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.