage Act, 1872. However, the legislation that was perhaps the most controversial—and raised fears of large-scale conversions among certain Hindus—was the Caste Disabilities Removal Act, 1850. It said: ‘So much of any law or usage now in force in India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing, or having been excluded from the communion of, any religion, of being deprived of caste, shall cease to be enforced as law in any court’.13 The rulings by colonial courts were an integral part of the discourse on conversion. The celebrated Abraham v. Abraham14 case in 1863 is an instance of a court ruling where many of the colonial state’s assumptions about conversion, and the need to establish boundaries of identity, came into play. This case was a dispute over property between the widow and brother of a native Christian, Matthew Abraham. Though there were several issues involved in the case, the primary one was deciding whether the succession to property was to be decided by the Hindu law of parcenership, as Matthew’s brother wanted, or English heirship laws, as Matthew’s widow demanded. The case, which went up to the Privy Council, was eventually decided in favour of Matthew’s brother. Lord Kingsdown said in the final judgment of the Privy Council: ‘The profession of Christianity releases the convert from the trammels of the Hindu law, but it does not of necessity involve any change of the rights or relations of the convert, in matters with which

Christianity has no concern, such as his rights and interests in, and his powers over, property’.15 Viswanathan points out, in her study on conversion during the colonial period, that the substance of the court rulings suggests that the authority of institutions to establish criteria for membership was firmly established. According to her, the colonial state tended to assume that conversion represented ‘assimilation’ or ‘forcible change’ rather than mobility or free will.

CONSTITUENT ASSEMBLY DEBATES The right to convert in Independent India is recognized in Article 25, where all persons are given the right to ‘profess, practice and propagate’ religion. There was, however, a lively debate in the Constituent Assembly on allowing the right to propagate religion. However, even before the debates began, there was a disagreement on the draft article on freedom of religion pertaining to propagation of religion. Not only did it not include the right to propagate religion, there were clauses proposed by K.M. Munshi that imposed restrictions on the right to convert. These were amended after protests by Christian members of the Fundamental Rights Sub-Committee, but in the final draft sent to the Constituent Assembly there was a clause specifying that ‘conversion from one religion to another brought about by coercion or undue influence shall not be recognized by law’. During the debates of the Draft Constitution in the Assembly, one of the most virulent critics of having propagation of religion as a fundamental right was Lokanath Misra. He blamed propagation of religion for the ‘unfortunate’ situation that India found itself to be in. You know that propagation of religion brought India into this unfortunate state and India had to be divided into Pakistan and India. If Islam had not come to impose its will on this land, India would have been a perfectly secular state and a homogenous state. There would no question of Partition. Therefore, we have rightly tabooed religion. And now to say that as a fundamental right everyone has a right to propagate his religion is not right.16

He went on to raise the spectre of the right to propagate ‘paving the way for the complete annihilation of Hindu culture, the Hindu way of

life and manners …’17 Some members, such as Purshottamdas Tandon, accepted the right to propagate but only grudgingly: ‘Generally, we, Congressmen, do not think it at all right—I say so frankly—that people should strenuously go about trying to convert people of other faiths into their own, but we want to carry our Christian friends with us …’18 Others such as T.T. Krishnamachari rebutted the claim that only Christians and Muslims were involved in spreading their religion. He said, ‘It is perfectly open to the Hindus and the Arya Samajists to carry on their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains and Buddhists and to every other religionist, so long as he does it subject to public order, morality and the other conditions that have to be observed in any civilized government’.19 There were those who vigorously argued that propagation was compatible with a secular state. Lakshmi Kanta Maitra stated: ‘Propagation does not necessarily mean seeking converts by force of arms, by the sword, or by coercion. But why should obstacles stand in way if by exposition, illustration and persuasion you could convey your own religious faith to others? I do not see any harm in it’.20 Munshi, who had earlier proposed restrictions on conversion, forcefully argued, ‘There is no particular advantage to a member of one community over another, nor is there any political advantage by increasing one’s fold. In those circumstances, the word “propagate” cannot possibly have dangerous implications, which some members think that it has’.21 He added that ‘so long as religion is religion, conversion by free exercise of the conscience has to be recognized’.22 Eventually, the word ‘propagate’ was retained and restrictions on the right were scrapped. This had earlier been welcomed by Christian members such as Jerome D’Souza, who said that the final article on freedom of religion was ‘so reassuring and encouraging to the minorities, that we have no reason at all to quarrel or to ask for stronger assurances’.23 There are two opinions about the debates on conversion in the Assembly. Stephen Kim has this to say: ‘As the ferocity of the debates showed, the Hindu concession was less than an expression of Hindu tolerance or the triumph of the spirit of compromise.

Instead, Hindus were compelled by circumstances to accommodate minority rights because of the communal tension and outbreaks of violence around the time of Independence’.24 Heredia, on the other hand, has a different view on the compromise saying that the ‘Constitutional debate was more a dialogue and the conclusions mutually agreed on were not a compromise lacking conviction, though some have insinuated as much; they were much more of a compact based on mutual trust’.25 The very fact that the word ‘propagate’ was included in Article 25 and sceptics, such as Munshi, eventually endorsed it is possibly an indication that the ‘compromise’ was indeed a genuine one.

REGULATING CONVERSION The major court rulings on conversions in independent India can be broadly classified into three categories. First, there are the cases challenging the legality of legislation to regulate conversions, which is in effect in some states of India. Second, there are cases involving converts, particularly to Christianity, who claim the benefits of castebased reservation in jobs, elections, and educational institutions, available to the Scheduled Castes. Third, there is a category of cases where converts have ‘reconverted’ to Hinduism and asked for restoration of reservation benefits. One of the early cases where the Supreme Court had to deal with the issue of conversion was Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram.26 Here, the case involved the disqualification of a candidate belonging to the Mahar caste, Gangaram Thaware, who was contesting a reserved seat, for having converted to the Mahanubhava Panth. The Court was primarily concerned with the question whether Thaware had ceased to be a Mahar when he joined the Mahanubhava Panth. Though the Court, using the precedent of the Abraham case, ruled that the conversion did not mean that Thaware had lost his Scheduled Caste status, it laid out a complex understanding of conversion: ‘Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more

material considerations such as severance of family and social ties and the casting off or retention of old customs and observances’.27 The first real opportunity to clarify the right to propagate religion came in the landmark Rev. Stanislaus v. State of MP28 case. Here, two state statutes—Madhya Pradesh Swatantra Adhiniyam and the Orissa Freedom of Religion Act—aimed at regulating conversions were being challenged. These statutes had one thing in common: they prohibited religious conversion by the use of force, allurement, or fraudulent means. Legislation meant to check conversions had a precedent in princely states in colonial India. Some of these were the Raigarh State Conversion Act, 1936, the Sarguja State Apostasy Act, 1945, and the Udaipur State Anti-Conversion Act, 1946. In independent India, Orissa and Madhya Pradesh were the first two states to pass such legislation in the 1960s, followed by Arunachal Pradesh in 1978. More recently, Gujarat and Chhattisgarh in 2003, and Rajasthan and Himachal Pradesh in 2006, have passed similar legislation. In Tamil Nadu, a similar law was enacted in 2002 but repealed two years later. The Rajasthan legislation was sent back by the Indian President, Pratibha Patil, when she was the Governor of the state. These laws have made forcible conversion a cognizable offence under Sections 295A and 298 of the Indian Penal Code. In some of the states, the punishment is doubled if a minor, a woman, or person belonging to the Scheduled Caste or Scheduled Tribe is forcibly converted. From 1954 onwards, there have also been unsuccessful attempts for a central legislation on the lines of the state Acts. In 1954, a bill known as the Indian Converts (regulation and registration) Bill was tabled in the Lok Sabha, but this was rejected by the House. A Freedom of Religion Bill was again presented to the Lok Sabha in 1978, but before any discussion could take place the incumbent government fell in 1979. As a precursor to the Madhya Pradesh Bill, the state government in 1954 had appointed a committee headed by a former chief justice of the Nagpur High Court, M.B. Niyogi, to enquire into Christian missionary activities. In its report submitted in 1956, the committee said, ‘Conversions are mainly brought about by undue influence, misrepresentation, etc. or in other words not by conviction but by

various inducements offered for proselytization in various forms’.29 Among its recommendations was the prohibition of conversion through ‘force or fraud, or threats of illicit means’.30 It also recommended an amendment to the Constitution clarifying that the right to propagation was subject to the above conditions. The Orissa Act, which preceded the Madhya Pradesh legislation by a year, made its intent very clear when it stated in its statement of objects and reasons: ‘Conversion in its very process involves an act of undermining another faith’. Rev. Stanislaus, a Christian priest from Madhya Pradesh, had challenged the Madhya Pradesh legislation on two grounds. One was that the state legislature did not have the authority to make the law, and two, that the law infringed Article 25. The Madhya Pradesh High Court upheld the Act, ruling that penalizing conversion by force, fraud, or allurement did not contravene Article 25. Another petitioner, Yulitha Hyde, had challenged the Orissa Act. The Orissa High Court took an opposite stance saying that the term ‘inducement’ was too vague and could not be covered under the restrictions in Article 25. It also ruled that the state legislature had no power to enact a law related to religion. When the case came up before a five-judge bench of the Supreme Court, it ruled that the state legislatures were within their right to pass the Acts since it was meant to maintain public order. On the critically important question of infringement of the right to propagate guaranteed in Article 25, Chief Justice A.N. Ray who delivered the judgment, followed an odd line of reasoning. What the Article grants is not the right to convert another person to one’s own religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees freedom of conscience to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.31

Ray made a distinction between a benign propagation of religion, which was permitted, and attempts to convert people to one’s religion, which the Court felt impinged on freedom of conscience. In making this distinction, Ray drew upon an earlier judgment, Ratilal Panachand, which said that Article 25 sanctions propagation of religion for the ‘edification’ of others. The Stanislaus judgment has been criticized by several commentators for its peculiar understanding of propagation of religion, which precluded conversion. According to Viswanathan, the impetus for the judgment ‘came from a series of rulings set in motion by the findings and recommendations’32 of the Niyogi Commission. One of India’s most respected constitutional scholars had this to say about the Stanislaus judgment: The right to propagate religion gives a meaning to freedom of choice (of religion), for choice involves not only knowledge but an act of will. A person cannot choose if he does not know what choices are open to him. To propagate religion is not to impart knowledge and to spread it more widely, but to produce intellectual and moral conviction leading to action, namely, the adoption of that religion. Successful propagation of religion would result in conversion … Conversion does not in any way interfere with the freedom of conscience but is a fulfilment of it and gives a meaning to it. The Supreme Court judgment is clearly wrong. It is productive of the greatest public mischief and ought to be overruled.33

More recently, Pratap Bhanu Mehta has written, ‘Our anti-conversion laws, subscribed to by both the Congress and the BJP, and upheld by one of the Supreme Court’s most confused decisions in the Stanislaus case, are a travesty’.34 Elsewhere he says, ‘Such basically anti-liberal legislation has been facilitated by the Supreme Court through its decisions in the Stanislaus case that some years ago upheld the Orissa and Madhya Pradesh anti-conversion legislations. The court’s reasoning on that occasion now provides some of the staple assumptions of anti-conversion legislation’.35 Over thirty years after it was delivered, the Stanislaus judgment has, however, not been reconsidered by a larger bench and continues to be the last word on the meaning of the right to propagate.

CONVERSION AND CASTE One of the contentious aspects of conversion is the inability of Scheduled Caste converts to access the benefits of reservation in government jobs or educational seats. This stems from the first Constitution (Scheduled Caste) Order 1950 which said: ‘No person who professes a religion different from Hinduism shall be deemed to be a member of a scheduled caste’. This was later amended to include Sikhs in 1956 and Buddhists in 1990. Before the Buddhists were included within the ambit of reservation, in Punjabrao v. Meshram,36 one of the arguments used by a convert to Buddhism— who had contested elections from a reserved constituency—was that Buddhists should be regarded as Hindus. To buttress this claim, it was pointed out that Explanation II of sub-clause (b) of Article 25(2) says: ‘The reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion …’ However, contrary to the inclusivist view taken by the courts on several occasions, in Punjabrao the Court ruled against Buddhists being counted as Hindus. It cited the Constitution (Scheduled) Caste Order which said: ‘No person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of the Scheduled Caste’. From this, the Court inferred that for reservation purposes, the word ‘Hindu’ is ‘used in the narrower sense of the orthodox Hindu religion which recognizes castes and contains injunctions based on caste distinctions’.37 There have been a number of cases where Scheduled Caste converts to Christianity have argued for benefits available to Dalit Hindus. The Court has usually dismissed these demands on the grounds of exclusion of Christians in the 1950 order. However, petitioners have often argued for reservation benefits by virtue of the fact that caste distinctions do not always disappear simply by converting to another religion. A Madras High Court ruling in the early years of independent India set the tone for most of the subsequent judgments on this issue. In G. Michael v. S. Venkateswaran, the Court said: ‘Christianity and Islam are religions prevalent not only in India but also in other countries in the world.

We know that in other countries these religions do not recognize a system of caste as an integral part of their creed or tenets’.38 On the question of converts still being regarded as a member of his earlier caste, the Court said: This is somewhat analogous families and groups continue governed before they became the general rule is conversion

to cases in which even after conversion certain to be governed by the law by which they were converts. But these are all cases of exception and operates as an expulsion from the caste; in other

words a convert ceases to have any caste.39

This reasoning was followed in later cases. In Soosai v. Union of India,40 the petitioner argued that he still retained his Adi Dravida caste—one of the castes listed as a Scheduled Caste—even though he had converted to Christianity. There was plenty of evidence placed before the Court to the effect that ‘depressed groups and castes are to be found not only among Hindus and Sikhs but also among Muslims and Christians’.41 Indeed in a later case, the Court had spoken of the possibility of Hindu converts to Christianity or Islam retaining their caste. In Kailash Sonkar v. Maya Devi, the Court ruled: In a large area of South and some of the North-Eastern states [of India] it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new Order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste.42

However, in Soosai, the Supreme Court reiterated: Now it cannot be disputed that the caste system is a feature of the Hindu social structure. It is a social phenomenon peculiar to Hindu society. The division of the Hindu social order by reference at one time to professional or vocational occupation was moulded into a structural hierarchy which crystallized into a stratification where the place of the individual was determined by birth. Those who occupied the lowest rung of the social ladder were treated as existing beyond the periphery of civilized society, and were indeed not even ‘touchable’.43

Justice R.S. Pathak, who delivered the judgment, then went on to say there was not sufficient evidence to show that Scheduled Caste converts suffered from the same discrimination that they did before conversion. He said: To establish that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 discriminates against Christian members of the enumerated castes it must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution.44

THE QUESTION OF RECONVERSION If the courts have rejected claims by converts from Hinduism for reservation benefits, they have had to regularly adjudicate on demands for reinstatement of these benefits on reconverting to Hinduism. In Rajagopal v. Armugum,45 the Court rejected the claim of a Christian convert, S. Rajagopal, who had returned to Hinduism to contest elections from a reserved constituency. This decision was taken, in spite of the Court being convinced that Rajagopal had indeed become a Hindu at the time he contested the election. The Court said that by virtue of his conversion to Christianity he had lost his Scheduled Caste status. The Court, however, left open a window for Scheduled Caste converts who returned to Hinduism by referring to earlier judgments by high courts: Almost all these cases laid down the principle that, on reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion. The main basis of the decisions is that, if the members of the caste accept the reconversion of a person as a member, it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion.46

This test had been spelled out earlier in Jasani where the Court laid out three factors that needed to be considered: (i) the reaction of the religion or caste from which a person had converted; (ii) the intentions of the individual who had converted; and (iii) the rules of

the religion to which the person has converted to. The Court had this to say regarding the first condition, which is the most relevant for reconversion cases: ‘If the old order is tolerant of the new faith and sees no reason to outcaste or excommunicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter’.47 This test was used in Kailash Sonkar, in which Maya Devi, a convert to Christianity, had contested a reserved seat for Scheduled Castes, saying she had reconverted to Hinduism. Here the Court ruled Maya Devi could contest as a Scheduled Caste since she had become a member of the Katia caste when she contested the polls. Some of the reasons offered by the Court were: Maya Devi’s marriage to a Hindu; the members of the Katia caste welcoming her back to the community; and the lack of evidence to show that her family had been Christian for several generations. Using the same logic, the Court in Guntur Medical College v. Mohan Rao48 rejected the claims of the son of Christian converts from the Madiga caste (a Scheduled Caste) who said he had reconverted to Hinduism and demanded quota benefits. Delivering the judgment, Justice P.N. Bhagwati said, ‘The consistent view taken in this country since 1886 was that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member’.49 In this particular case, the Court concluded: It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.50

On these grounds, the Court rejected the petition. In another later case, S. Swvigaradoss v. Zonal Manager, FCI, the Court similarly held that a person born of Christian converts, who reconverted to

Hinduism at the age of 14, was not entitled to Scheduled Caste status.51

AN ATTENUATED RIGHT The Court rulings on conversion have been marked by serious contradictions. The right to propagate religion—which was included after plenty of debate in the Constitution—has clearly been attenuated by the courts. In the Stanislaus case, the Supreme Court came up with an impoverished version of the right to propagate religion which interpreted conversion as impinging on ‘freedom of conscience’. This has meant that several states have followed the lead of Madhya Pradesh in passing legislation that was aimed at regulating conversions. These Acts have, ironically, been named Freedom of Religion Acts, a tribute to the durability of the Court’s understanding of conversion. However, as I have tried to briefly outline, the Court’s views on conversion were not unusual. The suspicion of, and hostility towards, Christian missionaries has a long history, much of it being tied to the identification of missionaries with the colonial rulers, as well as the threat posed to Hinduism and its practices. In independent India, hostility towards missionaries has been fuelled by the Hindu nationalists.52 The Niyogi report is an example of a state-appointed commission expressing similar sentiments. The various Freedom of Religion Acts and Stanislaus could be seen as based on the logic of the Niyogi report. Though the report and the Court judgment both justified putting curbs on conversion to uphold public order, they represent deeper processes. At one level, the state’s reaction is symbolic of the fear of conversion transgressing established boundaries of religion and identity. As Viswanathan writes, ‘By undoing the concept of fixed, unalterable identities, conversion unsettles the boundaries by which selfhood, citizenship, nationhood, and community are defined, exposing these as permeable borders’.53 In a similar vein, Heredia points out conversions can ‘destabilize the life of a people, unsettle painfully balanced boundaries, scramble carefully constructed identities’. At another level, the state’s response represents a

fundamental disagreement with missionaries about the meaning of conversion. This comes out in Gandhi’s views on Christian missionaries, as well as in the Constituent Assembly debates. Thus, Sarah Claerhout and Jakob De Roover point out: The Christians and the Hindus attribute mutually exclusive properties to religion. The former claim that some religions are false, that different religions are rivals, and that one religion leads to heaven and all others to hell. The latter say that no religion is false, that religions cannot be rivals, and that all religions lead to the same goal. These are contradictory predicates that cannot be ascribed to one and the same object … the Hindus and the Christians are talking about two different things when they discuss ‘religion’.54

It’s not just the Court’s understanding of propagation that militates against the Indian conception of secularism. The Court has enforced a system that creates considerable disincentives for members of the majority religion, Hinduism, to exit while it makes it comparatively easier for converts to re-enter the fold of Hinduism. Regarding appeals for reservation benefits for Dalit Christians or Muslims, the Court has preferred to point to the Constitution (Scheduled Caste) Order 1950, which expressly prohibits reservation benefits for anyone other than Hindus, Sikhs, and Buddhists. Though the Court has admitted on several occasions that caste discrimination does exist for lower caste converts to Christianity or Islam, it has used the 1950 order to dismiss appeals by Dalit Christians. There is, however, pressure building up to change a legislation that is seen as discriminatory. The National Commission for Religious and Linguistic Minorities, headed by a former Supreme Court judge, Ranganath Mishra, in 2007 recommended extension of the Scheduled Caste status to Dalits who convert to Islam and Christianity. The same year, the National Commission for Scheduled Castes said it favoured reservations for Dalit Christians and Muslims.55 Various Christian groups, including the church, have also been agitating for Scheduled Caste status for Dalit converts. They have collected mounting evidence to show that Dalit converts suffer the same caste discrimination as non-converts. While the Court has argued that its hands are tied by the 1950 order, it has at the same time sanctioned a system that gives

incentives for reconversion to Hinduism. It is not that the courts have invariably given reservation benefits to a person who has reconverted to Hinduism. However, beginning with Jasani, the Court has left the door open for reservation benefits for those reconverting to Hinduism. As pointed out earlier, the Court has often ruled that a Scheduled Caste person who reconverts to Hinduism and is accepted by his former caste is eligible for reservation. This indirectly discourages conversion from Hinduism since converts to Christianity and Islam are automatically deprived of reservation benefits. Such a system becomes doubly discriminating at a time when many states are keeping a strict watch on conversion from Hinduism while it turns a blind eye towards reconversion. Indeed, since the 1990s there has been a proliferation of Hindu outfits such as Vanvasi Kalyan Ashram that actively encourage reconversion or ‘ghar vapasi’ programmes. This has led to tensions and outbursts of violence, creating a climate of uncertainty among minorities. Conversion is often seen as a struggle for the souls and destinies of India’s poorest citizens. The short shrift that the Court gave to the right to propagate reflects this instrumental view of conversion. However, in many ways conversion is central to India’s constitutional experiment with secularism. It is a deep irony that B.R. Ambedkar, one of the architects of the Indian Constitution and the pre-eminent leader of the Dalits or untouchables, chose to register his disaffection with the Indian state by converting to Buddhism in 1956. Ambedkar’s antipathy towards religion and its rituals is well known. In the Constituent Assembly, and later during the piloting of the Hindu Code Bill, Ambedkar was outspoken in his criticism of the hold of religion in Indian public life. However, it was the same Ambedkar who converted to Buddhism to make a dramatic political statement.56 Nearly two decades before his formal conversion, Ambedkar spoke to his followers about both the material and spiritual aspects of conversion, something that is most often missing in the discourse on conversion. My conversion is not for any material gain. There is nothing which I cannot achieve by remaining as an Untouchable. Nothing but spirituality is at the base of

my conversion. The Hindu religion does not appeal to my self-respect. However, for you, for spiritual as well as for material gains conversion is a must.57

As on many things, Gandhi disagreed with Ambedkar on the issue of conversion and said in response to Ambedkar’s decision to convert, ‘Religion is not like a house or a cloak which can be changed at will’.58 However, in spite of his aversion to proselytizing —which he even once said he would stop if he had the power to do so—Gandhi later said in 1940: ‘No legal hindrance can be put in the way of any Christian or of anybody preaching for the acceptance of his doctrine’.59 This is something that the anti-conversion Acts and the Stanislaus judgment have ignored.

6 Imposing Legal Uniformity The Court and Muslim Minority Rights

In the earlier chapters, the focus has been on the judicial discourse on Hinduism and Hindu religious practices. The emphasis on Hinduism has largely been prompted by the fact that the Indian state has been far more active in reforming Hindu religious institutions and practices than those of other religions. As noted earlier, the reformist tendencies that the state displays towards Hinduism flow directly from the Constitution, particularly the provision in Article 25(2) (b) that permits the state to legislate for the social welfare and reform of Hindu religious institutions. However, Article 25(2) (a) is not restricted to Hinduism. Thus, the larger minority religions in India such as Islam or Christianity have not been immune from state intervention. The state supervises Wakf (Muslim endowment)1 boards via the Central Wakf Act, 1995. And in the famous case over the disputed site in Ayodhya,2 a five-judge bench, while deciding on the legality of the acquisition of the Babri Masjid/Ram Janambhoomi site, in a split verdict held that ‘there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State’.3 In the same ruling, the Court said a ‘mosque is not an essential part of the practice of Islam’ and ‘its acquisition is not prohibited’. The Court, however, added that the ‘acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose’.4

In this chapter, I am primarily concerned with court rulings on Muslim personal law and their impact on the discourse on minority rights. However, the question of women’s rights and gender equality is something that is not dealt with here.5 The issue of personal laws encapsulates, to use Will Kymlicka and Wayne Norman’s terminology, the two most important features of minority rights: one, they go beyond the usual set of civil and political rights of individual citizenship protected in liberal democracies; and two, they are adopted with the intention of recognizing and accommodating distinctive identities and needs of ethnocultural groups.6 It might be useful to briefly digress and consider the question of cow slaughter which, like personal laws, is something that continues to be governed partly by a non-justiciable directive principle of the Indian Constitution, and is also an emotive issue. Over the years, a countrywide ban on cow slaughter has been proposed on several occasions, mainly through private members’ Bills in Parliament.7 In 1979, a resolution banning cow slaughter was passed by the Lok Sabha but did not eventually become law. Again, in 2003, the BJPled government brought a Prevention of Cruelty to Cows Bill to Parliament. However, since under the Eighth Schedule of the Constitution preservation and protection of livestock is a state subject, a majority of states, with the exception of Kerala and most of the north-eastern states, have passed legislation banning cow slaughter. The first case related to cow slaughter came before the courts in 1958. In M.H. Qureshi v. State of Bihar,8 several Muslim butchers challenged the validity of Acts in three states banning cow slaughter. They challenged the legislation on two grounds: one, it impacted the right to carry on their trade as butchers; and two, it infringed their right to freedom of religion since they were obliged as Muslims to sacrifice a cow on Bakr-Id. On the question of the religious practice of slaughtering cows, speaking for the Court, Chief Justice S.R. Das referred to Hamilton’s translation of the Hedaya to rule that it was optional for a Muslim to sacrifice a cow during BakrId. The Court said, ‘While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious practice’.9

On the question of the legality of banning cow slaughter, the Court not only referred to Article 48 which enjoins the state to take steps to prohibit the slaughter of cows and calves, but also to the fact that Hindus hold cows in ‘great reverence’. The Court said, ‘While we agree that the constitutional question before us cannot be decided on grounds of mere sentiment, however passionate it may be, we, nevertheless, think that it has to be taken into consideration …’10 In the final analysis, the Court struck a compromise by saying that a ban on cow slaughter is permissible as long as it does not extend to cattle that can no longer yield milk, breed, or work on farms. In several successive cases, the Court followed the precedent set by Qureshi and upheld partial bans on cow slaughter. When the West Bengal Animal Slaughter Control Act made an exception for slaughtering cows on Bakr-Id, the apex court struck it down on the grounds that it was a ‘non-essential religious practice’.11 The uneasy compromise of Qureshi was shattered by a sevenjudge bench ruling in State of Gujarat v. Mirzapur,12 which was heard by the Supreme Court soon after the BJP had raised demands for a nationwide ban on cow slaughter. Here, the dispute was over the Bombay Animal Preservation (Gujarat Amendment) Act which imposed a total prohibition on slaughter of cows, irrespective of age and utility. Giving the majority opinion for the Court, Chief Justice R.C. Lahoti opined that directive principles form a ‘fundamental feature and social conscience’13 of the Constitution. The Court not only brought Article 48 to bear on the case but also Articles 48-A and 51-A14 which deal with improving the environment and showing compassion for living creatures. By marshalling evidence on the productivity of cattle, agricultural methods, benefits of manure, and the eating habits of Indians, the Court said it cannot be accepted that bulls and bullocks become useless after the age of 16. It concluded that the ‘ban on slaughter of cow progeny as imposed by the impugned enactment is in the interest of the general public’.15 Justice A.K. Mathur, however, recorded his dissent by saying that there had been no change in ground realities to warrant

overturning of court rulings allowing partial cow slaughter from 1958 to 1996. A similar progressive insensitivity to minority rights can be seen on the issue of Muslim personal law, which continues to be one of the most volatile issues pertaining to religion in the public sphere. The Shah Bano case16 in 1985 was the most spectacular manifestation of the long-standing controversy over Muslim personal law. Two factors are particularly relevant for any discussion of Muslim personal law in the Indian context: The first is Article 44 of the Constitution—a directive principle like Article 48—which calls on the state to ‘secure for the citizens a Uniform Civil Code throughout the territory of India’; second, unlike Muslim personal law, which is governed by the Shariat Act of 1937, much of Hindu personal law has been codified and ‘reformed’ by the Hindu Code Bills (which consisted of four separate Parliamentary acts) of 1955–6.17 As Flavia Agnes points out, ‘The debate around the enactment of a uniform family code depicts the tension between two constitutional guarantees—that of equality and non-discrimination on the one hand, and of religious freedom on the other.’18 The court’s uneasiness with legal pluralism comes across clearly in the personal law cases. In the cases involving Muslim personal law, the Supreme Court has, on more than one occasion, stated its preference for a uniform civil code. The Court’s intervention is crucial in what Lloyd and Susanne Rudolph term the ‘contest between legal pluralism and legal universalism’.19 The Rudolphs define legal pluralism as a way of giving expression to India’s ‘continuously and variously constructed multi-cultural society’.20 On the other hand, legal universalism ‘treats individuals as the basic unit of society and the state and imagines homogeneous citizens with uniform legal rights and obligations’.21 According to the Rudolphs, ‘Proponents of legal uniformity support a uniform civil code, and proponents of legal pluralism argue for minority rights in the form of diverse personal laws’.22 The Court rulings on Muslim personal law have almost always been premised on legal universalism. Before examining these rulings, let us briefly look at

the background to the uniform civil code and the reform of Hindu personal law.

EVOLUTION OF PERSONAL LAWS The prevalence of separate personal laws for different religious communities can be traced to the Mughals. One of the first things that the East India Company did after being granted the Diwani of Bengal, Bihar, and Orissa in 1765 was to demarcate a separate sphere for religious laws—comprising of personal laws—and another one for secular laws, which covered areas such as crime and commercial contracts.23 The origins of this division can be traced to the famous 1772 regulation in which Warren Hastings, the first governor-general of India, directed that ‘in all suits regarding inheritance, marriage, caste, and other religious usages and institutions, the laws of the Koran with respect to the Mahomedans and those of the Shaster with respect to Gentoos shall be invariably adhered to’.24 If one accepts the argument of the Rudolphs that there has been a contest between legal uniformity and legal pluralism in different eras of modern Indian history, then the 1772 regulation was a move to recognize group identities. British rule, however, also saw consistent efforts to rationalize and modernize personal laws. Some of the legislation reforming Hindu practices such as the Sati Regulation of 1829, the Caste Disabilities Removal Act of 1850, the Widow Remarriage Act of 1856, the Child Marriage Restraint Act of 1929, and the various Gains of Learning Bills, have been mentioned in an earlier chapter. There was similar legislation with respect to Islamic law. In 1918, the Mapilla Succession Act was enacted by which customary law and inheritance among the Mapilla Muslims was replaced by ‘Muhammedan law’. A similar law, the Cutchi Memons Act of 1920, was enacted for the Cutchi Memons which was replaced by another one in 1938. Another important law enacted in British India was the Dissolution of Muslim Marriages Act, 1939. This act was aimed at enabling Muslim women to dissolve their marriages under certain circumstances. Some other legislation passed during British rule were the Wakf Validating Act of 1913 and the Wakf Act of 1923,

which were aimed at enforcing a large number of rules and regulations relating to management of wakf (a Muslim endowment) properties and keeping account and audit of their accounts. At the same time, the very act of British courts administering Hindu and Islamic personal law meant that parallel processes of rationalization and homogenization were also taking place. Gregory Kozlowski notes, ‘British imperial institutions: courts, law schools and administration, were the agencies which came close to codifying Muslim Personal law, or as the people during the raj called it, “Muhameddan Law”’.25 By far the most important legislative intervention by the British, with regard to Islamic personal law, was the Muslim Personal Law (Shariat) Application Act,26 which was enacted in 1937. It sought to replace customary law for marriage, divorce, succession, and other family affairs which did not have ‘any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in future the certainty and definiteness which must be characteristic of all laws’. This had the effect of homogenizing Islamic personal law by wiping out personal laws of ‘minorities within Indian Islam’: the Khojas, the Cutchi Memons, Bohras, and the Malsan Muslims. Thus, the Rudolphs write, ‘Homogeneity was served powerfully in the nineteenth and twentieth centuries by three processes: changes in who administered the law; expansion of universal law by processes of codification; and the reformation and homogenization of personal law’.27

THE CONSTITUENT ASSEMBLY DEBATES The issue of separate personal laws and the desirability of a uniform civil code were intensely discussed in Constituent Assembly debates. According to John Mansfield, the ‘idea of a uniform civil code was first proposed during debate in the Constituent Assembly and its committees’.28 The debates in the Assembly pitted powerful voices demanding legal universalism against minority voices who pleaded for legal pluralism. The draft articles on justiciable rights proposed by both B.R. Ambedkar and K.M. Munshi alluded to a

uniform civil code. Ambedkar wrote that the citizens of independent India shall have the right ‘to claim full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom based on religion and be subject to like punishment, pains and penalties and to none other’.29 Munshi stated that no court shall recognize any ‘custom or usage’.30 When the Fundamental Rights SubCommittee decided to make the uniform civil code a directive principle, Amrit Kaur, along with two other members wrote, ‘One of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life’.31 Prior to the discussion on the viability of a uniform civil code in the Assembly, there had been a heated debate on the rights of minorities and whether or not to have separate electorates for them in independent India. The tone for the debate was set by Congress leader G.B. Pant who said in January 1947, ‘We have even forgotten that a citizen exists as such. There is the unwholesome, and to some extent a degrading habit of thinking always in terms of communities and never in terms of citizens’.32 The Minorities SubCommittee had originally proposed separate electorates for religious minorities and for Scheduled Castes and tribes. Once partition became inevitable, the demand for separate electorates for religious minorities was given up and the Advisory Committee mooted reservation for ten years. However, when the report was debated in the Constituent Assembly, just a few days after Indian independence and in the midst of the violence following the partition, the tide had decisively turned against reservation for religious minorities. On 27 August 1947, Vallabhbhai Patel would tick off the demands by Muslims demanding separate electorates by saying, ‘Those who want that kind of thing have a place in Pakistan, not here. Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to decide again and sow the seeds of disruption will have no place, no quarter, here …’33 Later during the course of the debates, Patel would ask the members to ‘forget that

there is anything like majority or minority in this country and that in India there is only one community’.34 When Article 44 (Article 35 of the Draft Constitution) came up for discussion in the Constituent Assembly, all the five Muslim members who participated in the debate spoke against it. Mohammed Ismail Saheb wanted to include in the article the words ‘provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law’,35 which would have defeated its purpose. Similarly, Mahboob Ali Baig wanted to insert the following amendment: ‘Provided that nothing in this article shall affect the personal law of the citizen’.36 He argued: 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. This is not the correct way to look at the secular state. In a secular state, citizens belonging to different communities must have the freedom to practice their own religion, observe their own life and their personal laws should be applied to them.37

Hussain Imam was the only Muslim to entertain the possibility of a uniform civil code, but even he was in favour of it only in the distant future. He said, ‘I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant day. For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles’.38 The opposing viewpoint was forcefully articulated by Munshi, who said: We are at a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point where we must put our foot down and say these matters are not religion, they are purely matters for secular legislation.39

He added, ‘Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation’.40 Munshi also pointed out that in none of the other ‘advanced’ Muslim countries ‘the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a Civil Code’.41 During the debate, Ambedkar highlighted the fact that there was a ‘uniform and complete criminal code’ throughout the country. He stressed that a further step needed to be taken to take forward the secularization of law. He said: The only province the Civil Law has not been able to invade so far is marriage and succession. It is this little corner which we have we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about the change.42

Ambedkar countered the Muslim insistence on personal laws by observing that a uniform Islamic personal law itself was a construct of British rule. Addressing the Muslim members, Ambedkar said: My first observation would be to state that members who have put forth these amendments (to the draft articles directed towards a common civil code) say that Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India … My honourable friends have forgotten that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India.43

Ultimately, Ambedkar and Munshi’s arguments did not win the day. The Constitution ‘did not abolish the system of personal laws and require that there be a uniform civil code; it only held forth a uniform civil code as an ideal towards which the state should strive’.44 Robert Baird notes in his analysis of the Constituent Assembly Debates:

Article 44 is based on the assumption that the Indian secular state requires the secularization of law—that civil law should be the same for all Indians in order that nation building can continue and that all persons can be welded together equally into a modern Indian state. This requires that traditional religious expressions become modified so that they are more and more a matter of personal faith, and that the state mould a modern civil code based on justice and equality.45

In a similar vein, Mansfield observes: ‘Once the notion of a uniform civil code was put forward, it rapidly came to be accepted as an important part of the effort to construct an Indian national identity, over against the separate identities of caste, religion and ethnicity’.46 As will be seen in a subsequent section, the Supreme Court in its prominent rulings on personal law, particularly Shah Bano and Sarla Mudgal, used this rhetoric of nationhood and national unity to advocate the uniform civil code.

THE HINDU CODE BILLS The Supreme Court seems to have been heavily influenced by the arguments, put forward during the debates on the reform of Hindu personal law, that the Hindu Code Bills must necessarily be a precursor to a uniform civil code. Following the 1935 Government of India Act, which empowered both the federal and provincial legislatures to make laws covering a wide range of activities, the Hindu Law Committee (Rau Committee) was, in 1941, entrusted the task of reforming Hindu law. In 1944, the Rau Committee published a draft Code which ‘proposed many specific changes in personal relationships in the Hindu community’.47 According to Harold Levy, the draft Hindu Code Bill was ‘more far-reaching in its intended reforms, than all of the piecemeal legislation enacted in 1921–41 together’.48 The controversial nature of the initial Hindu Code Bill was apparent. There were public protests as well as a minority report penned by Dwarkanath Mitter, one of the members of the four-man Rau Committee. Mitter wrote, ‘From a conspectus of the evidence and written opinions given in the whole of India through which the Committee had to tour, it will appear that the majority is against

codification of Hindu law and it is only a microscopic minority that favors codification’.49 The divide over the Code would manifest itself in post-1947 debates in the Provisional Parliament where the bill failed to pass, despite Ambedkar’s best efforts. There was strong opposition within the Congress by leaders such as Pattabhi Sitaramayya and Rajendra Prasad, who, as the President of India, threatened to use his veto power. It was only after India’s first general elections—when a Congress government under Nehru commanded a brute majority—that a Hindu Code in four separate Acts was passed in Parliament. During the parliamentary debates, the question of confining personal law reform to only Hindus dominated proceedings. In fact, the Hindu nationalists and the socialists were united in their criticism of exempting minority religions from reform. The Hindu Mahasabha’s N.C. Chatterjee asked, ‘Why is this attempt to change the personal laws confined to Hindu society alone? Is not this communal legislation repugnant to the clear directive principles of the Constitution that there should be a uniform civil code for all citizens of India?’50 At the other end of the spectrum, Acharya Kripalani of the Praja Socialist Party declared: ‘If we are a democratic state, I submit that we must make laws not for one community alone. Today the Hindu community is not as much prepared for divorce as the Muslim community is for monogamy … Will our government introduce a bill for monogamy for the Muslim community?’51 The criticism against singling out the Hindus was countered by a gradualist argument by the Congress government. Law minister H.V. Pataskar pointed out that the bills ‘would apply to 85 per cent of the people, and would thus constitute a big step towards uniformity’.52 When queried about the inability of his government to enact a uniform civil code, Nehru replied: ‘I confess I do not think the time is ripe for me to push it through. I want to prepare the ground for it and this kind of thing is one method of preparing the ground’.53 In recent years, the Supreme Court has repeatedly expressed its disapproval of this gradualist approach, and asserted that it is imperative that a common civil code be passed by the legislature.54

MUSLIM PERSONAL LAW One of the first cases in independent India where the question of separate personal laws for Muslims came up before the courts was the landmark State of Bombay v. Narasu Appa Mali.55 In this case, the court used Nehru’s logic of preparing the ground for a uniform civil code. In Appa, the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was challenged before the Bombay High Court. At the outset, Chief Justice M.C. Chagla clearly stated that personal laws could be reformed in the interests of state policy: ‘If religious practices run counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of the people of the State as a whole’.56 Hence, Chagla observed, ‘Even assuming that polygamy is recognized according to Hindu religious practice, the right of the state to legislate on questions of marriage cannot be disputed’.57 Chagla, however, conceded the validity of personal laws saying it was a ‘historic fact’ that both Muslims and Hindus had their own personal laws ‘which are based upon their religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds’.58 Chagla also pointed out that the inclusion of Article 44 in the Constitution itself was a recognition of ‘separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy privileges of a common uniform Civil Code applicable to all its citizen irrespective of race or religion’.59 Thus, the Court rejected the argument that Hindus were being discriminated against by using Nehru’s logic of gradual reform: ‘One community might be prepared to accept and work social reform; another may not yet be prepared for it … The state may rightly decide to bring about social reform by stages and the stages may be territorial or they may be communitywise’.60 Justice P.B. Gajendragadkar, in a concurring opinion, said that the Act did not violate equality before the law. Gajendragadkar wrote, ‘So long as the State Legislature in taking gradual steps for

social welfare and reform does not introduce distinctions or classifications which are unreasonable, irrational or oppressive, it cannot be said that the equality before law is offended. The State Legislature may have thought that the Hindu community was more ripe for the reform in question’.61 However, Gajendragadkar stressed that personal laws were outside the purview of the fundamental rights of the Constitution and would have to give way to a uniform civil code in the future: ‘The framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code’.62 Thus, both Chagla and Gajendragadkar exempted the Muslims from the bigamy act, but, at the same time, felt that a uniform civil code would become reality in the future. It is this conviction that would be expressed in later court rulings on personal law. A few years before the celebrated Shah Bano case, the Supreme Court in 1979 had to examine Muslim personal law in the light of the right of a divorced Muslim woman to seek maintenance from her husband. The first case was Bai Tahira v. Ali Hussain Fidaalli Chothia,63 in which a divorced Muslim woman moved the court under Section 12564 of the Indian Code of Criminal Procedure (CrPC). The petitioner argued that the mahr (dower) and maintenance during iddat (the three-month period after divorce)— the relevant provisions in Islamic law for divorced women—were inadequate to meet her expenses. Speaking for the Court, Justice Krishna Iyer did not go into the merits of Islamic law. Instead, he focussed on the provision in Section 127(3)(b),65 which says that a magistrate can cancel an order for maintenance if a divorced woman has received the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce’. According to Iyer, payment of mahr was compatible with Section 127. He, however, pointed out that any maintenance paid under customary law must be reasonable. Thus, he ruled in favour of the divorced woman: ‘The purpose of the payment “under

any customary law” must be to obviate destitution of the divorcee and to provide her with the wherewithal to maintain herself … There must be a rational relation between the sum so paid and its potential as provision for maintenance. To interpret otherwise is to stultify the project’.66 It is noteworthy that not once did Iyer mention Islam or the uniform civil code in his judgment. An authority on Muslim law in India, Tahir Mahmood, comments that Bai Tahira was a ‘liberal ruling’ that ‘conforms to the spirit of Islamic law on the subject’.67 A year later, Iyer had occasion to deal with another case where a Muslim woman petitioned against inadequate maintenance. In Fuzlunbi v. K. Khader Vali,68 the Court made two points. First, Iyer stressed that ‘Section 125–127 is a secular code deliberately designed to protect destitute women, who are victims of neglect during marriage and after divorce’.69 Second, he said, ‘Muslim law shows its reverence for the wife in the institution of mahr (dower). It is neither dowry nor price for marriage’. Unlike Bai Tahira, Iyer analysed the significance of mahr in Islamic law. The Court said, ‘The quintessence of mahr whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce’.70 Iyer’s verdict was: Even by harmonizing payments under personal and customary laws with the obligations under Sections 125 to 127 of CrPC, the conclusion is clear that the liquidated sum paid at the time of divorce must be a reasonable and not an illusory amount … This perspective of social justice alone does justice to the complex of provisions from Section 125 to Section 127 of the Criminal Procedure Code.71

The Supreme Court’s intervention in Muslim personal law was far more controversial in the now famous Shah Bano case. In this case, Shah Bano, a divorced Muslim woman from Indore in Madhya Pradesh, sued her former husband Mohammed Ahmed Khan for not providing adequate maintenance under Section 125. A lower court awarded Shah Bano a monthly payment of Rs 25, which was later raised to Rs 180 by the Madhya Pradesh High Court. The case was then taken up at the Supreme Court where Khan contended that he was not obliged to maintain his former wife under Muslim personal

law since he had paid a mahr of Rs 3,000 plus maintenance for three months. In the Supreme Court, Chief Justice Y.V. Chandrachud framed the case as illustrating a potential conflict between the civil and criminal laws of the country and gender rights on one hand and Islamic law on the other. He wrote: This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction.72

Chandrachud concluded that Section 125 was not religion-specific in its scope, but ‘cut across barriers of religion’.73 He observed, ‘True, that they [provisions of a prophylactic nature] do not supplant the personal law of the parties, but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussions on the applicability of such laws …’74 This was very similar to Iyer’s conclusion in Fuzlunbi: ‘Neither personal law nor other salvationary plea will hold against the policy of public law pervading Section 127(3)(b) as much as it does Section 125’.75 Next, the Court went on to enquire whether the right to maintenance of a divorced woman clashed with Muslim personal law. After citing two authoritative texts on Muslim law, the Court said, ‘There is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself’.76 Chandrachud went even further and interpreted the Shariat to opine that the ‘Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife’.77 Finally, the Court examined Section 127(3)(b). Chandrachud referred to two standard texts on Muslim law to conclude that it was impossible to accept that mahr was the amount payable by the husband to his wife upon divorce.

He wrote, ‘Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce’.78 What distinguished Shah Bano from the two earlier cases, decided by Iyer, was the strong stand taken by the Court on the desirability of uniform civil laws. During the course of the judgment, Chandrachud regretted that Article 44 of the Constitution, which calls for a uniform civil code, had remained a ‘dead letter’. Chandrachud linked the uniform civil code to ‘national integration’ which he felt would remove ‘disparate loyalties to laws which have conflicting ideologies’. He observed that though the state had the legislative competence to enact a common civil code, it lacked the ‘political courage’ to do so. According to Chandrachud, the court had to take on the mantle of reformer: ‘Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable’.79 That the Chief Justice’s opinion was not an isolated case of judicial activism was borne out by another judgment of the Supreme Court a few months later. In Jorden Diengdeh v. S.S Chopra,80 the question at stake was a divorce filed by a Christian woman who had married under the Indian Christian Marriage Act, 1972. However, under the relevant legislation pertaining to divorce, the Indian Divorce Act, 1869, neither ‘mutual consent nor irretrievable breakdown of marriage’ is a ground for divorce. This led the Court to observe, ‘Surely the time has come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste’.81

THE UNIFORM CIVIL CODE This thrust for uniformity of personal laws was more explicitly stated in Sarla Mudgal v. Union of India,82 in which an NGO and three women appealed to the Supreme Court to take action against men converting to Islam in order to marry a second time. Interestingly, the Court appealed to Hindu law, and not to notions of gender justice, to

decide the case. Writing for the Court, Justice Kuldip Singh ruled that, according to Hindu law as well as the Hindu Marriage Act, conversion to another religion did not have the effect of dissolving a Hindu marriage. Thus, a second marriage would violate Section 494 of the Indian Penal Code, which declares illegal a second marriage during the lifetime of a husband or wife whose personal law does not permit such second marriage. The provisions of Hindu marriage law were used by the Court to press the case for a uniform civil code. ‘When more than 80 per cent of the citizens have already been brought under the codified personal law’, wrote Singh, ‘there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India’.83 Singh, however, did not stop at that. He wrote, ‘Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society’. Singh contended that personal laws had nothing to do with religion and was a creation of British legislation during the time of Warren Hastings. Hence, the Court saw no problem in doing away with personal laws: ‘The Legislation—not religion—being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplanted by introducing a uniform civil code …’84 The Court went further and interpreted the Indian Constitution as divorcing religion from personal laws: ‘Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law’. It then singled out the Muslim and Christian communities for obstructing the uniform civil code: ‘The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, [while] some other communities would not, though the Constitution enjoins the establishment of a “common civil code” for the whole of India’.85 In a concurring judgment, Justice R.M. Sahai wrote, ‘But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression’.86

In 2003, the Supreme Court again articulated the need for a uniform civil code. John Vallamattom v. Union of India87 revolved around a clause of the Indian Succession Act, 1925, which imposed certain restrictions on Christians who desired to bequeath property for religious and charitable purposes.88 Speaking for the Court, Chief Justice V.N. Khare observed, ‘Section 118 of the Act imposes a restriction only on the Indian Christians. The said restriction is not applicable to the citizens belonging to other religions including Parsis. The short question, therefore, which arises for consideration is as to whether the said restriction imposed by Section 118 of the Act is a reasonable one’.89 After judging the evidence by the ‘touchstone’ of Article 14, which guarantees equality before the law, the chief justice held: ‘I find that Section 118 of the Act being unreasonable is arbitrary and discriminatory and, therefore, violative of Article14 of the Constitution’.90 However, what made this ruling attract considerable media attention was the strident advocacy, like in Sarla Mudgal, of a uniform civil code.91 Commenting on Article 44, the Court said, ‘The aforesaid provision [Article 44] is based on the premise that there is no necessary connection between religious and personal law in a civilized society’.92 Importantly, the chief justice specified that personal laws governing marriage or succession could not be brought within the freedom of religion clauses in the Constitution: Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.

Finally, in an obiter dicta, reminiscent of Shah Bano and Sarla Mudgal, the Court said, ‘It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.’93

The Court has, however, not been consistent in its push for uniformity of personal laws. In Madhu Kishwar v. State of Bihar,94 where the Court had to decide whether there should be parity between male and female tribals in intestate succession, the majority judgment ruled in favour of maintaining tribal laws. Speaking for the majority, Justice M.M. Punchhi observed that neither the Hindu Succession Act, Indian Succession Act, nor Shariat law applied to the tribals. He wrote, ‘In face of these divisions and visible barricades put up by sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or an equality principle, by judicial activism, is a difficult and mind- boggling effort’.95 Clearly, the Court was willing to put on hold social reform and gender equality in deference to the sensibilities of the tribals, while it was unwilling to do so for Muslims. Interestingly, the Court in Kishwar was making an allowance for custom or tradition and not for religion-sanctioned personal laws. However, Justice Ramaswamy who passed several crucial judgments on state administration of temples, dissented. He held that the general principles of justice, equity, and good conscience must apply to tribals. Ramaswamy wrote, ‘Scheduled Tribe women would succeed to the estate of their parent, brother, husband, as heirs by intestate and inherit the property with equal share with male heir with absolute rights as per the general principles of Hindu Succession Act, 1956, as amended and interpreted by this Court and equally of the Indian Succession Act …’96

FROM UNIFORMITY TO PLURALITY The Rudolphs point out that the idea of a uniform civil code has no single meaning, but can be characterized as a ‘multivalent signifier’.97 They identify five possible meanings for the uniform civil code: first, the colonial state’s attempts to standardize and modernize law was an implicit move towards a common civil code; second, for the modernist nationalists, a uniform civil code was a

means to promote national integration; third, for civil rights activists, a uniform civil code signified the empowerment of marginalized categories, especially women and minorities; fourth, for religious minorities, the uniform civil code was a direct attack on their personal laws and their cultural identity; and finally, for Hindu nationalists, a uniform civil code was a way to eliminate cultural differences. Indeed the paradoxical nature of the debate on the uniform civil code is illustrated by the fact that the ‘secularists’, who argue for legal uniformity, end up on the same side as that of the Hindu nationalists. The Rudolphs suggest that the issue of personal laws and uniform civil code straddles questions of identity, minority rights, and gender equality. In the foregoing discussion, I have attempted to show that the Supreme Court has consistently interpreted the uniform civil code as a means to unify the nation, as well as to showcase it as a way to grant relief to women governed by oppressive personal laws. According to Agnes, ‘It is interesting to note that no matter what the core issue litigated before the apex court, the comments regarding the enactment of a UCC are always made in reference to “national integration” and contain, further, either an insinuation or a direct attack against Muslim law.’98 However, she adds that this ‘also creates the fiction that Hindus are governed by a secular, egalitarian, and gender-just family code and implies that it was high time that this code was extended to Muslims to usher in modernity and gender equality among them’.99 This has meant that the Court has usually ignored the fears of minority communities that a uniform civil code would pose a threat to their identity. In fact, the Sarla Mudgal ruling, delivered in the postBabri Masjid period when Hindu nationalism was on the upswing, can be seen as an indictment of the Muslim minority for not conforming to the standardized laws of the nation. Hence, Madhu Kishwar notes: This [Sarla Mudgal] is not exactly a legal judgment but more of a political sermon on how the Muslim minority should learn to behave and what ought to be its relationship to the Indian state … The insistence on a uniform civil code is a way of subjecting Muslims to a loyalty test. It is a way of asking them to prove that

their allegiance to the Indian state and its laws stands above all other competing allegiances, especially to that of religion.100

If the Supreme Court is a crucial player in this ‘continual negotiation’ over the uniform civil code and personal laws, the Danial Latifi v. Union of India101 ruling in 2001 is an example of how the Court diluted its own stand on personal laws. The case can be seen as an interesting postscript to the Shah Bano ruling. In this case, the Muslim Women (Protection of Rights on Divorce) Act, 1986,102 passed by the Congress government103 in the aftermath of Shah Bano, was challenged in Court. Though it was apparent that the Congress passed the Muslim Women Act to keep its Muslim constituency intact, Agnes points out that ‘despite its limitations, the act was of immense historical significance as the first attempt in independent India to codify the Muslim Personal Law’.104 Furthermore, once the Act was challenged in different high courts Agnes writes: The most significant issue that emerged out of the enactment revolved around the stipulation of ‘a fair and reasonable provision’. Drawing on the Islamic concept of mataoon bil ma’aroofe (fair and reasonable provision), several High Courts opened a new portal for the protection of divorced Muslim women. The remedy, which the courts so carefully crafted out of the controversial legislation, in fact seems to provide a better safeguard than the earlier antivagrancy provision under Section 125 of the Criminal procedure.105

The approach of the five-judge bench in the Supreme Court deciding Danial Latifi was clearly stated by Justice S. Rajendra Babu: ‘Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints’.106 However, in its ruling, the Court deviated from this position of legal universalism. In Danial Latifi, the Court was primarily concerned with sections of the Muslim Women Act which dealt with the amount and period of maintenance to be paid by a Muslim husband to his divorced wife,

and the role of the community, particularly the wakf boards, in paying maintenance to a divorced Muslim woman. Regarding the period of maintenance, the Court said that the ‘purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat’.107 At the same time, the Court held that ‘nowhere has the Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time’.108 On whether the Act conformed to the Shah Bano ruling, Rajendra Babu said, ‘All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano’s case without mutilating its underlying ratio. We have carefully analyzed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano’s case’.109 With regard to the involvement of the wakf boards, the Court said that the provisions of the Act providing for ‘maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC’.110 The Court further observed that these provisions infringed Articles 14 and 15 of the Constitution: The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion.111

Having said this, the Court still upheld the Act on the ground that the legislature did not intend to enact ‘unconstitutional laws’. It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas on another construction

which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that the legislature does not intend to enact unconstitutional laws.112

Danial Latifi was a rare instance of the Court deviating from its customary emphasis on legal uniformity. It is noteworthy that the deviation was not justified by legal pluralism or the rights of minorities, but by a technical ‘rule of construction’. However, as a whole, in the cases dealing with personal law, the courts have consistently sought to distance religion from civil law. By subordinating religious laws to the goal of a common civil code, the courts have not only tried to marginalize religion in the public sphere, but also eliminate minority rights based on religious identity. In doing this, the Court has echoed some of the influential voices in the Constituent Assembly such as Ambedkar and Munshi. The Court’s rationale for the uniform civil code has been predicated on the understanding that a unified substantive law is a defining characteristic of a nation state. The right to have personal laws was a critical guarantee for Indian Muslims at the time of India’s independence. In contemporary India, Muslim opinion, as Tahir Mahmood points out, ‘is deadly opposed to the replacement of their personal laws by a common civil code’.113 However, by stridently advocating a uniform civil code, the Court has either ignored or downplayed what Mansfield calls ‘identity value’, which he defines as the value of ‘an ethnic or religious group within a territorial state being able to maintain its distinctive identity and through this its members’ sense of existing and having meaning’.114 According to Mansfield, a ‘permissible reading of Article 44 leaves open for consideration the weight and persuasiveness of the identity value, as it is presented in the Indian context’.115 Subrata Mitra also points out, ‘The resistance that the idea of a common civil code received both during the constituent assembly debates and subsequently during the debate in the Parliament on the issue of the Hindu Code Bill in the 1950s shows the extent of potential support there was for a plurality of civil codes in India’.116 Dieter Conrad even goes to the extent of controversially suggesting that ‘personal laws are part of the “culture” guaranteed to any of the section of

citizens by Article 29(1)’.117 However, the Court has post-Shah Bano chosen to view the debate on the uniform civil code versus personal law as a ‘zero-sum conflict’.118 Indeed, this goes against the trend of popular support, not just among Muslims, for plurality of civil codes as indicated by the findings of surveys.119 It is time that the Court realizes, in the words of Werner Menski, ‘The one-sided political motivated quest for a truly uniform family law for India is, several decades after the Constitution was promulgated, perhaps no longer a realistic aim. It has been defeated by the persistence of traditional Indian preferences for diversity and flexibility, and by the mere size of the country and the diversity within its population’.120 However, this does not preclude reform of Muslim personal law in India which has remained ossified for several decades. This point has been eloquently argued by Mahmood: The law of Islam, seen in its true perspective and purged of all its distortions, can be an asset for the emerging family law of India. What is required that our judges and lawyers should stop looking at Islamic law through the spectacles of the British-Indian courts and their past and present rapporteurs. Those who are its followers and love it must arrange to get its principle rewritten in their true perspective for the benefit of the contemporary law-men.121

7 Judging Religion A Nehruvian in Court

The judicial discourse on religion can be effectively examined by focusing on a former chief justice of India, Prahlad Balacharya Gajendragadkar (1901–1981). The primary reason for choosing Gajendragadkar is that he authored several leading judgments on religion. It is fortunate that Gajendragadkar has left behind a substantial body of extra-judicial writings, mostly collections of lectures, as well as his autobiography. He was a judge during a period when the courts were, for the first time, interpreting many of the fundamental rights in the Indian Constitution. Gajendragadkar’s rulings—not merely in the area of religion, but in other areas of constitutional interpretation—can be fruitfully analysed as being inspired by, what was for the early decades of independent India, the hegemonic Nehruvian world view. Some would argue that Gajendragadkar was uniquely fitted to decide matters related to Hindu religion. He belonged to a Brahmin family that for several generations had produced Sanskrit scholars. His father, Balacharya Gajendragadkar, was a noted Sanskrit scholar who ran a pathsala (village school) at Satara in Maharashtra. The chief justice himself had performed exceedingly well in Sanskrit in the BA and MA exams before taking his law degree. However, unlike his brothers, who carried on the family tradition of teaching, Gajendragadkar decided to become a lawyer. After practising in the appellate side of Bombay High Court from 1926, he was appointed a judge at the high court in 1945.

Gajendragadkar was elevated to the Supreme Court in 1957 and served as chief justice of India for a little over two years—which was longer than average for a chief justice in India—from February 1964 to March 1966. Gajendragadkar remained a public figure after retirement, holding several important posts, including chairman of the Law Commission of India during a tumultuous period from 1971 to 1977. The combination of a Brahmin and Sanskrit scholar was not unusual in the Supreme Court. As Rajeev Dhavan has noted of the fifty-five judges appointed to the Supreme Court till 1975, twenty were Brahmins and six were Sanskrit scholars.1 However, what was unusual was the reformist zeal Gajendragadkar brought to his work both on and off the Bench. Besides writing judgments, which sanctioned extensive state regulation of places of worship, arrogated responsibility to the Court for deciding essential religious practices, and showed little sympathy for traditional authorities, Gajendragadkar was active in social reform. He was part of the movement that revived M.G. Ranade’s Social Reform Conference in Maharashtra. While a major portion of this chapter is devoted to Gajendragadkar’s understanding of law and religion, I also highlight the parallels between Jawaharlal Nehru and Gajendragadkar’s views. Like Nehru, Gajendragadkar, it can be argued, believed in a ‘rational modern world-view in which religion would play an increasingly residual role’.2 Gajendragadkar believed that ‘worship of reason was the guiding star of Nehru’s life’,3 and was profoundly influenced by the Nehruvian vision of an ‘all-embracing and allpowerful Leviathan of state power and bureaucracy’ radically transforming Indian society. Gajendragadkar’s ideology was also closely allied with Nehru’s ‘fervent belief in rationalism, humanism and secularism’.4 By examining Gajendragadkar’s court judgments as well as extrajudicial writings, I focus on the role of the judge in determining the place of religion in the public realm. In determining the role of the judge I argue that though the personality and beliefs of the judge are of some importance, the court rulings must also be seen as a product of contemporary ideas and values. American jurist Benjamin

Cardozo notably articulated this view: ‘A judge, I think, would err if he were to impose upon the community as a rule of life his own idiosyncrasies of conduct or belief … My own notion is that he would be under a duty to conform to the accepted standards of the community, the mores of the times’.5 Taking a somewhat different tack, Oliver Wendell Holmes in The Common Law compared the judge to a legislator, ‘It [the work of courts] is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned’.6 This instrumentalist idea of law, which was developed by prominent American jurists such as Roscoe Pound, Holmes, and Cardozo, considerably influenced Gajendragadkar. However, if one compares the two statements of Cardozo and Holmes, a paradox becomes apparent: the mores of the day might well conflict with what is considered expedient for the community by the judges. This conflict can also be described as one between the reality of the Indian present and the legacy of the past against the radical changes sought to be wrought by the Nehruvian state. This conflict was a central theme of Gajendragadkar’s philosophy, both on and off the Bench.

EVALUATING THE JUDGE The role of the judge and the process of judicial decision-making are contentious issues in jurisprudence. This is more so in India where the judiciary possesses enormous powers to review all activities of the state, including the power to annul decisions of the Union Cabinet and Parliament. In fact, from the early days of the Indian republic, there has been considerable friction between the judiciary and the legislature. Nehru’s disapproval of the judiciary’s role in hindering land reform policies of the government is well known. The bone of contention was the power of judicial review conferred on the Supreme Court by the Constitution, which Nehru interpreted as limited. During the Constituent Assembly debates, Nehru declared, ‘No Supreme Court and no judiciary can stand in judgment over the

sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way’.7 However, as the history of independent India has shown, the judiciary was not content to play a supine role. A legal scholar has even gone to the extent of describing the Supreme Court as ‘probably the only court in the history of humankind to have asserted the power of judicial review over amendments to the Constitution’.8 The confrontation between the judiciary on one hand and the executive and the legislature on the other reached a flashpoint during Indira Gandhi’s tenure in the years leading up to the Emergency (1975–7). Kesavananda Bharati v. State of Kerala,9 where the Court said the legislature could not alter the ‘basic structure’ of the Constitution, remains one of the most debated judgments in India. According to the Rudolphs, Kesavananda ‘may prove to be India’s Marbury v. Madison by accepting an acceptable ground for judicial review’.10 The constant friction between the Court and the executive provoked a minister in the Indira Gandhi Cabinet to proclaim in 1973 that only judges ‘committed’ to the social philosophy of the Constitution should be appointed.11 The same year, Indira Gandhi’s government broke with the practice of seniority in appointing the chief justice of India, creating a fresh set of controversies. It is no surprise then that the Supreme Court is seen as a major actor in the political process. Michael Perry argues that the law versus politics dichotomy, especially in the context of constitutional adjudication, is not tenable. Instead, he believes it is proper to regard constitutional adjudication as ‘neither just law nor just politics’. He writes, ‘The polemical disjunction between “law or politics” obscures the fact that constitutional adjudication, at its best, is both law and politics’.12 The debate about law and politics usually boils down to whether the judges merely ‘apply’ law or also ‘make’ law when necessary. Legal philosopher H.L.A. Hart points out that in ‘legally unprovided for or unregulated cases the judge both makes new law and applies the established law which both confers and constrains his law-making

powers.’ Baxi contends that in the Indian context this debate is no longer meaningful: ‘The question is not any longer whether or not judges make law. Rather the questions are: what kind of law, how much of it, in what manner, within which self-imposed limits and to what willed results and with what tolerable accumulation of unintended results, may the judge make law?’13 In spite of the judiciary playing a central role in the political process, Dhavan comments that there is precious little knowledge in the public domain about Indian judges. While there have been evaluations, mostly panegyrics, of individual judges there has been little work on the ideology of Indian judges, and on locating their rulings in the context of prevailing ideas and values. As George Gadbois—one of the few scholars who has done empirical work on judicial decision-making in Indian courts—has noted, this was perhaps because many Indian legal scholars are Blackstonians who are loath to treat the Court as a political institution.14 The Indian judges themselves are also wary of articulating a more nuanced view of their role. A majority of the judges, according to S.P. Sathe, continues to ‘think that judicial decisions are taken without regard to their social and political context … The dilemma is regarding their role. They cannot give up the influence of the black letter law tradition and at the same time refuse to play a wider role in the political economy’.15 An unusually candid admission of the role of the judge in legal decisions was made by Chief Justice Y.V. Chandrachud while delivering a judgment: Perplexed by a bewildering mass of irreconcilable dogmas, courts have adopted and applied to cases which come before them rules which reflect their own value judgements, making it increasingly difficult to define with precision the extent to which one may look beyond the actual words used by the legislature, for discovering the true legislative purpose or intent.16

Dhavan has provided a corrective to this ‘black letter’ tradition by pointing to the importance of ideology in analysing the judiciary. He concludes his essay on ‘judging the judges’ by saying, ‘Law is not just process. It is also overtly ideological in nature. It articulates an ideology both for itself and society’.17 He uses ideology in three

distinct senses. The first is ideology as ‘rhetoric’ which is ‘designed to inspire general faith and elicit consent’.18 The second is what Dhavan terms ‘constitutive’ ideology which refers to the ‘way in which social life and processes are described’.19 The third and most important is ‘conceptive’ ideology, the process of reasoning by which legal and social reality are ‘constituted and held together’.20 Baxi too, stresses, ‘No meaningful discussion concerning judicial role is thus possible without a grasp of ideologies on the one hand and the organization of relations of force in societies on the other’.21 What Dhavan and Baxi are articulating is a major theme in twentieth century jurisprudence: the displacement of the idea of law as a ‘body of immutable principles’ by an emphasis on the role of the judge, and the influence of values and ideology on judicial decisionmaking. These prefatory remarks about the shift in jurisprudence from a universal to a contingent conception of law, and the link between the courts and politics provide a framework to discuss the role of a reformist judge like Gajendragadkar.

THE ROLE OF LAW In several of his lectures, Gajendragadkar expresses his intellectual debt to the proponents of instrumental or functional jurisprudence, primarily Roscoe Pound.22 Gajendragadkar admits he was deeply influenced by Pound: Dean Pound is justly regarded as the principal exponent of the Sociological Schools of Jurisprudence. By his lucid writing he has contributed to the development of the theory of law to such an extent that all of us who believe in the significance of the functional jurisprudence of law regarded him as their guru.23

Oliver Wendell Holmes24 was another jurist Gajendragadkar greatly admired. Gajendragadkar refers to Holmes as a ‘shining example’ of a judge who paid particular attention to social interests, but did not allow his own philosophy to influence his judgments.25 Pound, along with Holmes, is regarded as ‘having laid the foundation for the twentieth-century transformation of American

legal thought’.26 In tracing the history of the philosophy of law, Pound wrote that, in the latter part of the nineteenth century, law was seen as ‘an evil, even if a necessary evil, that there should be as little law made as possible, since all law involved restraint upon free exertion of the will, and hence the jurist and legislator be content to leave things legal as they are and allow the individual “to work out in freedom his own happiness or misery” on that basis’.27 At this stage of development of the idea of law, it existed to ‘promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted’.28 At the beginning of the twentieth century, according to Pound, ‘Jurists began to think in terms of human wants or desires rather than of human wills … They began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants’.29 This was the foundation of Pound’s formulation of law as a process of ‘social engineering’, an idea that profoundly influenced Gajendragadkar. Pound stated: I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants and claims or desires through social control, a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering.30

This would represent a marked shift in jurisprudence from the laissez faire towards social welfare legislation and the welfare state. At the same time, Pound was aware of the limits of law in effecting social change. He warned against ‘attempts to govern by means of law things which in their nature do not admit to objective treatment and external coercion’.31 According to Gajendragadkar, the Sociological School of Jurisprudence interpreted law as an ‘institution devised by human agency in order to resolve the social and economic conflicts’. The law, as interpreted by this school, was above all a ‘flexible instrument for social and economic change’32 and a ‘specialized agency for social control’.33 In keeping with this idea,

Gajendragadkar outlined the function of law in a passionate address to the Satara District Bar Association: ‘The law, in its majesty, is being used as a mighty weapon of democracy to bring the country nearer to the millennium—the social and economic justice to the millions who are seething with poverty and ignorance’.34 In another lecture, he described law as a ‘mighty weapon in the hands of democratic legislatures in India to achieve socio-economic justice’.35 Such was Gajendragadkar’s enthusiasm for the sociological school of law that he felt that the idea of dharma—understood as the source of sustenance of the social order—was compatible with the functional conception of law. Socio-economic justice was the lodestar of Gajendragadkar and he believed that the modern welfare state was the best vehicle to achieve the goal of equality. ‘This Welfare State, in response to the challenge of totalitarian ideology, assures to the citizen socioeconomic equality’.36 However, Gajendragadkar makes it clear that the welfare state demands that ‘individual liberty and freedom must be reconciled to the public, social good’.37 He states: The fundamental concept of democracy requires that individual liberty must be sustained and every citizen must be given full freedom to develop his personality in the manner which he regards as reasonable. Freedom of property and freedom of contract like freedom of speech and religion must also be guaranteed but if ever public good requires that these freedoms should be regulated, the welfare democracy does not hesitate to undertake the task of introducing such legislation.38

In the quest to achieve ‘socio-economic justice’, Gajendragadkar privileged the ‘public good’ over ‘individual liberty and freedom’. He said, ‘If ever a dualism arose, if a conflict arose between the individual liberty and freedom on the one hand, and public good on the other, then democracy swears that individual liberty will have to yield to the public good’.39 Gajendragadkar viewed the welfare state founded on a rule of law as the vehicle for finding a ‘harmonious synthesis between the competing claims of individual liberty and public good’40 and delivering justice to the Indian citizens: ‘Law is not only a passive instrument, law is a dynamic weapon, law is the

only weapon with which our democratic Governments seek to usher in India that glorious stage, which is called a Welfare State’.41 In contrast to the exalted role of law in transforming Indian society, Gajendragadkar had a more limited idea of the role of the judge: ‘Everyone, Judges included, has his own socio-economic philosophy. But a wise Judge must constantly endeavour to be on the lookout to see to it that sub-conscious pull or pressure of his socio-economic philosophy does not trespass into his judicial decisions’.42 In his autobiography, Gajendragadkar writes that a ‘judge must inevitably choose to be a little aloof and isolated from the community at large’.43 However, he was aware that a judge cannot be ‘completely neutral or oblivious to considerations of policy’ since policy implications ‘inevitably enter [a] judicial verdict when dealing with questions of fundamental rights’.44 The constant attempt by Gajendragadkar to place the judge above the ‘pulls’ and ‘pressures’ of his own ideology, while at the same time advocating social engineering, presents a paradox. However, what allowed Gajendragadkar to justify the use of law as a tool of social change was his firm belief in the Nehruvian welfare state and its historic role in achieving social and economic equality. This faith in the welfare state and the universal values embodied by it would allow Gajendragadkar to justify judicial activism. The goal of achieving ‘public good’ according to Gajendragadkar, gives the state the license to intervene in all spheres of life, including religion. This faith in a common good, as the American political theorist Judith Shklar notes, has been a strong influence on legal thinking in the twentieth century. ‘The belief in an objective common good has remained very powerful, and this is not surprising,’ writes Shklar. ‘It certainly makes the responsibility of deciding less onerous if one can believe that there are prefabricated rules waiting to be recognized and followed in legislation’.45

CONSTITUTIONAL ADJUDICATION As a firm believer in the welfare state, Gajendragadkar was more likely than not to favour the state over the interests of the individual.

As mentioned earlier, Gajendragadkar had no doubt that if there was a conflict of interest between the state, representing the ‘public good’, and the individual, the former must prevail. Hence, P.K. Tripathi comments about Gajendragadkar: His lordship’s opinions generally evince an unfailing awareness of the fact that legislators and the administrators have to take decisions and exercise discretion in difficult and often delicate circumstances in which personal views as to what is right or desirable may reasonably differ. And, by and large, his approach has been characterized by a concern for avoiding embarrassment and extending accommodation to those exercising power in good faith.46

In the major cases on religious freedom decided by Gajendragadkar, challenges to state legislation regulating religious institutions were dismissed. There were, of course, rulings in other spheres where Gajendragadkar did overrule state legislation. For instance, in M.R. Balaji v. State of Mysore,47 Gajendragadkar held that the order of the Mysore government reserving 68 per cent of the seats in certain educational institutions for ‘backward’ and ‘more backward’ classes was unconstitutional. However, Gajendragadkar’s overall approach was in favour of the state and its reformist impulses. This approach, best exemplified in Gajendragadkar’s opinions on the power of judicial review, was closely allied to Nehru’s views on the critical role of the Constitution in ushering a ‘social revolution’. Nehru’s confrontation with the judiciary over the socialist policies of the Congress government was an important theme in the first decade of Indian independence. Shortly after the Constitution was adopted, the major plank of the socialist policy of the Congress government—land reform legislation—was short-circuited by the courts. In 1951, the Patna High Court struck down the Bihar Land Reform Act on the ground that different rates of compensation for the affected zamindars violated Article 14, which guaranteed equality before the law. The same year the Calcutta High Court ruled against the state government in a case where land had been acquired to build a shelter for refugees. The court ruled that the landowner’s right under Article 31—which governed state acquisition of property—had been violated because the compensation for the land was not equal to market value of the land. An alarmed Nehru

and the Congress party reacted by inserting Article 31A in the Constitution, which stipulated that nothing in the Fundamental Rights could be used to strike down laws for the appropriation of property. The most important component of the First Amendment was, however, Article 31(b) which established the Ninth Schedule into which legislation could be put and made immune from judicial review. During the Parliamentary debate on the amendment, Nehru made the oft-quoted statement on the regressive nature of the judiciary: ‘We have found this magnificent Constitution … was later kidnapped and purloined by the lawyers’.48 Shortly after the amendment was passed by Parliament, it was challenged in Shankari Prasad v. Union of India49 on the grounds that Article 368,50 which dealt with the procedure to amend the Constitution, and Article 13(2),51 which stipulated that no law can abridge Fundamental Rights, had been violated. The Supreme Court, however, upheld the validity of the amendment saying Parliament had unlimited power of amendment. Gajendragadkar entered this contentious debate on the legislature’s right to amend the Constitution in 1965 with his verdict in Sajjan Singh v. State of Rajasthan.52 In this case, the Constitution (Seventeenth Amendment) Act, 1964 was challenged primarily on the grounds that it contravened Article 368. Writing for the Court, Gajendragadkar ruled that the power to amend the Constitution conferred by Article 368 includes even power to take away fundamental rights under Part III.53 The Court also ruled that Article 13(2) did not affect amendments to the Constitution since there is a clear demarcation between ordinary law and constitutional law, which is made in exercise of constituent power.54 Gajendragadkar wrote: The Constitution-makers must have anticipated that in dealing with socioeconomic problems which legislatures may have to face from time to time, the concepts of public interest and other important considerations … may change and even expand; and so it is legitimate to assume that the Constitution-makers knew that parliament should be competent to make the amendments in these rights so as to meet the challenge of the problems which may arise in the cause of socioeconomic progress and development of the country.55

Gajendragadkar explained in a subsequent lecture that he drew on Oliver Wendell Holmes’ observation about the American Constitution, ‘When we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters’.56 Gajendragadkar’s ruling would echo Nehru’s opinions on the Constitution expressed in the Constituent Assembly and the debates on the First Amendment. During the Constituent Assembly debates, Nehru said, ‘A Constitution if it is out of touch with the peoples’ life, aims and aspirations becomes rather empty … Therefore, while we make a Constitution which is sound and basic as we can, it should also be flexible and for a period we should be in a position to change it with relative facility’.57 The adaptability of Constitution would again be stressed by Nehru in Parliament: A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable … Therefore, it is a desirable and a good thing for people to realize that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as conditions change we amend it in the proper way.58

Though Sajjan Singh and Shankari Prasad had upheld the Nehru doctrine, an eleven-judge bench in the famous Golak Nath59 case in 1967 in a 6–5 decision reversed the earlier rulings. Significantly, in Golak Nath speaking for the majority, Chief Justice K. Subba Rao specified limitations on Parliament’s power to amend the Constitution. Subba Rao ruled that the Fundamental Rights were ‘given a transcendental position under our Constitution and are kept beyond the reach of the Parliament.’60 Gajendragadkar, in keeping with the Nehruvian line of thinking, disagreed with the Golak Nath judgment. In his Tagore law lectures, Gajendragadkar explained, ‘The constitutional prohibition against taking away or abridgement of Fundamental Rights as well as the consequences of contravention of the said prohibition prescribed by Article 13(2) do not apply to the amendments made by Parliament by virtue of the constituent power

conferred on it by Article 368, even though the said amendments may lead to the abridgement of Fundamental Rights.’61 This clear statement in favour of Parliament’s right to infringe Fundamental Rights to further ‘socio-economic progress of the country’ would give way to some misgivings in the post-Nehruvian era. Gajendragadkar felt Parliament was justified in passing the Twenty Fourth Amendment—the first of the ‘radical’ amendments as Granville Austin terms it—which amended Articles 13 and 36862 in 1971. Gajendragadkar said, ‘In plain terms, by passing this Act, Parliament has declared unambiguously and clearly that so far as it is concerned, the interpretation placed on Articles 368 and Article 13(2) by the Supreme Court in Sri Sankari Prasad’s case and reaffirmed by the majority decision in Sajjan Singh’s case was the correct interpretation of these two articles’.63 However, when it came to the Twenty Fifth Amendment, which inserted Article 31C declaring that state policy meant to secure the directive principles in Article 39(b) and (c)64 could not be invalidated on the ground that it violated the Fundamental Rights, Gajendragadkar was decidedly ambivalent. In the Tagore law lectures published in 1972, Gajendragadkar said, ‘It is plain that the substantive provision introduced by the first part of Article 31C marks the beginning of a new era in the constitutional and political history of our country. It recognizes the primacy of two important economic principles enshrined in Article 39(b) and (c), and enables the legislatures to give effect to them by appropriate legislation …’65 However, the Law Commission, of which Gajendragadkar was chairman, published a report in 1971 opposing parts of the Twenty Fifth Amendment. It was especially critical of the clause in Article 31C putting a law giving effect to the directive principles as beyond challenge in court. In fact, Gajendragadkar took the unusual step of writing to Indira Gandhi about his misgivings on Article 31C.66 In the aftermath of the darkest period for Indian democracy—the Emergency declared by the Indira Gandhi government on 26 June 1975—Gajendragadkar’s misgivings about constitutional amendments would heighten. When the ground was being prepared for the infamous Forty Second Amendment,67 Gajendragadkar

wrote to Indira Gandhi that though amendments were necessary, the ‘adoption of extremist doctrinaire positions is irrelevant and inadvisable’.68 In the post-Emergency period, Gajendragadkar would write that the ‘most objectionable’ part of the Forty Second Amendment was putting Constitutional amendments beyond the pale of the courts. However, the vicissitudes of the Indira Gandhi period did not entirely shake Gajendragadkar’s faith in the ability of the legislature to truly represent and work for the common good. In his autobiography, which was published in 1983 after his death, Gajendragadkar, in one of the final pages, quoted one of his favourite passages from Cardozo: ‘My duty as a judge may be to objectify in law not my own aspirations, convictions and philosophies but the aspirations and convictions and philosophies of men and women of my time’.69 He then went on to add that it was to these ‘aspirations, convictions and philosophies to which the legislature seeks to give effect by appropriate legislation’.70 It was this impulse —framed within the Nehruvian discourse on rationalism, humanism, and secularism—that Gajendragadkar sought to incorporate in his rulings on religion.

RELIGION THROUGH THE RATIONALIST LENS Gajendragadkar authored several leading judgments on religion, the most important of which have been discussed in Chapter 2. In this section, I primarily focus on Gajendragadkar’s writings and lectures on religion. It is important to stress that Gajendragadkar looked at religion through the rational and scientific lens so often used by Nehru. The congruence between Gajendragadkar’s and Nehru’s world-views was particularly strong when it came to religion. On several occasions, Gajendragadkar and Nehru expressed their strong distaste for popular religious practices and rituals. While Gajendragadkar has spoken and written extensively about religion, there is not much in his prolific output on any intimate religious experience. It is ironic that a metaphor favoured by Gajendragadkar was the comparison of the court room to a temple. Like Nehru, who famously referred to dams as ‘temples of modern India’, to Gajendragadkar, the court was a ‘temple of justice’. While delivering

the Feroze Gandhi Memorial Lecture in 1964, the chief justice admitted, ‘I am not much of a religious man myself, but there is a feeling in my mind that for the last twenty years that I have been on the Bench, that everyday when I go to the Court, I am entering a temple of justice’.71 The description by Gajendragadkar and Nehru of their visits to a major Hindu temple on separate occasions makes for interesting reading. After visiting one of the most famous shrines in India, Gajendragadkar wrote, ‘In the Courts of Law, therefore, the atmosphere must be serene—an atmosphere which I witnessed in the temple of Lord Venkateswara, where I experienced a serenity, a sort of spiritual bliss, though momentary and felt there is a certain invisible force—ethical force’.72 For Gajendragadkar, the ‘moment’ of spiritual bliss experienced at Tirupati represented the epitome of religious experience. Nehru’s recollections of the equally famous Meenakshi temple in Madurai were altogether less positive. He wrote of his experience in a letter to his daughter, Indira Gandhi: I realized in this vast temple with its innumerable corridors and inner chambers, faintly lighted up, the great psychological influence of these religious edifices. How they must impress and rather frighten the multitudes and increase the power of the priesthood … There are not many people who can resist this numbing effect.73

If even the fleeting moment of spiritual bliss was absent in Nehru’s visit to the temple, it was because of his antipathy towards any form of institutionalized religion. In fact, the only religion that appealed to Nehru, like Gajendragadkar, was some kind of an ‘ethical approach to life’ and ‘spirituality’. In his lectures on secularism, Gajendragadkar quotes Nehru from Discovery of India to lay the foundation of his own exposition on religion. Nehru writes about a ‘sense of mysteries, of unknown depths’, and observes: The urge to understand it in so far as I can, comes to me; to be in tune with it and to experience it in its fullness. But the way to that understanding seems to me essentially the way of science, the way of objective approach, though I realize

that there can be no such thing as true objectiveness. If the subjective element is unavoidable and inevitable, it should be conditioned as far as possible by the scientific method.74

In his autobiography, Nehru defines religion as the ‘inner development of the individual, the evolution of his consciousness in a certain direction which is considered good’.75 Nehru elaborates in Discovery of India that he does not believe in a personal God and that he is ‘incapable of thinking of a deity or of any unknown supreme power in anthropomorphic terms, and the fact that many people think so is continually a source of surprise’.76 He goes on to strongly indict religion in a well-known passage: Religions have helped greatly in the development of humanity. They have laid down values and standards and have pointed out principles for the guidance of human life. But with all the good they have done, they have also tried to imprison truth to set forms and dogmas, and encouraged ceremonials and practices which soon lose all their original meaning and become mere routine … The belief in a supernatural agency which ordains everything has led to a certain irresponsibility on the social plane, and emotion and sentimentality have taken the place of reasoned thought and inquiry. Religion though it has brought comfort to innumerable human beings and stabilized society by its values, has checked the tendency to change and progress inherent in human society.77

In a similar vein, Nehru writes in his autobiography, ‘The spectacle of what is called religion, or at any rate organized religion, in India and elsewhere has filled me with horror … Almost always it seems to stand for blind belief and reaction, dogma and bigotry, superstition and exploitation, and the preservation of vested interests’.78 Nehru contrasts religion, which is based on intuition and emotion, to the methods of science and scientific temper, which is based on positive knowledge and objective knowledge. Nehru writes, ‘Organized religion, allying itself to theology and often more concerned with its vested interests than with things of the spirit, encourages a temper which is the very opposite to that of science. It produces narrowness and intolerance, credulity and superstition, emotionalism and irrationalism’.79 Nehru believed the conflict between ‘true religion’ and science could be resolved but for that ‘religion must put on the garb of science and approach all its

problems in the spirit of science’.80 Nehru was certain that with the advance of ‘knowledge’, the domain of religion would gradually ‘shrink’. Nehru’s prescription for the Indian nation was in keeping with this rationalist approach: ‘With the temper and approach of science, allied to philosophy, and with reverence for all that lies beyond, that we must face life’.81 Gajendragadkar’s diagnosis of religion in the Indian context was strongly shaped by Nehruvian rationalism. Gajendragadkar writes, ‘Indian society, by and large, is still traditional. It leans on scripture rather than on reason. It looks backward rather than forward and its behavioural pattern is founded more on scriptures, beliefs and superstitions rather than on reason, experience, and principles of modernism’.82 It is not surprising that Gajendragadkar had no patience for popular religious practices. According to him, ‘Religion as it is actually practiced among the Hindu masses, tends to be reactionary in its outlook and seeks to perpetrate the distinctions between castes and communities and sustain social inequality in all its nakedness’.83 These statements have more than a passing resemblance to Nehru’s views on religious practice: ‘Religion as I saw it practiced, and accepted even by thinking minds, whether it was Hinduism or Islam or Buddhism or Christianity did not attract me … it seemed closely associated with superstitious practices and dogmatic beliefs; and behind it lay a method of approach to life’s problems which was certainly not that of science’.84 For Gajendragadkar, ‘true’ religion and ethics are primarily concerned with ‘metaphysical speculations’.85 From this follows a crucial assumption about the privatization of religion: ‘The religion of man is a matter between him and his Creator; it should not intrude in the discussion or solution of socio-economic problems’.86 Gajendragadkar uses even stronger language in another lecture to describe religion as ‘totally irrelevant in the consideration of social, economic and political problems’.87 According to Gajendragadkar, the irrelevance of religion in the public realm was shared by Nehru. Gajendragadkar observes it was Nehru’s firm belief that a ‘citizen’s religion is his own private affair’ but at the same time a ‘citizen’s

religion cannot intrude in the discussion or decision of socioeconomic issues’.88 To combat the ‘backward’ and ‘reactionary’ elements of religion, Gajendragadkar viewed secularism and the secular state as indispensable. According to Gajendragadkar, ‘Social Justice has to face the challenge of superstition, ignorance and misconceived notions of religion … In meeting this challenge, the basic tenet of social justice is secularism’.89 Gajendragadkar clearly lays out his vision of secularism in the following manner: ‘Secularism, I would like to repeat, which is contemplated by the Indian Constitution, is not anti-God or anti-religion. It recognizes that religion has relevance and validity in the lives of many, though not necessarily all, citizens; but it emphasizes that while religion may be relevant in life, it cannot stall, hamper or frustrate the progress of Indian democracy in its allotted task of creating a new secular order’.90 The first part of Gajendragadkar’s definition of the secular state— as not being anti-religion or anti-God—is an essential component of Nehru’s definition: ‘A secular state does not mean an irreligious state: it only means that we respect and honour all religions giving them freedom to function’.91 On another occasion, Nehru defines 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’.92 However, it is important to note that even the second part of Gajendragadkar’s definition—the link between secularism and progressive democracy—is present in Nehru’s conception of secularism. Nehru says, ‘The word “secular”, however, conveys something much more to me, although that might not be its dictionary meaning. It conveys the idea of social and political equality’.93 Though Gajendragadkar held that secularism is not anti-religious, his predilection for a rationalized and private religion is quite clear in the way he views the Constitutional provisions regarding freedom of religion. Gajendragadkar writes, ‘The Indian concept of secularism recognizes the relevance and validity of religion in life, but seeks to establish a rational synthesis between the legitimate functions of religion and the legitimate and expanding functions of the state’.94

The ‘rational synthesis’ that Gajendragadkar talks about is, however, weighted in favour of the restrictions on freedom of religion. Thus, Gajendragadkar states: ‘If you want to search for freedom of religion, you would emphasize the breadth and width of the guarantee enshrined in Articles 25 and 26. If you are looking for the doctrine of secularism, dedicated to the cause of a new social order, founded on justice, social, economic and political, you would emphasize the limitations imposed upon the exercise of the right to freedom of religion’.95 The emphasis on the restrictions on religion stems from Gajendragadkar’s belief in a secular social order based on science and reason. This is quite clearly expressed in a remarkable passage in Gajendragadkar’s treatise on secularism. In other words, Indian society must adopt a rational and scientific way of life. It must not look behind, but must look forward. It must not look inward, but must look outward. It must not depend on texts or scriptures or authority of respected persons, priests or leaders of public opinion. It must depend upon reason … Whereas traditionalism makes a community static, conservative and averse to change, education must attempt to convert the traditional community into a modern, progressive and dynamic community which will be responsive to all changes dictated by reason. Faith in reason and not in dogma should be the guiding principle of the secular society.96

The dilemma for Gajendragadkar, and indeed any rationalist, is how to accommodate religion in a social order founded on reason. Drawing inspiration from a liberal position that religion in the ‘best sense’ is an ethical philosophy, Gajendragadkar advocates a religion that has little connection with the experience of religion: I have also attempted to show that when I am referring to the relevance of religion in the context of a modern secular state, I am not referring to religion as it is organized in the traditional way or as it is preached from the pulpit or platform by ignorant traditionalists, priests, pundits or kazis. I am referring to religion in the abstract, which is engaged in the quest of the Unknown and the Unseen, and which seeks for eternal verities and as such is the source and inspiration of true ethics and morality.97

The dichotomy between popular religion—which is marked by irrationality, superstition, and tradition—and a higher, scientific, and

rational religion is a distinguishing characteristic of Gajendragadkar’s writing. This dichotomy would be underscored in Gajendragadkar’s important rulings such as Durgah Committee, Govindlalji, and Yagnapurushdasji. In Durgah Committee, Gajendragadkar issued a ‘note of caution’ distinguishing between religion and superstition, that would recur in several subsequent judgements on religion: ‘Even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself’.98 Again in Govindlalji, Gajendragadkar introduced the rationality test. He wrote, ‘A claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations’.99 Finally, in what was possibly one of his last judgments as chief justice of India, Gajendragadkar in Yagnapurushdasji dismissed the case made by the Satsangis as ‘founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion’.100 More importantly, Gajendragadkar expressed the conviction that the Indian Constitution had ushered in a revolution in social attitudes and beliefs: ‘The whole social and religious outlook of the Hindu community has undergone a fundamental change as a result of the message of social equality and justice proclaimed by the Indian Constitution’.101

RATIONALIZING PERSONAL LAW The reformist streak in Gajendragadkar would manifest itself on issues related to Hindu personal law. Gajendragadkar’s views on Hindu law bring to the fore the question of how the courts should ascertain, to use Cardozo’s words, what were the ‘accepted standards’ of the Hindu community. Though Gajendragadkar maintained with regard to Hindu law that it can ‘never be the function of judges to change the law’, an examination of his writings and rulings show that this ‘neutrality’ was unworkable. This becomes

most apparent when Gajendragadkar approves of some popular customs as ‘acceptable’ by prevalent norms, while he discards other popular practices as out of step with contemporary society. What is also noteworthy is an appeal to the ‘correct’ interpretation of the scriptures—though Gajendragadkar consistently maintained that sacred texts or scriptures had no place in a modern society—to bolster the legitimacy of the courts. Gajendragadkar’s approach to Hindu law and his ambivalent relationship to the scriptures are well illustrated in Madhavrao v. Raghavendrarao.102 This ruling, written in 1945, was also Gajendragadkar’s first judgment on Hindu law as a justice of the Bombay High Court. The other judge on the division bench that decided the case was Harilal Kania, who later went on to become the first chief justice of India. The case involved the legitimacy of sagotra marriage or marriage within the same gotra. In essence, the case revolved around whether sagotra marriage was valid under Hindu custom. In a landmark 1868 case, Collector of Madura v. Moottoo Ramalinga,103 the Privy Council had stated that ‘under the Hindu system of law, clear proof of usage will outweigh the written text of the law’.104 However, a custom, which was at variance with the written text of Hindu law, had to be ancient, certain, and reasonable if it was to be recognized by the court. After going over several court rulings on the evidence to prove a custom, in Madhavrao Gajendragadkar concluded: On these authorities, then, it seems to be fairly well established that if in a particular case the party pleading a custom has produced general evidence of a respectable and reliable character showing that the particular custom prevails among the community to which the witnesses belong, and that the observance of the custom is well known for a fairly long period of time, that evidence can be accepted in support of the custom pleaded.105

By this yardstick, the Court ruled that the marriage in question— between a sagotra husband and wife belonging to Deshastha Brahmin community—was valid. However, Gajendragadkar was not satisfied with proof that sagotra marriage was sanctioned by custom. In addition, he wanted to garner textual proof for this custom. At first, the very meaning of

gotra was sought to be problematized by Gajendragadkar. Max Mueller was cited as saying, Gotra or kula means a family, and the number of families that had a right to figure in the Brahmanic Peerage of India was very considerable … All Brahmanic families who keep the sacred fires are supposed to descend from the Seven Rishis … The eight gotras, which descend from these Rishis, are again subdivided into forty-nine gotras, and these forty-nine branch off into a still larger number of families.106

However, Gajendragadkar contested the standard interpretation of gotra by citing other authorities such as P.V. Kane and Karandikar. Kane is quoted in the judgment: ‘The mass of material on gotra and pravara in the sutras, the puranas and digest is so vast and full of contradictions that it is almost an impossible task to reduce it to order and coherence’.107 Gajendragadkar’s conclusion was that it was ‘impossible to accept the suggestion that in reference to the Brahmin families of today their gotras and pravaras represent anything like an unbroken line of descent from the common ancestors indicated by the names of their respective gotras and pravaras’.108 When he considered the texts of Manu and Yajnavalkya, Gajendragadkar observed that the requirements on gotra were ‘recommendatory, rather than mandatory’. Turning to Vijnanesvara’s interpretation of Mitakshara, where marriage between persons of the same gotra is prohibited, Gajendragadkar dismissed it as inconsequential since it was based on the mimansa rule of interpretation. Gajendragadkar wrote, ‘Vijnanesvara’s interpretation is based on the mimansa rule of interpretation … That rule is both artificial and irrational; and as I have already indicated, I would certainly not be prepared to adopt it as a safe guide in interpreting Sanskrit texts for the purpose of administering Hindu law’.109 In a lecture on the Hindu Code Bill delivered in 1951, Gajendragadkar reiterated, ‘It would be enough if I mention that the whole theory underlying the view that sagotra marriages are invalid is fantastic in the extreme. If the history of the gotra and pravara is considered it would be clear to any dispassionate student that the prohibition against sagotra marriage is irrational’.110

However, eventually it was the ‘rational outlook’ of contemporary Hindu society that, in Gajendragadkar’s opinion in Madhavrao, overrode the scriptures. It is true that while dealing with questions like this, Courts have to construe the texts of Hindu law in the light of the explanations given by recognized commentators. But it must always be remembered that since the said commentaries were written, several centuries have passed by and during this long period the Hindu mode of life has not remained still or static. Notions of good social behavior and the general ideology of the Hindu society have been changing; with the growth of modern sciences and as a result of the impact of new ideas based on a strictly rational outlook of life, Hindu customs and usages have changed. The custom as to marriages between persons of the same gotra which I have held proved in this case is an eloquent instance in point. Between the letter of the law and sadachar—good conduct, according to the consciousness of the community—there is obviously great variance.111

Gajendragadkar’s validation of custom as representing the ‘consciousness of the community’ was, however, problematic. As a believer in the progressive rationalization and secularization of society, Gajendragadkar preferred to privilege customs over the scriptures. However, this could be a double-edged sword for Gajendragadkar when customs did not measure up to his rationalist expectations. This mismatch between Gajendragadkar’s rationalist expectations and the mores of society was best expressed in his reaction to the prevalence of caste-based norms among Hindus. In the Satsangi case, Gajendragadkar, as has been noted earlier, failed to comprehend why the followers of Swaminarayan could object to the entry of non-Satsangi Harijans into their temple. He labelled the fears of the Satsangis as stemming from ‘ignorance, superstition and misunderstanding’. Though Gajendragadkar strongly supported legal recognition of custom, he also believed that, with regard to caste inequality, the Hindus could be ‘inflexible and exclusive’. Thus in V.V. Giri v. D.S. Dora112 Gajendragadkar wrote: It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is

to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in the course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of a proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status among his co-religionists.113

It should come as no surprise that Gajendragadkar was an enthusiastic votary of ‘modernization’ of Hindu law. In his lecture on the Hindu Code Bill, Gajendragadkar stated, ‘The first and obvious point on which there could be no difference is that the personal law which affects the lives of so many millions of Hindus should be made simple, clear and certain and this object can be achieved only by codifying the whole of Hindu law. I suggest that there should be no difference of opinion that the personal law affecting all the Hindus should now be made also uniform’.114 Importantly, Gajendragadkar’s reformist thrust was not limited to Hindu law. Speaking well after the Hindu Code Bill had been passed, Gajendragadkar lamented, It was then thought that the enactment of the Hindu Code, the provisions of which are founded on principles of justice, equity and good conscience, and on rational considerations consistent with the spirit of modernism, would soon herald a new era in which the Muslim personal law would likewise be modernized and placed on a rational footing, consistent with the spirit of modern times.115

He also expressed a view on the ‘secular’ nature of personal laws that would be later echoed by the Supreme Court in cases related to Muslim personal law: ‘If a section of the Muslim community protests against legislative effort to modernize Muslim personal law, secularism says that, though the Muslims hold in veneration their religious texts, in the discussion and decision of the question pertaining to personal law, religious texts have no relevance because personal law is a secular and social matter’.116 It is apparent that Gajendragadkar reposed a great deal of faith in social change set in motion by the Constitution and the state.

Hence, he harboured the hope that the Court ruling in Yagnapurushdasji would ‘receive the spontaneous approval and response even from the traditionally conservative elements of the Satsang community’.117 Gajendragadkar’s faith in a consensus on social issues stemmed from his appraisal of Nehru’s strategy. Gajendragadkar observes, ‘Nehru, however, never forgot the fact that in the matter of establishing social equality law can succeed quickly only if it receives the whole-hearted cooperation of public conscience’.118 This unerring belief in agreement on critical issues, according to Shklar, is ‘part of more general ideological movements in favor of unity, and of wider searches for political values transcending those of the competing groups’.119 Shklar writes, ‘The anxiety of the elite that possesses “true political knowledge” or of the “man on the Clapham bus” is understandable. It is, however, no argument in favor of laws and judicial decisions which rely on a myth of moral uniformity or which pursue an ideology of agreement at any price’.120

MODERNITY AND TRADITION Gajendragadkar was fond of quoting Cardozo when discussing jurisprudence and the role of courts. One of the many nuggets of Cardozo’s legal wisdom that Gajendragadkar often quoted was, ‘The great tides and currents which engulf the rest of men do not turn aside in their course and pass the Judges by’.121 In the above discussion I have attempted to locate Gajendragadkar in the ‘great tide’ of rationalism and modernism that was a dominant feature of the public discourse in Nehru’s India. In addition to the Nehruvian ideology, Gajendragadkar was also significantly influenced by an instrumentalist conception of law and the use of law as ‘social engineering’. These two influences would leave their imprint on Gajendragadkar’s rulings, be it on religious reform, personal law, or constitutional amendments. Though for Gajendragadkar the ideal or ‘wise’ judge was one who could rise above his own philosophy, it should be evident from my analysis that Gajendragadkar’s rulings were, in fact, a product of his rationalist and socialist ideology.

However, as mentioned earlier, it was possible for Gajendragadkar to view himself as a judge untouched by personal beliefs because he believed his rulings represented what was best for the nascent Indian nation, and were aimed at furthering the common good. Thus, Gajendragadkar felt he could use the instrumentalist idea of law in the service of the Nehruvian state. This was expressed by Gajendragadkar in a speech delivered in 1965, on the first death anniversary of Nehru: ‘Nehru always preached the basic theory that democracy could succeed in achieving its dynamic purpose of establishing an egalitarian society with the help of law, and so, according to Nehru’s concept, law in the hands of democracy became its mighty weapon and ally’.122 Even after Nehru’s death, when fundamental rights were being undermined by the Indira Gandhi government, Gajendragadkar retained his faith in the Nehruvian conception of the state and democracy. Nehru’s strong emphasis on rationalizing religion can be seen as part of his grand plan of giving India the ‘garb of modernity’ by pulling the country ‘out of traditional ways of thought and living which, for all the good they may have done in the past age, and there was much good in them, have ceased to have significance today’.123 Bhikhu Parekh has argued that Nehru ‘felt convinced that India had no choice but to replace its “degenerate” traditional social structure with one based on Western lines under the tutelage of the state led by a Westernized elite’.124 However, Nehru understood the immense complexity of this task. In a conversation with Andre Malraux, he said the two most challenging tasks before him were to ‘create a just society by just means … and a secular state in a religious society’. I have tried to show that Gajendragadkar was a committed votary of the Nehruvian model. Religion was an important component of the ‘traditional ways’ that so worried Nehru. Sunil Khilnani points out, Nehru’s fear of religion went even deeper. Nehru’s views about religion and the state were not based on a prospective optimism about the evanescence of religion but rather on a retrospective, historically based pessimism about its persistence—and the dangers this posed if

it ever should be linked to that most powerful modern form of instrumental reason, the state.125

However, Parekh argues that, in his final years, Nehru realized that his model of modernization was flawed and looked at ways of ‘traditionalizing modernity’.126 Parekh’s point is borne out by some of Nehru’s writings and speeches in the twilight of his life. During a lecture in 1959 Nehru spoke of the necessity of building the future on the ‘foundations laid in the past and in the present’. He poignantly said, ‘To deny the past and break with it completely is to uproot ourselves and, sapless, dry up’.127 Two years later, there was a significant change in Nehru’s beliefs on religion from the time when he penned Discovery of India. In 1961, Nehru wrote that he agreed with the approach that ‘we should accept the deeper essence of religion and, indeed, of all religions which may be called spirituality and not the rituals and dogmas that have grown up in the name of religion’.128 On the part of Gajendragadkar, there was no visible attempt to revise his life-long advocacy of modernism. However, Gajendragadkar’s description of Hinduism as a ‘way of life’, and the inadequacy of categorizing it as a religion in Yagnapurushdasji, does provide pointers to a contrary approach to religion. The judgment has been discussed in detail in an earlier chapter.129 In his out-ofcourt writings, Gajendragadkar clearly made the link between the ‘comprehensive, forward-looking and dynamic’ aspects of Hinduism, symbolized by its catholicity, and the sustenance of secularism in India. He writes, ‘In understanding the true nature of the doctrine of Secularism under the Constitution of India, it is necessary to refer to the fact that this doctrine is fundamentally based on Hindu philosophy’.130 According to Gajendragadkar, the tolerance of dissent in the Hindu tradition makes it particularly conducive to secularism: ‘It is this characteristic catholicity and freedom which are the hallmark of Hindu philosophy, religion and culture; and it is this catholicity again, which is the basis of the spirit of tolerance in a positive sense, that is the special feature of Indian secularism. That is why I venture to suggest that the positive concept of secularism is ultimately based on the fundamental features of Hindu

philosophy’.131 It has been noted in an earlier chapter how this inclusivist discourse on Hinduism can lend itself to interpretations that fail to recognize India’s syncretistic culture. In the context of Gajendragadkar’s philosophy, it is important to note that his selective use of tradition—almost always Hindu tradition—co-exists uneasily with embrace of a modern rational world view. On numerous occasions, Gajendragadkar spoke about the irrelevance of religion in the public sphere. Thus, to identify Hindu philosophy and traditions as the wellspring of tolerance does not quite fit with Gajendragadkar’s general philosophy. The same can be said for Gajendragadkar’s understanding of dharma. When discussing modernization of personal laws, Gajendragadkar makes the point that dharma is a ‘purely secular institution’.132 He writes, ‘Dharma, in its secular sense, aims at stabilizing social institutions and human relations and so inevitably the rational test of social utility and the compelling considerations of social equality must be allowed to have their full sway in moulding the structure of Hindu Law today’.133 This interpretation of dharma flies against the conception of dharma as ‘eternal laws which maintain the world’,134 or an ‘all-encompassing order’135 where no sharp distinctions can be made between the sacred and the profane. Hence, it would seem Gajendragadkar usually attempted to interpret tradition through modernist categories. Indeed, this inability to comprehend ‘traditional’ and popular religious practices would represent a fundamental tension in Gajendragadkar’s, as well as Nehru’s, ideology. Even if one accepts Parekh’s thesis that Nehru in his later years moved from a ‘mechanical and indiscriminate adoption of the Western model’ to one that was ‘sensitive to the history, habits and values of his countrymen’,136 there was still a wide gap between Nehru’s talk of spirituality and popular religion. In fact, as early as 1936, Nehru had expressed his deep admiration for the Upanishads: ‘Despite the woeful accumulation of superstition and degrading custom that had clung to her [India] and borne her down, she had never wholly forgotten the inspiration that some of the wisest of her children, at the dawn of history, had given her in the Upanishads’.137

Interestingly, even here the trajectories of Nehru’s and Gajendragadkar’s philosophy intersected. It is perhaps no coincidence that Gajendragadkar’s final project was editing the Upanishads for the Bharatiya Vidya Bhavan. In his introduction to the first volume, Gajendragadkar makes a rare departure from his hard rationalism to justify the relevance of the Upanishads: ‘If science and scientific progress are allowed to go without guidance and control of ethical considerations and become captives of political power, the world may face disaster’.138 At the same time, Gajendragadkar admits there is a ‘disparity’ between the teachings of the Upanishads and the beliefs and practices of the Hindu community. Thus he writes, ‘That, in one sense, is a challenge posed by the Upanisadic thought, if it has to appeal to the entire community, as relevant and work as a solace, in the lives of Hindus, as it did, in the case of the famous European philosopher Schopenhauer, who said: “The Upanisads have been the solace in my life and will be the solace in my death”’.139 This statement reflects a fundamental contradiction in Gajendragadkar’s as well as the Nehruvian world view: the goal of convincing a community, marked by a multiplicity of religious beliefs and practices, to accept a rationalist and higher religion.

8 Conclusion

If the overall direction of court rulings on religion were to be assessed from 1951 to the present, some patterns are discernible. This has something to do with the personality of dominant judges, usually serving chief justices or judges who would become chief justices, as well as the prevailing political climate. It must be stressed, however, that no linear movement can be discerned in court rulings. The early 1950s, the very first years of the existence of the Supreme Court, saw rulings that arguably most closely approximated the constitutional position of the state giving free play to all religions. Justice B.K. Mukherjea in 1954 rejected the narrow definition of religion enunciated by the Bombay High Court in Ratilal Panachand, where religion was restricted to matters of personal faith and belief. In Shirur Mutt, Mukherjea defined religion far more expansively and said rituals, observances, ceremonies, and modes of worship were to be regarded as integral parts of religion. Second, he observed that a religious denomination or body enjoyed complete autonomy in deciding what rites and ceremonies were essential. The Court, thus, laid the foundation for a relationship between state and organized religion that gave considerable freedom to religious denominations. Mukherjea, who was an expert on Hindu religious and charitable endowments—on which he delivered the famous Tagore lectures at Calcutta University—as well as a Sanskrit scholar, greatly influenced the direction of the Court in the decade after 1950. This would change in the 1960s when Justice Gajendragadkar became the dominant voice of the Court, at least with regard to

religion. In successive cases, he would whittle down the protection to essential practices to those that the court deemed suitable. The phase when Gajendragadkar was dominant also marked the beginning of an increased role for the state in regulation and administration of temples. It has been noted how the idea of social engineering played a crucial role for high modernists such as Gajendragadkar. The notion of the ‘felt needs’ of society or the ‘mores of the times’ is central to the notion of social engineering. Hence, in an earlier chapter I have tried to show that Gajendragadkar’s rulings can be viewed as a product of Nehruvian rationalism.1 Thus, when he talked of social engineering, Gajendragadkar assumed a moral consensus, which is characteristic of political elites, on the Nehruvian objectives. This phase is possibly best explained by political scientist James Scott’s concept of high modernism. Some key components of Scott’s formulation of modernism are a supreme confidence in progress and a rationalist understanding of the world. The faith reposed by high modernism in progress and rationality implies a ‘truly radical break’ with history and tradition. For the high modernists, according to Scott, the ‘structures of the past were typically the products of myth, superstition, and religious prejudice. It followed that scientifically designed schemes for production and social life would be superior to received tradition’.2 This description is similar to political theorist Michael Oakeshott’s analysis of rationalists: ‘At bottom he [the Rationalist] stands (he always stands) for independence of mind on all occasions, for thought free from obligation to any authority save the authority of “reason”. His circumstances in the modern world have made him contentious: he is the enemy of authority, of prejudice, of the merely traditional, customary or habitual’.3 Since tradition or custom has no value for rationalists, it makes ‘destruction and creation easier for him to understand and engage in’. This is especially true for a figure like Gajendragadkar, who makes frequent appearances in this study. Gajendragadkar’s crusade against religious superstition and myths, particularly through the construction of a rationalist Hinduism and the application of the essential practices doctrine, could be seen as typical of a high modernist.

In the high modernists’ scheme of things, the state plays a central role in every aspect of life. Scott observes, ‘High modernism is thus a particularly sweeping vision of how the benefits of technical and scientific progress might be applied—usually through the state—in every field of human activity’.4 Scott argues that it was only in the late nineteenth and twentieth century that the state acquired the wherewithal to impose its schemes on society. He further argues that the ‘massive, state-enforced social engineering of the twentieth century has been the work of progressive, often revolutionary, elites’. Indeed, Gajendragadkar—and his intellectual mentor Jawaharlal Nehru—fit Scott’s description of progressive elites who desire to use the power of the state to ‘bring about enormous changes in people’s habits, work, living patterns, moral conduct, and worldview’.5 The close fit of the Nehruvian elite with high modernism is not surprising since Scott notes that high modernism has great appeal to those who see themselves as responsible for nation-building and social transformation. According to Scott, ‘Where this intelligentsia conceives of its mission as the dragging of a technically backward, unschooled, subsistence-oriented population into the twentieth century, its self-assigned cultural role as educator of its people become doubly grandiose’.6 Thus, postcolonial elites, like Gajendragadkar, who sought to radically transform society, are particularly apposite candidates for high modernism. One might in fact speculate that the more intractable and resistant the real world faced by the planner, the greater the need for utopian plans to fill, as it were, the void that would otherwise invite despair. The elites who elaborate such plans implicitly represent themselves as exemplars of the learning and progressive views to which their compatriots might aspire. Given the ideological advantages of high modernism as a discourse, it is hardly surprising that so many postcolonial elites have marched under its banner.7

The framework that was put into place in the 1960s has not been seriously questioned since. In the 1980s and 1990s, the Court sanctioned state control of major Hindu temples. It also placed everstricter rules on groups claiming religious denomination status and protection under Article 25. Though no single judge was dominant

during this period, except for Justice Ramaswamy who handled most of the temple cases in the 1990s, the idea of state regulation of temples had taken deep roots by then. This was also the period when Hindu nationalism was ascendant, and the sanction of state control of temples possibly stemmed from different imperatives than those of Gajendragadkar’s time. The court was less concerned about rooting out irrational elements of religion than it was about expanding the role of the state with regard to religion. This comes out in the introduction of the idea of dharma into the judicial discourse by Ramaswamy in place of a narrow conception of religion. Involving dharma gave the state, like the earlier royal dynasties, latitude to play benefactor to religious institutions. The court, in this phase also, was at its most activist in tackling the many perceived ills in India such as corruption and environmental pollution. The enthusiastic support of the state taking over temples could be seen as a by-product of this activism. However, when Hindu nationalism was ascendant in the 1990s, Justice Verma used Cardozo’s idea of ‘mores of the community’ to achieve a completely different end. Gary Jacobsohn points out, ‘For Justice Verma, secularism means equal treatment under law, whereas for Justice Gajendragadkar, the constitutional aspiration of equality may justify the active intervention by the State into the spiritual domain (in violation, perhaps, of formal equality) in order to achieve an objectively more egalitarian society’.8 According to Jacobsohn, in the Hindutva ruling, ‘Gajendragadkar’s discussion of Hinduism was appropriated by Verma in order to advance an understanding of religion and politics that is sharply divergent from the intentions of the earlier jurist’.9 It could be argued that Verma’s ruling was representative of the politics of a time when Hindu nationalists had acquired a legitimacy and popular support unrivalled since Indian independence. Hence, Jacobsohn writes, ‘Verma’s unwillingness to delegitimate all Hindutva campaign advocacy is accordingly a reflection of his intention to reinforce what he saw as the legitimate sociopolitical aspirations that many people associate with the use of the term’.10 Framing the Hindutva judgment in terms of Cardozo’s notion of community mores, Jacobsohn observes, ‘In looking to the mores of

the majority, Verma appealed to a rather vague and undifferentiated set of norms and assumptions that reflect the aspirations for a uniform culture held by many, perhaps most Hindus in India’.11 S.P. Sathe, too, links the changes in the direction of Court rulings with the politics of the time. Of the years immediately following independence, Sathe comments: ‘The Court, barring a few property rights cases, supported the economic regulation undertaken by the Indian state. During the 1950s and early 1960s, the Court seemed to share the Nehruvian vision of socialist India, as evident in its decisions on the rights of industrial labour and regulation and control of the economy’.12 However, around the 1990s, when Hindu nationalism and economic liberalization were the dominant themes in Indian politics, Sathe says, ‘The tides and currents which engulf the rest of the people, do not pass the judge by. Therefore, there have been decisions which showed that even judges have not been left out of the prevailing climate of privatization and soft Hindutva’.13 Too much though should not be read into the judiciary being influenced by the ‘tides and currents’ of the time. In the 1950s, the government and the judiciary were at loggerheads with Nehru’s Congress government over land reform and the right to property. Further, in the early 1980s, following the Emergency, judges ‘not only placed their power over all authorities, public or private, but claimed the status of an independent institution of governance’.14 This is something that the courts have continued to practice. Thus, Rajeev Dhavan gives a salutary warning about analysing the behaviour of the Court: In the end, we must regard the attitude of Supreme Court judges as typical of the decision-making habits of metropolitan Indians: technically unpredictable, not influenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by the psychologist or documented even by the novelist, the dramatist or the fiction writer, and suffering from an over-sensitive opinion of their lonely and unparalleled position.15

Supreme Court judges have, however, shown a willingness—which is rare for constitutional democracies—to interpret religious texts. One reason for this could be the tendency of judges to see

themselves as inheritors of the Brahmanical tradition of interpreting religious texts. It is perhaps no accident that Gajendragadkar hailed from a family of Brahmin, Sanskrit scholars and took great pride in interpreting Hindu law, as is evident in Madhavrao. Similarly, Justice Ramaswamy (who is incidentally not a Brahmin) goes to great lengths in A.S. Narayana to demonstrate his knowledge of Hindu religious texts and traditions. This leads the other judge on the Bench, Justice B.L. Hansaria, to comment, ‘It may look pedantic to say anything more in the face of the very scholarly and erudite judgment of my learned brother …’16 Another reason for judges to refer to Hindu scriptures and traditions, as Pratap Bhanu Mehta points out, is a ‘way of bolstering their authority by giving Hindus reasons that are internal to the tradition itself to go along with the courts and legislature’s reform agenda’.17 According to Mehta, The act of interpreting religious texts has a dual purpose. On the one hand the courts are able to demonstrate that the authority of their rulings rests both upon modern constitutional principles and scripturally sanctioned foundations. On the other hand the courts offer internal reasons to Hindus to the effect that there is little in the content of social reform efforts that is a threat to their religion, understood in its essentials.18

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

the pitfall of interpreting Muslim personal law in Fuzlunbi and Bai Tahera, and thus did not cause a furore as in Shah Bano.

THE STATE AS PATRON AND REFORMER OF HINDUISM One of the main themes of this study has been to highlight the strong current of high modernism and rationalism in the judicial discourse on religion. This comes out most powerfully in the Court’s understanding of Hinduism, and its articulation and application of the essential practices doctrine. As discussed earlier, the Supreme Court’s inclusivist definition of Hinduism put forward the idea of Hinduism as an all-encompassing but coherent whole. The Court’s description of Hinduism as a ‘way of life’ was based on the idea that there were certain foundational features of Hinduism, one of them being the centrality of the Vedas. Hence, in rejecting the claim of the Satsangis that they were distinct from the Hindus, the Court in Yagnapurushdasji appealed to the idea of a ‘subtle indescribable unity’ underneath the ‘divergence’ of Hinduism. The appeal to a unity within Hinduism, based on a Vedic core, allowed the Court to ignore the issue of the multiplicity of sects and beliefs within Hinduism. This inclusive conception of Hinduism would also enable the Court to deny the right of exit to any sect or group. Second, through the essential practices doctrine, outlined by Justice B.K. Mukherjea in Shirur Mutt and developed by Justice Gajendragadkar in later rulings, the Supreme Court put in place a stripped down rationalist version of religion. In Durgah Committee, the Court made a distinction between ‘essential’ religion and practices that had their origins in superstitious belief. This ruling was a powerful statement in favour of rationalizing and homogenizing religion. At the same time, newer religious groups such as the Ananda Margis were held by the Court to be illegitimate. The rationalization process would also find expression in increasing state regulation of temples and rituals of worship. The Court even went to the extent of ruling in Swami that the appointment of a temple priest was not a matter of religion. This meant that the Court was sanctioning a system where the state had a direct say in how worship was to be conducted.

The high modernist and rationalist thrust of the court, however, failed to accomplish what it set out to achieve: the transformation, in Gajendragadkar’s words, of a ‘traditional’ community into a ‘modern, progressive and dynamic’ one where reason would be the guiding principle, and religion would be ‘totally irrelevant in the consideration of social, economic and political problems’. The court’s modernism and rationalism was turned on its head, resulting in the complete negation of what a Nehruvian rationalist like Gajendragadkar had originally set out to achieve. This was most starkly illustrated in Gajendragadkar’s definition of Hinduism that was used by the court, and subsequently appropriated by the Hindu nationalists, to legitimize Hindutva. As has been touched on earlier, the overlap between the inclusivist and exclusivist discourses on Hinduism—where differences within Hinduism were appropriated rather than recognized—was at the root of this paradoxical outcome. The moment the Supreme Court in Prabhoo ruled that speaking about Hindutva in election campaigns was not religious speech because Hindutva is about ‘a way of life’, it articulated Hinduism in a way that would be equally useful to Hindu nationalism as to high modernism. It must be remembered that Nehruvians such as Gajendragadkar were deeply preoccupied with nation-building and that dictated much of their unification project. However, this propensity toward homogenization reinforces the Hindu nationalist dual project, unifying and monotheizing Hinduism on the one hand, and subsuming all religions under the umbrella of Hindutva as a way of life on the other. Indeed, this overlap in the Indian state’s modernizing project and the Hindu nationalist agenda was foreshadowed by sociologist M.N. Srinivas in the early 1960s: Thus the state has become an important means of reinterpretation of Hinduism in the middle decades of the twentieth century, and this in spite of India’s proclaimed policy of being a secular state. The state, though most important, is not the only organization performing this function. Political parties such as the Hindu Mahasabha and the Jan Sangh, and ‘cultural organisations’ such as the militant Rashtriya Swayamsevak Sangh, become agencies for the perpetuation and reinterpretation of Hinduism.20

The consequences of the essential practices doctrine were at odds with the goals of Nehruvian modernism. The essential practices doctrine, as developed by Gajendragadkar, sought to cleanse religion of superstition and irrationalities. It was based on the premise that the state must protect only the ‘essential and integral part’ of religion. While it was certainly desirable that the state would play a role in passing laws to abolish social practices, such as untouchability and denial of entry of lower castes to temples, the Supreme Court permitted the state to become deeply involved in administering religious institutions, and even regulating rituals and modes of worship. Beginning with Durgah Committee, the Court gave sanction for an elaborate regulatory apparatus for religious institutions. The involvement of the state in religious institutions flew in the face of the Nehruvian assumption that the domain of religion would gradually shrink. Instead of religion disappearing from the public sphere, the state became the principal agent of Hindu reform. This has resulted in the virtual takeover of temples which completely undermines any form of secularism. For instance, the richest Hindu temple in India, the Sri Venkateswara temple at Tirupati in Andhra Pradesh is run by a board appointed by the government and the executive officer is a government bureaucrat. Hence, Pratap Bhanu Mehta argues that the Indian secular state has already put in place what a Hindu state would have probably liked to: The Indian state has used state power to consolidate Hindu identity in more ways than one can list. The state, for the first time, created a territorially unified body of Hindu law, transcending numerous regional divisions. Supreme Court judges not only promulgate public purposes; they act as authoritative interpreters of Hindu religion … The state runs thousands of temples across the country, appropriated in the name of social reform and financial propriety.21

THE QUESTION OF MINORITIES Another important element of this study has been the Court’s attitude towards minorities. The Stanislaus judgment and its role in legitimizing anti-minority legislation to check conversions have already been discussed in Chapter 5. So has been the Court’s role

in making it easier to re-enter the fold of Hinduism and its caste hierarchy than to leave it. However, here I want to touch once more on the question of the Court’s understanding of minority rights, particularly in relation to Muslims. This is critically important for the future of Indian secularism, given the insecurities and fears of the Muslim community following the Babri Masjid demolition, 2002 Gujarat riots and, more recently, the spate of terror incidents culminating in the terrorist attack on Mumbai in 2008. While Muslim organizations and civil society groups have unequivocally condemned terrorists claiming an Islamic ideology, fingers are pointed at the community by many Indians, particularly Hindu nationalist groups. The insecurities, and the several problems afflicting the community, have been extensively documented in the government-appointed Rajindar Sachar Committee’s report in 2006,22 which recommends specific policies targeted at Muslims. This calls on the state to be attentive to the rights of Muslims. In the Muslim personal law cases, the Supreme Court made a strong argument against separate laws for religious minorities. On several occasions, including the Shah Bano case, the Court has strongly pushed for a uniform civil code. The Court viewed the failure of the legislature to enact a uniform civil code as an invitation to don the mantle of reformer. The Court based its rulings on the premise that separate laws for religious communities undermined the Indian nation state and its unity. Then again, in the cases involving minority institutions, it has slowly eroded the rights of these institutions. As was mentioned earlier, the Aligarh Muslim University is still fighting a battle for minority status. The Supreme Court’s repeated calls for a uniform civil code have not had the desired effect. The Shah Bano case was a dramatic instance of a Court ruling triggering a backlash from the Muslim community, as well as remedial action by the legislature. The ruling coalesced both traditionalist and modernist elements of the Muslim community, who saw their religious and cultural identity under threat. The reaction to the Court’s emphasis on uniformity and homogeneity was so strong that the Congress passed the Muslim Women’s Act to nullify the Shah Bano ruling. The Court’s strident advocacy of a uniform civil code also made it an ally of the Sangh Parivar since the

uniform civil code has consistently been at the top of the Hindu nationalists’ agenda, which includes scrapping of the special status granted to Kashmir, a temple at Ayodhya, and stemming Christian conversions. The Court’s utopian, and potentially destabilizing, thinking on minority rights comes out in the Bal Patil case (mentioned in Chapter 2), which dealt with the demand for minority status by Jains: Article 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so called forward and backward classes … We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights.23

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

citizens. This is what Charles Taylor calls a ‘difference-blind’ approach, where any concession to ‘difference’, be it religious or otherwise, ‘violates the principle of nondiscrimination’.27 Akeel Bilgrami sums up well the dilemma of a liberal state regarding personal laws: ‘Can culture and religion provide grounds for exemption from a secular liberal nation’s laws?’28 The reasoning of Hindu nationalist ideologues such as Shourie, who twist the rationale of a liberal state for their own purposes of exclusion, highlights the possibility of a cognitive collaboration between Hindutva and the secular Indian state. Thus, Partha Chatterjee notes, ‘In its most sophisticated forms, the campaign of the Hindu right often seeks to mobilize on its behalf the will of an interventionist modernizing state, in order to erase the presence of religious or ethnic particularism from the domains of law or public life, and to supply, in the name of “national culture”, a homogenized content to the notion of citizenship’.29 The problem with the judicial discourse on minority rights is that it is caught up in the rhetoric of national unity and assimilation, little realizing that it undercuts the very foundation of a diverse and plural nation such as India. It was one thing for the framers of the Indian Constitution in the aftermath of partition to stress national unity, but it is quite another for the Court to insist on cultural and religious homogeneity more than sixty years after independence. Here, one sees the larger issue of the role of the liberal, democratic state vis-àvis minorities. As Bhikhu Parekh points out, unlike pre-modern formations such as the Ottoman or Mughal empires where communities were relatively free to follow their own practices, the modern state is a different beast: ‘The modern state rested on a very different view of social unity. It generally recognized only the individuals as the bearers of rights and sought to create a homogenous legal space made up of uniform political units subject to the same body of laws and institutions’.30 The Indian secular state, with space for personal laws for religious minorities and state funding for minority institutions, is different from this model. However, as I have tried to show, the Court has more often than not

ended up looking at minority issues through the lens of a homogenized state and uniform rights.

INDIAN SECULARISM AND EXCEPTIONALISM This then brings us right back to the place of religion in India, and the tensions within India’s official secular policy. Ramachandra Guha persuasively argues in India after Gandhi that India is an ‘unnatural nation’ which did not have a ‘shared language, a shared religious faith, a shared territory, a common enemy’ to hold it together.31 Indian secularism is at the heart of this ‘unnatural’ experiment. Using Ashis Nandy’s memorable line that cricket is an Indian game invented by the British, Pratap Bhanu Mehta even suggests that ‘secularism, like cricket and democracy, is a quintessentially Indian game that just happens to have been invented elsewhere’.32 What Donald Smith had once called ‘anomalies’ are now seen as an integral part of Indian secularism. It’s the ‘celebratory neutrality’ of the Indian state, or a state-sponsored tolerance namely sarva dharma samabhava, which is a sine qua non of Indian secularism. Nonetheless, a central contradiction still remains. As Mehta succinctly puts it, modernity presents a profound dilemma: ‘We think religion is important enough that it should be given space, but at the same time it is a threat that needs to be contained’.33 With regard to religion, the modern state has been particularly interventionist having ‘had to assert authority over areas of social life that traditional religious practices had claimed as their own’.34 The postcolonial Indian state is no different. However, like Indian democracy, secularism can be termed a qualified success given the tremendous odds it faced. If Indian secularism is seen as exceptional—changing the rules of the game even as it develops— what role has the Court played? There is little doubt that the Court, on several occasions, has played a positive role in defending religious freedom and minority rights. A good example is the Court’s efforts to deliver justice to the victims of the 2002 communal riots in Gujarat in the face of an unresponsive, and even complicit, state government. However, on the questions of both religious and legal

pluralism, the Court has, far too often, erred on the side of homogeneity and uniformity. This is, indeed, characteristic of any modern, liberal state. As Parekh points out, the modern state is a ‘deeply homogenizing institution’ because it ‘expects all its citizens to subscribe to an identical way of defining themselves and relating to each other and the state’.35 Ashis Nandy makes this point more strongly when he says that ‘state-formation and nation-building is simultaneously a story of how religions, denominations and ethnicities were bludgeoned into nationalities’.36 Thus, there is often a gap between ‘pluralist intentions and the actual functioning of the Indian State’.37 Indian secularism (as well as multiculturalism), where the boundaries between state and religion are sometimes by design and often by accident flexible, could well be described as fuzzy: The Indian project of multiculturalism, fuzzy and implicit before independence and explicitly fuzzy afterwards, has drawn scepticism from theorists and men of letters alike. However, the politics of negotiation and contestation that Indian democracy has institutionalized has provided the requisite space in which different communities have come together and made a concerted effort to add their voices to the definition of the core values of the nation.38

The Court has often chosen to neglect this elasticity. It has worked with notions of religion and citizenship which have, more often than not, privileged the unity rather than the diversity of that favourite, and somewhat tired, slogan of the Indian nation state: unity in diversity. The Court’s stand today is anachronistic as the world has moved on since the days when the ‘melting pot’ and ‘assimilation’ were the dominant metaphors for nation-states. India, which was seen as an aberration, is now viewed as a relatively successful model of a multicultural and multireligious state. As Guha says, One might think of independent India as being Europe’s past as well as its future. India is Europe’s past in that it has reproduced, albeit more fiercely and intensely, the conflicts of a modernizing, industrializing, urbanizing society. But it is also Europe’s future, in that it anticipated, by some fifty years, the European attempt to create a multilingual, multi-religious, multi-ethnic political and economic community.39

It’s not that multireligious countries don’t need some sense of a ‘common citizenship’. However, that’s quite different from the ‘homogeneous legal space’ that the Court has normally prescribed. Thus, Kymlicka and Norman make a distinction between ‘assimilation’ and ‘multicultural integration’. The latter, according to them, ‘does not have the intent or expectation of eliminating other cultural differences’ but ‘accepts that ethnocultural identities matter to citizens, will endure over time, and must be recognized and accommodated within these common institutions’. It’s difficult for the Court, which has been called a ‘problem solving’40 institution, to adopt this flexibility. The same holds true for the Court’s interventions on religious practice. While it is bound by the Constitution to proscribe religious practices and speech when they disturb public order, the Court has been uncomfortable with expressions of religious faith and practices that have not conformed to its own idea of religion. This represents an inability to make a distinction between religion as faith and religion as ideology. Or, to put it differently, the Court has not been sufficiently sensitive to the fact that the ‘threats posed to a civil liberal order in India and elsewhere are less from disputes over religious beliefs and more from the conjunction of nationalism and religion.’41 In the final analysis, the principles of secularism encoded in the Indian Constitution are marked by what Granville Austin, in his pioneering work, calls ‘accommodation’. According to him, one of India’s original contributions to constitution-making has been the ‘ability to reconcile, to harmonize and to make work without changing their content, apparently incompatible concepts—at least concepts that appear conflicting to the non-Indian, and especially to the European or American observer’.42 He goes on to say that with accommodation ‘concepts and viewpoints, although seemingly incompatible, stand intact’.43 Bhargava makes a similar point about the Indian Constitution when he says that ‘if we strive towards two or more values which cannot all be realized and then trade them off against each other, in that case, provided one value is not

overwhelmingly given up in favour of the other, the compromise cannot be dismissed as morally unworthy’.44 The principle of accommodation makes the constitutional provisions for Indian secularism, at best, open-ended. It also leaves ample scope for play and internal tensions. This, of course, makes the task of the Court much more difficult than in secular democracies where the separation between religion and state is much better defined. As we look ahead to what appears to be a period of increasing uncertainty, where religion and religious identity will continue to play a prominent role, the Court should rethink its language of uniformity in favour of one that is more accomodative of religious and legal pluralism. Otherwise, we risk matters of religion and faith being hijacked by the Hindu nationalists or Islamic radicals. That is something that India, and the rest of the world, cannot afford.

Afterword Two Judgments and Other Anomalies

Days before the election schedule for five states, including Uttar Pradesh, was announced in 2017, the Supreme Court delivered what could potentially be a game-changing judgment. In Abhiram Singh v. C.D. Commachen, the Court in a 4–3 verdict gave a much broader interpretation than earlier to Section 123(3) of the Representation of the People Act (RPA), which, as we have seen earlier, prohibits appeals during elections to religion, caste, and community, among other things, and deems it a ‘corrupt’ practice.1 Here I briefly examine the judicial reasoning in both the majority and minority judgments in Abhiram Singh. The judgment clubbed together two cases—Abhiram Singh v. C.D. Commachen and Narayan Singh v. Sunderlal Patwa—where the Supreme Court had referred specific points of law related to Section 123(3) to a larger bench. One of the striking features of the Abhiram Singh judgment was that both the majority and minority rulings were based on a purposive interpretation rather than referring to the substantial, and often contradictory, case law on Section 123(3). The majority judgment comprised of three separate rulings of which the one authored by Justice Madan Lokur (also on behalf of Justice Nageswara Rao) most clearly laid out the rationale of widening the ambit of Section 123(3). Justice Lokur referred to Court rulings such as Kultar Singh, which, as we saw, validated Section123(3) on the grounds that it served the cause of secular democracy, before turning to the ‘narrow and restricted’ interpretation in Prabhoo, one of the Hindutva judgments. Justice Lokur ruled:

Sub-section (3) … must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.

The majority judgment ruled that the prohibition did not apply only to the religion or caste of the person standing for election but also to any appeal made to the voter on the grounds that are prohibited under Section 123(3). As part of the majority opinion, Chief Justice T.S. Thakur wrote, An appeal in the name of religion, race, caste, community or language is impermissible … and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless of whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

The court’s verdict turned on the interpretation of the word ‘his’ in Section 123(3), rejecting the narrow view that it was restricted only to the identity of the candidate. Justice Thakur ruled, ‘Seen both textually and contextually the argument that the term ‘his religion” … must be interpreted so as to confine the same to appeals in the name of “religion of the candidate.”’ The judgment was welcomed by one legal scholar as a ‘positive and necessary step towards free and fair elections’.2 However, the judgment also left several questions unanswered. Some of them were articulated in the minority opinion penned by Justice D.Y. Chandrachud, which political analyst Pratap Bhanu Mehta has called one of the most ‘brilliant’ dissents in Indian legal history.3 Justice Chandrachud noted that Section 123(3) prohibits appeals made to vote for or against a candidate on the ground of his religion, caste, and so on, but importantly he also pointed out that the Constitution does not ‘deny religion, caste, race, community or language a position in the public space’. He added that that Section 123(3) was not ‘intended to sanitize the electoral process from the

real histories of our people grounded in injustice, discrimination and suffering’. What both the majority and minority opinions have overlooked, however, is the court’s struggle to define what is permissible under Section 123(3), especially with regard to religion. This had led to a degree of inconsistency, which has been touched on in chapter 3. Although the court has from the 1950s consistently upheld the validity of Section 123(3), when it has been challenged on several grounds including violation of free speech, the court has been far more circumspect in defining its reach. This was apparent in the two cases, separated by two decades, related to the Akali Dal: Kultar Singh v. Mukhtiar Singh (1965) and Harcharan Singh v. Sajjan Singh (1985). These twists and turns of the jurisprudence on Section 123(3) have largely been ignored in the Abhiram Singh judgment, which largely depended on legislative history and purposive interpretation. The question of what constitutes a religious appeal or what kinds of speech attract Section 123(3) have been left unanswered. Besides, there are the practical aspects of enforcing Section 123(3) since the use of religious and caste metaphors are widespread in elections; and the RPA applies only after elections are held, resulting in the attendant difficulty of overturning a popular mandate. Thus, the issue of the legitimacy of religion- or caste-based appeals in elections is likely to continue to bedevil Indian courts.

THE TRIPLE TALAQ JUDGMENT The Indian Supreme Court’s decision on 22 August 2017 to hold the practice of instant triple talaq invalid was another momentous judgment. In a 3–2 verdict, a five-judge bench of the Court ruled that ‘talaq-e-biddat’, or instant triple talaq—where Muslim men can divorce their wives by uttering ‘talaq’ three times in quick succession —was unconstitutional.4 The Court’s ruling came in response to a host of petitions by Muslim women challenging the practice of triple talaq. The judgment was welcomed across the political spectrum, an indication that this was a practice that had few takers.

The Court’s judgment was, however, a divided one. The minority judgment, delivered by Chief Justice J.S. Khehar,5 said the practice of triple talaq enjoyed constitutional protection, whereas the majority judgment found the practice ‘manifestly arbitrary’ and a violation of the Constitution. The two lines of reasoning reflect, in many ways, the complexity of India’s constitutional secularism and the somewhat contradictory approach taken by the court historically in deciding cases related to religion. The majority ruling consisted of two judgments delivered by Justice Rohinton Nariman, on behalf of himself and Justice Uday U. Lalit, and a separate one by Justice Kurian Joseph. Justice Nariman’s ruling was premised on the fact that the Court was narrowly concerned with only the practice of triple talaq and not other forms of talaq. Importantly, he also made clear the Court was not concerned with Muslim personal law as a whole. Justice Nariman made three broad points to justify declaring triple talaq illegal. First, triple talaq was recognized and enforced by the British-era Muslim Personal Law (Shariat) Application Act, 1937, and, therefore, could be construed as a ‘law in force’ under Article 13(3)(b) and liable to be struck down under Article 13(1),6 if found to be inconsistent with the fundamental rights enumerated in the Constitution. Second, Justice Nariman rejected the argument that triple talaq could be regarded as an ‘essential’ part of Islam and hence protected by Article 25. According to him, though triple talaq is ‘permissible in Hanafi jurisprudence [one of the four schools of Sunni law and widely prevalent in India], yet, that very jurisprudence castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no part of Article 25(1)’. The application of the ‘essential practices’ test, which has been dwelt on in chapter 2, was part of Justice Joseph’s ruling too. Justice Joseph examined in some detail the Islamic sources of talaq. Combining this with an analysis of earlier Court judgments on talaq, he concluded that the practice of triple talaq could not be ‘considered integral to the religious denomination in question’ and that it was not part of Muslim personal law. Third, Justice Nariman applied the test of ‘manifest arbitrariness’ to rule triple talaq as violating Article 14, which grants equality

before law. He ruled that triple talaq is ‘manifestly arbitrary in the sense that marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right under Article 14 of the Constitution of India.’ The minority verdict, delivered by Justice Khehar, disagreed with the majority judgment virtually on all the major points and was a strong defence of community rights. First, Justice Khehar ruled that triple talaq was ‘integral’ to the Sunnis belonging to the Hanafi school and was a part of their personal law. Second, on the question of whether talaq, as codified by the 1937 Shariat Act, could be considered as ‘personal law’ of the Muslims, Justice Khehar answered in the affirmative. Justice Khehar cited the 1952 Narasu Appa Mali judgment,7 in which the Bombay High Court had kept personal laws outside the purview of Article 13. Following from that proposition, Justice Khehar argued that triple talaq could be challenged only on the ground that it infringed Article 25. Dwelling on the question of whether triple talaq impinged on public order, morality, or health—grounds on which a religious practice can be declared illegal—Justice Khehar answered in the negative. He then proceeded to examine whether triple talaq violated the fundamental rights enshrined in Part III of the Constitution, which is the other ground, under Article 25, on which a religious practice can be invalidated. The petitioners in the case had specifically raised the violation of Article 14, Article15, which prohibits discrimination, and Article 21, which guarantees protection of life and liberty. Here too Justice Khehar answered in the negative, saying talaq was a ‘matter of faith’ and did not violate any fundamental right. He stated that personal laws had been ‘elevated to the stature of a fundamental right’, and that it was not for the Court to ‘determine whether religious practices were prudent or progressive or regressive’. Justice Khehar did, however, concede that triple talaq was ‘gender discriminatory’ and that several countries had done away with the practice through legislation. Accordingly, he said the Court should exercise its power under Article 142 and direct Indian

Parliament to consider ‘appropriate legislation’ with regard to triple talaq. The Supreme Court’s invalidation of triple talaq has raised the question of whether this could mark the beginning of a legislative move to reform Muslim personal law, which is still governed by the Shariat Act of 1937. This has been noted by analysts such as Pratap Bhanu Mehta who have pointed out that the Court cannot ‘bear the entire burden of reform or of forging a consensus’ on personal laws.8 Mehta has also criticized the ruling, pointing out that despite the Court having invalidated triple talaq, the ‘majority has not ruled that our basic constitutional values override religious belief and practice’. At the same time, scholars such as Ratna Kapur have criticized the judgment for doing too little for gender equality, saying, ‘The 395-page rambling and unwieldy decision offers little sound jurisprudential grounds to advance women’s rights.’9 The central government, headed by the BJP, had argued for the abolition of triple talaq before the Court. Unsurprisingly, both Prime Minister Narendra Modi and BJP president Amit Shah have hailed the verdict as ‘historic’. However, no one in the government has mentioned a more thorough reform of Muslim personal law. Neither has the BJP talked of a uniform civil code, which has been a longstanding demand of the party. Importantly, the Court, unlike in earlier instances such as the 1985 Shah Bano judgment,10 did not make a reference to a uniform civil code. The other political parties, including the Congress, have had positive reactions to the Court verdict on triple talaq. Following the Court ruling, the Congress spokesperson stated that since the Court had declared triple talaq illegal there was no need for a separate legislation by parliament. Muslim representatives, too, welcomed the judgment, but reiterated that it did not represent any interference in Muslim personal law. The All India Muslim Personal Law Board (AIMPLB), which was a party to the triple talaq case, sought to portray the judgment as a vindication of its stand. Kamal Farooqui, one of the AIMPLB members, noted that the Court judgment validated the protection of personal laws. This was in contrast to the

strong reaction of the AIMPLB in 1985 against the Shah Bano judgment. Interestingly, Tahir Mahmood has pointed out that the Supreme Court need not have spent so much time and effort justifying the banning of triple talaq when the basic thrust of the argument was already present in an earlier Court ruling.11 In the 2002 Shamin Ara ruling, the Supreme Court had pronounced that talaq by a Muslim husband must comply with true Islamic procedure. The Court had then ruled: ‘The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters—one from the wife’s family and the other from the husband’s.’12 It might be noted that since the 2001 Danial Latifi ruling, mentioned in chapter 6, the courts have creatively interpreted the Muslim Women (Protection of Rights on Divorce) Act 1986 to make it more ‘gender-sensitive’.13 The Supreme Court’s judgment on triple talaq was a balanced one, which upheld women’s rights without undermining Muslim personal laws. However, the larger question of changes to Muslim personal law, especially those provisions that are seen to be discriminatory against women, still remains unresolved. This is something that parliament, and not the courts, would have to take on. There are those who believe that the time might be propitious for reform of Muslim personal law. Within the Muslim community, there are far more voices of reform compared to when the Shah Bano judgment was delivered in the 1980s. The All India Muslim Women’s Personal Law Board is one such body that has opposed triple talaq and other provisions which discriminate against women. The political reaction to the triple talaq judgment, however, seemed to suggest that a larger reform of Muslim personal law was not in the offing in the near future. At the time of writing, the BJP government, despite the Court ruling, was keen to amend the existing law to make the practice of triple talaq a punishable offence. The proposed legislation, the Muslim Women (Protection of Rights on Marriage) Bill, was passed by the Lok Sabha in end 2017, but is yet to be ratified by the Rajya Sabha. In the larger scheme of things,

this could be seen as part of the ‘harmonization’ of personal laws14 that various governments have pursued in fits and starts and is an important component of the BJP’s political agenda.

REVISITING ESSENTIAL PRACTICE The essential practices doctrine, discussed in chapter 2, continues to be one of the most debated aspects of the Supreme Court’s jurisprudence on religion. As we saw in the triple talaq judgment, both Justices Nariman and Khehar took recourse to this test to decide on the validity of triple talaq, the former using it to reject it and the latter to uphold it. There have been important cases over the past decade or so where the Court has used it to decide a variety of issues. I have earlier traced the origins and transformation of the essential practices doctrine. Gautam Bhatia in a recent article has, however, identified a key change in the doctrine from the time of the Quareshi15 and Saifuddin Saheb16 judgments: The word ‘essential’ has gone from qualifying the nature of the practice (i.e., whether it is religious or secular), to qualifying its importance (within the religion) —i.e., from whether something is essentially religious to whether it is essential to the religion. It is a minor grammatical shift, but with significant consequences, because it allows the Court to define questions that are internal to religion in a judicial enquiry, and thereby define the nature of the religion itself.17

A further shift in the Court’s dominant line of thinking can be discerned in a recent case involving a mining project in Niyamgiri Hills, Orissa (Odisha), which was seen to be infringing on land considered sacred by the local tribals. In Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, the Supreme Court deliberated on whether the religious and customary rights of the inhabitants of Niyamgiri, such as the Dongaria Kondh, were being affected. Speaking for the Court, Justice K.S. Radhakrishnan said: Religious freedom guaranteed to STs and TFDs under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The above-mentioned articles guarantee them the rights to practise and propagate not only matters of faith or faith, but all those rituals and observations

which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved.18

The Court went on to rule that the question of whether tribal and forest dwellers had rights of worship over the Niyamgiri Hills had to be considered by local elected bodies such as the gram sabha (village council), empowered under the Forest Rights Act and Panchayat (Extension to Scheduled Areas) Act. It said that if the project ‘affected their [the STs and TFDs] right to worship their deity, known as Niyam-Raja, in the hilltop of the Niyamgiri range of hills, that right has to be preserved and protected’. If the Niyamgiri judgment was a deviation from the dominant thinking of the Court, in the specific context of Adivasis and their rights, the essential practices is very likely to come into play in two high-profile cases currently before the Supreme Court. The first is the practice of santhara or sallekhana, a Jain ritual of fasting unto death. In a 2015 ruling, the Rajasthan High Court decided on a PIL, which submitted that the Jain practice amounted to suicide and was punishable offence under the Indian penal code.19 The respondents, however, argued that santhara or sallekhana was a religious practice that enjoyed the protection of Article 25. The high court ruled in favour of the petitioner, using the essential practices test and making a distinction between essential and non-essential practices: We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha. It is not an essential part of the philosophy and approach of the Jain religion, nor has been practiced frequently to give up the body for salvation of soul. It is one thing to say that the Santhara or Sallekhana is not suicide as it is a voluntary act of giving up of one’s body for salvation and is not violent in any manner, but it is another thing to say that it is permissible religious practice protected by Articles 25 and 26 of the Constitution of India.

The Court added that ‘the voluntary act of taking one’s life cannot be permitted as the right to practice and profess the religion under Article 25’. The high court ruling was subsequently challenged in the Supreme Court, which stayed the high court order but has not yet passed a final judgment on the matter. The other high-profile case involving the essential practices doctrine is one concerning the restriction on the entry of women between the age of 10 and 50—on the grounds that menstruating women are considered ‘impure’—into Kerala’s famous Sabarimala temple dedicated to Lord Ayyappa. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 contains a clause which states that ‘women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship’. A 1991 Kerala High Court ruling had upheld the restriction, saying it was a practice that had existed since ‘time immemorial’.20 Deepa Das Acevedo has noted that the high court ruling provided a window into the judicial reasoning in matters of religion and essential practices, namely ‘faith over custom, prescription over description, and old over new’.21 In October 2017, the Supreme Court referred the issue, based on a 2006 petition, to a five-judge constitution bench.22 While referring the case to the constitution bench, a three-judge bench, which included the chief justice, said the larger bench would decide whether the restriction qualifies as an ‘essential religious practice’ of the Hindu faith, over which the court had no jurisdiction. The constitution bench would also decide two further issues: whether Ayyappa devotees form a separate religious denomination by themselves, and if a temple managed by a statutory board can ban women from entry on moral grounds. The Bombay High Court has overturned similar bans on the entry of women into temples in Maharashtra. Ruling on a PIL seeking the entry of women into the sanctum sanctorum of the Shani Shignapur temple, the high court in 2016 had ruled, ‘There is no law that prevents entry of women in any place. If you allow men, then you should allow women also. If a male can go and pray before the deity, why not women? It is the state government’s duty to protect the

rights of women.’ The challenges have not been restricted to Hindu places of worship. A PIL in 2016 challenged the restriction on the entry of women into inner precincts of the Haji Ali dargah (shrine) in Mumbai. The Bombay High Court upheld the petition. Thus, the essential practices test, one of the key elements of the Supreme Court’s jurisprudence on religion, continues to be used by the Court in determining a wide variety of cases, from temple entry to practices such as santhara. The question is whether the doctrine is peculiar to the Indian Supreme Court. Shylashri Shankar has traced the use of the essential practices by the judiciary in Pakistan and Malaysia. Shankar notes that the Supreme Court of Pakistan in 1988 referred to the Saifuddin Saheb or Syedna case (where the Indian Supreme Court upheld the right of a religious head to excommunicate) judgment of the Indian Supreme Court to rule that the use of Islamic symbols and public ceremonies was not an ‘essential’ part of religion of the Ahmadis, whom the Constitution had declared as not being legally Muslim. Again in 2006, the Malaysian Court of Appeals based its ruling that wearing a turban was not an essential practice of Malaysian Muslims on the Syedna judgment.23 But it might be argued that most constitutional courts, without necessarily using the language and methods of Indian judges, are often forced to decide on the legitimacy of religious practices as claimed by believers. This can be seen, for instance, in the US Supreme Court’s large body of jurisprudence on religious liberty or the free exercise clause from the landmark Reynolds v. United States (1879)24 ruling to the more recent Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal (2006).25 In Reynolds, a prominent Mormon had challenged the federal anti-bigamy law on the grounds that it violated his right to free exercise of his religion since his religion required him to marry multiple women. The Court ruled that though the First Amendment protected religious belief, it did not protect religious practises, such as bigamy, that were deemed to be criminal. The Court ruled, ‘Can a man excuse his [illegal] practices …because of his religious belief? To permit this would be to make the professed doctrines of religious

belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.’ However, in Gonzales, where a religious group sought to prevent the government from interfering in its use of a banned drug for religious purposes, the Court ruled in favour of the religious group. On this occasion, the Court said it was required by the Religious Freedom Restoration Act (RFRA)26 to grant exemptions to religious claims from general laws where no compelling government interest can be shown. Indeed, there are several cases, including landmark ones such as Wisconsin v. Yoder (1972) and Employment Division v. Smith (1990),27 where the US Supreme Court has passed judgment on the legitimacy of religious practices. Scholars such as Winnifred Fallers Sullivan, author of the provocatively titled The Impossibility of Religious Freedom, have argued that Smith, where the Court ruled that an individual’s religious belief of ingesting a drug did not excuse him from compliance with generally applicable laws, was a game changer. It led to the passage of the RFRA in 1993, which ‘intended to reinstate the compelling interest test for religious exemptions’,28 as well as a host of other legislations intended to protect freedom of religion. Sullivan argues against the traditional view that the US Supreme Court does not sit in judgment on religious truth or error, which has been cited in chapter 2, by noting, These laws [RFRA and the rest] promised a broad deference to religious reasons that had never, in fact, been available under the Supreme Court’s religion clause jurisprudence and that was impossible to implement. They invited a regime under which courts would necessarily have to do the impossible, that is distinguish an exercise of religion, necessarily dividing good religion from bad religion, all the while denying that that was what they were doing, a regime the Smith Court recognized as unworkable and refused to endorse.29

Elsewhere, Sullivan is more categorical when she says, ‘Secular law implies a subordination and submersion of religion.’30 Jakob De Roover sums up well the dilemma that secular courts are faced with: Secular law confronts a major quandary whenever it has to decide whether some practices or beliefs are religious. Being secular, law is expected to be neutral

towards all religions in its judgment as to what counts as religion. Yet, when courts determine that some practices are not religious and, hence, do not fall under the scope of religious freedom, or do not deserve state funding or tax exemption, the failure to be religiously neutral seems inevitable. No court possesses an impartial scientific conception of religion; there are no shared secular criteria that enable one to identify and delimit the sphere in a manner neutral to all religions. Consequently, in such cases, judges and other secular authorities are bound to smuggle in one particular theological conception of religion.31

This dilemma lies at the heart of the essential practices doctrine. Without explicitly using the language of essential practices many constitutional courts are, however, having to deal with religious freedom cases in a manner similar to the Indian courts. By doing so, courts run the risk of bypassing constitutional values, as Mehta believes, or trampling freedom of religion, as Sullivan fears. Looking ahead, this tendency is likely to be more pronounced, especially in India, where the court’s use of essential practices could continue unabated. This is due to several reasons that have been running themes of this book: the reformist character of the Indian Constitution; the deep involvement of the state in affairs of religion; and the role of an activist court as the only credible arbiter on matters of faith and religion.

Notes

INTRODUCTION 1. Ronojoy Sen, Legalizing Religion: The Indian Supreme Court and Secularism (East-West Center Washington, 2007). 2. Donald E. Smith, India as a Secular State (Princeton: Princeton University Press, 1963), p. 14. 3. Ved Prakash Luthera, The Concept of the Secular State and India (Calcutta: Oxford University Press, 1964). 4. Nikki R. Keddie, ‘Secularism and Its Discontents’, Daedalus (Summer 2003), p. 16. 5. Donald E. Smith, ‘India as a Secular State’, in Rajeev Bhargava (ed.), Secularism and Its Critics (New Delhi: Oxford University Press, 1999), p. 224. 6. Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York: Charles Scribner’s Sons, 1976), p. 175. 7. Peter L. Berger, The Desecularization of the World (Washington D.C.: Ethics and Public Policy Center, 1999), p. 224. 8. Pippa Norris and Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004). 9. Jean Bethke Elshtain, ‘Religion and Democracy’, Journal of Democracy (April 2009), p. 16. 10. Pippa Norris and Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004), p. 25. 11. Norris and Inglehart, Sacred and Secular, p. 26. 12. On religion, see, for instance, Sam Harris, The End of Faith: Religion, Terror, and the Future of Reason (New York: W.W. Norton and Company, 2004); Richard Dawkins, The God Delusion (London: Bantam Press, 2006); and Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (New York: Hachette Book Group, 2007). On Islam, see Olivier Roy, Globalized Islam: The Search for a New Ummah (New York: Columbia University, 2004), and Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (New York: Random House, 2004). 13. Available at http://www.pewglobal.org/2008/09/17/chapter-2-religiosity/ (last accessed on 26 June 2018).

14. ‘Bridging the Divide’, The Economist (3 November 2007). 15. Martha C. Nussbaum, Democracy, Religious Violence, and India’s Future (New Delhi: Permanent Black, 2007), p. 9. 16. Pavan K. Varma, ‘Citizen India: The Many Are One’, World Policy Journal (Spring 2009), p. 50. 17. Varma, ‘Citizen India: The Many are One’. 18. Achin Vanaik, The Furies of Indian Communalism: Religion, Modernity, and Secularization (London: Verso, 1997), p. 68. 19. Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (New Delhi: Oxford University Press, 2003), p. 10. 20. The word ‘secular’ comes from the Latin ‘saeculum’, which means the ‘world’ as opposed to the ‘church’. G.L. Holyoake and his disciple Charles Bradlaugh are credited with popularizing the term ‘secular-ism’ in nineteenth-century Britain to denote a rationalist movement. 21. Charles Taylor, ‘Modes of Secularism’, in Bhargava (ed.), Secularism and Its Critics, p. 52. 22. Charles Taylor, A Secular Age (Cambridge: Harvard University Press, 2007), p. 1. 23. José Casanova, ‘The Secular and Secularisms’, Social Research 76 (4) (Winter 2009), p. 1049. 24. Ahmet T. Kuru, ‘Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies Towards Religion’, World Politics 59 (4) (July 2007), p. 570. 25. Jonathan Fox, A World Survey of Religion and the State (Cambridge: Cambridge University Press, 2008). India does reasonably well in the GIR index with a score of 22.87, which is higher than countries such as South Korea and Japan, but much lower than the other South Asian nations such as Pakistan, Sri Lanka, and Bangladesh 26. Casanova, ‘The Secular and Secularisms’, pp. 1060–1. 27. Kuru, ‘Passive and Assertive Secularism’, p. 576. 28. Kuru, ‘Passive and Assertive Secularism’, p. 571. 29. For a detailed account of American secularism, see Philip Hamburger, Separation of Church and State (Cambridge: Harvard University Press, 2002). 30. Jefferson had written: ‘I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus establishing a wall of separation between Church and State.’ Several years before Jefferson had proposed the ‘wall of separation’, the Puritan theologian Roger Williams had written about separating ‘the garden

of the church from the wilderness of the world’. Legal scholar Stephen Carter argues that the ‘metaphorical separation of church and state originated in an effort to protect religion from the state, not the state from religion’. Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Basic Books, 1993), p. 105. See also Daniel Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: NYU Press, 2002). 31. 330 U.S. 1 (1947). In this case, the Court ruled that the First Amendment’s free exercise and establishment clause applied to the states. A divided Court upheld a New Jersey law that allowed reimbursements of money to parents who sent their children to school, including Catholic schools, on buses operated by the public transportation system. 32. 343 U.S. 306 (1952). Here the Court upheld an arrangement by which public schools excused students during school hours so that they could attend religious classes. 33. 403 U.S. 602 (1971). In this case a state programme to reimburse private schools, including religious schools, for certain expenses was held unconstitutional. 34. Gutmann writes, ‘Two-way protection—of religion from the state and the state from religion—opposes a politics of religious recognition by which a state would strive to be a religious state to any or all denominations, and to be an antireligious state to its secular citizens.’ Amy Gutmann, ‘Religion and State in the United States: A Defense of Two-Way Protection’, in Nancy Rosenblum (ed.), Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Societies (Princeton: Princeton University Press, 2000), p. 159. 35. See Jean Bauberot, ‘The Two Thresholds of Laicization’, in Bhargava (ed.), Secularism and Its Critics, pp. 94–136. 36. M. Hakan Yavuz, Secularism and Muslim Democracy in Turkey (Cambridge: Cambridge University Press, 2012), p. 170. 37. Monica Duffy Toft et al., God’s Century: Resurgent Religion and Global Politics (New York: W.W. Norton, 2011), pp. 39–42. 38. Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), pp. 5–6. 39. Sunil Khilnani, ‘Secularism: Western and Indian’, in Kurt Almqvist (ed.), The Secular State and Islam in Europe (Stockholm: Axel and Margaret Axson Johnson Foundation, 2007), p. 43. 40. For details of the composition and functioning of the Constituent Assembly, see Granville Austin, The Indian Constitution (New Delhi: Oxford University Press, 2000), ch. 1. 41. Rajeev Bhargava, ‘Introduction’, in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (New Delhi: Oxford University Press, 2008), p. 12.

See also Shabnum Tejani, Indian Secularism: A Social and Intellectual History, 1890–1950 (Bloomington: Indiana University Press, 2008), ch. 6. 42. Constituent Assembly Debates, Vol. X, p. 439. 43. Constituent Assembly Debates, Vol. VII, p. 827. 44. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II (Nasik: Government of India Press, 1968), p. 16. 45. K.M. Munshi, Indian Constitutional Documents, Vol. I (New Delhi: Bharatiya Vidya Bhavan, 1967), p. 309. 46. Munshi, Indian Constitutional Documents. 47. I borrow this term from Shefali Jha, ‘Secularism in the Constituent Assembly Debates: 1946–50’, Economic and Political Weekly, 27 July 2002. 48. Jawaharlal Nehru’s Speeches, Vol. V (New Delhi: Publications Division, Ministry of Information and Broadcasting, Government of India), p. 59. 49. Sarvepalli Gopal, Jawaharlal Nehru: An Anthology (Delhi: Oxford University Press, 1980), p. 327. 50. Rajeev Bhargava, ‘Nehru against Nehruvians: On Religion and Secularism’, Economic and Political Weekly 52 (8) (25 February 2017), p. 34. 51. Bhargava, ‘Nehru against Nehruvians’, 38–9. 52. Gurpreet Mahajan, ‘Religion and the Indian Constitution: Questions of Separation and Equality’, in Bhargava (ed.), Politics and Ethics of the Indian Constitution, p. 298. 53. Mahajan, ‘Religion and the Indian Constitution: Questions of Separation and Equality’, p. 303. 54. Mahajan, ‘Religion and the Indian Constitution: Questions of Separation and Equality’, p. 305. 55. Robert D. Baird, ‘Religion and the Secular: Categories for Religious Conflict and Religious Change in Independent India’, in Robert D. Baird, Essays in the History of Religions (New York: Peter Lang Publishing, 1991). 56. Marc Galanter, Law and Society in Modern India (New Delhi: Oxford University Press, 1997), p. 253. 57. Galanter, Law and Society in Modern India, p. 258. 58. Jacobsohn, The Wheel of Law, p. 50. 59. Gurpreet Mahajan, Identities and Rights: Aspects of Liberal Democracy in India (New Delhi: Oxford University Press, 1988). 60. Marc Galanter, ‘Secularism East and West’, in Bhargava (ed.), Secularism and Its Critics, p. 266. 61. Rajeev Bhargava, ‘India’s Secular Constitution’, in Zoya Hasan et al. (eds), India’s Living Constitution: Idea, Practices, Controversies (Delhi: Permanent Black, 2002), p. 117. 62. Neera Chandoke, Beyond Secularism: The Rights of Religious Minorities (New Delhi: Oxford University Press, 2002), p. 48.

63. Chandoke, Beyond Secularism, p. 50. 64. Sudipta Kaviraj, ‘Modernity, State, and Toleration in Indian History: Exploring Accommodations and Partitions’, in Alfred Stepan and Charles Taylor (eds), Boundaries of Toleration: Religion, Culture, and Public Life (New York: Columbia University Press, 2014), p. 261. 65. Rajeev Bhargava, ‘Reimagining Secularism: Respect, Domination and Principled Distance,’ Economic and Political Weekly 48 (50) (14 December 2013), p. 87. See also Bhargava, ‘How Should States Deal with Deep Religious Diversity? Can Anything Be Learned from the Indian Model of Secularism?’ in Timothy Samuel Shah et al. (eds), Rethinking Religion and World Affairs (New York: Oxford University Press, 2012). 66. Rajeev Dhavan, ‘The Road to Xanadu: India’s Quest for Secularism’, in Gerald Larson (ed.), Religion and Personal Law in Secular India (Bloomington: Indiana University Press, 2001). 67. T.N. Madan, ‘Secularism in Its Place’, in Bhargava (ed.), Secularism and Its Critics, p. 298. 68. Ashis Nandy, ‘The Politics of Secularism and the Recovery of Religious Toleration’, in Bhargava (ed.), Secularism and Its Critics, p. 333. 69. Nandy, ‘The Politics of Secularism and the Recovery of Religious Toleration’, pp. 322–3. 70. Ashis Nandy, ‘Closing the Debate on Secularism: A Personal Statement’, in Anuradha Dingwaney Needham and Rajeswari Sunder Rajan (eds), The Crisis of Secularism in India (Ranikhet: Permanent Black, 2007), p. 114. Nandy adds that, unlike him, Madan has not ‘jettisoned the idea of secularism’ (Nandy, ‘Closing the Debate on Secularism’, p. 112). 71. Nandy, ‘Closing the Debate on Secularism’. Regarding Ashoka, Rajeev Bhargava argues that ‘norms of civility’ and ‘principled coexistence’ rather than toleration is a better way to characterize Ashoka’s dhamma. See Bhargava, ‘Beyond Toleration: Civility and Principled Coexistence in Asokan Edicts’, in Alfred Stepan and Charles Taylor (eds), Boundaries of Toleration: Religion, Culture, and Public Life (New York: Columbia University Press, 2014), pp. 173–202. 72. Kaviraj, ‘Modernity, State, and Toleration in Indian History’, p. 254. 73. Anuradha Dingwaney Needham and Rajeswari Sunder Rajan, ‘Introduction’, in Needham and Rajan (ed.), The Crisis of Secularism in India (Ranikhet: Permanent Black, 2007), p. 20. 74. Yuksel Sezgin and Mirjam Kunkler, ‘Regulation of “Religion” and the “Religious”: The Politics of Judicialization and Bureaucratization in India and Indonesia’, Comparative Studies in Society and History 56 (2) (2014), 449. 75. Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Bombay: N.M. Tripathi Ltd, 1985), p. 64. 76. Baxi, Courage, Craft and Contention, p. 3.

77. Lloyd I. Rudolph and Susanne Hoeber Rudolph, ‘Redoing the Constitutional Design: From an Interventionist to a Regulatory State’, in Atul Kohli (ed.), The Success of India’s Democracy (Cambridge: Cambridge University Press, 2001), pp. 131–2. 78. Rudolph and Rudolph, ‘Redoing the Constitutional Design’, p. 132. 79. Subrata K. Mitra and V.B. Singh, Democracy and Social Change in India: A Cross Sectional Analysis of the National Electorate (New Delhi: Sage, 1999), p. 260. 80. State of Democracy in South Asia: A Report (New Delhi: Oxford University Press, 2008), p. 57. 81. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2007). See also Martin Shapiro and Alec Stone Sweet (eds), On Law, Politics and Judicialization (New York: Oxford University Press, 2002). 82. See, for instance, Ronojoy Sen ‘The Disputed Role of the Courts,’ Journal of Democracy 28 (3) (2017). 83. (1994) 3 SCC, p. 1. 84. (1994) 3 SCC, p. 147. 85. (1994) 3 SCC. 86. (1994) 3 SCC, p. 148. 87. (1994) 3 SCC. 88. (1994) 3 SCC, p. 163. 89. (1994) 3 SCC, p. 223. 90. (1994) 3 SCC, p. 163. 91. (1994) 3 SCC, p. 77. 92. Christophe Jaffrelot, ‘Composite Culture Is Not Multiculturalism: A Study of the Indian Constituent Assembly Debates’, in Ashutosh Varshney (ed.), India and the Politics of Developing Countries (New Delhi: Sage Publications, 2004), p. 131. 93. Constituent Assembly Debates, Vol. VII, p. 323. 94. Constituent Assembly Debates, Vol. V, p. 283. 95. Lloyd I. Rudolph and Susanne Hoeber Rudolph, Postmodern Gandhi and Other Essays (New Delhi: Oxford University Press, 2006), p. 75. 96. Rudolph and Rudolph, Postmodern Gandhi and Other Essays. 97. Constituent Assembly Debates, Vol. VII, p. 548. 98. Constituent Assembly Debates, Vol. VII, p. 145. 99. John Locke, ‘A Letter Concerning Toleration’, in David Wootton (ed.), Political Writings/John Locke (Indianapolis: Hackett Publishing, 2003), p. 395. 100. Locke, ‘A Letter Concerning Toleration’. 101. Locke, ‘A Letter Concerning Toleration’, p. 414. 102. AIR 1966 SC 1119.

103. R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113. 104. Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, in B.N. Kirpal (ed.), Supreme but Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000). 105. AIR 1963 SC 540. 106. AIR 1968 SC 662. 107. AIR 1974 SC 1389. 108. AIR 2003 SC 355. 109. AIR 1977 SC 908. 110. (1954) SCA 395. 111. Constitution (Scheduled Castes) Order, 1950. 112. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. 113. AIR 1995 SC 1531. 114. AIR 1985 SC 954. 115. AIR 1995 SC 1538.

CHAPTER 1. DEFINING RELIGION: THE SUPREME COURT AND HINDUISM 1. Article 25 states: (1) Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes of and sections of Hindus. 2. Article 26 states: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. 3. Marc Galanter, Law and Society in Modern India, p. 247.

4. AIR 1966 SC 1119. 5. R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113. 6. Romila Thapar, ‘Imagined Religious Communities? Ancient History and the Modern Search for a Hindu Identity’, Modern Asian Studies, 23(2) (1989), p. 222. 7. Wilfred Cantwell Smith, The Meaning and End of Religion: A New Approach to the Religious Traditions of Mankind (New York: Macmillan, 1962), p. 30. 8. The Oxford English dictionary traces the first use of the term ‘Hindooism’ to 1829 in the Bengalee and also to an 1858 usage by Indologist Max Mueller. See Richard King, ‘Orientalism and Modern Myth of “Hinduism”’, Numen, 46(2) (1999), p. 165. See also John Stratton Hawley, ‘Hinduism and the Fate of India’, Wilson Quarterly (Summer 1991). 9. Robert Eric Frykenberg, ‘The Emergence of Modern ‘Hinduism’ as a Concept and as a Institution: A Reappraisal with Special Reference to South India’, in Gunther D. Sontheimer and Herman Kulke (eds), Hinduism Reconsidered (New Delhi: Manohar Publications, 1991), p. 31. 10. Heinrich von Stientencron, ‘Hinduism: On the Proper Use of a Deceptive Term’, in Sontheimer and Kulke (eds), Hinduism Reconsidered (New Delhi: Sage Publications, 1955), p. 13. 11. Percival Spear, cited in Ronald Inden, Imagining India (Bloomington: Indiana University Press, 2000), p. 85. 12. Arvind Sharma, ‘On Hindu, Hindustan, Hinduism and Hindutva’, Numen, 49(1) (2002), p. 7. 13. Thapar, ‘Imagined Religious Communities?’, Modern Asian Studies 23(2) (1989), p. 216. 14. Thapar, ‘Imagined Religious Communities?’, p. 216. 15. See Inden, Imagining India, ch. 3, for the use of metaphors by Europeans to describe Hinduism. 16. P.J. Marshall, ‘Introduction’, in Marshall (ed.), The British Discovery of Hinduism in the Eighteenth Century (Cambridge: Cambridge University Press, 1970), p. 20. 17. King, ‘Orientalism and Modern Myth of “Hinduism”’, p. 166. 18. Bankimchandra Chattopadhyay, ‘Letters on Hinduism’, in Jogesh Chandra Bagal (ed.), Bankim Rachanabali (English Works), (Calcutta: Sahitya Sansad, 1969), p. 233. The reference to ‘tangled jungle of ghosts and demons’ is from Alfred Lyall’s description of Hinduism. 19. Chattopadhyay, ‘Letters on Hinduism’. At the same time, Chattopadhyay recognized that Orientalist scholars had their own prejudices. He writes, ‘European scholars, like Professor Max Mueller, have been very eloquent on the importance of the study of the Vedas, but their point of view is exclusively the European point of view, and fails to represent the vastly superior interest

Vedic studies possess of us, natives of the country’. Chattopadhyay, cited in Partha Chatterjee, Nationalist Thought and the Colonial World (Minneapolis: University of Minnesota Press, 1993), pp. 60–1. 20. Bruce Carlisle Robertson (ed.), The Essential Writings of Raja Rammohun Roy (Delhi: Oxford University Press, 1999), p. 3. 21. Robertson (ed.), The Essential Writings of Raja Rammohun Roy, pp. 36–7. 22. Bagal, Bankim Rachanabali, p. 235. 23. Ashis Nandy, Shikha Trivedy, Shail Mayaram, and Achut Yagnik, Creating a Nationality: The Ramjanambhumi Movement and Fear of the Self (Delhi: Oxford University Press, 2002), p. 58. 24. Arvind Sharma, ‘What Is Hinduism?’ in Arvind Sharma (ed.), The Study of Hinduism (Columbia: University of South Carolina Press, 2003), pp. 1–2. 25. Radhakrishnan taught Eastern religion and ethics at Oxford from 1936 to 1952. He also held teaching and administrative positions at Calcutta University, Mysore University, and Benaras Hindu University. 26. Francois Bernier, Travels in the Mogul Empire 1656–1668 (New Delhi: Oriental Reprint, 1983). 27. Monier Monier-Williams was in 1860 elected the Boden Professor of Sanskrit at Oxford edging out Max Mueller to the prestigious post. One of MonierWilliam’s major achievements was the establishment of the Indian Institute at Oxford. 28. Monier Monier-Williams, Religious Thought and Life in India (New Delhi: Oriental Books Reprint Corp, 1974), p. 6. 29. Monier-Williams, Religious Thought and Life in India, p. 57. Wendy Doniger writes: ‘The sort of pluralism that has prevailed in Hinduism is thus more of a multiplicity, often a belligerent multiplicity, than the mellow universalism that it has often claimed to be’. Doniger, ‘Many Gods, Many Paths: Hinduism and Religious Diversity’. Available at http://divinity.uchicago.edu/martycenter/publications/webforum/022006/comm entary.html (last accessed on 14 July 2009). 30. Hacker, cited in Wilhelm Halbfass, India and Europe: An Essay in Understanding (Albany: SUNY Press, 1988), pp. 404–5. The original essay in German appears in Hacker, ‘Inklusivismus’, in G. Oberhammer (ed.), Eine Indische Denkform (Vienna, 1983). 31. Halbfass, India and Europe: An Essay in Understanding, p. 405. 32. Halbfass, India and Europe: An Essay in Understanding, pp. 408–9. See also Robert N. Minor, ‘Sarvepalli Radhakrishnan and “Hinduism”: Defined and Defended’, in Robert Baird (ed.), Religion in Modern India (Delhi: Manohar, 1991a). 33. Swami Vivekananda, The Collected Works of Swami Vivekananda I (Calcutta: Advaita Ashrama, 1971–3), p. 1.

34. Vivekananda, Collected Works III, pp. 251–2. 35. Vivekananda, Collected Works I, p. 6. 36. Vivekananda, Collected Works III, p. 250. 37. Vivekananda, Collected Works III, p. 275. 38. Vivekananda, Collected Works III, pp. 279–80. 39. Vivekananda, Collected Works III, p. 372. 40. Tapan Raychaudhuri, ‘Swami Vivekananda’s Construction of Hinduism’ in William Radice (ed.), Swami Vivekananda and the Modernization of Hinduism (Delhi: Oxford University Press, 1998), p. 12. 41. Vivekananda, Collected Works III, p. 279. 42. S. Radhakrishnan, The Hindu View of Life (New York: Macmillan, 1957), p. 77. Radhakrishnan makes a similar statement in the same series of lectures: ‘While fixed intellectual beliefs mark off one religion from another, Hinduism sets itself no such limits. Intellect is subordinated to intuition, dogma to experience, outer expression to inward realization. Religion is not the acceptance of academic abstraction or the celebration of ceremonies, but a kind of life or experience (italics added).’ Radhakrishnan, The Hindu View of Life, p. 15. 43. Radhakrishnan, The Hindu View of Life, p. 77. 44. Radhakrishnan, The Hindu View of Life, p. 12. 45. Nirmal Kumar Bose, The Structure of Hindu Society (New Delhi: Orient Longman, 1975), p. 177. 46. Radhakrishnan, The Hindu View of Life, pp. 12–13. 47. Radhakrishnan, The Hindu View of Life, p. 20. 48. Radhakrishnan, The Hindu View of Life, p. 22. 49. Radhakrishnan, The Hindu View of Life, p. 23. 50. Radhakrishnan, The Hindu View of Life, p. 54. 51. Hacker, cited in Halbfass, India and Europe: An Essay in Understanding, p. 220. 52. For instance, there are some like Ashis Nandy who believe that Dayanand, Chattopadhyay, and Vivekananda had similar world views. See Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self Under Colonialism (New Delhi: Oxford University Press, 1992), pp. 22–6. However, there are other scholars who believe that figures such as Vivekananda and Dayanand had fundamentally different ideas on Hinduism. See, for example, Shamita Basu, Religious Revivalism as Nationalist Discourse: Swami Vivekananda and New Hinduism in Nineteenth Century Bengal (New Delhi: Oxford University Press, 2002), p. 127: The Swami [Vivekananda] wanted to advocate a form of Hinduism that was a far cry from the parochial version of the religion which the orthodox Hindu

leadership wanted to popularize. Vivekananda followed the model of the Reformation in depoliticizing Hinduism, confining in a Lutheran manner the spiritual to the private sphere of life. 53. See, for example, Chatterjee, Nationalist Thought and the Colonial World, ch. 3, and Sudipta Kaviraj, The Unhappy Consciousness: Bankimchandra Chattopadhyay and the Formation of Nationalist Discourse in India (New Delhi: Oxford University Press, 1998). 54. See Tanika Sarkar, ‘Imagining Hindurashtra: The Hindu and the Muslim in Bankim Chandra’s Writings’, in David Ludden (ed.), Contesting the Nation: Religion, Community, and the Politics of Democracy in India (Philadelphia: University of Pennsylvania Press, 1996). 55. Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism, p. 24. 56. Daniel Gold, ‘Organized Hinduism: From Vedic Truth to Hindu Nation’, in Martin Marty and R.S. Appleby (eds), Fundamentalisms Observed (Chicago: University of Chicago Press, 1991), p. 534. 57. For Dayanand’s relationship to the Vedas, see Arvind Sharma, ‘Swami Dayananda Sarasvati and Vedic Authority’, in Baird (ed.), Religion in Modern India. See also Kenneth W. Jones, Arya Dharm: Hindu Consciousness in Nineteenth-Century Punjab (Berkeley: University of California Press, 1976). 58. J.T.F. Jordens, Dayananda Saraswati: His Life and Ideas (Delhi: Oxford University Press, 1978), p. 279. 59. There are two editions of Satyarth Prakash—the first edition appeared in 1875 and the second one was composed in the final years of Dayanand’s life. Jordens points out that the second edition was more political and antiBritish in tone. 60. Savarkar was released from prison in 1924 and subsequently became the president of the Hindu Mahasabha from 1937 to 1943. Later, he was linked to Mahatma Gandhi’s assassins, Nathuram Godse and Narayan Apte, but the charges against him were never proved. 61. Nandy et al., Creating a Nationality: The Ramjanambhumi Movement and Fear of the Self, p. 67. 62. V.D. Savarkar, Hindutva: Who Is a Hindu? (Bombay: Veer Savarkar Prakashan, 1969), p. 10. 63. Nandy et al., Creating a Nationality: The Ramjanambhumi Movement and Fear of the Self, p. 67. 64. Savarkar, Hindutva: Who Is a Hindu?, p. 110. 65. Savarkar, Hindutva: Who Is a Hindu?, p. 111. 66. Savarkar, Hindutva: Who Is a Hindu?, p. 113. 67. Savarkar, Hindutva: Who Is a Hindu?, p. 4. 68. Savarkar, Hindutva: Who Is a Hindu?, pp. 3–4.

69. Chetan Bhatt, Hindu Nationalism: Origins, Ideologies and Modern Myths (Oxford and New York: Berg, 2001), p. 85. 70. Ashis Nandy, ‘The Demonic and the Seductive in Religious Nationalism: Vinayak Damodar Savarkar and the Rites of Exorcism in Secularizing South Asia’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 44 (February 2009), p. 10. 71. For details about the RSS see Walter Anderson and S. Damle, Brotherhood in Saffron (Boulder: Westview Press, 1987) and Tapan Basu, Pradip Datta, Sumit Sarkar, Tanika Sarkar, and Sambuddha Sen, Khaki Shorts and Saffron Flags: A Critique of the Hindu Right (New Delhi: Orient Longman, 1993), ch. 2, pp. 12–55. 72. M.S. Golwalkar, We or Our Nationhood Defined (Nagpur: Bharat Prakashan, 1947), p. 13. 73. Golwalkar, We or Our Nationhood Defined, p. 52. 74. Golwalkar, We or Our Nationhood Defined, pp. 55–6. 75. Golwalkar, We or Our Nationhood Defined, p. 43. 76. Madhok, a former president of Jan Sangh, quit the party in 1973 after a bitter power struggle. 77. For a history of the Jan Sangh, see Bruce Graham, Hindu Nationalism and Indian Politics: The Origins and Development of the Bharatiya Jana Sangh (Cambridge: Cambridge University Press, 1990). 78. Balraj Madhok, Indian Nationalism (New Delhi: Bharatiya Sahitya Sadan, 1969), p. 96. 79. Madhok, Indian Nationalism, p. 96. 80. Sharma, ‘On Hindu, Hindustan, Hinduism and Hindutva’, p. 24. 81. AIR 1966 SC 1119. For a close reading of the case see Galanter, Law and Society in Modern India, ch. 10. 82. AIR 1966 SC 1121. 83. AIR 1966 SC, p. 1134. 84. AIR 1966 SC, p. 1127. 85. AIR 1966 SC, p. 1128. 86. AIR 1966 SC, p. 1128. 87. AIR 1966 SC, p. 1130. 88. Galanter, Law and Society in Modern India, p. 247. 89. Venkatramana Devaru v. State of Mysore, AIR 1958 SC 255. 90. Robert D. Baird, ‘On Defining “Hinduism” as a Religious and Legal Category’, in Baird (ed.), Religion and Law in Independent India (New Delhi: Manohar, 1993), p. 50. 91. AIR 1966 SC 1128. 92. AIR 1966 SC, p. 1128. 93. AIR 1966 SC, p. 1128.

94. AIR 1966 SC, p. 1129. 95. AIR 1966 SC, p. 1129. 96. AIR 1966 SC, p. 1130. 97. AIR 1966 SC, p. 1131. 98. AIR 1975 SC 423. 99. Shuganchand v. Prakash Chand, AIR 1967 SC 506. 100. Guramma v. Mallappa, AIR 1964 SC 520. 101. 2005 (6) SCC 690. 102. AIR 1966 SC 1119. 103. D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731. 104. Bramchari Sidheshwar Shai v. State of West Bengal, AIR 1995 SC 2089. 105. For an analysis of how the Calcutta High Court dealt with the case, see Brian K. Smith, ‘How Not to Be a Hindu: The Case of the Ramakrishna Mission’, in Baird, Religion and Law in Independent India. 106. Article 30 reads: (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. 107. 2 Calcutta L.J. (1983), p. 348. 108. Cited in Smith, ‘How Not to Be a Hindu: The Case of the Ramakrishna Mission’, p. 342. 109. Smith, ‘How Not to Be a Hindu’, p. 342. 110. 1 Calcutta L.J. (1986), p. 151. 111. 2 Calcutta L.J., p. 348. 112. 2 Calcutta L.J., p. 337. 113. 2 Calcutta L.J., p. 394. 114. Baird, Religion and Law in Independent India, p. 8. 115. AIR 1995 SC 2099. 116. AIR 1995 SC, p. 2103. 117. AIR 1995 SC, p. 2107. 118. See Barbara Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (New Delhi: Oxford University Press, 1999), ch. 2, for details on the Hindutva cases. 119. AIR 1996 SC 1124. 120. AIR 1996 SC 1124. 121. Some of Thackeray’s speeches, which were quoted by the Court, included passages like: ‘We are fighting this election for the protection of Hinduism.

Therefore, we do not care for the votes of Muslims. The country belongs to Hindus and will remain so’. 122. Commissioner of Wealth Tax, Madras v. Late R. Stridharan by L.R.s, (1976) Supp SCR 478. Here the Court said: ‘It is a matter of common knowledge that Hinduism embraces within self [sic] so many diverse forms of beliefs, faiths, practices and worship it is difficult to define the term “Hindu” with precision’. 123. AIR 1996 SC 1130. 124. AIR 1996 SC, p. 1129. 125. Maulana Wahiuddin Khan, Indian Muslims: The Need for a Positive Outlook (New Delhi: Goodword, 2002). The exact quote was: ‘The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all the cultures coexisting in the country’. However Cossman and Kapur point out that it is a cause of concern that the quoted passage is a description of the strategy of the Jana Sangh, which is something that the Court does not mention or seems to be bothered about. See also A.G. Noorani, Savarkar and Hindutva: The Godse Connection (New Delhi: LeftWord Books, 2002), p. 74. Noorani writes that the Maulana was not writing in praise of Hindutva but censuring it. 126. AIR 1996 SC 1130. 127. AIR 1996 SC, p. 1131. 128. Cossman and Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law, p. 34. 129. Anil Nauriya, The Hindutva Judgements: A Warning Signal’, Economic and Political Weekly, 10 January (1996), p. 11. 130. Cossman and Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law, p. 33. 131. Organiser, Editorial, 24 December 1996. 132. Arun Shourie, ‘The Hindutva Judgments: The Distance That Remains’, Available at http://www.bjp.org/index.php? option=com_content&task=view&id=2653&Itemid=376 (last accessed on 15 March 2009). 133. Madhok, Indian Nationalism, p. 95. 134. Madhok, Rationale of Hindu State (Delhi: Indian Book Gallery, 1982), p. 8. 135. Sharma, ‘On Hindu, Hindustan, Hinduism and Hindutva’, p. 22. 136. Savarkar, Hindutva: Who Is a Hindu?, pp. 108–9. 137. Basu et al., Khaki Shorts and Saffron Flags: A Critique of the Hindu Right, p. 9. 138. Explanation II appended to Article 25 includes Sikhs Jains and Buddhists as Hindus. The Hindu Succession Act of 1956, for instance, applies to: (a) to any person who is a Hindu by religion in any of its forms or developments,

including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prathana or Arya Samaj. (b) to any person who is a Buddhist, Jain or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any other custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. On this point also see Baird, Religion and Law in Independent India, pp. 43–4. 139. Sharma, ‘On Hindu, Hindustan, Hinduism and Hindutva’, p. 24. 140. AIR 1966 SC 1135. 141. Radhakrishnan, The Hindu View of Life, p. 33. 142. Radhakrishnan, The Hindu View of Life, p. 42. 143. Radhakrishnan, The Hindu View of Life, p. 46. 144. Radhakrishnan, Religion and Society (London: Allen and Unwin, 1947), p. 109. 145. Radhakrishnan, The Hindu View of Life, p. 4. 146. Wilhelm Halbfass, Tradition and Reflection Explorations in Indian Thought (Albany: SUNY Press, 1991), p. 1. It is interesting to note that Max Weber believed that the ‘Vedas defy the dharma of Hinduism.’ Cited in Halbfass, Tradition and Reflection Explorations in Indian Thought, p. 1. 147. Radhakrishnan, The Hindu View of Life, p. 3. 148. AIR 1966 SC 1135. 149. In an interview with the author in July 2004, Verma refused to see Prabhoo as crucial to the understanding of Hinduism or Hindutva. He preferred to view it as revolving around ‘freedom of speech and expression’. See Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, pp. 202–12, for Verma’s views. 150. Available at www.bjp.org/press/mar-3104a.htm (last accessed on 15 March 2009). 151. See www.bjp.org (last accessed on 15 March 2009). It was former Prime Minister A.B. Vajpayee who resurrected Madhok’s idea at the end of 2002 during his annual ‘musings’. This was widely reported by most major dailies in India. Senior BJP leader L.K. Advani stressed this point in an interview to BBC when he said he preferred ‘Bharatiyata’ to ‘Hindutva’. The Pioneer, 10 September 2004. 152. The Times of India (Kolkata), 25 January 2004. 153. The Indian Express (New Delhi), 31 March 2009. 154. See www.bjp.org (last accessed on 12 February 2007). The interview was conducted before the 2004 general elections.

155. ‘Advani Recasts Hindutva, says Change is Good’, The Indian Express (New Delhi), 22 June 2009. 156. Mahatma Gandhi, What Is Hinduism? (New Delhi: National Book Trust, 2001), p. 2. 157. Gandhi, What Is Hinduism?, pp. 7–8. 158. Interestingly, there are several communities, including the Meos of Rajasthan, who cannot be clearly identified as either Hindus or Muslims. See Shail Mayaram, Resisting Regimes: Myth, Memory and the Shaping of a Muslim Identity (New Delhi: Oxford University Press, 1997). 159. Wendy Doniger notes: ‘We can follow in the paths of individuals like Upanishadic kings or Yudishthira or Akbar or Kabir or Gandhi, or indeed most rank-and-file Hindus, who embodied a truly tolerant individual pluralism’. Doniger, ‘Many Gods, Many Paths: Hinduism and Religious Diversity’. And Jyotirmaya Sharma argues passionately, ‘Every Hindu decides what is Hinduism. That space ought to remain inviolable. It is a space worth living and dying for.’ Sharma, Hindutva: Exploring the Idea of Hindu Nationalism (New Delhi: Penguin, 2003), p. 13.

CHAPTER 2. THE DOCTRINE OF ESSENTIAL PRACTICES: THE JUDGES SHAPE A RATIONAL HINDUISM 1. See Laurence Tribe, American Constitutional Law (New York: Foundation Press, 1988), p. 1232. 2. Article 15(1): The state shall not discriminate against any citizen on grounds only of religion, race , caste, sex, place of birth or any of them (4) Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Tribes. 3. Article 17: Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable by law. 4. Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, in B.N. Kirpal (ed.), Supreme but Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000). Since the essential practices test has been used, with a few exceptions, to judge

the constitutionality of Hindu practices, this chapter primarily looks at the judicial discourse on Hinduism and Hindu practices. 5. The distinction between religion (religiosus) and superstition (superstitiosus) can be traced back to Cicero’s writings from the first century CE. See Pratap Bhanu Mehta, ‘On The Possibility of Religious Pluralism’, in Tom Banchoff (ed.), Challenges of Religious Pluralism in a Global Era (Oxford: Oxford University Press, 2008), p. 67. 6. J.D.M. Derrett, Religion, Law and the State in India (London: Faber & Faber, 1968), p. 447. 7. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 259. 8. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, pp. 262–3. 9. Marc Galanter, Law and Society in Modern India, p. 251. 10. Marc Galanter, Law and Society in Modern India, p. 247. 11. Pratap Bhanu Mehta, ‘Hinduism and Self-Rule’, in Larry Diamond, Marc F. Plattner, and Philip J. Costoponlons (eds), World Religions and Democracy (Baltimore and London: Johns Hopkins Press, 2005), p. 64. 12. Gurpreet Mahajan, Identities and Rights: Aspects of Liberal Democracy in India, p. 69. 13. Mahajan, Identities and Rights, pp. 71–2. 14. Hastings, the first governor-general of India, directed that ‘in all suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran with respect to the Mahomedans and those of the Shaster with respect to Gentoos shall be invariably adhered to’. 15. See Rosanne Rocher, Orientalism, Poetry and the Millennium: The Checkered Life of Nathaniel Brassey Halhed (Delhi: Motilal Banarsidass, 1983). 16. See S.N. Mukherjee, Sir William Jones: A study in Eighteenth Century British Attitudes to India (London: Cambridge University Press, 1968). For the Asiatic Society see, O.P. Kejriwal, The Asiatic Society and the Discovery of India’s Past, 1784–1838 (New Delhi: Oxford University Press, 1988). 17. Bernard S. Cohn, Colonialism and Its Forms of Knowledge (New Delhi: Oxford University Press, 2002), p. 69. 18. W.H. Macnaughten, Hindu Law (1829), p. iv. 19. Cohn, Colonialism and Its Forms of Knowledge, p. 69. 20. Eric Stokes writes, ‘James Mill’s History of British Inda was principally an attempt to make a philosophic analysis of Indian society and assess its place in the “scale of civilization”’. Stokes, The English Utilitarians and India (Delhi: Oxford University Press, 1989), p. 55.

21. Macaulay famously wrote in the Minute: ‘I am quite ready to take the Oriental learning at the valuation of the Orientalists themselves. I have never found one among them who could deny that a single shelf of a good European library was worth the whole native literature of India and Arabia’. 22. Cited in George C. Rankin, Background to the Indian Law (Cambridge: Cambridge University Press, 1946), p. 137. 23. Lloyd I. Rudolph and Susanne Hoeber Rudolph, The Modernity of Tradition: Political Development in India (Delhi: Orient Longman, 1987), p. 274. 24. Derrett, Religion, Law and the State in India, p. 269. 25. J.D.M. Derrett, ‘Justice, Equity and Good Conscience in India’, in Essays in Classical and Modern Hindu Law, IV (Leiden: Brill, 1978). 26. Cohn, Colonialism and Its Forms of Knowledge, p. 75. 27. See J.H. Nelson, A Prospectus of the Scientific Study of the Hindu Law (Madras: 1881). Also see Derrett, ‘J.H. Nelson: A forgotten administratorhistorian of India’, in C.H. Philips (ed.), Histories of India, Pakistan and Ceylon (London: Oxford University Press, 1961). 28. Julius Jolly, Outlines of an History of the Hindu Law of Partition, Inheritance and Adoption (Calcutta: 1885), p. 32. 29. Collector of Madura v. Moottoo Ramalinga (1868), 12 Moore’s Indian Appeals 397. 30. Werner F. Menski, Hindu Law: Beyond Tradition and Modernity (New Delhi: Oxford University Press, 2003), p. 180. 31. Robert Lingat, The Classical Law of India (New Delhi: Oxford University Press, 1998), p. 137. 32. Derrett, Hindu Law, Past and Present (Calcutta: A. Mukherjee, 1957), p. 78. 33. Cited in Rankin, Background to the Indian Law, p. 158. 34. (1954) SCA 415. 35. For background to the HRCE Act and the state’s efforts to regulate temples, see Franklin A. Presler, Religion Under Bureaucracy: Policy and Administration for Hindu Temples in India (Cambridge: Cambridge University Press, 1987) and Chandra Y. Mudaliar, The Secular State and Religious Institutions in India: A Study of the Administration of Hindu Public Religious Trusts in Madras (Wiesbaden: Franz Steiner Verlag, 1974). 36. 1954 SCA 430. 37. Davis v. Beason, 133 U.S. 333 (1890). Cited in 1954 SCA 430. 38. 1954 SCA 431. 39. 67 CLR 116, 127. 40. 1954 SCA 431. 41. AIR 1953 Bom. 242. 42. 1954 SCA 431. 43. 1954 SCA, p. 434.

44. 1954 SCA, p. 434. 45. 1954 SCA, p. 432. 46. 1954 SCA, p. 435. 47. 1954 SCA, p. 432. 48. 1954 SCA, p. 427. 49. 1954 SCA, p. 437. 50. Mudaliar, The Secular State and Religious Institutions in India, p. 186. 51. 1954 SCA 548. 52. P.K. Tripathi, ‘Secularism: Constitutional Provision and Judicial Review’, in G.S. Sharma (ed.), Secularism: its Implications for Law and Life in India (Bombay: N.M. Tripathi, 1966). 53. AIR 1953 SC 491. 54. AIR 1953 SC, p. 491. 55. AIR 1958 SC 255. 56. AIR 1958 SC, p. 259. 57. AIR 1958 SC, p. 264. 58. AIR 1958 SC, p. 264. 59. AIR 1958 SC, p. 255. 60. AIR 1958 SC, p. 255. 61. AIR 1958 SC, p. 255. 62. AIR 1958 SC, p. 255. 63. Gopala Mooppanar v. Subramania Aiyar, AIR 1915 Mad. 363. 64. AIR 1958 SC 265. 65. AIR 1958 SC, p. 265. 66. AIR 1958 SC, p. 267. 67. AIR 1958 SC, p. 268. 68. AIR 1958 SC, p. 269. 69. Romila Thapar points out that certain Bhakti sects emphasized equality ‘as evident in the compositions of Dadu, Raidas, Kabir, and Nanak’. Thapar, ‘Is Secularism Alien to Indian Civilization?’ in T.N. Srinivasan (ed.), The Future of Secularism (Oxford: Oxford University Press, 2007), p. 99. 70. AIR 1961 SC 1402. 71. According to the khadims, they were descendants of two followers of the twelfth century Sufi saint Khawaja Moinuddin Chishti, whose tomb at Ajmer is known as the Durgah Khawaja Saheb. The khadims also claimed they belonged to a religious denomination known as the Chishtia Sufis. 72. AIR 1961 SC 1406. 73. AIR 1961 SC, p. 1410. 74. AIR 1961 SC, p. 1415. 75. AIR 1963 SC 1638.

76. AIR 1963 SC, pp. 1460–1. 77. AIR 1963 SC, p. 1461. 78. AIR 1966 SC 1135. 79. AIR 1962 SC 853. 80. AIR 1962 SC, p. 869. 81. AIR 1962 SC, p. 876. 82. AIR 1962 SC, p. 859. 83. AIR 1962 SC, pp. 860–1. 84. AIR 1962 SC, p. 865. 85. Tripathi, ‘Secularism: Constitutional Provision and Judicial Review’, p. 183. 86. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 260. 87. The Ananda Marga was founded in 1955 by a Bengali, Prabhat Ranjan Sarkar, who later came to be known by his followers as Shri Anandamurti. The organization has had a controversial history and has in the past been accused of violent acts. Here I do not look at the legitimacy of the organization but the logic of the Court’s reasoning. 88. AIR 1983 SC 1. 89. Auroville is a township in Pondicherry founded by a French follower of Aurobindo, M. Alfasse, who is also known as the Mother by Aurobindo devotees. 90. AIR 1983 SC 30. 91. AIR 1983 SC, p. 4. 92. AIR 1983 SC, p. 11. 93. AIR 1984 SC 51. 94. AIR 1984 SC, p. 57. 95. AIR 1990 Cal. 336. 96. AIR 1990 Cal., p. 350. 97. The Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, 2004 (12) SCC 782–3. 98. The Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, 2004, p. 793. 99. Bira Kishore Deb v. State of Orissa, AIR 1964 SC 1501. 100. AIR 1972 SC 1586. 101. AIR 1972 SC, p. 1597. 102. See Bhumi Nath v. State of J&K, 1977 (2) SCC 745; Shri Jagannath Puri Management Committee v. Chintamani Khuntia, 1997 (8) SCC 422; and Sri Adi Visheshwaran of Kashi Nath v. State of UP, 1997 (4) SCC 606. 103. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 263.

104. AIR 1996 SC 1765. 105. AIR 1996 SC, p. 1790. 106. AIR 1996 SC, p. 1790. 107. AIR 1996 SC, p. 1807. 108. AIR 1996 SC, pp. 1792–3. 109. AIR 1996 SC, p. 1793. 110. See Werner Menski, ‘From Dharma to Law and Back? Postmodern Hindu law in a Global World’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 20, January 2004. 111. Deen Dayal Upadhyaya, Integral Humanism. Available at http://www.bjp.org/content/view/444/396 (last accessed on 15 March 2009). Upadhyaya, a RSS pracharak, was the general secretary of the Jan Sangh from 1952–67 and was appointed party president in 1967. 112. Constituent Assembly Debates, Vol. VII, p. 781. 113. Galanter, Law and Society in Modern India, p. 249. 114. 1976 (2) SCC 17. 115. Pratap Bhanu Mehta, Secularism at Stake’, Indian Express (New Delhi), 23 January 2005. 116. Radhakrishnan, Religion and Society, p. 125. 117. Sumit Sarkar, An Exploration of the Ramakrishna Vivekananda Tradition (Shimla: Indian Institute of Advanced Study, 1993), p. 66. 118. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, p. 263. 119. Subrata Mitra, ‘Religion, Region and Identity: Sacred Beliefs and Secular Power in a Regional State Tradition of India’, in Noel O’Sullivan (ed.), Aspects of India: Essays on Indian Politics and Culture (Delhi: Ajanta Publications, 1997), p. 91. 120. Ashis Nandy, ‘The Twilight of Certitudes: Secularism, Hindu Nationalism and other masks of Deculturation’, in Ashis Nandy, Time Warps: Silent and Evasive Pasts in Indian Politics (Delhi: Permanent Black, 2001).

CHAPTER 3. IN THE NAME OF GOD: REGULATING RELIGION IN ELECTIONS 1. Section 123 of the RPA says: The following shall be deemed to be corrupt practices for the purposes of this Act: (3)The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the

national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (3A) The promotion of, or attempts to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of the candidate. 2. There are provisions in the Indian Penal Code to proscribe hate speeches. Section 153A of IPC prohibits ‘promoting enmity between different groups on grounds of religion, race … etc’; Section 295A prohibits ‘deliberate and malicious acts intended to outrage religious feelings’. 3. ‘We can’t punish, only rebuke’, Outlook (24 December 2007). 4. Rajeev Dhavan, ‘India needs a law to check hate speech’, Daily Mail (New Delhi), 29 March 2009, for an argument in favour of stronger laws for regulating the electoral process. See also Soli Sorabjee, ‘Who’ll Silence Varun?’, Indian Express (New Delhi), 27 March 2009. 5. AIR 1954 SC 686. 6. AIR 1954 SC, p. 688. 7. AIR 1959 SC 855. 8. AIR 1959 SC, p. 859. 9. AIR 1959 SC, p. 860. 10. AIR 1969 SC 851. 11. AIR 1969 SC, p. 857. 12. AIR 1969 SC, p. 851. 13. AIR 1969 SC, pp. 857–8. 14. AIR 1965 SC 141. 15. AIR 1965 SC, p. 143. 16. AIR 1965 SC, pp. 143–4. 17. AIR 1965 SC, p. 144. 18. AIR 1965 SC, p. 141. 19. AIR 1965 SC, p. 141. 20. AIR 1965 SC, p. 145. 21. AIR 1969 SC 851. 22. AIR 1969 SC, p. 857. 23. AIR 1985 SC 236. 24. AIR 1985 SC, p. 250. 25. AIR 1975 SC 1612. 26. AIR 1975 SC, p. 1616.

27. AIR 1975 SC, p. 1618. 28. AIR 1975 SC, p. 1612. 29. AIR 1975 SC 1612, p. 1622. 30. AIR 1975 SC 1788. 31. AIR 1975 SC, p. 1794. 32. AIR 1975 SC, p. 1799. 33. AIR 1975 SC, p. 1800. 34. AIR 1975 SC, p. 1801. 35. AIR 1980 SC 354. 36. AIR 1980 SC, p. 358. 37. AIR 1960 SC 148. 38. AIR 1960 SC, 153. 39. AIR 1965 SC 669. 40. AIR 1965 SC, p. 673. 41. AIR 1965 SC, p. 675. 42. AIR 1965 SC, pp. 675–6. 43. AIR 1965 SC 183. 44. AIR 1965 SC, p. 187. 45. AIR 1965 SC, p. 183. 46. 1996 (1) SCC 384. 47. 1996 (1) SCC, p. 392. 48. 1996 (1) SCC, p. 384. 49. David Gilmartin, ‘One Day’s Sultan: T.N. Seshan and Indian Democracy’, Contributions to Indian Sociology (May/August 2009), pp. 247–84. 50. V.S. Rekhi, ‘Religion, Politics and Law in Contemporary India: Judicial Doctrine in Critical Perspective’, in Robert D. Baird (ed.), Religion and Law in Independent India (New Delhi: Manohar, 2005), p. 251. 51. David Gilmartin, ‘Election Law and “People” in Colonial and Postcolonial India’, in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds), From the Colonial to the Postcolonial: India and Pakistan in Transition (New Delhi: Oxford University Press, 2007), p. 68. 52. Pratap Bhanu Mehta, ‘Passion and Constraint’, Seminar, 521, January (2003), p. 57. 53. Lok Sabha Debates, Volume XI, Part II (New Delhi: Lok Sabha Secretariat, 1951), pp. 8365–6. 54. Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (New Delhi: Oxford University Press, 2003), p. 208. 55. See James Manor, ‘India’, in David Butler and Austin Ranney ed., Electioneering: A Comparative Study of Continuity and Change (Oxford:

Clarendon Press, 1992), p. 114. 56. See, for instance, ‘More Sects in Politics’, The Times of India (New Delhi), 7 March 2009 and ‘In Uttar Pradesh, parties petition mahants and maulavies’, The Times of India (New Delhi), 7 March 2009. 57. Gilmartin, ‘Election Law and “People” in Colonial and Postcolonial India’, p. 68.

CHAPTER 4. GOOD CITIZENS: RELIGION AND EDUCATIONAL INSTITUTIONS 1. Article 28(1): No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given consent to. 2. Article 30 (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institutions on the ground that it is under the management of a minority, whether based on religion or language. 3. 2002 (7) SCC 389. 4. 1971 (2) SCC 279. 5. National Curriculum Framework for School Education (New Delhi: National Council of Educational Research and Training, 2000), p. 18. 6. National Curriculum Framework for School Education, p. 19. 7. 2002 (7) SCC 389. 8. 1971 (2) SCC 279. 9. 2002 (7) SCC 399. 10. 2002 (7) SCC 399. 11. Nussbaum, Democracy, Religious Violence, and India’s Future, p. 273. 12. Constituent Assembly Debates, Vol. VII, p. 884. 13. Constituent Assembly Debates, Vol. VII, p. 885. 14. Constituent Assembly Debates, Vol. VII, p. 885.

15. Report of the University Education Commission (1948–49) (Delhi: Ministry of Education, Government of India, 1962), p. 293. 16. Report of the Education Commission (1964–66) (Delhi: Ministry of Education, Government of India, 1966), p. 20. 17. Report of the Education Commission, p. 20. 18. 2002 (7) SCC 402. 19. 2002 (7) SCC, p. 406. 20. 2002 (7) SCC, p. 408. In the same article, Mahatma Gandhi writes, ‘This study of other religions besides one’s own will give one a grasp of rockbottom unity of all religions and afford a glimpse also of that universal and absolute truth which lies beyond the “dust of creeds and faiths”’. Gandhi, Young India, 6 December 1928. 21. Nussbaum, Democracy, Religious Violence, and India’s Future, p. 274. 22. Nussbaum, Democracy, Religious Violence, and India’s Future, p. 401. 23. Report of the University Education Commission (1948–49), p. 295. 24. 1994 (3) SCC 1. 25. Nussbaum, Democracy, Religious Violence, and India’s Future, p. 275. 26. National Curriculum Framework (New Delhi: National Council of Educational Research and Training, 2005), p. 7. 27. AIR 1958 SC 956. 28. AIR 1958 SC, p. 986. 29. AIR 1958 SC, 978. 30. AIR 1963 SC 540. 31. AIR 1963 SC, p. 545. 32. AIR 1963 SC, p. 545. 33. AIR 1963 SC, p. 547. 34. AIR 1968 SC 662. 35. AIR 1968 SC, p. 673. 36. AIR 1974 SC 1389. Dhavan and Nariman believe St Xavier’s ‘represents a watershed in the Court’s thinking.’ 37. AIR 1974 SC, p. 743. 38. AIR 1974 SC, p. 744. 39. AIR 1974 SC, p. 748. 40. 1992 (1) SCC 558. 41. 1992 (1) SCC, p. 607. 42. 1992 (1) SCC, p. 614. 43. 2002 (8) SCC 481. 44. 1993 (1) SCC 645. 45. 2002 (8) SCC 556. 46. 2002 (8) SCC, p. 563.

47. 2002 (8) SCC, p. 561. 48. 2002 (8) SCC, p. 584. 49. 2002 (8) SCC, p. 585. 50. 2002 (8) SCC, p. 587. 51. 2002 (8) SCC, p. 650. 52. 2002 (8) SCC, p. 653. 53. 2002 (8) SCC, p. 659. 54. 2002 (8) SCC, p. 662. 55. 2002 (8) SCC, p. 663. 56. 2003 (6) SCC 697. 57. 2003 (6) SCC, p. 723. 58. 2003 (6) SCC, p. 761. 59. 2003 (6) SCC, p. 729. 60. 2003 (6) SCC, p. 730. 61. 2005 (6) SCC 537. 62. 2005 (6) SCC, p. 555. 63. 2005 (6) SCC, p. 601. 64. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, pp. 269–70.

CHAPTER 5. BOUNDARIES OF FAITH: THE COURT AND CONVERSION 1. Gauri Viswanathan, ‘Literacy and Conversion in the Discourse of Hindu Nationalism’, Race & Class, 42 (1), (2000), p. 12. 2. See J.T.F Jordens, ‘Reconversion to Hinduism, the Shuddhi of the Arya Samaj’, in Geoffrey Oddie (ed.), Religion in South Asia (Delhi: Manohar, 1977) and Kenneth W. Jones, Arya Dharm: Hindu Consciousness in Nineteenth-Century Punjab (Berkeley: University of California Press). 3. The Bajrang Dal is a wing of the VHP and was founded in 1984. It played a key role in the build-up to the demolition of the Babri Masjid. 4. ‘Hounds and the Flock’, Outlook, 27 October 2008; ‘The Rogue Army’, India Today, 13 October 2008; ‘Bajrang Dal: The Militant Face of the Saffron Family?’ The Times of India, 30 September 2008; ‘In India, Hindu threat to Christians: Convert or Flee’, International Herald Tribune, 13 October 2008. 5. See Mumtaz Ali Khan, Mass Conversions of Meenakshipuram (Madras: Christian Literature Society, 1983). 6. For details see Antony Copley, Religions in Conflict: Ideology, Cultural Conflict and Conversion in Late Colonial India (New Delhi: Oxford University Press, 1997); Sisir Kumar Das, The Shadow of the Cross: Christianity and

Hinduism in a Colonial Situation (New Delhi: Munshiram, 1974); Geoffrey Oddie, Religion in South Asia: Religious Conversion and Revival Movements in South Asia in Medieval and Modern Times (Delhi: Manohar, 1977); and Sebastian C. H. Kim, In Search of Identity: Debates on Religious Conversion in India (New Delhi: Oxford University Press, 2003). 7. Quoted in Kim, In Search of Identity: Debates on Religious Conversion in India, p. 16. 8. M.K. Gandhi, Young India, 21 March 1929. 9. M.K. Gandhi, Young India, 23 April 1931. 10. M.K. Gandhi, Harijan, 30 January 1937. 11. M.K. Gandhi, Young India, 6 October 1921. 12. Rudolf C. Heredia, Changing Gods: Rethinking Conversion in India (New Delhi: Penguin, 2007), p. 171. 13. J.D.M. Derrett; Introduction to Modern Hindu Law (Bombay: Oxford University Press, 1963), p. 619. 14. [1863] 9 Moore’s Indian Appeals 199. 15. Reports of Cases Heard and Determined by the Judicial Committee and the Lords of H.M. Most Honourable the Privy Council on Appeal from the Supreme and Sudder Dewaney Courts in the East Indies (London: V. and R. Stevens, 1864), p. 244. 16. Constituent Assembly Debates, Vol. VII, 822. 17. Constituent Assembly Debates, Vol. VII, p. 824. 18. Constituent Assembly Debates, Vol. III, 493. 19. Constituent Assembly Debates, Vol. VII, 836. 20. Constituent Assembly Debates, Vol. VII, p. 833. 21. Constituent Assembly Debates, Vol. VII, p. 837. 22. Constituent Assembly Debates, Vol. VII, p. 838. 23. Constituent Assembly Debates, Vol. III, p. 497. 24. Kim, In Search of Identity: Debates on Religious Conversion in India, p. 55. 25. Heredia, Changing Gods: Rethinking Conversion in India, p. 78. 26. (1954) SCA 395. 27. (1954) SCA, p. 391. 28. AIR 1977 SC 908. 29. Report of the Christian Missionary Activities Enquiry Committee (Nagpur: Government Printing, Madhya Pradesh 1956), p. 131. 30. Report of the Christian Missionary Activities Enquiry Committee, p. 167. 31. Stanislaus, p. 911. 32. Gauri Viswanathan, Outside The Fold: Conversion, Modernity, and Belief (New Delhi. Oxford University Press, 2001), p. xiii.

33. H.M. Seervai, Constitutional Law of India: A Critical Commentary (Bombay: N.M. Tripathi, 1988), p. 912. 34. Pratap Bhanu Mehta, ‘Faith and Us’, The Indian Express (New Delhi), 23 September 2008. 35. Pratap Bhanu Mehta, ‘Fascism, Chennai style’, The Telegraph (Kolkata), 15 October 2002. 36. AIR 1965 SC, p. 1179. 37. AIR 1965 SC, p. 1184. 38. AIR 1952 Mad, p. 478. 39. AIR 1952 Mad, p. 478. 40. AIR 1986 SC, p. 733. 41. AIR 1986 SC, p. 735. 42. AIR 1984 SC, p. 607. 43. AIR 1986 SC, p. 736. 44. AIR 1986 SC, p. 736. 45. AIR 1969 SC, p. 101. 46. AIR 1969 SC, 109. 47. (1954) SCA 391. 48. AIR 1976 SC, p. 1904. 49. AIR 1976 SC, p. 1908. 50. AIR 1976 SC, p. 1908. 51. AIR 1996 SC, p. 1182. 52. For the history of hostility towards missionaries in general, see Anthony Copley, Religions in Conflict: Ideology, Cultural Conflict and Conversion in Late Colonial India; Kim, In Search of Identity: Debates on Religious Conversion in India; Gauri Viswanathan, Outside The Fold: Conversion, Modernity, and Belief. For the post-1947 period, see Viswanathan, ‘Literacy and conversion in the discourse of Hindu nationalism’, in Race & Class; Sumit Sarkar, ‘Christian Conversions, Hindutva, and Secularism’, in Anuradha Dingwaney Needham and Rajeswari Sunder Rajan (eds), The Crisis of Secularism in India (Ranikhet: Permanent Black, 2007); Ghanashyam Shah, ‘Conversion, Reconversion, and the State: Recent Events in the Dangs’, in Paul Brass and Achin Vanaik (eds), Competing Nationalisms in South Asia (New Delhi: Orient Longman, 2002). For the views of Hindu nationalists on missionaries, see Arun Shourie, Missionaries in India: Continuities, Changes, Dilemmas (New Delhi: ASA Publications, 1994) and Sita Ram Goel, Catholic Ashrams: Sannyasins or Swindlers? (New Delhi: Voice of India, 1994). 53. Viswanathan, Outside The Fold: Conversion, Modernity, and Belief, p. 16. 54. Sarah Claerhout and Jakob De Roover, ‘The Question of Conversion in India’, in The Economic and Political Weekly, 9 July 2005.

55. ‘Panel Favours Quotas for Dalit Converts’, The Times of India (New Delhi), 14 October 2007. 56. For details see Eleanor Zelliot, Ambedkar’s Conversion (New Delhi: Critical Quest, 2007). 57. B.R. Ambedkar, Conversion as Emancipation (New Delhi: Critical Quest, 2007), p. 30. 58. Quoted in Heredia, Changing Gods: Rethinking Conversion in India, p. 167. 59. M.K. Gandhi, Harijan, 13 January 1940.

CHAPTER 6. IMPOSING LEGAL UNIFORMITY: THE COURT AND MUSLIM MINORITY RIGHTS 1. A wakf is defined in the Wakf Act, 1995 as: ‘Wakf means permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious and charitable’. 2. Ismail Faruqui v. Union of India, AIR 1995 SC 605. 3. AIR 1995 SC, p. 641. In a dissenting judgment, Justice S.P. Bharucha and Justice A.M Ahmadi said that when the majority community makes a claim on the place of worship of another religion, it is not permissible for the state to ‘acquire that place of worship to preserve pubic order’. While most commentators welcomed the consequences of the judgment, for a critique of the reasoning of the majority judgment, see Rajeev Dhavan, ‘The Ayodhya Judgment: Encoding Secularism in the Law’, in Economic and Political Weekly, 26 November 1994. For details of the Babri-Masjid Ramjanambhumi controversy, see Ashghar Ali Engineer (ed.), ‘Babri-Masjid Ramjanambhumi controversy’, (Delhi: Ajanta Publication, 1990). The dangers of the state getting involved in acquiring land with ‘religious’ significance was demonstrated in the prolonged agitation in Jammu and Kashmir over the revocation of a state government order allotting forest land to the Amarnath Shrine Board. 4. AIR 1995 SC 641. 5. There is extensive literature on the question of gender, personal laws and the Uniform Civil Code. See, for example, Archana Parashar, Women and Family Law Reform in India: The Uniform Civil Code and Gender Equality (New Delhi: Sage Publications, 1992); Rina Verma Williams, Postcolonial Politics and Personal Law: Colonial Legal Legacies and the Indian State (New Delhi: Oxford University Press, 2006); Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India (Toronto: University of Toronto Press, 2008); Robert D. Baird, ‘Gender Implications for a Uniform Civil Code’, in

Gerald Larson (ed.), Religion and Personal Law in Secular India (Bloomington: Indiana University Press, 2001). 6. Will Kymlicka and Wayne Norman, ‘Introduction’, in Kymlicka and Norman (ed.), Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000), p. 2. 7. For a list, see ‘The Milky Way’, in Outlook (New Delhi), 10 March 2003. 8. AIR 1958 SC 731. 9. AIR 1958 SC, p. 740. 10. AIR 1958 SC, p. 745. 11. 1995 (1) SCC 197. 12. 2005 (8) SCC 534. 13. 2005 (8) SCC, p. 563. 14. Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A: It shall be the duty of every citizen of India– (g) to protect and improve the natural environment including forests lakes, rivers and wildlife, and to have compassion for living creatures. 15. 2005 (8) SCC 597. 16. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. 17. The Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill and Hindu Adoptions and Maintenance Bill. See Harold Levy, Indian Modernization by Legislation: The Hindu Code Bill (PhD dissertation in Political Science, University of Chicago, 1973). 18. Flavia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, in Anuradha Dingwaney Needham and Rajeshwari Sunder Rajan (eds), The Crisis of Secularism in India (Ranikhet: Permanent Black, 2007), p. 294. 19. Susanne Hoeber Rudolph and Lloyd I. Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context’, in Gerald Larson (ed.) Religion and Personal Law in Secular India: A Call to Judgement (Bloomington: Indiana University Press), p. 36. 20. Rudolph and Rudolph, ‘Living with Difference in India’, p. 35. 21. Rudolph and Rudolph, ‘Living with Difference in India’, p. 36. 22. Rudolph and Rudolph, ‘Living with Difference in India’, p. 36. 23. Islamic criminal law ceased to be applied after 1862, when the Criminal Procedure Code of 1859 and the Indian Penal Code of 1860 were promulgated. The Islamic law of evidence lapsed after the Indian Evidence Act, 1872, came into effect. 24. Courtney Ilbert, The Government of India (London: Clarendon Press, 1898), p. 392.

25. Gregory C. Kozlowski, ‘Muslim Personal Law and Political Identity in Independent India’, in Baird (ed.), Religion and Law in Independent India, p. 79. 26. The statute says: ‘Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, liam, khula and mubarat, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)’. See Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 2005), p. 58. 27. Rudolph and Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context’, p. 51. 28. John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Baird (ed.), Religion and Law in Independent India (New Delhi: Manohar), p. 139. 29. B. Shiva Rao, The Framing of India’s Constitution: Select Documents Vol. II (Nasik: Government of India Press), p. 89. 30. Rao, The Framing of India’s Constitution: Select Documents Vol. II, p. 79. 31. Rao, The Framing of India’s Constitution: Select Documents Vol. II, p. 162. 32. Rao, The Framing of India’s Constitution: Select Documents Vol. II, pp. 62–3. 33. Constituent Assembly Debates, Vol. V, p. 271. 34. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. IV, p. 606. 35. Constituent Assembly Debates, Vol. VII, p. 540. 36. Constituent Assembly Debates, Vol. VII, p. 541. 37. Constituent Assembly Debates, Vol. VII, p. 544. 38. Constituent Assembly Debates, Vol. VII, p. 546. 39. Constituent Assembly Debates, Vol. VII, p. 574. 40. Constituent Assembly Debates, Vol. VII, p. 548. 41. Constituent Assembly Debates, Vol. VII, p. 547. 42. Constituent Assembly Debates, Vol. VII, pp. 550–1. 43. Constituent Assembly Debates, Vol. VII, p. 551. 44. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140. 45. Robert D. Baird, ‘Uniform Civil Code and the Secularization of Law’, in Baird, Essays in the History of Religions, p. 172. 46. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140. 47. Gene D. Overstreet, ‘The Hindu Code Bill’, in Lucian W. Pye (ed.), Cases in Comparative Politics: Asia (Boston: Little Brown, 1970), p. 163.

48. Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 356. 49. Quoted in Baird, ‘Uniform Civil Code and the Secularization of Law’, p. 179. 50. Quoted in Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 286. 51. Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 286. 52. Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 290. 53. Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 290. 54. As seen in various cases discussed later like Shah Bano and Sarla Mudgal among others. 55. AIR 1952 Bombay, p. 84. 56. AIR 1952 Bombay, p. 86. 57. AIR 1952 Bombay, p. 86. 58. AIR 1952 Bombay, p. 87. 59. AIR 1952 Bombay, p. 87. 60. AIR 1952 Bombay, p. 87. 61. AIR 1952 Bombay, p. 95. 62. AIR 1952 Bombay, p. 92. 63. 1979 (2) SCC 316. 64. Section 125 of the CrPC which deals with the right to maintenance reads: (1) If any person having sufficient means neglects or refuses to maintain—(a) his wife, unable to maintain herself … a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife …, at such monthly rate not exceeding five hundred rupees in the whole … 65. Section 127(3) states: Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that (b) the woman has been divorced by her husband, and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, 66. 1979 (2) SCC 322. 67. Tahir Mahmood, The Muslim Law of India (Allahabad: Law Book Co., 1982), p. 132. 68. AIR 1980 SC 1730. 69. AIR 1980 SC, p. 1735. 70. AIR 1980 SC, p. 1736. 71. AIR 1980 SC, p. 1736. 72. AIR 1985 SC 946. 73. AIR 1985 SC, p. 948. 74. AIR 1985 SC, p. 948.

75. AIR 1980 SC 1736. 76. AIR 1985 SC 951. 77. AIR 1985 SC, p. 952. 78. AIR 1985 SC, p. 953. 79. AIR 1985 SC, p. 954. 80. AIR 1985 SC 935. 81. AIR 1985 SC, p. 940. 82. AIR 1995 SC 1531. 83. AIR 1995 SC, p. 1532. 84. AIR 1995 SC, p. 1539. 85. AIR 1995 SC, p. 1538. 86. AIR 1995 SC, p. 1540. 87. AIR 2003 SC 2902. 88. Section 118 of the Act states: ‘No man having a nephew or niece or any nearer relative shall have the power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the will of living persons’. 89. AIR 2003 SC 2902. 90. AIR 2003 SC 2902. 91. The front page headlines in The Telegraph on 24 July 2003 read: ‘SC clears statute path for common civil code’. The front page of The Times of India was more restrained: ‘SC favours common code’. 92. AIR 2003 SC 2902. 93. AIR 2003 SC 2902. 94. AIR 1996 SC 1864. 95. AIR 1996 SC, p. 1881. 96. AIR 1996 SC, p. 1879. 97. Rudolph and Rudolph, ‘Living with Difference in India’, p. 55. 98. Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, pp. 297–8. 99. Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, p. 298. 100. Madhu Kishwar, Religion at the Service of Nationalism (New Delhi: Oxford University Press, 1998), pp. 235–6. 101. 2001 (7) SCC 740. 102. The Statement of Objects and Reasons to the Bill read: This decision [Shah Bano] has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced

woman is entitled to at the time of divorce and to protect her interests. The Bill, accordingly, provides for the following among other things, namely: (a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period to iddat by her former husband and in case she maintains the children borne to her before or after the divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and husband’s relatives … (b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property … But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay. 103. The Act was passed by the Rajiv Gandhi government in the wake of the Muslim backlash to the Shah Bano ruling. One of the reasons for passing the legislation was to win back Muslim confidence in the Congress, which had suffered a heavy loss in a parliamentary by-election in the Muslim dominated Kishanganj constituency. The winning candidate, Syed Shahabuddin, made the Shah Bano ruling and the victimization of the Muslims the centrepiece of his campaign. Thus, an editorial in The Times of India on 28 February 1986, said that in passing the Bill, the Congress ‘was desperately keen to win back the Muslim vote which was supposed to have been alienated partly as a result of the Shah Bano affair’. 104. Flavia, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, p. 308. There are others who have found many flaws in the Act. See, for example, Tahir Mahmood, ‘Islamic Family Law in India: Latest Developments in India’, in Chibli Mallat and Jane Connors (eds), Islamic Family Law (London: Graham and Trotman, 1990). 105. Ibid., p. 310. 106. 2001 (7) SCC 757–8. 107. 2001 (7) SCC, p. 760. 108. 2001 (7) SCC, pp. 757–8. 109. 2001 (7) SCC, p. 763. 110. 2001 (7) SCC, pp. 757–8. 111. 2001 (7) SCC, p. 764.

112. 2001 (7) SCC, pp. 757–8. 113. Tahir Mahmood, An Indian Civil Code and Islamic Law (Bombay: N.M. Tripathi, 1976), p. 3. 114. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 175. Amartya Sen is right when he says religion is ‘not, and cannot be, a person’s allencompassing identity’. Amartya Sen, Identity and Violence: The Illusion of Destiny (London: Allen Lane, 2006) p. 83. However, religion is certainly a critical component of the identity of many Indian Muslims. Political theorist William Connolly explains, ‘An identity is established in relation to a series of differences that have become socially recognized. These differences are essential to its being’. William Connolly, Identity/Difference: Democratic Negotiations of Political Paradox (Minneapolis: University of Minnesota Press, 1991), p. xiv. 115. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 175. 116. Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India’s Fortuitous Multiculturalism’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 4 (November 2001), p. 24. 117. Dieter Conrad, ‘The Personal Law Question and Hindu Nationalism’, in Vasudha Dalmia and Heinrich von Stietencron (eds), Representing Hinduism: The Construction of Religious Traditions and National Identity (New Delhi Sage, 1995). 118. Rudolph and Rudolph, ‘Living with Difference in India’, p. 56. 119. In a survey done in 1996, 44.4 per cent of the total sample said that every community should be allowed to have its own laws to govern marriage and property rights as opposed to 30.4 per cent that wanted uniform civil code. See Mitra, ‘Constitutional Design, Democratic Vote Counting, and India’s Fortuitous Multiculturalism’, p. 25. 120. Werner Menski, ‘Family Law and Uniform Civil Code in India’, in Chibli Mallat and Jane Connors (eds), Islamic Family Law (London: Graham and Trotman, 1990), p. 293. Interestingly, the archbishop of Canterbury, Rowan Williams, caused a controversy in 2008 when he suggested some accommodation between British law and Sharia. See ‘Defining the Limits of Exceptionalism,’ The Economist (16 February 2008). 121. Tahir Mahmood, Personal Laws in Crisis (New Delhi: Metropolitan, 1986), p. 93.

CHAPTER 7. JUDGING RELIGION: A NEHRUVIAN IN COURT 1. Rajeev Dhavan, The Supreme Court of India: A Socio-legal Analysis of Its Juristic Techniques (Bombay: N.M. Tripathi Ltd., 1977), p. 24.

2. Subrata K. Mitra, Culture and Rationality: The Politics of Social Change in Post-Colonial India (New Delhi: Sage Publications, 1999), p. 97. 3. V.D. Mahajan (ed.), Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses (Delhi: S. Chand, 1966), p. 337. 4. Rajeev Dhavan, ‘Nehru, Law and Social Change’, in Rajeev Dhavan and Thomas Paul (eds.), Nehru and the Constitution (Bombay: N.M. Tripathi Ltd., 1992), p. 49. 5. Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1969), p. 108. Cardozo became a judge in 1914, serving 18 years on the New York Court of Appeals and six years on the US Supreme Court. He is best known for The Judicial Process, which is a classic in the field. 6. Max Lerner (ed.), Mind and Faith of Justice Holmes (Madras: Higginbothams, 1974), p. 36. 7. Constituent Assembly Debates, Vol. IX, p. 1195. 8. Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Bombay: N.M. Tripathi Ltd., 1985), p. 64. 9. AIR 1973 SC 1461. The eleven judges on the Constitution bench each gave separate opinions running into several hundred pages. For a summary of the arguments in the case see Surendra Malik (ed.), The Fundamental Rights Case: The Critics Speak! (Lucknow: Eastern Book Company, 1975). For a concise account of the political background to the case see Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (New Delhi: Oxford University Press, 2003), ch. 11. For an analysis of the judgment see Rajeev Dhavan, The Supreme Court and Parliamentary Sovereignty (New Delhi: Sterling Publishers, 1976). 10. Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State (Bombay: Orient Longman, 1987), p. 110. 11. Mohan Kumaramangalam, Judicial Appointments (New Delhi: IBH, 1973). Kumaramangalam argues, ‘At every stage in the history of any country when appointment to the highest judicial office was under consideration, the appointing authority has always taken into account the tasks that faced the country, the direction in which the country wished to go, the “spirit of the times”’. Kumaramangalam, p. 38. 12. Michael J. Perry, The Constitution in the Courts: Law or Politics (New York: Oxford University Press, 1994), p. 204. 13. Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties, p. 3. 14. George H. Gadbois, ‘The Supreme Court of India as a Political Institution’, in Rajeev Dhavan, R. Sudarshan and Salman Khurshid (eds), Judges and the Judicial Power (Bombay: N.M. Tripathi Ltd, 1985), p. 261.

15. S.P. Sathe. Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2003), p. lxxx. 16. Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2336. 17. Rajeev Dhavan, ‘Judging the Judges’, in Dhavan, Sudarshan and Khurshid (eds), Judges and the Judicial Power, p. 27. 18. Dhavan, ‘Judging the Judges’, p. 27. 19. Dhavan, ‘Judging the Judges’, p. 27. 20. Dhavan, ‘Judging the Judges’, p. 27. 21. Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties, p. 4. 22. Roscoe Pound was appointed to the Nebraska Supreme Court in 1901 and served until 1903. In 1910, Pound was appointed professor of law at Harvard, where he stayed till 1947. His most famous essay, ‘The Scope and Purpose of Sociological Jurisprudence’, was published in the Harvard Law Review in 1911. 23. P.B. Gajendragadkar, Law, Liberty and Social Justice (Bombay: Asia Publishing, 1965), p. 24. 24. Oliver Wendell Holmes’ classic, The Common Law, was published in 1881 when he was practising at the Bar and lecturing part-time at Harvard. In 1882, he joined Harvard as a professor of law. But after having taught one term, Holmes was appointed to the Supreme Judicial Court of Massachusetts. He was elevated to the US Supreme Court in 1902 and served for 30 years. 25. Gajendragadkar, Law, Liberty and Social Justice, p. 12. 26. Bernard Schwartz, Main Currents in American Legal Thought (Durham: Carolina Academic Press, 1993), p. 467. 27. Roscoe Pound, Introduction to Philosophy of Law (New Haven: Yale University Press, 1954), p. 86. 28. Pound, Introduction to Philosophy of Law, p. 87. 29. Pound, Introduction to Philosophy of Law, p. 89. 30. Pound, Introduction to Philosophy of Law, p. 99. 31. Schwartz, Main Currents in American Legal Thought, p. 472. 32. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 85. 33. Gajendragadkar, Law, Liberty and Social Justice, p. 49. 34. Mahajan, Chief Justice Gajendragadkar, p. 90. 35. Mahajan, Chief Justice Gajendragadkar, p. 158. 36. Mahajan, Chief Justice Gajendragadkar, p. 91. 37. Mahajan, Chief Justice Gajendragadkar, p. 91. 38. Mahajan, Chief Justice Gajendragadkar, p. 158. 39. Mahajan, Chief Justice Gajendragadkar, p. 91.

40. Mahajan, Chief Justice Gajendragadkar, p. 158. 41. Mahajan, Chief Justice Gajendragadkar, p. 167. 42. Mahajan, Chief Justice Gajendragadkar, p. 140. 43. P.B. Gajendragadkar, To the Best of My Memory (Bombay: Bharatiya Vidya Bhavan, 1983), p. 349. 44. Gajendragadkar, Law, Liberty and Social Justice, p. 13. 45. Judith Shklar, Legalism (Cambridge: Harvard University Press, 1964), p. 88. 46. P.K. Tripathi, ‘Mr. Justice Gajendragadkar and Constitutional Interpretation’, Journal of The Indian Law Institute 8(2) (1966), p. 496. 47. AIR 1963 SC 649. 48. Parliamentary Debates, Vol. 12, 16 May 1951. 49. AIR 1951 SC 458. 50. The original Article 368 stated: An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the Bill … 51. Article 13(2) states: The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause, shall to the extent of the contravention, be void. 52. AIR 1965 SC 845. 53. AIR 1965 SC, p. 854. 54. AIR 1965 SC, p. 856. 55. AIR 1965 SC, p. 858. 56. Holmes quoted in P.B. Gajendragadkar, Indian Parliament and Fundamental Rights (Calcutta: Eastern Law House, 1972), p. 159. 57. Constituent Assembly Debates, Vol. VII, p. 323. 58. Parliamentary Debates 13, 2 June 1951. 59. Golak Nath v. State of Punjab, AIR 1967 SC 1643. 60. AIR 1967 SC 1656. 61. Gajendragadkar, Indian Parliament and Fundamental Rights, p. 180. 62. The Twenty Fourth Amendment put Constitutional amendments outside the purview of Article 13(2). It also conferred on Parliament the right to amend any part of the Constitution ‘by way of addition, variation or repeal’. 63. Gajendragadkar, Indian Parliament and Fundamental Rights, p. 181.

64. Article 39: The State shall, in particular, direct its policy towards securing—(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. 65. Gajendragadkar, Indian Parliament and Fundamental Rights, p. 199. 66. Letter dated 18 October 1971. Gajendragadkar Papers, Nehru Memorial Museum Library. 67. The amendment was signed by the President on 18 December 1976. The Rudolphs write, ‘The amendment purported inter alia to undo Kesavananda by barring the court from reviewing parliamentary legislation, declaring that “there shall be no limitation whatsoever on the constituent power of parliament to amend” the constitution. The “amendment” limited the court’s authority in a number of ways and added provisions that vastly strengthened the executive’. Rudolphs, 115. On the Forty Second Amendment, also see Rajeev Dhavan, The Amendment: Conspiracy or Revolution? (Allahabad: Wheeler Publishing, 1978). 68. Letter dated 13 August 1975. Gajendragadkar Papers, Nehru Memorial Museum Library. 69. Cardozo quoted in Gajendragadkar, To the Best of My Memory, p. 355. 70. Gajendragadkar, To the Best of My Memory, p. 355. 71. Mahajan, Chief Justice, p. 145. 72. Mahajan, Chief Justice, p. 87. 73. Sarvepalli Gopal (ed.), Jawaharlal Nehru: An Anthology (New Delhi: Oxford University Press, 1980), p. 616. 74. Gopal, Jawaharlal Nehru: An Anthology, p. 482. 75. Jawaharlal Nehru, An Autobiography (New Delhi: Oxford University Press, 1980), p. 379. 76. Gopal, Jawaharlal Nehru: An Anthology, p. 482. 77. Jawaharlal Nehru, The Discovery of India (New Delhi: Oxford University Press, 1989), p. 511. In a letter to Nehru in 1945, Mahatma Gandhi wrote, ‘I am disappointed with your book … I have realized that every religion contains both truth and untruth. The root of all religions is one and it is pure and all of them of them have sprung from the same source, hence all are equal’. Raghavan Iyer (ed.), The Essential Writings of Mahatma Gandhi (New Delhi: Oxford University Press, 2005), p. 160. 78. Nehru, An Autobiography, p. 374. 79. Nehru, The Discovery of India, p. 513. 80. Gopal, Jawaharlal Nehru: An Anthology, p. 444. 81. Nehru, The Discovery of India, p. 514.

82. P.B. Gajendragadkar, The Philosophy of National Integration (Delhi: National Publishing House, 1974), p. 35. 83. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 101. 84. Gopal, Jawaharlal Nehru: An Anthology, p. 479. 85. Gajendragadkar, Secularism and the Constitution of India, p. 90. 86. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 101. 87. Gajendragadkar, The Philosophy of National Integration, p. 39. 88. Mahajan, Chief Justice Gajendragadkar, p. 338. 89. Mahajan, Chief Justice Gajendragadkar, p. 100. 90. Gajendragadkar, Secularism and the Constitution of India, p. 83. 91. Jawaharlal Nehru’s Speeches, V (New Delhi: Publications Division, Ministry of Information and Broadcasting, Government of India), p. 59. 92. Gopal, Jawaharlal Nehru: An Anthology, p. 327. 93. Gopal, Jawaharlal Nehru: An Anthology, p. 327. 94. Gajendragadkar, Secularism and the Constitution of India, p. 52. 95. Gajendragadkar, Secularism and the Constitution of India, pp. 83–4. 96. Gajendragadkar, Secularism and the Constitution of India, p. 86. 97. Gajendragadkar, Secularism and the Constitution of India, p. 98. 98. AIR 1961 SC 1415. 99. AIR 1963 SC 1661. 100. AIR 1966 SC 1135. 101. AIR 1966 SC, p. 1135. 102. (1945) 48 Bombay Law Reporter, p. 196. 103. (1868) 12 Moore’s Indian Appeals, p. 397. 104. (1868) 12 Moore’s Indian Appeals, p. 436. 105. (1945) 48 Bombay Law Reporter, p. 215. 106. (1945) 48 Bombay Law Reporter, p. 218. 107. (1945) 48 Bombay Law Reporter, p. 219. 108. (1945) 48 Bombay Law Reporter, p. 220. 109. (1945) 48 Bombay Law Reporter, p. 222. 110. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 254. 111. (1945) 48 Bombay Law Reporter, p. 224. 112. AIR 1959 SC 1318. 113. AIR 1959 SC, p. 1327. 114. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 292. 115. Gajendragadkar, The Philosophy of National Integration, p. 40.

116. Gajendragadkar, The Philosophy of National Integration, p. 44. 117. Yagnapurushdasji, p. 1135. 118. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 337. 119. Shklar, Legalism, p. 88. 120. Shklar, Legalism, p. 92. 121. Gajendragadkar, Indian Parliament and Fundamental Rights, p. 182. 122. Mahajan, Chief Justice Gajendragadkar: His Life, Ideas, Papers and Addresses, p. 337. 123. Nehru, The Discovery of India, p. 510. 124. Bhikhu Parekh, ‘Jawaharlal Nehru and the Crisis of Modernisation’, in Upendra Baxi and Bhikhu Parekh (eds), Crisis and Change in Contemporary India (New Delhi: Sage Publications, 1995), p. 22. 125. Sunil Khilnani, ‘Nehru’s Faith’, in Needham and Rajan (eds), The Crisis of Secularism in India, p. 102. 126. Khilnani, ‘Nehru’s Faith’, p. 53. 127. Gopal, Jawaharlal Nehru: An Anthology, p. 227. 128. Gopal, Jawaharlal Nehru: An Anthology, p. 575. 129. Though Radhakrishnan was the primary source for describing Hinduism as a ‘way of life’, Nehru’s definition of Hinduism in Discovery of India was remarkably similar to Gajendragadkar’s ruling: ‘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 definitely whether it is a religion or not, in the usual sense of the word’. Nehru, p. 75. 130. Gajendragadkar, The Philosophy of National Integration, p. 39. 131. Gajendragadkar, The Philosophy of National Integration, p. 40. 132. Mahajan, Chief Justice Gajendragadkar, p. 232. 133. Mahajan, Chief Justice Gajendragadkar, p. 301. 134. Robert Lingat, The Classical Law of India (New Delhi: Oxford University Press, 1998), p. 3. 135. Madeleine Biardeau, Hinduism: The Anthropology of a Civilization (New Delhi: Oxford University Press, 1989), p. 42. 136. Parekh, ‘Jawaharlal Nehru and the Crisis of Modernization’, p. 53. 137. Gopal, Jawaharlal Nehru: An Anthology, p. 28. 138. P.B. Gajendragadkar (ed.), The Ten Classical Upanishads I (Bombay: Bharatiya Vidya Bhavan, 1981), p. 11. 139. Gajendragadkar, The Ten Classical Upanishads, p. 23.

CHAPTER 8. CONCLUSION

1. The critique of Nehruvian rationalism should not be seen as a blanket criticism of Nehru and his policies. For a brief summary of critiques of Nehru, see Ramachandra Guha, ‘Verdicts on Nehru: Rise and Fall of a Reputation’, Economic and Political Weekly, 7 May 2005. 2. James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998), pp. 93–4. 3. Michael Oakeshott, ‘Rationalism in Politics’, in Rationalism in Politics and Other Essays (New York: Basic Books, 1962), p. 1. 4. Scott, Seeing Like a State, p. 90. 5. Scott, Seeing Like a State, p. 89. 6. Scott, Seeing Like a State, p. 96. 7. Scott, Seeing Like a State, p. 96. 8. Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (New Delhi: Oxford University Press, 2003), p. 208. 9. Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, p. 208. 10. Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, p. 219. 11. Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, p. 219. 12. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, p. 6. It must be noted, however, that Sathe underestimates the court’s obstreperousness in the 1950s regarding land reform. 13. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, p. xxxix. 14. Rajeev Dhavan, ‘Judges and Indian Democracy: the lesser evil?’ in Francine R. Frankel et al. (eds), Transforming India: Social and Political Dynamics of Democracy (New Delhi: Oxford University Press, 2000), p. 325. 15. Rajeev Dhavan, The Supreme Court of India: A Socio-legal Analysis of Its Juristic Techniques (Bombay: N.M. Tripathi Ltd., 1977), p. 461. 16. AIR 1996 SC 1805. 17. Pratap Bhanu Mehta, Passion and Constraint: Courts and the Regulation of Religious Meaning, p. 8. 18. Mehta, Passion and Constraint: Courts and the Regulation of Religious Meaning, p. 13. 19. Appa, p. 86. 20. M.N. Srinivas, ‘Secularization’, in Social Change in Modern India (New Delhi: Orient Longman, 2007), pp. 150–1.

21. Pratap Bhanu Mehta, ‘Why the BJP Is Calm’, The Telegraph (Calcutta), 4 March 2003. 22. Available at minority affairs.gov.in/newsite/sachar/sachar_comm.pdf (Last accessed on 14 July 2009). 23. 2005 (6) SCC 703. 24. Available at http://www.bjp.org/content/view/444/396/ (Last accessed on 14 July 2009). 25. Arun Shourie, A Secular Agenda (New Delhi: ASA Publications, 1993), p. ix. 26. Shourie, ‘The Shariat’, The Illustrated Weekly of India, 5 January 1986. 27. Charles Taylor, Multiculturalism: Explaining the Politics of Recognition (Princeton: Princeton University Press, 1994), p. 43. 28. Akeel Bilgrami, ‘Secularism and the Very Concept of Law’, in Anuradha Dingmaney Needham and Rajeswari Sunder Rajan (eds), The Crisis of Secularism in India (Ranikhet: Permanent Black, 2007), p. 316. 29. Partha Chatterjee, ‘Secularism and Tolerance’, in Bhargava (ed.), Secularism and Its Critics (New Delhi: Oxford University Press, 1999), p. 347. 30. Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge: Harvard University Press, 2000), pp. 8–9. 31. Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (London: Picador, 2007). Sunil Khilnani analysing the essence of India says, ‘The idea of India is not homogenous and univocal. In fact, no single idea can possibly hope to capture the many energies, angers, and hopes of one billion Indians; nor can any more narrow ideas—based on a single trait—fulfill their desires’. Khilnani, The Idea of India (New Delhi: Penguin, 2004), p. xv. 32. Pratap Bhanu Mehta, ‘Hinduism and Self Rule’, p. 64. 33. Pratap Bhanu Mehta, ‘On the Possibility of Religious Pluralism’, in Tom Banchoff (ed.), Challenges of Religious Pluralism in a Global Era, Oxford: Oxford University Press, 2008), p. 87. 34. Mehta, ‘On the Possibility of Religious Pluralism’, p. 80. 35. Parekh, Rethinking Multiculturalism, p. 184. 36. Ashis Nandy, ‘The Demonic and the Seductive in Religious Nationalism: Vinayak Damodar Savarkar and the Rites of Exorcism in Secularizing South Asia’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 44 (February 2009) p. 8. 37. Peter Van Der Veer, Hindus and Muslims in India (New Delhi: Oxford University Press, 2000), p. 23. 38. Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India’s Fortuitous Multiculturalism’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 4 (November 2001) p. 27. 39. Guha, India after Gandhi, p. 755.

40. Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’, in B.N. Kirpal (ed.), Supreme but Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000), p. 263. 41. Pratap Bhanu Mehta, ‘On the Possibility of Religious Pluralism’, in Tom Banchoff (ed.), Challenges of Religious Pluralism in a Global Era (Oxford: Oxford University Press) p. 87. M.S.S. Pandian argues that the ‘secular has to contaminate its categories by searching out other languages, including the language of religion’. Pandian, ‘Dilemmas of Public Reason: Secularism and Religious Violence in Contemporary India’, in Economic and Political Weekly, 28 May 2004. 42. Granville Austin, The Indian Constitution (New Delhi: Oxford University Press, 2000), p. 318. 43. Austin, The Indian Constitution, p. 318. 44. Bhargava, ‘Introduction’, p. 29. However, it must be noted Austin makes a distinction between ‘accommodation’ and ‘compromise’ saying that, ‘Accommodation is a belief or an attitude; compromise is a technique’. Austin, The Indian Constitution, p. 318. See also Khilnani who says, ‘It is a defining trait of the Indian Constitution and more generally of the founding ambitions of the Indian political project, that it committed to multiple ends and ideals …’ Khilnani, ‘Secularism: Western and Indian’, p. 54.

AFTERWORD: TWO JUDGMENTS AND OTHER ANOMALIES 1. Available at http://sci.gov.in/jonew/judis/44451.pdf (last accessed on 1 July 2018). 2. Alok Prasanna Kumar, ‘Sectarian Appeal Judgment—Interpreting Representation of the People Act to Its Intended Effect’, Economic and Political Weekly 52(1) (7 January 2017). 3. Pratap Bhanu Mehta, ‘High Principle, Dubious Law’, Indian Express, 4 January 2017. 4. Available at http://sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug2017.pdf (last accessed on 1 July 2018). For a detailed analysis of the ruling by a lawyer who assisted the Court as an amicus curiae, see Salman Khurshid, Triple Talaq: Examining Faith (New Delhi: Oxford University Press, 2018). 5. He has since retired as chief justice of India. 6. Article 13 states: Laws inconsistent with or in derogation of the fundamental rights.

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, (a) ‘law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368. 7. AIR 1952 Bom. 84. 8. Pratap Bhanu Mehta, ‘Small Step, No Giant Leap’, Indian Express, 23 August 2017. 9. Ratna Kapur, ‘Triple Talaq Victory: Wherein Lies the Much-Hailed Victory’? The Wire, 28 August 2017. See https://thewire.in/171234/triple-talaq-verdictwherein-lies-the-much-hailed-victory/ (last accessed on 1 July 2018). 10. AIR 1985 SC 945. 11. Tahir Mahmood, ‘All’s Well That Ends Well’, Indian Express, 23 August 2017. 12. Shamin Ara v. State of U.P. 2002 (7) SCC 526. 13. Flavia Agnes, ‘Personal Laws’, in Sujit Choudhry et al. (eds), The Oxford Handbook of the Indian Constitution (Oxford: Oxford University Press, 2016), p. 914. 14. Mirjam Kunkler and Yuksel Sezgin, ‘The Unification of Law and the Postcolonial State: The Limits of State Monism in India and Indonesia’, American Behavioral Scientist 60(8) (2016), pp. 987–1012. 15. AIR 1958 SC 731. 16. AIR 1962 SC 853. 17. Gautam Bhatia, ‘“Essential Religious Practices’ and the Rajasthan High Court’s Santhara Judgment: Tracking the History of a Phrase’, available at www.legallyindia.com (last accessed on). See https://www.legallyindia.com/Blogs/essential-religious-practices-and-therajasthan-high-court-s-santhara-judgment-tracking-the-history-of-a-phrase (last accessed on 1 July 2018). 18. 2013 (6) SCC 513. In fact, the local elected body decided against the mining project. 19. Nikhil Soni v. Union of India, D.B. Civil Writ Petition No.7414/2006.

20. S. Mahadevan v. Secretary, Travancore Devaswom Board, AIR 1993 Ker 42. 21. Deepa Das Acevedo, ‘Celibate Gods and “Essential Practices” Jurisprudence at Sabarimala, 1991–2011’, in Daniela Berti et al. (eds), Filing Religion: State, Hinduism, and Courts of Law (New Delhi: Oxford University Press, 2016), p. 121. 22. Available at http://supremecourtofindia.nic.in/supremecourt/2006/18956/18956_2006_Jud gement_13-Oct-2017.pdf (last accessed on 1 July 2018). 23. Shylashri Shankar, ‘A Juridical Voyage of “Essential Practices of Religion” from India to Malaysia and Pakistan’, American Behavioral Scientist 60(8) (2016), pp. 941–65. 24. 98 U.S. 145 (1879). 25. 546 U.S. 418 (2006). 26. See https://www.congress.gov/103/bills/hr1308/BILLS-103hr1308enr.pdf (last accessed on 1 July 2018). 27. 494 U.S. 872 (1990). 28. Winnifred Fallers Sullivan, ‘The World That Smith Made’, The Immanent Frame: Secularism, Religion and the Public Sphere (7 March 2012). See https://tif.ssrc.org/2012/03/07/the-world-that-smith-made/ (last accessed on 1 July 2018). 29. Winnifred Fallers Sullivan, ‘The Impossibility of Religious Freedom’, The Immanent Frame: Secularism, Religion and the Public Sphere (8 July 2014). See https://tif.ssrc.org/2014/07/08/impossibility-of-religious-freedom/ (last accessed on 1 July 2018). 30. Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), p. 153. 31. Jakob de Roover, ‘Secular Law and the Realm of False Religion’, in Winnifred Fallers Sullivan et al. (eds) After Secular Law (Stanford: Stanford University Press, 2011), p. 43. See also de Roover, Europe, India and the Limits of Secularism (New Delhi: Oxford University Press, 2015).

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Case Index

A.S. Narayana Deekshitulu v. State of A.P., AIR 1995 SC 1805 63, 196 AIR 1996 SC 1765 61 Abdul Hussain Mir v. Shamsul Huda, AIR 1975 SC 1612 78 Abhiram Singh v. C.D. Commachen 210, 212 Abraham v. Abraham, [1863] 9 Moore’s Indian Appeals 199 111, 114 Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127 47 Aruna Roy v. Union of India, 2002 (7) SCC 389 xxxvi, 89, 90, 91, 92, 93, 94, 95 Azeez Basha v. Union of India, AIR 1968 SC 662 97 Bai Tahira v. Ali Hussain Fidaali Chothia, 1979 (2) SCC 316 139, 140, 197 Bal Patil v. Union of India, 2005(6) SSC 690 18, 201 Bommai judgment, 1994 (3) SCC 1 xxx, 95 Chatturbhuj Vithaldas v. Moreshwar Parashram, (1954) SCA 395 xxxvii, 114, 120, 123 Collector of Madura v. Mootoo Ramalinga, (1868) 12 177 Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, (1954) Supreme Court Appeals (SCA) 415 46, 48, 49, 50, 53, 60, 62, 63, 192, 198 Commissioner of Wealth Tax, Madras v. Late R. Stridharan by L.R.s, (1976) Supp. SCR 478 36n122 Danial Latifi v. Union of India, 2001 (7) SCC 740 146, 147, 148, 216 DAV College v. Punjab, 1971 (2) SCC 279 89, 91

Davis v. Beason, 133 U.S. 333 (1890) 46 Durgah Committee v. Hussain Ali, AIR SC 1402 54, 55, 57, 198, 199 Ebrahim Sulaiman Sait v. M.C. Muhammad, AIR 1980 SC 354 80, 176 Employment Division v. Smith 494 U.S. 872 (1990) 220 E.R.J. Swami v. State of T.N., AIR 1972 SC 1586 61 Everson v. Board of Education Ewing, 330 U.S. 1 (1947) xix Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730 140, 197 G. Michael v. S. Venkateswaran, AIR 1952 Mad 478 118 Ganpat v. Returning Officer, AIR 1975 SC 423 18 Golak Nath v. State of Punjab, AIR 1967 SC 1643 168–9 Gonzales v. O Centro 546 U.S. 418 (2006) 220 Guntur Medical College v. Mohan Rao, AIR 1976 SC 1904 120 Guruamma v. Mallappa, AIR 1964 SC 520 35n100 Harcharan Singh v. Sajjan Singh, AIR 1985 SC 236 77 Islamic Academy v. State of Karnataka, 2003 (6) SCC 697 102, 103, 104 Ismail Faruqui v. Union of India, AIR 1995 SC 605 150n2 Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183 82 Jagdishwarand v. Police Commissioner, Cal., AIR 1984 SC 51 59 Jamuna Prasad Mukhariya v. Lacchi Ram, AIR 1954 SC 686 74 Jehovah’s Witness v. Commonwealth 56 John Vallamattom v. Union of India, AIR SC 2902 144 Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935 142 Kailash Sonkar v. Maya Devi, AIR 1984 SC 607 118–19, 120 Kanti Prasad Yagnik v. Purushottamdas Patel, AIR 1969 SC 851 75, 77 Kerala Education Bill case, AIR 1958 SC 956 101

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 157 (of my draft) Kultar Singh v. Mukhtiar Singh, AIR 1965 SC 141 76, 77, 79, 84, 210, 212 Lemon v. Kurtzman, 403 U.S. 602 (1971) xix M.H. Qureshi v. State of Bihar, AIR 1958 SC 731 129, 130 M.R. Balaji v. State of Mysore, AIR 1963 SC 649 166 Madhavrao v. Raghavendrarao, (1945) 48 Bombay Law Reporter 177, 196 Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864 145 P.A. Inamdar v. State of Maharashtra, 2005 (6) SCC 537 103, 104 Punjabrao v. Meshram, AIR 1965 SC 1179 117 Rajagopal v. Armugam, AIR 1969 SC 101 119 Ram Dial v. Sant Lal, AIR 1959 SC 855 74, 83, 84 Ramakrishna Mission case, AIR 1995 SC 2089 19, 21 Ramanbhai Patel v. Dabhi Ajithkumar, AIR 1965 SC 669 81, 82 Ratilal Panachand v. State of Bombay, AIR 1953 Bombay 242 47, 50, 116, 192 Rev Sidhajbhai v. State of Bombay, AIR 1963 SC 540 96, 97, 100, 105 Rev Stanislaus v. State of M.P., AIR 1977 SC 908 xxiv, 114, 116, 117, 121 Reynolds v. United States 98 U.S. 145 (1879) 220 R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1124 22, 24, 25, 28, 30n85, 199, 211 S.P. Mittal v. Union of India, AIR 1983 SC 1 59 S. Swvigaradoss v. Zonal Manager, AIR 1996 SC 1182 121 Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853 57, 58, 217, 219 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 84, 167, 168

Sankaralinga Nadan v. Raja Rajeswara Dorai 52 Saraswathi Ammal v. Rajagopal Ammal, AIR 1953 SC 491 50, 52 Sarla Mudgal v. Union of India, AIR 1998 SC 1531 xxxvii, 136, 143, 144, 146 Sastri Yagnapurushdasji v. Muldas Bhundardas, AIR 1966 SC 1119 xxiv–xxxv, 1, 14, 15, 16, 17, 18, 19, 20, 21, 23, 25, 27, 29, 57, 58, 62, 176, 179, 181, 183, 198 Shah Bano case, AIR 1985 SC 945 xxxvii, 131, 136, 139, 141, 142, 144, 147, 148, 155n103, 197, 201, 202, 215–16 Shamin Ara v. State of U.P. 2002 (7) SCC 526 215 Shankari Prasad v. Union of India, AIR 1951 SC 458 167 Shri Govindlalji v. State of Rajasthan, AIR 1963 SC 1638 55, 57, 176 Shubhnath Deogram v. Ram Narain Prasad, AIR 1960 SC 148 80 Shuganchand v. Prakash Chand, AIR 1967 SC 506 35n99 Soosai v. Union of India, AIR 1986 SC 733 118, 119 Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 51, 53, 58 St Stephen’s College v. University of Delhi, 1992 (1) SCC 558 99, 105 St Xavier’s case, AIR 1974 SC 1389 xxxiv State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay 84 138, 197, 214 State of Gujarat v. Mirzapur 130 Suryakant Venkatrao Mahadhik v. Saroj Sandesh Naik, 1996(1) SCC 384 82 TMA Pai Foundation v. State of Karnataka, 2002 (8) SCC 481 100, 103, 104, 105 Unni Krishnan v. Andhra Pradesh, 1993 (1) SCC 645 100 V.V. Giri v. D.S. Dora, AIR 1959 SC 1318 179 Wisconsin v. Yoder 406 U.S. 205 (1972) 220 Z.B. Bukhari v. B.R. Mehra, AIR 1975 SC 1788 79, 83

Ziyauddin Bukhari v. Ramdass Mehra, 1976 (2) SCC 17 64 Zorach v. Clauson, 343 U.S. 602 (1971) xix

Subject Index

Advani, L.K. 29 Ahmadi, Justice A.M. xxxi, 150n2 Aiyar, Justice Venkatarama 51, 52, 53 Akali Dal 76, 77, 84 Akal Takht 77, 78, 84 Aligarh Muslim University (AMU) 98, 201 as minority institution 97 Aligarh Muslim University Act, 1920 97 (Amendment) Act, 1981 98 All India Muslim Personal Law Board (AIMPLB) 215 Allahabad High Court 98 Ambedkar, B.R. 64, 65, 92, 93, 123, 133, 135, 136, 149 conversion to Buddhism 124 American Constitution 168 First Amendment to xix on relationship of State to religion xvii Ananda Marg, founding of 71n87 case involving followers of 59–60, 198 Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act of 1987 61 Arya Samaj 11, 16, 19, 110 Asiatic Society 43 Ataturk, Kemal xx Aurobindo Society 59 Auroville 71n89

Ayyangar, Justice N.R. 57 Babri Masjid, demolition of xxvi, 200 legality of acquisition of site of 128 Badal, Prakash Singh 78 Baig, Mahboob Ali 134 Bajrang Dal 124n3 Banerjee, Justice Bhagabati Prasad 60 Basava 16 Beg, Justice M.H. 79 Belur Math 66 Bhagwat, Mohan 29 Bhagwati, Justice P.N. 120 Bhakti tradition 16, 54, 66 Bhakti Yoga 20 Bharatiya Jan Sangh 13 Bharatiya Janata Party (BJP) xvi, xxvi, xxx, 14, 22, 24, 29, 74, 84, 90, 91, 109, 129, 215–16 demand for ban on cow slaughter by 129, 130 legislation to regulate conversion 108 ‘Vision Document’ of 28, 29 Bharucha, Justice S.P. 150n2 Bihar Land Reform Act 167 Biju Janata Dal, in Orissa, and violence against conversion 109 Black, Justice Hugo xviii Bombay Animal Preservation (Gujarat Amendment) Act 130 Bombay Harijan Temple Entry Act 14, 57 Bombay High Court 14, 47, 82, 138, 158, 192 Bombay Prevention of Excommunication Act of 1949 57, 58 Bombay Prevention of Hindu Bigamous Marriages Act, 1946 138 Bombay Public Trust Act, of 1950 47 Brahmanical law 44

Britain, State’s link with Established Church xxi Buddhism 8, 15 Calcutta High Court 19, 20, 21, 59, 60, 167 Caste Disabilities Removal Act, of 1850 111, 132 Central Untouchability (Offences) Act of 1955 14 Central Wakf Act, 1995 128 ceremonial law, pertaining to temples 3, 52, 53 Chagla, Justice M.C. 47, 79, 138, 139, 197 Chandrachud, Chief Justice YV xxxvii, 141, 142, 162, 197 Chattopadhyay, Bankimchandra 3, 4, 10, 11 Child Marriage Restraint Act, of 1929 132 Chishti, Khwaja Moinuddin 70n71 khadims of 54 Christianity 8, 18, 111, 128 in colonial India 109 conversion to 108, 114 Christianity Marriage Act 1872 111 missionaries, and Christians, violence against 108–10 civil magistrates, authority of xxxi colonial courts 42 Comte, August xv Congress Party xix, xxxii, 75, 79, 147, 167 governments in states, legislation to regulate conversion 108 Constituent Assembly xxi, xxii, xxxii, xxxiii, 124, 149 debate, over Article 28 90, 92 over First Amendment to Constitution 168 over conversion 112 over Uniform Civil Code 133 Constitution of India 26 Article 17 of xvi, 40, 53, 67n3 Article 25 of xvii, xxxvi, 1, 16, 30n1, 40, 41, 49, 51, 53, 56, 62, 98, 112, 113, 116, 128, 144, 175

Article 26 of 1, 30n2, 48, 49, 53, 55, 56, 59, 62, 98, 175, 194, 201 Article 28–30 of xxxvi Article 28 of 89, 80, 91, 92 Article 29 of 95, 96, 98, 100–2, 149 Article 30 of 89, 95–7, 99, 100–2, 103, 104, 105n2, 201 Article 44 of xxxvii, 134, 139, 142, 143, 144, 149 Article 368 of 167, 188n50 Amendments to, First 167, 168 21st 170 24th 160, 188n62 42nd 170 93rd 104 on freedom of religion 40 cow slaughter, proposal to ban 129, 130 Criminal Procedure Code (CrPC), 1859 140, 141, 148, 151n23 Dalit(s), Christian, appeal for reservation benefits 122 scheduled caste status to 123 Das, Chief Justice S.R. 129 Dasgupta, Justice K.C. 57 Dayanand, Swami 10 founding of Arya Samaj 11 dharma, role of 63, 184 Dharmadhikari, Justice 91, 94 ‘directive principle’ xvii, xxxvii, 169, 170 Divorce Act, 1869 111 Dissolution of Muslim Marriage Act, 1939 132 Douglas, Justice William xviii Durgah Khwaja Saheb Act of 1955, challenge to 54 Durkheim, Emile xv East India Company 131 Charter of 43 educational institutions, religion and 89 1857 Uprising 43, 110

Election Commission xxvii, 74 Model Code of Conduct of 73 election campaigns, prohibition of appeal for votes on religion for 22, 73, 81–2, 85 Emergency, under Indira Gandhi 170, 196 Emergency Provision Act of 1980 59 essential practices doctrine 45, 50, 51, 53, 55, 57, 58, 60, 64, 66, 216–19, 221 redefining 54–5 France, church–state relation in xx policy of laicite in xx Freedom of Religion Act 121 Freedom of Religion Bill 115 Fundamental Rights Sub-Committee 133 Gains of Learning Bills 132 Gajendragadkar CJ, P.B. Court judgments of 159 Feroze Gandhi Memorial Lecture by 171 on Hindu law 177 on Hinduism 195, 198 on Hindutva 184 on modernism 183 on religion/religious freedom 166, 170–1, 173–5, 178 on secularism 174, 175 Tagore Law lecture by 169 on welfare state 164–5 Gandhi, Mahatma xxx, 10, 109 on conversion 110, 124 religious tolerance of 29 secularism of 94 views on Christian missionaries 122

Gopalaswami, N. 74 Gujarat, riots in xvi, 108, 200 justice for victims of 204 Gujarat Assembly elections, of 2007 73–4 Gujarat University Act 1949 98 Gupta, Justice A.C. 80 Hansaria, Justice B.L. 62, 196 Hastings, Warren 68n14, 143 1772 regulation of 42, 132 Hedaya 129 Hindu candidates, election cases relating to 73–6 nationalism xxxii, 13, 194–6, 199 religious endowments 40, 41–2 religious institutions, state right 202 temples/institutions, regulatory regime for 60–1, 194 Hindu Code Bills 26, 124, 131, 137, 149, 178 ‘Hindu law’ 44, 45, 143, 176 codification of 43, 64 on marriages 143 Hindu Law Committee see Rau Committee Hindu Mahasabha 137, 199 Hindu Marriage Act 143 Hindu Succession Act, 1956 145 Hinduism xvi, xxviii, xxxii–xxxviii, 1, 58, 64–5, 128, 183 definition of 3, 15, 16 exclusivist 10 and Hindutva 12, 14, 23–5, 28 inclusive 5, 6, 25, 27, 110 judicial discourse on 5 reforms in, 4, 42, 197–8

‘Hindutva’ xxxv–xxxvi, 6, 10, 12, 14, 85, 195, 106, 198, 199 appeal to, in election campaigns 74 cases 22–3, 73, 82 definition of 26 Hinduism and 12, 14, 23–5, 28 judgments on 2, 22, 23–4 Holmes, Justice Oliver Wendell 159, 163, 168 Indian Christian Marriage Act, 1972 142 Indian Converts (regulation and registration) Bill 115 Indian Divorce Act, 1869 142 Indian Penal Code 86n2, 143 Sections 295A and 298 of 115 Indian Succession Act, 1925 144 Indonesia xxvii–xxviii Islamic Academy 103 Islamic personal law, uniform 136 see also Muslim Personal law Ismail Saheb, Mohammed 134 Iyer, Justice V.R. Krishna 78, 140, 141, 142, 197 Jagannadhadas, Justice, 50 Jagannath temple, litigation over 61 Jain community 18 status of 201 Jainism 15 Hinduism and 18–19 Jan Sangh 14, 199 Joshi, Manohar 22, 23 judge, role of 160, 162 judicial activism xxx Justice and Development Party (AKP), Turkey xxi Kamath, H.V. xxii Kania, Harilal 177

Karnataka, violence in 109 Kashi Vishwanath temple, litigation over 61 Kerala Education Bill 1957 96, 103 Kerala High Court 80 Khan, Mohammed 141 Khare, Chief Justice V.N. 144 Kingsdown, Lord 111 Kirpal, Chief Justice B.N. 99, 101, 105 Kothari Commission 90, 93 Krishnamachari, T.T. 112 Lahoti, Chief Justice R.C. 103, 130 Lakshmanan, Justice A.K. 60 Law Commission 45, 169 liberal democratic theory xvi liberty xvi, 47, 57, 164, 165 Lingayats 18 Lok Sabha elections, of 2009 74 Macaulay, Thomas Babington 43, 68n21 Madhok, Balraj 13, 14, 25 on ‘Hindutva’ and ‘Bharatiya’ 29 Madhya Pradesh, legislation on conversion 115 Madhya Pradesh Bill 115 Madhya Pradesh High Court 115, 141 Madhya Pradesh Swatantra Adhiniyam 114 Madras High Court judgment 52, 118 Madras Hindu Religious and Charitable Endowment Act (HRCE), 1951 40, 61, 69n35 challenge to 46, 48 Madras Temple Entry Authorization Act 51 Maitra, Lakshmi Kanta 92, 113 Malaviya, Govind xxii Malaysia 219–20

Malraux, Andre 182 Mapilla Succession Act, 1918 132 Marshman, Joshua 109 Marx, Karl xv Mathur, Justice A.K. 130 minority communities xxx educational institutions, management of 102 rights of 89, 104 Supreme Court on 103 judicial rulings on xxxiv rights of 129 judicial discourse of 203 Supreme Court on 200 Minorities Sub-Committee 134 Mishra, Justice Ranganath 123 Misra, Justice R.B. 59 Mitakshara, interpretation of 178 Mitter, Dwarkanath 137 modernization, impact on religion xv, 93 and secularization xv Modi, Narendra 74 Mohammedan Anglo-Oriental College 98 Monier-Williams, Monier 6, 15, 17 Mudholkar, Justice 81 Mukherjea, Justice B.K. 46, 47, 49, 61, 62, 63, 192 Mumbai, terrorist attack on 200 Munshi, K.M. xxiii, xxxiii, 112, 113, 133, 135, 136, 149 Muslim candidates, in election cases relating to 78–80 Muslim League 79, 80 Muslim Personal Law xxxvii, 129, 130–2, 138, 141–2, 147 Supreme Court on cases relating to 201 Muslim Personal Law (Shariat) Application Act, 1937 133

Muslim community, law, codification of 43 minority rights of 128 women, cases on maintenance for divorced 139–40, 155n102, 201 see also Shah Bano case Muslim Women (Protection of Rights on Divorce) Act, 1986 147, 148 Nagpur High Court 115 Nathdwara Temple Act, challenge to 55 National Commission for Minorities Act 18 National Commission for Religious and Linguistic Minorities 123 National Commission for Scheduled Castes 123 National Council of Educational Research and Training (NCERT), National Curriculum Framework of 89, 90, 95 petition against 89–90 National Democratic Alliance (NDA) government 24 Native Converts Marriage Dissolution Act, 1866 111 Nehru, Jawaharlal xxxii, 5, 137, 138, 139, 159, 168, 181, 193–4 concept of law 182 Congress government of 196 and judiciary 167 modernism of 199 on religion and spirituality 171, 173–4, 182–3, 184 on secular state 174 on secularism 1, 2, 83 on sovereignty of Parliament 160 on Upanishads 184 welfare state of 165 Niyamgiri Hills 217 Niyogi, Justice M.B. 115 Niyogi Commission 116 report 121 Orissa, violence in 109

Orissa Act, on conversion 115 challenge to 116 Orissa Freedom of Religious Act 114 Pakistan 219 Pal, Justice Ruma 101, 102, 105 Palekar, Justice D.G. 61 Pant, G.B. 134 Parliament, debate over Hindu Code Bill 137–8 Pataskar, H.V. 138 Patel, Vallabhai 134 Pathak, Justice R.S. 119 Patna High Court 167 personal laws, for religious groups xiv, xvii, 176 evolution of 131 Pew Global Attitudes and Trends survey, on religion xv Pound, Roscoe 160, 163, 164, 186n22 Praja Socialist Party 137 Prasad, Brajeshwar xxii Prasad, Rajendra 137 Prevention of Cruelty to Cows Bill, BJP’s 129 Privy Council 52, 111 upholding primacy of custom over written law 45 Punchhi, Justice M.M. 145 Punjab High Court 75, 76 Radhakrishnan, Sarvepalli xxxii, 5, 6, 7, 10, 16, 17, 25, 27, 28, 29, 62, 65, 66 on Hinduism 9 Radhakrishnan Commission 90 report 94 Raigarh State Conversion Act, 1936 114 Rajendra Babu, Justice S. 147 Rajendra Sachar Committee, 2006, report of 200

Ramakrishna Mission 5, 19, 58 Ramakrishna Paramahansa 9, 16, 19, 66 Ramaswamy, Justice K. xxxi, 61, 62, 63, 65, 145, 194, 195, 196 Ranade, M.G. 159 Rao, Justice Subba 80 Rashtriya Swayamsevak Sangh (RSS) 13, 24, 29 Rau Committee 137 Ray, Chief Justice A.N. 98, 99, 105, 116 Reddy, Justice Chinnappa 59 Reddy, Justice B.P. Jeevan xxix religion/religious, conversions xxxi, 108, 114, 123 definition of 64 education 92, 93 and institutions 89 freedom xxv, 63 judicial discourse on 49, 50 laws 131 role of State with regard to 194–5 texts, interpretation of 196–7 symbols, use in election campaigns 74, 80, 82, 83 Religious Freedom Restoration Act (RFRA) 220–1 Representation of People Act (RPA), 1951 22, 73–6, 80, 83–5, 86n1, 210, 212 cases relating to 75–7 reservations, on caste basis xviii, 114 benefits from 108 right of entry, to temples/religious institutions 48–9, 51 Roy, Rammohun 4, 5, 27, 109 Sabarimala 218 Sahai, Justice R.M. 143 Sangh Parivar 110, 201, 202

santhara/sallekhana 218–19, 223n17 Saraswati, Swami Laxmananda, killing of 109 Sarguja State Apostasy Act, 1945 114 Sarkar, Prabhat Ranjan 71n87 Sati Regulation of 1829 132 Satsangi community 181, 198 claim for separate status 14–15 Savarkar, Vinayak Damodar 6, 13, 23, 24, 34n60 on ‘Hinduism’ and ‘Hindu’ 12 on Hindutva 10, 12, 26, 28 Sawant, Justice P.B. xxx, xxxi S.B. Chavan Committee 90 Scheduled Castes, conversion by 117–18 reservation for 108 secular state, in India xvi, xviii, xxi, xxii, xxiii, xxiv, 63, 92, 93, 113, 135, 136, 174, 199, 200, 203 secularism 94, 122, 203 concept of 174, 183 Shah, Justice M.B. 82, 90, 92 Sharma, Shankar Dayal 62 Shariat Act, 1937 131 Shariat law 142, 145 Shiv Sena 22, 74, 84 Shri Venkatraman Temple, case on entry of Harijans into 51 Sikh community 18 election cases relating to 75–8 religion 77–8 Sikhism 15 Singh, Justice Kuldip xxx, 143 Sinha, Chief Justice B.P. 57, 58 Sinha, Justice S.B. 103 Sitaramayya, Pattabhi 137

Social Reform Conference 159 socio-economic justice 164 Spain, Article 16 of 1978 Constitution on religion xviii Sri Aurobindo 62 Case involving followers of 59 St. Stephen’s College, reservation case in 100–1 Staines, Graham, killing of 108 stare decisis, principle of 44 state regulations, over religious institutions/temples 58, 59, 61, 197, 199–200 Subba Rao, Chief Justice K. 169 Succession Act 1865 111 suddhi 20, 113 Supreme Court 59, 63, 64, 66, 77, 78, 89, 92, 96, 158, 192 on Aligarh Muslim University case 98 on Ananda Margis’ case 60 on conversion cases 114, 119–20, 121 decision on the Yagnaprurshdasji case 21 on defining Hinduism 1, 5, 14, 16, 27 on Hindu marriage law 143 on Hindu personal law 137 intervention in election campaigns xxxiii judges of 196 on minority rights 104, 200 on Muslim personal law case 139, 141, 201 on personal law cases 136 power of judicial review of amendments to Constitutions 160 on preference for minority students in minority institutions 99–100 on religion and religious freedom 205 on reservations 114 rulings on Articles in the Indian Constitutions 1

Scheduled Caste Order of 1950 117, 119n122 on the Soosai case 119 on State control of Hindu temples 194 on Uniform Civil Code 131, 144, 146, 149 Swaminarayan sect 14–15, 178 Swatantra Party 81 Thackeray, Bal 22 Tamil Nadu, conversion to Islam in 109 Tandon, Purushottamdas 112 Tirumala Tirupati temple, government role in 200 litigation over 61–2 triple talaq 212–16 Udaipur State Anti-Conversion Act, 1946 114 uniform civil code xvii, xxxvii, 44, 131, 139, 143, 145–6 Uniform Criminal Code 44 United States, jurisprudence, theories on religion xiv separation of religion from state in xx–xxi Upadhyaya, Deen Dayal 63, 202 Vaishno Devi temple, litigation over 61 Vajpayee, Atal Bihari 29 Vallabha school, doctrine of 55 Varakari cult 16 Vedanta/Vedantic religion 7–8, 9, 10, 21 Vedas 4, 5, 7, 62, 65, 198 as basis of Hindu religion 11, 17, 27, 28 Verma, Justice J.S. 22, 23, 24, 25, 28, 29, 82, 85, 195 Victoria, Queen, proclamation of 1858 of 43–4, 111 Vijneswara, interpretation of Mitakshara of 178 Vishwa Hindu Parishad (VHP) 109 Vivekananda, Swami 5, 6, 10, 16, 19, 21, 62, 65, 66

on Hindu religion and Vedas 7–8 on Hinduism 8, 9 Wakf Act, of 1923 132 of 1995 150n1 Wakf (Muslim endowment) Boards 128, 148 Wakf Validity Act, of 1913 132 Wanchoo, Chief Justice K.N. 98 West Bengal, government and Ramakrishna Mission institutions in 19 West Bengal Animal Slaughter Control Act 130 Widow Remarriage Act, of 1856 132

About the Author

Ronojoy Sen is senior research fellow at the Institute of South Asian Studies and South Asian Studies Programme, National University of Singapore. He has worked for over a decade with leading Indian newspapers, most recently as an editor for The Times of India. He earned a PhD in political science from the University of Chicago, USA, and read history at Presidency University, Kolkata, India. Sen’s previously published works include Nation at Play: A History of Sport in India (2015) and Being Muslim in South Asia: Diversity and Daily Life (co-edited, 2014).