Chapter Four
INDIA:THEAMELIORATIVEASPIRATION
“THIS COURT cannot be too cautious in upsetting practices embedded in our society by many years of experience.”1 The specific practice referred to by Justice Stanley Reed in this 1948 American case was a released time program enabling students to receive religious instruction without leaving their public school. Among the majority who voted to invalidate the program over Justice Reed’s objections were several justices whose caution in exercising their judicial power had been well established over many years on the Court. They perhaps did not concur in their colleague’s assessment of embeddedness, or if they did, believed their uprooting of the practice on First Amendment grounds would not entail significant societal disruption.
In India at about this time, a constitution was being framed that would present judges with a different perspective on this problem. Of the document that emerged from the Constituent Assembly, it would be fair to say that its framers were committed to “upsetting practices embedded in . . .society by many years of experience.” So while cautionary admonitions could also appropriately be directed at Indian judges, the urgency of the advice might lack some of the accompanying jurisprudential logic present in the American context, where the Constitution is not devoted to social reconstruction.2 The efforts of Indian judges to participate actively in the implementation of a transformational agenda was justifiable in a way that would ring hollow for their American counterparts. Thus they could claim that their activism was true to the spirit of the charter that they had the responsibility to interpret.
On the other hand, the very explicitness of the constitutional recognition (especially in Article 25) that meaningful social reform required attention to the critical role of religion in Indian life might suggest the futility of judicial intervention. Problems of such complicated scope and intricacy would very likely defy Court-mandated solution. Moreover, the Constitution’s recognition extended to other facets of Indian social real-ity, the most important being the entrenched character of communal affiliation, and with that, the consequent need to provide space for cultural and religious diversity.3 Taken as a whole, the document evinces a complex awareness of the sometimes contradictory impulses that have figured so prominently in the Indian national experience. The common source of these impulses—to uproot and to preserve—is religion’s thickness as a social phenomenon, the depth of its penetration into the fabric of Indian life. As Tocqueville observed, “[R]eligion is mixed up in everything and . . . everything is a religious act for Hindus.”4 Tempting, therefore, as it might be for judges to want to eradicate what they perceive to be the socially debilitating vestiges of ancient (and not so ancient) tradition, they would have to proceed cautiously, or risk underestimating the pervasiveness of primal group experience, and hence inadvertently inflame the ever-burning embers of communal antagonisms. In short, the founding commitment to the secular constitution could too easily be subverted if it became an invitation for judges to casually indulge their passion for individual rights and abstract equality.5
There is persuasive evidence that this indulgence has occurred. Ac-cording to Rajeev Dhavan, “The nub of the issues in the freedom of religion cases has devolved away from religious freedom to a disorganized discussion of the legitimate areas of operation of a modern State. And the courts’ answer to the question, ‘How modern is the modern State?’ ap-pears to be, ‘As modern as it wants to be!’ ”6 If this is indeed the Courts’ answer, it certainly resonates with a dominant strand in the Indian Constitution, exemplified by Article 25’s limitation on religious freedom to ac-commodate the State’s provision for “social welfare and reform.” High-lighting this constitutional strand underscores the transformative dimension of Indian nationalism and the commitment to Nehruvian scientific rationalism with which it is frequently associated. Often drawing upon Western philosophical and jurisprudential sources, this vision of national unity relied primarily on social reconstruction to create one nation out of a multiplicity of peoples. For this experiment to succeed, popular religion had to be downplayed, constituting as it did the principal impediment in the path of integrating different classes and peoples into a modern nation state.7 As in the United States, subordination of religion was implicit in the dynamic of nation-building, but unlike the American example, it was to be a subordination that emphasized social transformation. Consistent with this emphasis, the secular constitution represented a commitment to fundamental social change, with an important presumption of constitutional legitimacy attaching to State intervention directed toward that end.8 “India,” Subrata Mitra has pointed out, “is virtually alone among post-colonial states in Asia to have adopted secularism as a key feature of her constitution and the cornerstone of her strategy of nation- building.”9
But this is obviously not the whole story. Commentators on Indian politics and society, and not just critics ofWestern-style secularism like Nandy and Madan, present a much more complex, nuanced account of Indian nationhood, in which religion is not just an obstacle to be overcome but a presence to be accommodated. “Except for those of the Marxist left, Indian dreams of the nation always take religion as one of the main aspects of national identity.”10 Indeed, while it is customary to contrast Nehru’s national vision with that of Gandhi’s, emphasizing in the process the latter’s more spiritual and communitarian commitment, Nehru was hardly oblivious to the centrality of religion in comprehending the Indian nation. The sometimes harsh reality of extraordinary diversity probably guarantees that Indian national identity will always be tinged by artificiality; but to the extent that there is such a thing as the authentic voice of the Indian nation, incorporated in it will be a religious message(s) demanding to be heard.11 What one hears will span the spectrum of substantive possibilities; in the end, acceptance of a specific definition of the secular constitution will be contingent upon who presides as arbiter of these contested meanings.12
I use the term ameliorative secularism to describe a model of the secular constitution as a conceptual projection of the multifaceted character of Indian nationhood. It is a term broad enough to encompass the layered meanings of Indian nationalism, including both its commitment to social reform and its mooring in rival and contentious religious/cultural traditions. Thus the Constitution seeks an amelioration of the social conditions of people long burdened by the inequities of religiously based hierarchies, but also embodies a vision of intergroup comity whose fulfillment necessitates cautious deliberation in the pursuit of abstract justice.13 For example, the constitutional provision for a uniform civil code appears in the form of a hortatory appeal in a nonjusticiable section of the document, expressing by implication an awareness of at least one other important social condition requiring amelioration, namely the conflict and confrontation on multiple fronts among thickly constituted majority and minority communities. Ashis Nandy’s charge, that “[s]ecularism has little to say about cultures,” that “it is definitionally ethnophobic,” makes sense as applied to the Indian Constitution only if there is a categorical exclusion of the regime of personal laws from the scope of secular calculation.14 But while limited deference to the moral visions across religious communities seems to bespeak a nonsecular sensibility, in the context of the constitutional aspiration for national unity it reflects a prudent and quite secular regard for historic social realities.
“THE GOOD OF THE PEOPLE”
To move from the general to the particular, and to examine certain juris-prudential aspects of the ameliorative model, let us revisit the issue of polygamy, transposed now to the Indian environment. The struggle for the emancipation of women occupies a central chapter in the history of Indian nationalism and Hindu social reform.15 The issue’s constitutional significance is suggested in this excerpt from Raj Kumari Amrit Kaur’s letter to B. N. Rau, included in the documentary history of the drafting of the Constitution: “As we are all aware there are several customs prac-ticed in the name of religion e.g. pardah, child marriage, polygamy, unequal laws of inheritance, prevention of inter-caste marriages, dedication of girls to temples. We are naturally anxious that no clause in any fundamental right shall make impossible future legislation for the purpose of wiping out these evils.”16 And as it transpired, not only future legislation, for in 1952 the Supreme Court of Bombay, applying the provisions of the new Constitution, upheld the validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. Later, as part of the project of codifying Hindu law, the practice of plural marriages for Hindus was outlawed in the Hindu Marriage Act of 1955, the validity of which was also affirmed by the courts.17
The ruling in the Bombay case18 was handed down two years before Chief Justice Mukherjea’s landmark opinion in Ratilal, where, recall, the distinction drawn in the American polygamy cases between religious beliefs and practices had been emphatically rejected. That distinction, complete with favorable citation of Davis v Beason, was relied upon in Appa to reach the conclusion that “religious practices must give way before the good of the people of the State as a whole.”19 If the state of Bombay chooses to compel monogamy, that choice must be respected as “a measure of social reform,” and under Article 25(2)(b) of the Constitution, it must be upheld notwithstanding its infringement of religious liberty. However, Justice Chagla’s opinion left unclear the rationale for distinguishing between belief and practice, particularly since the constitutional justification for intervention by the State does not in any way turn on that distinction. By contrast, in a polygamy case decided five years later (and three years after Ratilal),20 the opinion for the Court appears to retreat from the dictum in Appa, conceding that religious practices are entitled to the same level of protection as religious beliefs. But the conclusion in the two cases is the same; in other words, the restricted reach of the social welfare rationale extends to all facets of religious engagement.
In another respect the two opinions display greater doctrinal consistency. In Appa, Justice Chagla observed that “[I]t is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion.” 21 In Ram Prasad, the Court similarly concluded that polygamy is not “an essential part of the Hindu religion.”22 Both Courts were responding to the claim that because the presence of a son is held to be essential to achieve religious salvation, Hindu tradition sanctions plural marriages as a sort of hedge against reproductive failure. But, the justices pointed out, the adoption of a male child would adequately satisfy the religious requirement, thus obviating the need to practice polygamy. It follows, then, that even if the motivation to engage in the legally proscribed practice is said to be religious, the erroneous assumptions underlying the behavior will suffice to deny it constitutional protection.23 Not that such a finding would be necessary, for “[e]ven if bigamy be regarded as an integral part of Hindu religion the impugned rule is protected under Art. 25(b) of the Constitution.”24
These two jurisprudential tracks—determining the social welfare content of State action, and distinguishing essential from nonessential religious activity—enable the judiciary to encroach deeply into the domain of religious freedom.With regard to polygamy, the latter approach seems almost gratuitous, since the social welfare implications of the legislation require very little elaboration. Also, the judicial certification of reformist intent arguably raises fewer concerns in relation to the role of the courts than does establishing the presence of religious essences.25 The validation of an Article 25 limitation on religious liberty entails little more than deference to the will of the legislative branch, precisely the sort of action that fits most comfortably within a framework of democratic expectations for the judiciary. On the other hand, as Derrett argues in reference to the alternative approach, “[T]he 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.The Constitution does not say ‘freely to profess, practise and propagate the essentials of religion’, but this is how it is construed.”26
Indeed it does not, and yet there is, intended or not, a revealing logic in the courts’ embrace of an “essentials of religion” test. Their logic is consistent with the factors that make it difficult to sustain a belief/practice distinction when applying the Constitution’s religion clauses.With a religious presence that is pervasive and deep, religiosity resists bifurcation into separate paths for action and opinion. Precisely for that reason, Indian legal circles may benefit from a further distinction that addresses more directly the ameliorative mission of the secular constitution. As a former Indian chief justice explained, “Because of the personal laws and the fact that religion plays such a profound role in people’s lives, inquiring into the essentials of religion cannot be avoided.”27 Thus attempting to isolatewhat is integral to religion from what is not, however tricky and even dubious, proves necessary; otherwise, social reform efforts face overcoming religious- based practices not only considered a way of life, but also poised to claim undifferentiated theological significance.28 To be sure, even essential religious practices are not guaranteed constitutional immunity if they obstruct social reform; nevertheless, limiting their impact to nonessential matters might enhance the legitimacy of judicially sanctioned social trans-formations. 29 As Dr. Ambedkar said at the Constituent Assembly:
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. . . . I do not see why religion should be given this vast, expansive jurisdiction as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all what are we having this liberty for?We are having this liberty to reform our social system, which is so full of inequalities, discrimination and other things which conflict with our fundamental rights.30
In Appa, Justice Chagla pointed out that “The Hindu Bigamous Marriages Act is attempting to bring about social reform in a community which has looked upon polygamy as not an evil institution, but fully justified by its religion.”31 Demonstrating that polygamy is in fact not fully justified by the religion provides an alternative for judges reluctant to facilitate a secularly motivated legislature trumping a nonsecularly functioning society.32 There are of course great risks in the strategy, vividly illustrated in the case of Justice Chagla, who, as a Muslim, was vulnerable to the charge that his authority in such matters was doubtful on two counts—as a judge and as a non-Hindu. But militating against these risks was the oft-noted absence among Hindus of a structured ecclesiastical authority, whose rulings on religious “essences” might command a respect within the secular community (including judges) that would tend to deflate the temptation to engage in theological second-guessing.33 In contrast, the thought of even the most reform-minded of secularist judges in the United States questioning the religious significance of behavior that has been vouched for by ecclesiastical authority is scarcely imaginable.As a case in point, Justice William O. Douglas, in citing Bombay v Appa in some observations about Indian law, noted that “It comported with traditional concepts for the court to hold that bigamous marriages could not gain immunity from prosecution by being called a part of religion.”34 It was a case used appropriately by Justice Douglas to illustrate why “East and West often do not understand the other’s actions.”35
Here it is worth recalling the American Supreme Court’s declaration that “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” This observation marks the judiciary’s acceptance of the binding nature of Church authority in all questions of faith and doctrine. But whereas in the United States the sentiment generally supports judicial passivity, in India a quite different interpretation pulls judges in an opposite direction. With specific application to Hinduism, an Indian version of the statement might read: “The law knows no heresy for the simple reason that the very concept of heresy has little practical import here; it is committed to the support of no dogma, because there is no official dogma to speak of; and it is committed to the establishment of no sect, because the dominant religion in India can only be described as a multiplicity of sects.”36 In this spirit, Justice Gajendragadkar suggested in his concurrence in Appa that the validity of the personal laws in India does not derive from their having been enacted by competent authority. “The foundational sources of both the Hindu and the Mohamedan laws are their respective scriptural texts.”37 What is implicit in his position is what Derrett has argued in another context, which is that “[I]t was never the case that the sastra insisted upon one way.”38 This flexibility, then, leaves the interpretation of these texts legitimately open to all, especially the judges.39
Gajendragadkar was one jurist who seized this opportunity. In a critique of his work, Dhavan found that for this reform-minded judge, the “essential practices” test had an external as well as internal requirement, meaning that in addition to being integral to a religion, a practice would have to be shown not to be the product of superstition.40 This rationality requirement, which Dhavan fears now dominates the judiciary, is an important part of the direct effort to reformreligion in the name of social progress. No doubt there have been jurisprudential excesses in the pursuit of progress (for some perhaps best exemplified by Gajendragadkar), but the Constitution itself, by abolishing untouchability and requiring that Hindu religious institutions of a public character be open to all Hindus, rather clearly establishes the importance of reformist intentions in the framing of the document. 41 In the important temple entry case, Yagnapurushdasji v Muldas, Gajendragadkar dismissed the claim of a religious sect that its members were not Hindus and were thus outside the mandate of access requirements. He provided a lengthy explanation for why it is “difficult, if not impossible, to define Hindu religion or even adequately describe it.”42 But, he went on to say, “[W]e must inevitably inquire what are the distinctive features of Hindu religion.”43 The result, which for Gajendragadkar was to link the religion’s distinctiveness to the foundational commitment of the regime to social justice, produced misgivings for at least one authoritative observer as to whether it was appropriate for judges “to participate actively in the internal reinterpretation of Hinduism.”44
These misgivings can profitably be considered in the context of some firmly and widely held American views on Church/State relations. Ac- cording to Laurence Tribe, for example, “[T]he most clearly forbidden church-state entanglement occurs when institutions of civil government use the legal process in order to discover religious error or to promulgate religious truth.”45 From the opposite end of the political spectrum, Richard Epstein seems to agree: “It is one thing . . . for a religious institution to yield its traditions through internal change in order to keep the consent and the loyalty of the governed. It is quite another for outsiders to impose their own external standards of right and wrong on these bodies.”46 Tribe and Epstein share more than a familiar liberal suspicion of collective impositions of the good life; their reluctance to intervene in the internal affairs of religious groups also reminds us that the relative thickness of religiosity has constitutional implications. Thus in the United States the cost of not extending the antidiscrimination principle governing public policy to the religious sector is minimal, and outweighed in any case by the benefits associated with free choice and association. If women cannot become priests, that denial will have very little far-reaching social significance, entitling one confidently to conclude that liberal principles are eminently affordable.47 But indifference to the substance of religious belief is a much costlier indulgence when, as in India, it serves to legitimate an unjust status quo.
To be sure, Article 26 of the Indian Constitution protects religious denominations in their right “to manage [their] own affairs in matters of religion.” In this connection, “it was not intended to enable the legislature to ‘reform’ a religion out of existence or identity.”48 As a result, in Saifuddin the Supreme Court upheld the authority of a religious sect to enforce its view of the essentials of religion through the mechanism of ex-communication. In so ruling, the Supreme Court went out of its way to indicate that the State was not prevented from intervening in matters of religion to promote social welfare, although considering the details of the litigation (for example, those excommunicated lose their property rights), one could easily imagine this to be just such a case.49 However, the main lesson of this and related cases is that the Constitution is not a blanket endorsement of all reform efforts that may be politically contemplated, that even as it leans very heavily to accommodate such endeavors, the Constitution signals that competing interests may also have to be served.Inevitably, judges will disagree on how to weigh these interests; in the end, the balance struck will entail some revision of the American view that “ ‘religion’ must be defined from the believer’s perspective.”50
Incrementalism is thus part of the spiritual core of ameliorative secular-ism, reflecting the cohabiting reformist and conservative components of Indian national identity. Even if it were so disposed, “[A] state,” as Montesquieu points out, “cannot change its religion, manners, and customs in an instant.”51 The polygamy cases illustrate the dual character of this Indian incrementalism—its vertical as well as horizontal dimensions—by addressing the State’s effort to ameliorate social conditions within the majority community while not exacerbating regime-threatening tensions between communities. In outlawing plural marriages (however difficult establishing that fact would turn out to be) as part of its codification of Hindu law, the State left Muslims free to continue practicing polygamy.In light of the equal protection guarantee of Article 14, this discrimination presented the Court with an obvious and very important constitutional question, which it answered in the following way: “The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community wise.”52 In this answer the Court felt it was honoring the intent of the framers of the Constitution, who had aspired to a regime with uniform laws, but who had not wished to accomplish this goal at any price.53
“THE STATE SHALL ENDEAVOR”
For someone like Justice Douglas, well steeped in the American tradition of equal protection, this resolution was deeply perplexing.54 Indeed, Article 14 is phrased in the language of the Fourteenth Amendment of the American Constitution, an amendment that has never been permitted to tolerate such a blatantly discriminatory law. Some like-minded Indians entertain similar misgivings to those of Douglas, believing that “[P]ersonal law can have no place in a secular state.”55 They reject the Muslim-inspired position that was voiced at the Constituent Assembly, to the effect that “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.”56 If we reflect back on the American polygamy cases, the source of these reservations is clearly rooted in liberal constitutional principles requiring the subordination of religion to the civil law, albeit in the long-term interest of religion. The same constitutional logic that led to the Supreme Court’s denial of the Mormons’ right to an exemption from a law banning polygamy must raise doubts about the legitimacy of a system of personal law that treats groups of people differently. Soli J. Sorabjee has suggested that the main difference between India and the United States with regard to equal protection issues is that in India the source of discrimination has been religious personal law, whereas in the United States it has been the codification in state law of the prejudices of the powerful.57 In effect, the Mormon challenge to State authority represented a campaign to introduce a regime of personal law into a politically and philosophically inhospitable constitutional environment. The legal response to that challenge reflected not so much concerns about social justice—the equal protection violations within the Mormon community—as concerns over political justice—the threat to the equal protection concept engrained in a liberally constituted government of law.58
Had the Mormons been a more formidable presence in American society, such that the community for which their regulative culture had been designed made up a substantial minority of the American people, and had this community, in addition, confronted a rival constitutive culture comprising the vast majority of the American people, the Court’s response might very well have been different. Of course, under these conditions the American Constitution might also have been different. Perhaps, like the Indian Constitution, it would have included language of the following sort after its equal protection guarantee: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” This language from Article 15, with special emphasis on the word only, was relied upon by the Court in Appa to uphold the community-based distinctions in the Bombay law. Thus by itself religion cannot be a basis for discrimination, but if other reasonable grounds are implicated, the Constitution does not necessarily preclude differential treatment according to group affiliation. As applied by the Court to the issue of polygamy, “One community might be prepared to accept and work social reform; another may not yet be prepared for it; and Art. 14 does not lay down that any legislation that the State may embark upon must necessarily be of an all-embracing character.”59 This incremental approach is present also in Justice Gajendragadkar’s opinion: “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.”60
Somewhat obscured by the rhetoric concerning relative states of wel-fare preparedness are considerations of social comity. In today’s highly charged environment, in which the secular State is by many accounts under heavy assault from the forces of Hindu revivalism, deference to Muslim sensibilities over polygamy may engender passionate propaganda featuring India being overrun by the offspring of multiple Muslim wives.61 The ease with which the fears of the majority can be aroused and manipulated is most vividly illustrated by the aftermath to the Shah Bano case, in which the government’s efforts on behalf of Muslims upset by the Supreme Court’s treatment of Islamic law provoked cries of appeasement and ultimately violent confrontation. In this famous and extremely controversial case, the Supreme Court decided in favor of a Muslim woman, granting her maintenance from her divorced husband. Muslim personal law had not required this support, and the reaction among many Muslims was to condemn the Court for endangering Islam in India with the imposition of a uniform civil code. Prime Minister Rajiv Gandhi then supported legislation that effectively reversed the Court’s decision. While this gained him support within the traditional Muslim community, it enraged women, progressive Muslims, secularists, and Hindu nationalists. For the latter, the government’s response to Shah Bano became a rallying cry that was part of the climate that led seven years later to the destruction of the Babri Masjid mosque by Hindu militants, who claimed that this temple in the city of Ayodhya rested on the birthplace of the Hindu god, Lord Ram. Indeed, the connection between Shah Bano and Ayodhya is frequently, if not always accurately, drawn.62 Perhaps, then, it is easy to for-get that the original vision (and accompanying understandings) of the secular constitution had emphasized the rights and sensibilities of religious minorities (especially Muslims), to the point that the secular ideal of religious freedom came to be inscribed, paradoxically, in both the aspiration for a uniform civil code and in the implicit invitation to frustrate its realization.
The Shah Bano ruling is in this regard revealing. According to Chief Justice Chandrachud,“We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning.”63 This observation is accompanied by an exhortation to the State to exercise its “legislative competence” to enact a uniform civil code. Since, however, Chandrachud had already argued that the State’s criminal statute (requiring financial provision for a wife who is indigent) takes precedence over any conflicting Muslim personal law, and that, moreover, a correct interpretation of the Koran makes clear that the secular law of maintenance is consistent with the rules of the Shariat, this exhortation was somewhat gratuitous. The latter interpretation, another example of judicial theological exegesis, obviated the need to enforce the Court’s dictum that “moral-ity cannot be clubbed with religion.”64 In the process, the Court illustrated how the exploitative conditions of women could be ameliorated without secularizing the personal law of the minority community.65 Chandrachud’s actions undermined the persuasiveness of his rhetoric: for “the Constitution . . . to have any meaning” does not require that the civil law apply in the same manner to all communities. The delicate balance of the secular constitution’s dual commitment to social reform and the integrity of group religious life was achievable in the absence of legislation that, in the language of Article 44, “secure[s] for the citizens a uniform civil code throughout the territory of India.”66
The stakes in this balance are clearer if set against the backdrop of the American counterexample. In the United States, encroachment of religious identity upon the constitutive domain of political identity is, as has been argued, difficult to reconcile with the underlying premises of the secular constitution. In India, the constitutive domain of religion is, by the terms of the Constitution, open to encroachment by forces of political and social transformation; but the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity. Consistent with this solution, Kymlicka has urged the custodians of liberal regimes to acknowledge collective rights of minority cultural communities. His goal is to find room for the idea of group entitlements within the moral ontology of liberalism.67 “Cultural membership affects our very sense of personal identity and capacity.”68 What he presents as an option for liberal regimes as a way of enriching the freedom of choice possibilities for their minority citizens is embraced as a necessity in India’s secular constitution. To be sure, it is a cold embrace for advocates of major social reform, as historically it has meant legitimating much of the regressive and unattractive behavior that has inspired their outrage and sense of urgency.69
The alternative—accelerated implementation of the constitutionally stipulated goal of uniformity—runs the risk of undermining the frail consensus upon which even moderate reform is possible. The question confronting the Indian polity comes down, then, to one of determining how much of a risk to assume, of how strongly and how far to pursue the end of legal uniformity. But the question is not quite so straightforward, because those espousing the ameliorative aspiration are divided and uncertain about the significance of adopting a uniform civil code for the achievement of social progress. To further complicate matters, some of the social activists supporting Article 44’s directive have found themselves in the awkward position of agreeing with others’ proclamations on behalf of the downtrodden they believe to be at best insincere, and at worst a cynical ploy to advance the cause to which these “allies” are genuinely attached—the inauguration of a Hindu Rashtra. The ensuing confusion reflects the fact that, as Susanne Rudolph has observed, “The idea of a uniform civil code carries no single meaning,” that it “is what cultural critics would call a multivalent signifier.”70 Thus Nehruvian nationalists see the code as critical to the project of modernist national integration, and advocates of civil rights see it (with some dissention in the ranks, especially among champions of women’s equality) as vital to the expansion of opportunities for groups of people who have suffered under the regime of personal laws. At the same time, members of religious minorities—notably dominant members—perceive the code more ominously, viewing it as a threat to their cultural identity, while Hindu nationalists are suspected of welcoming it for that very reason, with the constitutionally defensible prospect of ending “special privileges” to minorities providing their leaders with potentially valuable political ammunition.71
The political ascendance of this latter group of course elevates the stakes surrounding the controversy over Article 44. While the fragility of the BJP’s governing coalition demands policy moderation, those suspicious of the intentions of the reigning agenda setters are likely to find only limited comfort in this political reality. Indeed, the requirements of coalition building could sensibly be viewed by such skeptics as contributing to their adversaries’ incentives for concealment. Thus they might anticipate hearing arguments for legal uniformity couched in a discourse that appeals to the natural inclinations of potential supporters of a code, namely broader national unity and enhanced civil rights. Absent would be the inflammatory rhetoric that often accompanies the Hindu right’s initiatives in political mobilization.72
Within a political context characterized by bad faith and mutual dis-trust, little of importance can form a basis for common agreement. A Hindu politician soothingly declares that “When the BJP talks of a uniform civil code it does not contemplate imposing the Hindu law on the country.”73 In response, a Muslim civil rights advocate challenges the speaker’s credibility, insisting that the “uniform civil code has been and remains a euphemism for Hindu law and a license for denigrating non-Hindu religions and personal laws, especially Islam and Islamic law.”74 A prominent spokesperson for the cause of Hindu nationalism invokes “the noble ideals which inspired our national struggle for freedom” as a rallying cry for replacing a system of personal laws that stands in the way of “the emancipation of and equality for women . . . that are clearly violated by these laws.”75 But this call for replacement, critics say, is a trans-parent ruse, one in which “[s]aving Muslim women from their oppression becomes the justification for not respecting the practices and beliefs of the Muslim community, and indeed, the basis for subordinating this community to Hindu rule.”76
Ideally the decisions made about a uniform civil code should not be predicated on the promises and suspicions of political adversaries. Instead they should be made only after attempting calculations of how fulfillment of the Constitution’s directive principle might affect progress in the achievement of ameliorative secular aspirations. To be sure, such calculations cannot ignore the stratagems and fears of the various contending interests, but neither can they rely too heavily upon them. For example, it may very well be that malevolent, or at least unfriendly, religiously based designs lie behind the BJP’s and their allies’ support for legal uniformity. Still, that would not ensure that any subsequent enactment of a uniform civil code would achieve the ends thought desirable by these proponents, or that a later assessment of the costs and benefits of codification would not yield acceptable results—and this despite the best intentions of some of its most ardent supporters. Thus reflection and debate over adoption of a uniform civil code, an arrangement that would supersede the existing personal laws of minority religious communities in India, should focus on a famous political question: Who gets what, when, and how?
A CONVERSION OF CONVENIENCE
The third prong of the question—the how part—is perhaps the most intriguing, for it highlights Article 44’s directing the State (which under the Indian Constitution refers specifically to the government and parliament) to endeavor to secure for its citizens a uniform civil code, while being silent with regard to the process through which to achieve it. What role should other non-State public institutions play—most prominently the judiciary—in securing the objective of the directive principle? The question of the Court’s involvement is clouded by uncertainty over its institutional role in connection with a constitutional provision that is unenforceable and basically hortatory in nature. In the United States, for example, the norm against giving advisory opinions was established as early as the administration of George Washington, and while it has not prevented justices over the years from occasionally tendering their unsolicited advice to other public officials, the rule has essentially weathered the test of time.It is premised on the requirements of Article III, which limit the federal courts to actual cases that are subject to the granting of meaningful relief through judicial intervention.77 That means enforcing constitutional limits where appropriate, as opposed to advancing constitutional goals to accompany advice on policies that may commend themselves to the judges, a practice that in the United States is nearly always inappropriate.But then there is no section in the American Constitution that is comparable to India’s in enumerating principles according to which “it shall be the duty of the State to apply . . . in making laws.”
That section’s nonenforceability could be seen as committing the Court to a totally passive interpretive role. But it seems odd to remove an entire part of a nation’s highest law from the purview of that nation’s highest court. Could it not instead be taken as an invitation to the Court to function as an official constitutional gadfly? After all, the constitutional assertion of nonenforceability in Article 37 is immediately followed by the declaration that “[T]he principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” Should the Court ignore this assignment of constitutional duty and in effect adopt a vow of silence on issues over which it has no power to enforce its judgments? With respect to Article 44, there is an indeterminate quality to the language of the provision—thus the State is not directed to secure a uniform civil code; rather it is enjoined to endeavor to do so. It must, in other words, make a serious and determined effort to unify the laws of the polity, which presumably could be done without ultimately producing any actual codification. It seems, then, entirely reasonable for the Court to opine on the question of the seriousness with which the State is pursuing the effort to unify the civil laws of India. While the explicitly nonjusticiable nature of the substantive issue relieves the State of any concern that it will be ordered to proceed with codification against its better judgment, the moral authority that the Supreme Court brings to its normal adjudicatory obligations arguably should weigh heavily in the process through which implementation of the directive principle is achieved. But there are substantial risks in doing so.
Consider the case of Sarla Mudgal v Union of India, a 1995 Supreme Court decision that concerns one of the ingenious ways in which Hindu men have endeavored to circumvent the ban on polygamous marriages. Under Section 494 of the Indian Penal Code, a Hindu who marries while still married to someone else is acting illegally, an act that could result in the voiding of the second marriage and the imprisonment of the guilty party. By contrast, the same restriction does not apply to Muslims, who are free, as we have seen, to have multiple spouses. This disparity in legal treatment since the Hindu Marriage Act of 1955 had led to a rise in the number of apostates in India, with many polygamy-minded Hindus having concluded that conversion to Islam had at least one substantial virtue—the possibility of enjoying marital bliss with more partners than one. Among the resulting difficulties with this arrangement is that many loyal first spouses—loyal, that is, to Hinduism—understandably felt diminished by the more widely distributed bliss.
Their plight was given sympathetic consideration by the Court, which ruled decisively in favor of the non-Muslim spouse. Accordingly, the second marriage of a Hindu husband converted to Islam was held to be invalid.78 The Court’s emphatic rejection of the apostate’s legal position was grounded in a ringing affirmation of the institution of marriage. “Marriage is the very foundation of the civilised society. . . . [It] is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.”79 Using an abundance of precedents and a close analysis of the relevant statutory law, Justice Kuldip Singh’s opinion for the Court proceeded quickly to the conclusion that a Hindu marriage solemnized under the Hindu Marriage Act could not be dissolved on the basis of a conversion-facilitated second marriage, and that the logical result of taking seriously the Act’s support for monogamy was invalidation of the Muslim marriage.80 If a Hindu husband wishes to embrace Islam and then marry again, he must first dissolve the earlier marriage in accordance with legal requirements (cumbersome though they are) provided for Hindus seeking a divorce. The importance attached to this find-ing was underscored by Justice Singh’s assertion that the Court’s conclusion was dictated by “the rules of natural justice.” So while it was clear that both positive law and stare decisis were sufficient to support the Court’s decision, it was possible also to void the bigamous marriage as a violation of “justice, equity, and good conscience.”81
Sarla Mudgal quickly became very controversial in India, but not because of the Court’s ruling on the substantive merits of the case. Unlike Shah Bano, the decision was not burdened by judicial excesses of theological exegesis, and the loophole-closing outcome was widely seen as reasonable. 82 But as in the earlier case, the facts and issues in Sarla Mudgal presented the judges with an opportunity to advise the State on the urgency of adopting a uniform civil code. Justice Singh did not let the opportunity pass; indeed his opinion makes the dictum in the 1985 case look timid by comparison. Thus it commences not with a reference to the facts of the case at hand, but with a straightforward assertion of constitutional responsibility. “‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’ is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law—a decisive step towards national consolidation.” 83 A mention of the Hindu Code statutes of the 1950s follows, and next a sweeping declaration brings the opening paragraph to a close. “When more than 80% of the citizens have already been brought under the codified personal law 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.”84
However, as had surely been clear for some time, it was not only Indians from among the 20 percent of the citizens beyond the reach of the majority’s codified personal law who would demur from the certainty of categorical pronouncements of this sort. For example, the eminent jurist (later attorney general of India) and scholar Soli J.Sorabjee wrote in response to the Court’s decision: “It is unfortunate that the Supreme Court made these needless observations in the first place. It is more unfortunate that thereby an avoidable controversy was generated and political parties, especially the BJP, jumped into the fray to secure political mileage. . . . The moral of the episode is: where sensitive constitutional questions do not arise for determination, judicial silence is not an option but a constitutional compulsion.”85 Sorabjee’s mention of “needless observations” referred to the feature of the Court’s opinion that attracted the most criticism—the obiter dicta status of its importuning on the subject of a uniform civil code. His allusion to the BJP referred to that party’s publicly expressed satisfaction in what its spokespeople portrayed as the Supreme Court’s “directive” to the government to enact such a code, and their determination to feature it in the party’s electoral campaigns. Finally, his articulation of the correct moral embedded in the story—the requirement of judicial silence—engages a familiar theme in contemporary constitutional theory, the possible damage to democratic institutions caused by an overextended and obtrusive judiciary.86
The insistence on silence in the face of constitutionally inscribed direction is unconvincing. Consistent with the moral of Sorabjee’s story, Tahir Mahmood has contended that the “[s]lightest chance of intended obiter being misunderstood or abused is a reason mighty enough to avoid it altogether.” The concern behind this sentiment is clear. “Any idea or expression that can be pounced upon for its political overtone or cashed in by the communalists must never find a place in a court judgment.”87 In effect, then, the possibility of subsequent political mischief constitutes an argument for judicial muteness. Not reticence, or prudence, or caution, but absolute quiet. Yet embracing that argument would establish an unfortunate precedent, basically holding the Court hostage to the designs of others and potentially legitimizing a formula for judicial paralysis. To be sure, it is regrettable that the BJP portrayed the decision in Sarla Mudgal as directing the government to enact a uniform civil code when in fact what the Court said was quite different, specifically: “We . . . request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution and ‘endeavour to secure for the citizens a uniform civil code throughout the territory of India.’”88 Must the Court censor itself in order to avoid its words being distorted in such blatant a fashion?
In a concurring opinion, Justice R. M. Sahai presented his own obiter dicta in the form of a response to Justice Singh’s advice to the government.His argument included the familiar alternative in the Article 44 debate, namely that the achievement of a single code should not be attempted in the absence of the appropriate social and political climate. “[T]he first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with the Minorities Commission examine the matter.”89 This is an entirely reasonable point of view, but it can also be seen as playing into the hands of those within the Muslim community (and perhaps others as well) who wish to preserve the status quo, especially with regard to gender relations. Confident that they will be able to prevail over reformers within their religious group, they can be expected to find encouragement in a formulation of the problem that enables them to maintain indefinitely (for that is how a counsel of delay is likely to be read) the autonomy of their extensively accumulated corpus of personal law. Thus this part of the concurrence is equally susceptible to tendentious misreading and distor-tion, which under the logic of the Sorabjee teaching reduces it to a judicial intervention that would have been better left unsaid.
More productive than focusing on the appropriateness of pronouncements by judges on matters not directly before them would be to address the question of how the uniform civil code promises to advance the secular constitutional agenda of social amelioration. In this connection both of the opinions in Sarla Mudgal are disappointing. Repeating an argument from Shah Bano, the main opinion asserts the truism that a common civil code will help the cause of national integration. But the opinion fails to explain why a nation that achieves greater unification under a common set of laws is better off than one that does not. Is there a connection between uniformity and social justice? The concurrence answers affirmatively, insisting that “[A] unified code is imperative both for protection of the op-pressed and promotion of national unity and solidarity.”90 But other than emphasizing that this relationship holds only if a process of rationalization within the minority communities precedes it, scarce light is cast on the question. Indeed, its point of emphasis could cause one to question whether the aggregate of progressive reform within the various religious communities would not be preferable to a single progressive system of civil law that treats all individuals uniformly. In other words, why not prefer a solution that satisfies cultural pluralists at the same time that it promises fulfillment to proponents of social justice? As Susanne Rudolph has noted, “India is heir to dual legal and political traditions, one making individuals the basic unit of society and polity and envisioning a universal and equal citizenship, another positing groups as the building blocks of society and polity with particular rights attaching to collective entities.”91
Oddly, the significance of this duality appears to have eluded the reasoning of Justice Singh. The problem resides not in his strong recommendation for adoption of a uniform civil code, but in a serious misconstruction of Article 44 that bespeaks a broader failure of imagination regarding how one might conceptualize legal uniformity in the Indian context. Consider the following passage from his opinion.
Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like, have all a sacramental origin, in the same manner as is the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration; some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India.92
Justice Singh was of course correct that a necessary connection between religion and personal law is not a defining attribute of civilized society.While the first sentence implies that there could be such a connection (even if it is not necessary), the second puts forward the notion that, as far as India is concerned, a radical separation of religion and law was critical to the idea of civilized society. In the Court’s view, the secular ideal embedded in Article 44 sunders religion and social relations. Moreover, much of this ideal has been realized in the codification of Hindu (and Sikh, Buddhist, and Jain) law, in which the religious origins of personal law were apparently transformed into a subject of chiefly antiquarian interest. 93
But this conceptualization of the secular ideal in India is, as we have seen, grossly misplaced. “[T]he concept of ‘secular’ versus ‘religious’ may be valid in theWest, but comes up against unexpected difficulties in India, where the two main religious communities profess . . . a religion which does not consider worldly or practical questions to be distinct from religion. No definition of Islam or Hinduism . . . could proceed on the assumption that the family regime was not ultimately a religious question.” 94 When Radhakrishnan declared, “I want to state authoritatively that secularism does not mean irreligion,” he spoke for the vast majority of his fellow constitution-makers. Understanding how deeply embedded the religious experience was in the lives of most of their compatriots, they sought to address the tensions between the temporal and the spiritual with a mix of solutions that implicitly or explicitly presumed the inextricability of the two spheres.
Justice Singh could presumably respond to such observations by point-ing out that the Constitution’s reference to a uniform civil code appears in the section of the document strictly devoted to goals and aspirations, which is to say, to the future. Thus when thinking about either the past or the present, a divesting of religion from social relations might very well indicate a worrisome detachment from reality, but given the futuristic orientation of the Directive Principles, imagining the eventual secularization of Indian society is at least plausible.95 But Justice Singh contends that the adoption of a uniform civil code is long overdue, therefore implying that divestiture is a possibility today. If so, what is the evidence? Have important sectors of society been removed from the domination of religious institutions and symbols? In his opinion he writes of “[m]arriage, succession and like matters of a secular character.” Does he mean this in a normative or empirical sense? If the former, then the act of codification will help transform these areas of family life into appropriately secularized activities; if the latter, then compliance with Article 44’s directive will only confirm, clarify, and help to organize an existing reality.
In either case, Justice Singh may be faulted for not providing more argument and evidence for his less than obvious conclusions. This is particularly regrettable, since the logic of his reasoning affects the enjoyment of rights under the enforceable provisions of the Constitution’s Fundamental Rights section. It is significant, for example, that these “matters of a secular character cannot be brought within the guarantee enshrined under articles 25, 26, and 27.” In his determination to maneuver religion to the margins and interstices of the social order, Justice Singh has withdrawn matters that have (at minimum) a sacramental origin from the protective ambit of constitutionally guaranteed religious freedoms. But there is more. Because under the Constitution freedom of religion is always subject to State regulation on grounds of social welfare considerations, the effect of such a withdrawal is ironically to constrain the ameliorative authority of the government in the more targeted efforts it might undertake in pursuing social equity.96
Does this mean that Article 44 is unrealizable as well as unenforceable?Are the only viable alternatives either the passage of a uniform civil code on the basis of empirical assumptions that are unproven and seemingly at odds with a booming politics of cultural and religious assertiveness or the acceptance of the regime of communally based personal law that in time might reform itself through an internally generated dynamic of moral criticism? The Court’s opinion does indeed present us with this option for social advancement, a choice subsumed within competing remote possibilities—Western separationism and indigenous communalism.97 In so doing it perhaps obscures a third possibility: enactment of a uniform civil code that does not expend political capital in seeking to divest religion from social relations, but rather deploys it to mandate uniform standards without requiring uniform behavior. Such a possibility is consistent with the underlying premises of ameliorative secularism, both its commitment to social transformation and its accommodation to the demands of a thickly constituted religious presence. This is what is so attractive about S. P. Sathe’s contention that a uniform civil code “does not necessarily mean a common law but different personal laws based on uniform principles of equality of sexes and liberty for the individual.”98 By shifting the focus from the goal of formal legal equality to that of substantive rights, Article 44’s mandate assumes a meaning much more congruent with the fundamental suppositions of Indian constitutionalism. It also enriches the meaning of national integration, which should look much more attractive when it comes to be associated with the acceptance and enforcement of shared principles of social and political justice rather than the blanket imposition of a set of common rules.
CONCLUSION
“None of this had to be spelled out, no explicit orders given; people simply seemed to adjust naturally to an immutable pattern of expectations, where everyone knew his place and understood what he had to do.”99 This was the reaction of the Indian novelist and diplomat Shashi Tharoor upon returning to his grandmother’s house in rural Kerala after spending most of his childhood years growing up in relatively cosmopolitan Bombay. Tharoor was reflecting on the “complicated hierarchies” of age, gender, and caste that seemed to be taken for granted by everyone. The first two were easy to comprehend, even if life in the big city, where his mother “could hold her own at a Bombay party with a cocktail in her hand,” had made the second seem to him less natural. But the entrenched discrimination of caste still pervaded the progressive state of Kerala, leaving Tharoor, who had not witnessed and experienced its “enshrined bigotry” in such a powerful way in the urban India with which he was most familiar, profoundly disturbed. Much as he wished he could deny it, the persistence of casterelated inequality was an unsettling reality fifty years after the inception of constitutional democracy.100
Inherent in the strand of ameliorative secularism that is prominent in Indian public law is a challenge to this threat to constitutional democracy. For democratic politics to work, the baneful effects of rigidly deterministic social hierarchy would have to be addressed. The constitutional solution was multipronged, reflecting the reality of caste as a phenomenon much broader than what might be subsumed under the specific concerns of secularism. For example, the Constitution’s explicit commitment to castedriven affirmative action accepts the existential fact of entrenched social segmentation without regard to its religious or secular character and origin. On the other hand, the broadest application of the term caste, in which, as Cass Sunstein has argued, any systematic social disadvantage attributable to morally irrelevant and highly visible differences would qualify, has a very obvious connection to a religious presence in India that is pervasive and deep. Tharoor’s depiction of an “immutable pattern of expectations,” particularly as this speaks to the question of gender relations, could very easily have led him to an extended rumination on the subject of religion and society.
The ameliorative aspiration is a constitutional commitment to diminish the social significance of caste in both its narrow and broad incarnations. The latter is in certain respects a much more difficult problem. The Constitution is explicit in its opposition to the vertical, hierarchical distinctions of caste, what Marc Galanter calls the “sacral viewof caste” (i.e.,Hinduism’s varna-based gradations).101 While this view has been “disestablished,” the document’s tolerance of “horizontal distinctions,” in other words, its recognition of the claims of religious denominations that are not related to sacral ordering, makes for a much more complicated picture with regard to the broader conceptualization of caste. Within the protected spheres of group denominations are laws and norms supporting patterns of expectation that over time have acquired the attribute of immutability. What we have seen in this chapter are some of the vexed constitutional questions surrounding the efforts of Indians to transform this seemingly natural attribute into an artificially constructed phenomenon that can more easily accommodate the demands of democratic social reform.
These efforts continue in the midst of political changes that present additional challenges to the project of constitutional secularism. The ascendance of the Hindu nationalist movement to the point where it occupies a predominant position in the coalition that governs the nation requires that we focus on some of the questions that this development has stimulated in connection with the essential commitments of Indian secularism. In part 2 I try to demonstrate that this challenge also offers an opportunity to sharpen and clarify our understanding of these essentials.
1 McCollum at 101.
2 One qualification to this is perhaps in order. Cass Sunstein has forcefully argued that constitutional democracies are strongly committed to “the anticaste principle,” which “for-bids social and legal practices from translating highly visible and morally irrelevant differences into a systematic source of social disadvantage, unless there is a very good reason for society to do so.” Sunstein 2001, 155. Obviously the principle has application to the United States, so in this sense there is a constitutional commitment to social reconstruction. But it is still worth distinguishing between polities where this commitment is part of the fundamental nature of constitutional democracies and those where it is more explicitly a part of the specific essence of a given regime.
3 The Constitution makes a distinction between individual and collective freedom of religion. Under the latter heading all religious denominations have the right to manage their own affairs in matters of religion (Article 26). In addition, all minorities, religious and linguistic, have the right to establish and administer educational institutions of their choice (Article 30). Elsewhere, too, special provisions are included to address the particular needs of scheduled castes and scheduled tribes. And in Article 48, as one of the Directive Principles of State Policy, the State is urged to take steps to prohibit the slaughter of cows—a clear singling out of the Hindu population for special consideration.
4 Tocqueville 1962, vol. 3, 537.
5 A helpful contrast might be made here with the approach taken by Justice Robert Jack-son in his famous opinion in the compulsory flag salute case. Jackson reminded his readers that the applicable principles “grew in soil which also produced a philosophy that the individual was the center of society.” Barnett at 640. He then reflected on the need to protect individual rights in a different soil, in which the principle of noninterference no longer held sway. For the Indian judge, functioning within a legal culture where individualism was not rooted in the native soil, much greater sensitivity to group-related pressures was required.
6 Dhavan 1987, 230.
7 On this point see Ravinder Kumar 1987, 34.
8 The significance of this presumption becomes clearer if considered in light of this observation by Harvey Mansfield Jr. about modern constitutionalism. “The subordination of state to society . . . is the main truth of constitutional government, which is shared by liberals, conservatives, and even radicals, despite the various pet projects of intervention in others’ liberties cherished by all three parties. That these projects are known as ‘intervention’ indicates the general expectation that government be limited.” Mansfield 1987, 3. Mans-field’s point is that there is a general presumption in constitutional polities against the legitimacy of state intervention. A criticism that could be made of the prominent restrictive clauses in the Indian Constitution is that they reverse this presumption and thus threaten the viability of constitutional government. For some, no doubt, the plausibility of the criticism is rendered more obvious if Indian national identity is too closely associated with an ambiguous agenda of social reconstruction.
9 Mitra 1989, 107.
10 Van DerVeer 1994, 23.
11 See Ninian Smart 1989, 28; and Anthony D. Smith 1991, 114.
12 On the “contested meanings” of Indian national identity, see Varshney 1993, 227. Of course, not all of these meanings can plausibly apply to a constitution designated as secular. A major point of Varshney’s essay is that “[S]ecularism, the ideological mainstay of a multi religious India, looks pale and exhausted.” Ibid., 227. Thus should Hindu nationalism ultimately prevail, an outcome that can no longer be casually and confidently dismissed, the secular constitution would quickly turn into a phenomenon of largely antiquarian interest. The real choice, then, as far as secularism in India is concerned, is encapsulated in T. N. Madan’s alternative vision: “[I]t should be realized that secularism may not be restricted to rationalism, that it is compatible with faith, and that rationalism (as understood in theWest) is not the sole motive force of a modern state.” Madan 1987, 754.
13 For some this ameliorative solution entails an inherent contradiction in India’s concept of secularism, a contradiction embodied in its “simultaneous commitment to communities and equal citizenship.” Rudolph and Rudolph 1987, 38. Marc Galanter describes the constitutional commitment as including three principles: “1) a commitment to the replacement of ascribed status by voluntary affiliation; 2) an emphasis on the integrity and autonomy of groups within society; 3) a withdrawal of governmental recognition of rank ordering among groups.” Galanter 1966, 289. Unlike the Rudolphs’ view, Galanter sees these commitments less as a contradiction and more as a legal balance between the commitment to a substantial transformation of the social order and respect for the integrity of groups. Ibid., 310.
14 Nandy 1988, 179.
15 See Heimsath 1964, 14.
16 Government of India Press 1967, vol. 2, 146.
17 However, as many commentators have pointed out, the statutory outlawing of plural marriages provided easily exploitable loopholes that have rendered the ban less effective than the text of the law might suggest. Thus as interpreted by the courts, proof that a second marriage was bigamous is a very difficult matter to establish under the law. It requires the testimony of witnesses who will certify that all rituals of the Brahminic religious ceremony were performed and scrupulously adhered to, which, given the elaborate details of tradi tional practice, often proves impossible to demonstrate. As a result, what appears initially to be a case of bigamy turns out to be, at best, an instance of adultery.
18 Appa 1952.
19 Ibid. at 86.
20 Ram Prasad 1957.
21 Appa at 86.
22 Ram Prasad at 413.
23 The last thing I would seek to do is offer an opinion on this question. That it is, how-ever, a complicated question is suggested by the fact that polygamy in India has persisted from Vedic times down through modern independence. Kapadia 1966, 7. It is pointed out that while the Vedic ideal of marriage favored monogamy, polygamy was socially approved. A. K. Sur mentions in his study of Indian marriage that there have been periods in Indian history where polygamy was widely practiced. He calls attention to the Mahabharata , where Krishna is said to have had 1,016 wives and, in another place, 16,000. Sur 1973, 49–50.Hindu scriptures do indeed indicate that the need for progeny is the only reason for the institution of marriage. That any of this supports the view that plural marriage is integral to Hinduism is by no means obvious. But that it would be easy to generate a passionate argument over the matter is pretty obvious.
24 Ram Prasad at 414.
25 The question of the role of the courts in India will receive much more attention in part 2. With regard to the formal constitutional status of the Indian Supreme Court, the following details are worth keeping in mind: (1) The Court consists of a chief justice and a maximum of twenty-five additional judges. (2) The president of India appoints all judges, but is obligated to consult the chief justice and is encouraged to consult with others on the Supreme Court and the High Courts in the states. (3) There is a mandatory retirement requirement for judges reaching sixty-five years of age. (4) The Supreme Court has considerable original jurisdiction, including over disputes between the government of India and any state, and with regard to the issuance of writs for the enforcement of Fundamental Rights. (5) The Supreme Court has advisory jurisdiction, upon request of the president, to issue opinions on questions of law or fact on questions of “public importance.”
26 Derrett 1968, 447. Derrett is not alone in raising such concerns. See also, Galanter 1989, 249; and Dhavan 1987, 223–4. There is also this comparative assessment: “Although the Indian Court has adopted the American and Australian concept of free exercise of religion, it has considerably curtailed the freedom to profess, practice, and propagate religion.The freedom has been further curtailed by the Indian courts by propounding the view that the Constitution protects only such religious practices as are an essential and integral part of a religion.” Srivastava 1992, 313. While the adoption of the American approach is more complicated than Srivastava suggests, his reference is helpful in reminding us of the American reluctance to intrude into theological disputes.
27 Interview with the author, March 10, 1999, New Delhi.
28 An Israeli political philosopher has argued that “[I]t is not inconsistent to grant immunity to practices when they are conducted as part of religious life, while at the same time to prohibit those very same practices when they do not reflect components of such a way of life.” Harel 1996, 118. As we have seen with the American case (and will revisit in the concluding chapter), much here depends on what one means by a “liberal perspective.” Thus some who consider themselves liberals would not be comfortable making such theological distinctions and granting immunity accordingly.
29 One must, however, give very serious consideration to the very reasonable concerns about the Court’s involvement in the reform of Hinduism that have been raised by Marc Galanter. “Is the Supreme Court a forum for promulgating official interpretations of Hinduism? Is it a Supreme Court of Hinduism?” Galanter 1989, 252. Galanter points out the various reasons why judicial activism is appealing to the “educated reformist elite,” chief among which is the goal of achieving national unity in the face of the diffuse and fragmented character of Hinduism. With unity may come modernity; hence the hope that judicial intervention, in which the Court serves as spokesperson for the religion as a whole, “will have a salutary unifying as well as reforming influence.” Ibid., 252. His doubts center on the capacities of commonlaw judges to perform this role well, and on the nonself-evident assumption that the unification of Hinduism (even if attainable) would lead to national integration. “The successful breaking down of Hinduism’s capacity to generate and tolerate internal differences may well lessen India’s capacity to sustain pluralist democracy.” Ibid., 255.
30 Constituent Assembly Debates 1989, 507–8.
31 Appa at 88.
32 Neera Chandhoke’s distinction between “secular states” and “secularized societies”(1999, 81) bears upon this jurisprudential question. Judges who function in a context in which a secular state is in effect surrounded by a nonsecularized or deeply religious society may not feel as free to ignore theological questions as their counterparts who adjudicate in secularized societies.
33 Donald Smith’s work emphasizes the absence of coherent ecclesiastical structure in India. He develops a distinction between “organic” and “church” models of religiopolitical systems, with Hinduism falling within the first category. Smith 1970, 8. His argument is that Hinduism lacks effective organizational strength to reform itself, thus necessitating state intervention. See Smith 1963, 231; Caldorola 1982, 39; and Galanter 1998, 237. This is also the argument of N. J. Demarath and Phillip E. Hammond, who, following Weber, suggest that “Both Judaism and Catholicism (together with another Jewish offshoot, Islam) [and unlike Hinduism] have highly developed organizational forms as a way of fulfilling the mandate for aggressively ascetic action in the interests of large-scale social change.” Demarath and Hammond 1969, 50.
34 Douglas 1956, 316.
35 Ibid.
36 George Bernard Shaw once commented that “Hinduism is so elastic and so subtle that the profoundest Methodist and the crudest idolators are equally at home in it.” Quoted in Srivastava 1992, 22. That of course is a caricature, but its basic point about the heterodox character of Hinduism is a familiar one among students of India. For example, Max Weber noted that “the concept of ‘dogma’ is entirely lacking” in Hinduism.Weber 1958, 21. More authoritatively, particularly in relation to the law, is Derrett’s observation that “Religious affiliation is not a question of an individual’s belief, for on that footing he is free to believe or not believe in anything he likes, but of a social belonging.” Derrett 1968, 58. More recently, Lloyd and Suzanne Rudolph point out that “The Hinduism of the ‘Hindu majority’ encompasses diversity of gods, texts, and social practices and a variety of ontologies and epistemologies. Without an organized church, it is innocent of orthodoxy, heterodoxy, and heresy.” Rudolph and Rudolph 1987, 37.
37 Appa at 90.
38 Derrett 1968, 559.
39 Not all Indian judges agree. As one current member of the Court pointed out in an interview with the author: “I’m with the American judges. We should not discuss essentials.” Interview with Justice Sawant, March 3, 1999, New Delhi. His position makes sense in connection with another of his observations. “There cannot be a general reform movement as far as religion is concerned. . . . The reform movement has to come from the religions themselves.”
40 Dhavan 1987, 224. Off the Court, Gajendragadkar wrote: “Whether or not polygamy should be allowed, what should be the line of succession, what should be the shares of different heirs, what should be the law of divorce, are matters which should be determined not by scriptural injunctions, but by rational considerations.” Gajendragadkar, quoted in Baird 1981, 434.
41 The question arises, however, as to what form these reformist intentions were expected to take. Vinit Haksar has called attention to the argument that a secular state should not be in the business of directly interfering with a religion in order to reform it. “However, it should be allowed to use principles of justice such as the principle concerning the amelioration of the lot of the worst off, even though a by-product of the implementation of such principles may be that certain religions will change in order to conform to the law. So it could permit temple entry of untouchables, in order to help the untouchables, without going into the question of whether untouchability is an essential part of Hinduism.” Haksar 2001, 80. But more difficult would be instances where the Constitution is silent, leaving judges with the responsibility of assessing legislative encroachments on religion according to the social welfare provision of Article 25. Invoking Rawls’s difference principle in such a context would not eliminate the jurisprudential advantage implicit in the application of an essential attributes of religion test. Thus ameliorating the lot of the worst off may be seen to have a clearer path if it does not cut through the heart of essential religious observance and practice.
42 Yagnapurushdasji at 513.
43 Ibid.
44 Galanter 1989, 251.
45 Tribe 1988, 1232.
46 Epstein 1990, 402.
47 Cass Sunstein might not think so. He has forcefully argued that religiously based sex discrimination does have far-reaching social significance in the sense that it inculcates values and norms that violate the anticaste principle essential to constitutional democracies. His conclusion: “If within-group deliberation promotes second-class citizenship for some, or contributes to the maintenance of a system with caste-like features, there should be no constitutional obstacle to reasonable efforts to supply correctives. Hence measures that attempt to promote sex equality by prohibiting discrimination within religious institutions should not be ruled entirely off limits.” Sunstein 2001, 218. Without taking issue with his specific conclusion, a comparison with a place—India—where caste, rather than “caste-like features” is the historic reality, makes clear that among constitutional democracies there is a significant range in the extent of the costs involved in accommodating religious discrimination.
48 Justice Ayyangar concurring in Saifuddin at 875.
49 An important constitutional issue in India involves the distinction between management of the property of a religious denomination and administration of religious matters.Dhavan’s view is that there has been a “virtual takeover of the management of religious institutions.” Dhavan 1987, 230. If there has, then Donald Smith, writing in 1963, will have been proven correct when he suggested that a “broad conception of corporate freedom is not recognized by the Constitution of India.” Smith 1963, 247. Smith argues that this freedom presupposes the existence of well-organized churches, although Indian courts have tried to be protective of religious autonomy in connection with church endowments.
50 Tribe 1988, 1181.
51 Montesquieu 1966, vol. 2, 52.
52 Appa at 87.
53 Austin’s analysis of the debates in the Constituent Assembly leads him to conclude that the placement of the provision for a uniform civil code in the nonjusticiable part of the Constitution was done largely to calm Muslim fears. Austin 1966, 80. By placing it among the Directive Principles, its realization was to be contingent upon legislative, that is, political discretion. This is not inconsistent with Srivastava’s account of the Assembly debates in which, contrary to Muslim sentiment, the prevailing view was that the State should not be incapacitated in being able to legislate on any matter covered by the personal laws. Sriva stava 1992, 242. Somewhat less convincing is his conclusion that “The recognition of heterogeneous personal laws, which tend to perpetuate social and religious division, is against the letter and spirit of the Constitution.” Ibid., 263. Or at least this is a much more complex matter than is suggested by the comment. The dilemma confronting the framers was the same as that depicted by Varshney in his reflections on the contemporary scene. “Should the various religious groups in India be under a common civil code or under their distinctive religious laws? If secular nationalists claim that separate personal laws destroy national unity, they generate a reaction in the religious community whose personal laws are at issue. If, on the other hand, they promote personal laws on the argument that such concessions make minorities secure, they set off a reaction in the majority community that the state may have gone too far in minority appeasement, opening up fissiparous tendencies and undermining national unity.” Varshney 1993, 238. Bhikhu Parekh has expressed similar concerns, worrying that the goal of uniformity “might become an unwitting instrument of avoidable disorder.” Parekh 1992, 540.
54 Douglas 1956, 316.
55 Chatterji 1984, 223.
56 Mahboob Ali Baig Bahadur, as quoted in Baird 1981, 404.
57 Sorabjee 1990, 103.
58 It is rare that one encounters judicial sentiments in the American context that challenge this orthodox liberal constitutional view. One exception may be found in the dissenting opinion of Justice Frank Murphy in a case involving the application of the Mann Act to some Mormons who had transported their several wives across state lines. “We must recognize . . . that polygyny, like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears. It is equally true that the beliefs and mores of the dominant culture of the contemporary world condemn the practice as immoral and substitute monogamy in its place. To these beliefs and mores I subscribe, but that does not alter the fact that polygyny is a form of marriage built upon a set of social and moral principles. It must be recognized and treated as such.” Cleveland at 26.
59 Appa at 87.
60 Ibid. at 95.
61 See Thakur 1993, 649.
62 Evidence for the connection continues to mount. Thus on June 13, 2001, the Union home minister, L. K. Advani, appeared before the Liberhan Commission, formed to inquire into the demolition of the Babri Masjid mosque in Ayodhya. Advani, of course, had been one of the principal organizers of the Ram temple agitation that had preceded the events on December 6, 1992. In his testimony before the Commission, Advani said that it was Prime Minister Rajiv Gandhi’s vote bank politics that forced the BJP to join the temple movement. “The Supreme Court judgment in the Shah Bano case was reversed to appease the Muslim vote bank. And in order to appease the Hindu vote bank, the unlocking of the temple gates and shilanyas were allowed.We had no chance but to join the movement to fight the politics of the vote bank.” Quoted in Frontline 2001. Advani’s comment proves only that Shah Bano and its aftermath have come to serve as a rationale for the Ayodhya campaign, but that in itself is important in considering the constitutional politics surrounding these events.
63 Shah Bano at 954.
64 Ibid. at 948.
65 Chandrachud’s opinion recognizes this but concludes that it is not a sufficient response to the injustice in the system. “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. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.” Ibid. at 954. While the argument here may be taken as a plea to the legislature to relieve the courts of the burden of judicial activism, it is more likely that it was intended as an expression of frustration at the incremental pace of social reform.
66 This does not mean that, at least theoretically, there could come a time when this dual commitment could be better realized with the uniform codification of all law. But the constitution- makers seemed aware of the fact that this was, at best, a very long-term project.Krishna Prasad De cites the example of Turkey to illustrate by comparison how inadequate is an Indian commitment to secularism that maintains a system of personal laws. De, 1976, 131. The contrast is useful in distinguishing what I would call reformist secularism from the ameliorative secularism that best captures the Indian situation. But it also seems to pass too quickly over critical differences between the two countries. Marcie J. Patton, for example, points out that the Kemalist reforms embraced by the Turkish Constitution denied recognition to those groups that were threatened by the secular national project in nation-building.Patton 1995, 140. Perhaps this was possible in Turkey, but it is unimaginable as a solution for independent India. See also Nur Yalman’s consideration of “[t]he cultural revolution in Turkey . . . as an early example of radical social and political reform in this hectic century.”Yalman 1991, 241. Prasad’s point about personal laws also fails to mention an important factual difference mentioned by Yalman. Turkey is a country that is 99 percent Muslim.
67 Kymlicka 1989, 140.
68 Ibid., 175.
69 Tolerating intolerance would seem to be inevitable in any system that provides real autonomy for groups in the governance of their adherents.We have already seen with regard to governance in matters relating to religion that the secular constitution in the United States tolerates all sorts of departures from the norms associated with public law-making. How-ever, with the partial exception of Native Americans, there is no autonomous rulemaking authority conferred upon groups in matters of civil and criminal law. Formal equality takes precedence over a commitment to diversity that must entail some measure of infringement of individual rights. Kymlicka’s argument is weakest in this regard. His advocacy of collective rights assumes that the groups exercising these rights will abjure intolerance. “[S]up-porting the intolerant character of a cultural community undermines the very reason we had to support cultural membership—that it allows for meaningful individual choice.” Ibid., 197. But if that is a reason for calling off the experiment in collective rights, it is hard to see where it would take hold. Surely Kymlicka’s principle would deny a regime of personal laws in India, but even in the United States, where religious cultures are much “thinner,” the prospects for tolerance would doubtless be disqualifying.
70 Rudolph 1998, 20.
71 A comparable American example may be found in the constitutional debate over sexual orientation. In Romer v Evans a state constitutional amendment nullifying local protective ordinances for homosexuals was successfully challenged in the Supreme Court. Justice Antonin Scalia argued in dissent that “The amendment prohibits special treatment of homosexuals and nothing more.” Romer at 638. His position was that rights were already protected under general civil rights law (in effect a uniform civil rights code). Moreover, he saw nothing wrong with an amendment that expressed “animus” toward morally questionable conduct, a position that could be seen as connecting the constitutionally based argument over equality with political developments outside the courtroom.
72 Tahir Mahmood expresses very well the sentiments of the skeptical partisans of minority rights. “When politicians and political parties search for ‘election issues’ in the ideals of the Constitution, the communal overtones of their selectivity in the matter are bound to prejudice those ideals and create insurmountable hurdles in the way of achieving those ideals by appropriate means.” Mahmood 1995, 136.
73 Lal Krishna Advani, as quoted in Ibid., 135.
74 Ibid., 137.
75 Shourie 1997a, 136.
76 Kapur and Kossman 1995, 106.
77 Article 143 of the Indian Constitution provides explicitly for an advisory role for the Supreme Court. At any time that the president wishes advice with regard to a question of law or fact on a matter of public importance, he or she may refer the question to the Court for its consideration.
78 The Court could rule on this question because a matrimonial dispute between a convert to Islam and his or her non-Muslim spouse was not subject to the jurisdiction of the Muslim Personal Law.
79 Sarla Mudgal at 1533.
80 The actual commitment of the Act to monogamy (and to women’s rights) is a matter of intense debate. For example, according to Flavia Agnes, “[T]he progressive sounding provision of monogamy not only turned out to be a mockery but in fact even more detrimental to women than the uncodified Hindu law which recognized rights of wives in polygamous marriages.” Agnes 1999, 88. Like many feminists writing about India, Agnes emphasizes the loopholes available to bigamous husbands under the Hindu Marriage Act, which leads her to minimize the achievement of the Court in Sarla Mudgal for having closed only one of them. This critical view of the Hindu Marriage Act (and the Hindu Code in general) should be contrasted with Derrett’s understanding that “[I]t was characteristically with the intention of equalizing [the sexes] that Parliament departed most radically from the ancient law.” Derrett 1968, 333. More to the point, “[B]y far the most dramatic step towards equalizing the status of men and women was the abolition of plural marriages.” Ibid., 337. A complete account of the Hindu Code’s departure from ancient law would need to address the changes enacted with regard to religiously based caste privileges. As pointed out by Galanter, the Code “largely abandoned the shastric basis of Hindu law and established a more or less uniform law for Hindus of all regions and castes.” Galanter 1966, 290.
81 Sarla Mudgal at 1537.
82 The Muslim civil rights activist Tahir Mahmood expressed the sentiments of many by saying: “What married Hindu men do and are helped with is a fraud on Hinduism, a dis-grace to Islam, a cruel joke on the freedom-of-conscience clause in the Constitution of the country and a criminal scheming against the law of the land.” Mahmood 1995, 60.
83 Sarla Mudgal at 1532.
84 Ibid. at 1532. The 80 percent figure can be questioned. Mahmood maintains, for example, that uniformity is more limited than Justice Singh suggested, with certain regions still experiencing conflicting traditional rules and certain subjects still uncodified. Mahmood 1995, 49. This is part of a broader critique that argues that enactment of the laws had very little to do with national unity or secularism. This should be contrasted with Derrett’s view that the Hindu Code was “a half-way house to [the] end [of a single civil code].” Derrett 1968, 321. Derrett, however, also saw the motivations behind the laws to be complicated, involving class considerations more than religious ones.
85 From an article in Indian Express, August 14, 1995, as excerpted in Mahmood 1995, 193.
86 For anyone concerned about judicial activism, especially in the United States, a line quoted approvingly from Shah Bano by Justice Singh would provoke considerable anxiety. “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.”Sarla Mudgal at 1538. An Indian response would have to factor in the knowledge of the Constitution as an explicitly social document. In this respect it is importantly distinguish-able from its American counterpart.
87 Mahmood 1995, 164. The sentiment is present in Madhu Kishwar’s analysis. “[Sarla Mudgal] is not exactly a legal judgment but more of a political sermon on how the Muslim community should learn to behave and what ought to be its relationship to the Indian State.” Kishwar 1998, 235.
88 Sarla Mudgal at 1539 (emphasis added).
89 Ibid. at 1540.
90 Ibid.
91 Rudolph 1998, 1. This observation is the opening line in her essay. Her closing line is also worth quoting. “In an India whose constant political challenge is to reconcile diversity with integration, legal pluralism and legal uniformity are likely to continue as parties in a process of negotiation, to stand in dynamic tension rather than engage in a zero sum game.” Ibid., 23.
92 Sarla Mudgal at 1538.
93 This is couched in a patronizing way that clarifies the basis of some of the concern provoked in the Muslim community over the opinion in this case. The reference to “some other communities” displays an attitude of reproach toward minorities that have, in effect, failed to move in the civilized direction of the majority, that is, Hindu, community. It should also be noted that the secularization of marriage law is already manifest in the existence of the Special Marriage Act, which offers an option for those wishing to avoid religious-based marriage law. In terms of how most Indians lead their lives, however, it is an option not realistically available to many citizens.
94 Derrett 1968, 534.
95 Which, as Neera Chandhoke reminds us, may or may not be a good thing, since “[i]t must be emphasized that there is a distinction between secular states and secularized societies.” Chandhoke 1999, 81. Achieving the second may not guarantee the first.
96 In this regard, consider these remarks of a Muslim scholar and editor: “It is just as well that it [India] is not secular in the western sense of complete separation between Church and State, for it reserves to itself the right to intervene in the interest of necessary social reforms in matters which customarily come under the purview of religion.” Quoted in Derrett 1968, 516.
97 By indigenous I do not mean to ignore the role of theWest in the development of Indian communalism and especially its system of personal laws.
98 S. P. Sathe, quoted in Rudolph 1995.
99 Tharoor 1997, 81.
100 Tharoor does not ignore the progress that has been made, pointing out, as many have done, that much of it is attributable to the constitutional irony of having caste officially recognized by the document for purposes of remedial action. Thus caste consciousness has remained high even while its objective burdens have been lessened to a limited extent. Some of this progress is of course also connected to the increasing importance of caste as a mobilizing factor in electoral politics.
101 Galanter 1966, 309.