Vol. 13 No. 9 (September 2003)
THE WHEEL OF LAW: INDIA’S SECULARISM IN COMPARATIVE CONSTITUTIONAL
CONTEXT, by Gary Jeffrey Jacobsohn. Princeton and Oxford: Princeton University Press, 2003.
Cloth $ 39.50. ISBN: 0-691-09245-1.
Reviewed by Narendra Subramanian, Associate Professor,
Department of Political Science, McGill University; e-mail: narendra.subramanian@mcgill.ca
THE WHEEL OF LAW explores the formation and functioning
of India’s secular constitution through sustained comparisons with
the alternative models in the United States and Israel, countries whose
constitutional development the author explored in detail in his earlier
work (Jacobsohn 1993). Jacobsohn systematically places his understanding
of the approaches taken by the post-colonial Indian state to build secularism
and secure religious freedom in the context of the major role that religion
plays in shaping social structure and public life in India.
The author takes as his point of departure arguments advanced
by political theorists who engage mainly with Indian experiences –
that the core aim of secularist regimes is the promotion of religious liberty
and the assurance of a minimal level of decent human existence; that the
patterns of state intervention and non-intervention in religious life conducive
to this goal vary significantly with social, historical and political context;
and that Indian secularism is unique in these respects (see Bhargava 1998,
Mahajan 1998). As a comparative
scholar of constitutional law, he builds significantly on these claims in
various ways. First, he offers
the most detailed empirical elaboration, thus far found in the literature,
of the relationship between socio-historical context and the secularist
model adopted in India’s post-colonial constitution. Second, his comparisons of the way apex
courts have dealt with important cases concerning religious liberty in India,
Israel and the United States highlight the effects of India’s distinctive
secularist model, and help establish that the socio-political role of religion
in a given polity influences which approaches are most appropriate to secure
religious freedom. Third, even
while emphasizing the contextual character of the three secularist models
examined, Jacobsohn’s comparative analysis indicates ways in which
policy-makers and legal mobilizers in each of these three countries may
learn from experiences in the other cases.
The comparison of India, the United States and Israel is
instructive because official secularism has taken very different forms in
the three cases, partly due to the different roles that religion plays in
social life and in defining national identity in these countries. The author characterizes these models of secularism as assimilative
(exemplified by the United States), visionary (Israel), and ameliorative
(India). American assimilative
secularism seeks to preserve religious liberty in the private sphere, while
urging political assimilation in the American republic. Israel’s visionary secularism involves
the coexistence of the vision of Israel as a state for the Jewish people
with commitments to preserve religious liberties and cultural autonomy. India’s ameliorative secularism
involves a commitment to promote the transformation of enduring social inequalities,
some of which are related to religious belief and practice, while recognizing
the autonomy of religious groups in some ways.
The Indian secularist model differs from the others both
in the way it sees national identity and in how it seeks to preserve religious
liberties. Indian national
identity is defined with reference to a composite culture not solely associated
with any of India’s religious groups, in contrast with the association
of Israeli identity with Jews alone, and with the definition of American
identity with reference to republican political ideals. India’s post-colonial political elite recognized the
thick social presence of religion in public ritual and civic life, in shaping
durable forms of caste and gender inequality, and as a social boundary along
which social conflict occurs and is prone to turn violent. They were specifically
aware that Hinduism, the majority religion, had for long influenced aspects
of social life among India’s non-Hindu groups, especially stratification
along caste lines. Such a perception of Indian society influenced how India’s
political elite pursued its ameliorative aspirations. So, the Indian state recognized social
and cultural rights related to membership in religious groups (e.g., through
the indefinite retention of plural family laws specific to religious group)
to provide cultural autonomy and restrict violent inter-religious conflict. But, the constitution also provides for
changes in such arrangements to enable social equality (e.g., to constrain
freedom of religious belief and practice on the grounds of social welfare,
and to introduce uniform family laws in the future), and soon after decolonization
policies were adopted which were said to favor greater equality among Hindus
(e.g., caste-based preferential policies, and changes in Hindu law meant
to promote caste and gender equality).
The comparisons with the United States and Israel nicely highlight
these features of the Indian state’s post-colonial social project. But, by placing both the transformative
and accommodative features of this project under the label of amelioration,
Jacobsohn confuses his discussion of some aspects of recent Indian judicial
decision-making, as we shall see. In addition, he gives inadequate attention
to work which indicates that early post-colonial Hindu law reform had but
an ambiguous effect on gender inequality (see for instance, Agnes 1999).
Having distinguished the three models of secularism, Jacobsohn
proceeds to examine how the different approaches to secularism played out
in the way courts in the three countries dealt with major cases concerning
the practice of polygamy, the capacity of federal governments to dismiss
state governments for violating basic constitutional principles, and constraints
on religious speech. The American apex court rejected the claims of Mormons
to practice polygamy on the grounds of religious freedom in the late nineteenth
century; while the plural legal systems of Israel and India continue to
accept polygamy among Muslims. Jacobsohn
relates the stance of the American courts to the aims of assimilative secularism
to subsume the claims of religious groups to the supremacy of civil law,
even while noting the play of cultural intolerance in the crucial judgments.
The executive and judiciary were especially concerned about Mormon
polygamy because of the potential political challenge of the Mormon Church
to the primacy of the secular polity and of Mormon practices to the wider
political culture, while accepting polygamy among more marginal indigenous
groups.
The Israeli and Indian courts upheld the prohibition of
polygamy among the religious majorities, even while allowing Muslim polygamy,
though for different reasons. The
Israeli courts upheld the permanent application of different personal status
laws to the country’s religious groups, because they felt such forms
of cultural autonomy would make the visionary Zionist project less objectionable
to non-Jews, and because any efforts by the state to determine the nature
of the personal status laws governing Israeli Muslims (specifically, whether
they would permit polygamy) might undermine the accommodative effects of
the plural legal system. In
India, on the other hand, courts upheld reforms proscribing polygamy among
Hindus but not among Muslims, relying upon the judgment of the legislature
regarding the extent to which the respective communities were prepared for
such reforms. Such judgments left open the possibility
of the later proscription of polygamy among Muslims. Orthodox Jewish law governs non-Orthodox
Israeli Jews, because many secular as well as Orthodox Israeli elites consider
the diversification of Jewish personal status laws a potential threat to
national identity. By way of
contrast, the Indian state offers Hindus and others the possibility of being
governed by more gender-equal civil laws in matters of marriage and divorce,
laws that might govern all Indians if family law were homogenized.
The prohibition on polygamy among Hindus but not among
Muslims reflected the focus of early post-colonial family law reform. Nehru and Ambedkar, the main authors of
these reforms and the ameliorative secularist project laid out in the Indian
constitution, chose such a strategy because they saw the reform of Hindu
society as the natural first step, and the most important step, in the reform
of Indian society. They tried
to justify this view through the following claims: first, many durable inequalities
among non-Hindu groups are drawn from Hindu norms, especially those linked
to the caste system; second, Hindus are more ready for reforms than are
other religious groups; and third, a government elected by a largely Hindu
electorate may initially reform Hindu law with greater legitimacy in a somewhat
communally divided polity. Contrary
to the first claim, many durable inequalities among India’s non-Hindu
communities, such as gender inequalities in marriage, divorce and succession
norms, cannot be clearly attributed “Hindu origins.” The second
claim rested on little evidence. Polygamy
was slightly more prevalent among Hindus than among Muslims soon after Indian
independence, though it enjoyed less scriptural sanction among Hindus.
Besides, divorce and marital separation were then less widespread
among Hindus than polygamy was among both Hindus and Muslims; and support
within the relevant community was not clearly stronger for the divorce rights
that Hindus were given in the 1950s than it was for the prohibition of polygamy
among Muslims. Policy-makers persisted with the reform
of Hindu law alone, although their first two claims and the compatibility
of their reform strategy with ameliorative secularism were disputed in parliamentary
debates. (The courts chose
not to dispute the judgments of legislators on these matters, and might
have been wise not to arrogate to themselves the right to do so).
The third claim about greater need to provide cultural
autonomy to religious minorities was the only reason to focus on Hindu law
reform which was compatible with the nature of religion’s social presence
and the ameliorative secularist project.
Such a reform strategy meant that the state’s ameliorative
aspirations were focused on the religious majority, and this was in tension
with professed secularist commitments to the equal treatment of religious
groups. These tensions were
not quite resolved even later as further legislative reforms were made in
Hindu law, and much later in Parsi and Christian law, but no egalitarian
reforms in Muslim law were either legislated or contemplated by the executive
(even while the judiciary reformed aspects of Muslim law regarding divorce
and maintenance). The book
could have devoted more attention to these tensions, especially as it offers
a critique of the Hindu nationalist appropriation of liberal discourses
of formal equality; and the Hindu nationalists shared with secularist reformers
the view that making the Hindu community is the key to the construction
of the Indian nation, even while they opposed many proposed reforms in Hindu
law and the provision of cultural autonomy to non-Hindus.
The author suggests towards the end of the book that the
Indian judiciary may import aspects of the American assimilative model. If polygamy among Indian Muslims were
prohibited in the future through such a move, this might be compatible with
continued acceptance of polygamy among tribal groups in India as these groups
share the marginal status of the indigenous American groups whose polygamous
practices the courts tolerate. Such
selective moves against polygamy would also be compatible with Indian ameliorative
secularism if the tribes are considered less ready than Muslims for monogamy,
as well as with current Hindu nationalist rhetoric attacking polygamy among
Muslims but not among tribal groups.
Jacobsohn sees Indian ameliorative secularism at work in
the national government’s dismissing the governments of four Indian
states ruled by the Hindu nationalist Bharatiya Janata Party (BJP) in 1992,
as well as in the Indian Supreme Court’s ratification of the dismissal. The national parliament, led by the Congress
Party at that point, dismissed the BJP-led governments because they enabled
or justified the destruction of a mosque in Ayodhya by Hindu nationalist
activists, as well as the subsequent anti-Muslim pogroms. The Supreme Court ratified the dismissal
on the understanding that these popularly elected state regimes violated
the secularist standard of the equal treatment of religious groups, which
it considered among the basic principles of the constitution, more than
on account of these governments’ failure to maintain public order
and prevent collective violence. The
author argues that the BJP and the other Hindu nationalist organizations
violate the ameliorative secularist commitment to promote intra-religious
equality as well because their largely upper-caste leadership and core support
leads them to oppose greater caste and gender equality among Hindus. However, he grants that this was not a
basis on which the Supreme Court upheld the dismissal of the state governments.
The evidence suggests that both the legislature and the judiciary
favored discharging the BJP-led governments primarily because of their failure
in the area of equal treatment for religious groups, rather than because
the BJP impeded social reform. Besides, the BJP is more decidedly opposed
to the accommodation of non-Hindu groups than it is to the promotion of
equality among Hindus. Jacobsohn’s
inclusion of both accommodative and redistributive measures under the ameliorative
category obscures which considerations drove the decision to dismiss the
BJP-led state governments.
The constitution and electoral laws, as interpreted by
the courts, provide for greater restraints on religious speech in India
than in the United States. The
ban on corrupt electoral practices in India extends beyond campaign financing
that impedes representation to reach religious expression that is incompatible
with liberal forms of public reason.
Jacobsohn points out that the principles of political liberalism
do not necessarily require such restraints on religious speech, and traces
these restraints to the specific nature of Indian secular democracy. He argues that these provisions are motivated by a close religious
association with various social inequalities which the Indian constitution
is committed to eradicate, and by the important role religion plays in constituting
the self in India (pp.171-2, 176-8, 180-1, 187). However, in crucial cases of the 1990s
in which the courts considered whether major Hindu nationalist politicians
used religious speech in ways incompatible with the secular constitution,
the main criterion applied by the courts to assess impugned religious speech
was compatibility with the equal treatment of religious groups, rather than
with other forms of social equality.
This reflects another reason why Indian law-makers found greater
restraints on religious speech necessary than their counterparts in the
United States – the much greater prevalence of social conflict along
religious boundaries. Many
Indian secularists claim that the Indian Supreme Court should have upheld
the convictions of all the Hindu nationalist politicians accused of inappropriate
religious speech, rather than overturn all but one conviction, as the court
did. Jacobsohn claims that
the Supreme Court ruled as it did because it did not refer adequately to
the logic of ameliorative secularism (p.185).
As the cases involved politicians whose organizations promoted considerable
violence against non-Hindus, their convictions could have been justified
based on the ameliorative principle of ensuring equal treatment of religious
groups without necessarily referring to the Indian constitution’s
ambitions to promote greater equality among Hindus.
The author considers the challenge ascendant Hindu nationalism
poses to ameliorative secularism, which could lead to the abridgement of
some of the Indian constitution’s ameliorative features.
He argues that the Israeli visionary project remained consistent
with secularism because Judaism was a non-assimilative religion, most leaders
of the project did not wish to fundamentally restructure social life in
terms of a revivalist religious vision, and non-Jews were allowed some cultural
autonomy and religious freedom. Jacobsohn
considers the tensions between Hindu nationalism and secularism to be greater
because Hinduism has assimilative characteristics especially in relation
to other religions of South Asian origin, and Hindu nationalists demand
the cultural absorption of non-Hindus.
Besides, he finds the Hindu nationalists largely opposed to many
of the egalitarian features of ameliorative secularism.
He notes the growing influence of Hindu nationalism over major figures
in India’s judiciary, which he fears may lead to decline in public
trust in the judiciary, and thus to a reversal in the growth of judicial
activism.
To counteract the influence of Hindu nationalism, the author
advocates a reinvigoration of the ameliorative dimensions of secularism
so that the formal equality advocated by many Hindu nationalists is shown
to be an inappropriate secular model for India.
He believes that greater attention to social reform, especially the
reduction of caste-based inequalities, could contribute to greater integration
into a composite national culture, reflecting the hopes of many early advocates
of ameliorative secularism. The
rise of lower and middle caste mobilization through the very decades when
Hindu nationalism attained prominence could provide a stronger social base
for such an ameliorative project than existed soon after Indian independence. However, greater reform might coexist
with the strengthening of a variety of specific cultural identities, with
no definite implications for the attractiveness of a composite Indian national
identity. Perhaps in recognition
of this, Jacobsohn points to the need to draw partly from the American model
of political assimilation to effectively counter Hindu nationalist efforts
at cultural absorption. (He
also believes that American assimilative secularism could benefit by drawing
from the Indian model the possibility of making the central religious practices
of marginal social groups exempt from some of the laws applied to other
citizens). This effort requires
“emphasizing positive secularism [of the Indian kind] as a central
component of shared political identity that respects India’s various
group identities and the State’s ameliorative project” (p.286).
The author expects continuing tensions in such a renewed secularist project
between the need for cultural autonomy and pressures for uniform treatment,
but anticipates less need for the differential treatment of communities
in an indefinite future. While
the directions such an attractive political alternative might take in the
long-term remain understandably hazy, more thought is needed about what
would make such an option politically viable over the next generation, through
which mobilization behind competing cultural identities appears most likely
to remain strong. The discussion of feasible strategies
of political mobilization lies beyond the book’s scope, but some discussion
would have been appropriate regarding how the reconstructed ameliorative
secularism the author advocates could be made more attractive among the
legal elite.
The book is an important effort to understand Indian secular
constitutionalism in a comparative perspective. Scholars of comparative constitutional law, religion and law,
multiculturalism, and Indian law and statecraft will benefit from critically
engaging with its contributions.
REFERENCES:
Agnes, Flavia. 1999. LAW AND GENDER EQUALITY: THE POLITICS
OF WOMEN’S RIGHTS IN INDIA. Delhi: Oxford University Press.
Bhargava, Rajeev
(ed.). 1998. “What is
Secularism For?” in SECULARISM AND ITS CRITICS. Delhi: Oxford University
Press.
Mahajan, Gurpreet. 1998. IDENTITIES AND RIGHTS: ASPECTS OF
LIBERAL DEMOCRACY IN INDIA. Delhi:
Oxford University Press.
Jacobsohn, Gary Jeffrey. 1993. APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES. Princeton: Princeton University Press.
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Copyright 2003 by the author, Narendra Subramanian.