Chapter Six
CORRUPT PRACTICES
Religious Speech and
Democratic Deliberation
SEVERAL YEARS AGO, the governor of Mississippi made what many people thought was an outrageous observation when he asserted that America was a “Christian nation.” For the outraged, few statements could have matched the governor’s in what it revealed about a political leader’s fundamental disregard for the essentials of American democracy.1 The governor, however, had no need to fear political retribution; after all, the intensity of the outrage precipitated by his statement correlated strongly with the distance one traveled from his state. Nor had he any need to fear any serious legal repercussions, it being quickly evident that a principled defense of his right to utter silly and offensive things was most likely to be found among those harboring the gravest misgivings about his questionable characterization. Moreover, he would no doubt have enjoyed the same immunity had he gone on to suggest that voters withhold their support from any candidate for public office whose faith was other than that of the favored Christian majority.
American social norms explain why the governor could feel politically secure in his job, just as American constitutional norms explain why there is no mystery in the governor’s presumed confidence regarding possible legal liability. Thus we expect controversial speech to be sheltered by the speech clause of the First Amendment, and we assume further that the religious liberty guarantees of that Amendment would, in the case of the governor’s remarks, augment this already considerable constitutional protection.2 Justification for these expectations is well grounded in American constitutional jurisprudence. At the same time, skepticism about the normative standing of religiously inspired speech has become a subject of some controversy among contemporary theorists of liberal democracy.
In this chapter I remove this controversy from the realm of abstract theory and place it within a comparative constitutional framework. The comparative focus provides a richer context for a general understanding of the political interface of spiritual and temporal concerns, but also for its more particular manifestations, as in the vexing problem of religious speech in the public forum. Thus in India a politician who, while campaigning for office, voiced analogous sentiments to those expressed by the governor would be vulnerable to serious legal challenge. The possibility that such a challenge would be upheld by the courts provides an opportunity to further explore the constitutional implications of ameliorative secularism, and in the process to reconsider the argument for public reason, which, as it has been advanced by John Rawls and others, appeals to certain constitutional essentials of a liberal polity to derive guidelines for the appropriate discourse of democratic politics.
The Indian case suggests that the way in which we conceptualize the relationship between religious argumentation and democratic deliberation must take stock of the diversity of experience in constitutional arrangements for religion and politics. As we have seen, the commitment to secular democratic institutions may express itself in different ways, which means that the attempt to frame norms of public reason with reference to the constitutional essentials of a liberal polity will fail to explain why in some places these norms seem to require the sanction of law, while in others such sanctions would rightfully be judged illiberal and unconstitutional. In India, where certain kinds of religious rhetoric are proscribed as “corrupt practices,” the justification for legally seeking to minimize the occasions in which elected officials exercise their powers on religious grounds needs to be premised on the particularities of the Indian experience in secular constitutionalism, rather than on general principles deducible from a liberal democratic polity. The corrupt practices approach of Indian law echoes a recurrent theme in political philosophy, in which the corruption of the State is linked to systemic structural inequalities, such that the civic virtue necessary to sustain a just and stable political order is seriously and dangerously compromised.3 As these structural inequalities are in India directly and profoundly implicated in religious belief and practice, they can only be addressed through policies that limit religious freedom—possibly including speech—in ways that would not pass constitutional scrutiny in a polity such as the United States, where religion is much less of a factor in configuring the shape of the temporal world.
This chapter and the next examine several companion cases decided by the Supreme Court of India, all of which involved appeals to religion to advance a candidate’s electoral prospects. The office-seekers in these controversies had made little effort to conceal a principal objective of theirs, the dismantling of the dominant structure of state and national secular governance. The cases highlight a distinctive judicial approach to the challenge of religious advocacy in the public forum, one that in the end should arouse skepticism over the advisability of employing any univocal principle to govern the actual practices of liberal secular polities. The Court’s invocation of Rawlsian reasoning to defend a law that in the United States would be found constitutionally infirm points to the limitations of abstract moralizing in addressing the problem of religious advocacy. To rectify this it is necessary to outline an alternative non-Rawlsian account for limiting “corrupt” speech in India that draws specifically upon the constitutional essentials peculiar to that polity. As we will see, the most convincing rationale for speech restrictions lies in the threat posed by religion to the achievement of substantive constitutional aspirations for equality, more so than in the political commitment to the process of democratic deliberation. To underscore this point I turn briefly to the “corrupt practice” of campaign financing in the United States, where the constitutional logic behind the Supreme Court’s treatment of that issue reveals the alternative assumptions distinguishing Indian and American liberalism, and the implications that follow for religious speech in the public arena.
WHAT IS POLITICAL CORRUPTION?
On December 11, 1995, a three-judge panel of the Indian Supreme Court announced a set of related judgments that had potentially far-reaching implications for Indian politics. They all concerned the interpretation and application of a 1951 electoral law, the Representation of the People Act (RPA). Section 123 of the law detailed a number of activities that were designated as “corrupt practices,” the commission of which subjected the transgressor to serious legal consequence, including the reversal of an electoral victory. The Court found this section to be constitutional, interpreting and applying its two subsections in a way that produced mixed results in the specific cases under consideration.
To what activity did the language of corrupt practice apply? For Americans, whose recent elections have dramatically increased the level of public awareness of ethical abuses in politics, the statutory invocation of the term corruption in the regulatory context of campaign behavior has only one meaning: the improper use of money to secure electoral advantage.4 In India the term has broader application; it includes not only money and politics irregularities but also covers the inappropriate use of speech to advance one’s electoral prospects. Accordingly, in RPA a speech-related “corrupt practice” may be either of two things: (1) “The appeal by a candidate or his agent . . . to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols . . . for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate” or (2) “The promotion of, or attempt to promote, feelings of enmity or hatred between classes of citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent . . . for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”
In its rulings, the Court held that Balasaheb K. Thackeray, the leader of an extreme Hindu nationalist party (Shiv Sena), could be barred from electoral competition on the basis of intemperate campaign rhetoric, including a reference to Muslims as “snakes.” His remarks were found to be in clear violation of RPA’s second corrupt practice category. But in companion cases the Court reversed findings against several other Hindu nationalist politicians, one involving a campaign pledge to turn Maharashtra (where Gandhi was from) into India’s “first Hindu state,” and another concerning appeals to voters on the basis of the candidate’s support of “Hindutva,” a term widely held to signify the religious faith of Hindus, but which the Court chose to interpret as referring to the culture and ethos of the people of India.5 A rumination on the essence of Hinduism led the judges, ironically as we shall see, to conclude that “[N]o meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage.”6 So “the term ‘Hindutva’ is related more to the way of life of the people in the subcontinent.”7 In short, by effectively blurring the distinction between religion and culture, the Court was left with insufficient evidence to substantiate the charge of corruption.
But why should the kind of speech detailed in RPA—especially that of the category 1 variety—be construed as a form of corruption? Until we have an answer to that question, the irony in the Court’s reflections on Hinduism will go unappreciated, and the comparative and theoretical significance of the Indian approach to religious speech in the public arena (one upheld by the Court as both constitutional and wise) will not be apparent. In pursuing the question, however,we should not be constrained by the narrow understanding of corruption most evident in common usage (including the social science literature), namely the betrayal of the public trust for private (generally financial) benefit. Instead, it will be useful to embrace an older view, one with a respectable lineage in the tradition of political philosophy, and perhaps best expressed in Montesquieu’s observation that “The corruption of every government generally begins with that of its principles.”8 Accordingly, a corrupt practice should be understood in the light of regime principles, those constitutive commitments that establish a polity’s constitutional identity. Critical here is the concept of integrity, as applied both to our modern intuition about corruption as the abuse of a public trust and to its conceptualization here, where it speaks to a lack of fit between a given practice and the animating precepts of the surrounding constitutional order.9 How helpful, then, is the Court’s constitutional defense of the Representation of the People Act?
The defense began reasonably enough with an approving account of statutory intent. “Obviously the purpose of enacting the provision [in RPA] is to ensure that no candidate at an election gets votes only because of his religion and no candidate is denied any votes on the ground of his religion. This is in keeping with the secular character of the Indian polity.” 10 But the meaning of this legitimation, as clear as it may on first inspection seem, ultimately must rest upon a matter of inflection left unresolved by the Court’s imprimatur. Is the law in keeping with the secular character of the Indian polity, or rather with the secular character of the Indian polity?We know of course that the secular character of other polities (including the American) has not led to the regulation of campaign rhetoric featuring sectarian religious appeals. So either these other polities have not done what they should in order to adequately support their commitments to secularism, or there is something special about the secular character of the Indian polity that in this case at least justifies restrictions on religious speech as an appropriate response to corrupt practices. As we see in the next section, the latter understanding best comports with what is distinctive about Indian constitutionalism. But we need first to see how the Court’s discussion assumes an idealized model of liberal democratic politics more than it does the particularities of the Indian experience.
In emphasizing the sustaining features of a secular polity (i.e., where “the State has no religion and the State practices the policy of neutrality in the matter of religion”),11 the Court appealed to language from an earlier decision. “No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed, and language.”12 What these “essentials” are may be gathered from the fact that “In order that the democratic process should thrive and succeed, it is of utmost importance that our elections to Parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language.”13 Thus the success of the democratic project is predicated on the exclusion of certain forms of argumentation from the electoral arena, specifically those that appeal to voters on the basis of ascriptive affiliation. But what precisely is it that is “unhealthy” in such appeals? The Court said, “[O]ur democracy can only survive if those who aspire to become people’s representatives and leaders understand the spirit of secular democracy. That spirit was characterized by Montesquieu long ago as one of ‘virtue.’ . . . For such a spirit to prevail, candidates at elections have to try to persuade electors by showing them the light of reason and not by inflaming their blind and disruptive passions.”14
The Court’s understanding of a corrupt practice relies on a normative view of politics in which the presence of procedurally correct reasoned deliberation becomes the measure of viable secular democratic institutions. Those activities that depart from this defining norm are therefore corrupt in the sense adverted to earlier; that is, they tend to undermine the essential principles of secular democratic governance. In this regard, the specific invocation of Montesquieu reminds us that the “spirit of the laws” is not self-sustaining; rather it requires the support of law, in this case the statutory prohibition against certain kinds of campaign rhetoric.The intent behind the Section 123 prohibition may not have been to guarantee that elected officials would exercise their powers on a nonreligious basis, but, as one analysis of some early RPA decisions suggests, probably it was to minimize that possibility.15 In clearly endorsing this interpretation, the Court’s argument bears a striking resemblance to formulations advanced in contemporary liberal political theory which, as Ronald Thiemann aptly puts it, “grant[s] virtual axiomatic status to the belief that religious convictions must be limited solely to the realm of the private.”16 This segmentation is essential for a “liberalism of reasoned respect,” the goal of which is a structured society that places a premium on the virtue of civility.17
The derivation of these limitations in contemporary liberal theory mirrors the structure of the Court’s arguments, in which democracy’s survival is placed in jeopardy by the presence of irreconcilable group-based differences (or comprehensive views), only to be maintained and preserved by a shared commitment to basic essentials, including a process for reaching public decisions by the light of reason. For example, in Political Liberalism, Rawls tackles the pluralist conundrum of “[h]ow [it is] possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines[.]”18 While Rawls rightly assumes that all societies with aspirations to political justice confront this vexing dilemma, it is of course a question with special significance for India, arguably the most diverse society in the world.19 For this reason the Indian Court had a very easy time upholding the constitutionality of that section of the RPA under which the Shiv Sena leader, Mr. Thackeray, had been prosecuted. Thus political rhetoric that promotes enmity and hatred among different classes of citizens must be appraised in India against that country’s sad history of religiously and ethnically inspired violence. Appropriately, the constitutional guarantee in Article 19 of freedom of speech and expression includes a public order exception, in accordance with which restrictions on group-directed assaultive speech, especially in the highly charged setting of an electoral contest, could be (and were) comfortably accommodated.20
The Constitution also includes a “decency and morality” exception, which is the provision the judges appealed to in order to uphold RPA’s other prohibition on religiously inspired speech. This affirmance could not be obtained as straightforwardly as was the hate speech proscription, and so it became necessary for the Court to rely on interpretive ingenuity, which in this instance meant abjuring the narrow, if more obvious, sexually oriented intention behind the exception, in favor of a meaning more consonant with liberal norms of political propriety. “Thus, seeking votes at an election on the ground of the candidate’s religion in a secular State, is against the norms of decency and propriety of the society.”21 What is here given constitutional mooring is presented in Rawls as a morally desirable, but not legally enforceable, standard for liberal polities as they confront the critical pluralist challenge. “[I]t is normally desirable that the comprehensive philosophic and moral views we are wont to use in debating fundamental political issues should give way in public life.”22 The Indian Court’s “norm of decency and propriety” is in essence a corollary of Rawls’s ideal of public reason, a norm deducible from the fundamentals of the liberal democratic polity. While the norm, as incorporated in RPA, is intended to cover only the specific kind of political appeal delineated in the statute (and thus not to cover religiously articulated perspectives on public issues in general), its basic logic is fundamentally consonant with the Rawlsian aspiration.23 “[T]he ideal of public reason . . .hold[s] for citizens when they engage in political advocacy in the public forum, and thus for . . . candidates in their campaigns and for other groups who support them. It holds equally for how citizens are to vote in elections when constitutional essentials and matters of basic justice are at stake.”24 Although there is no citation of Rawls in the Court’s judgment, the author of the opinion, Justice J. S. Verma, was familiar with the argument of Political Liberalism, having cited it two years earlier in his majority opinion in the Ayodhya Reference Case. His opinion there quotes a speech of a judicial colleague, in which the latter said: “In a pluralist, secular polity law is perhaps the greatest integrating force. A cultivated respect for law and its institutions and symbols; a pride in the country’s heritage and achievements; faith that people live under the protection of an adequate legal system are indispensable for sustaining unity in pluralist diversity. Rawlsian pragmatism of ‘justice as fairness’ to serve as an ‘overlapping consensus’ and deep seated agreements on fundamental questions of basic structure of society for deeper social unity is a political conception of justice rather than a comprehensive moral conception.”25
Rawls’s ideal has been the subject of withering critique and flattering emulation. Its detractors have found it intolerant of illiberal views whose very divisiveness should be present in public debate;26 mistaken in its assumption that shared premises are the prerequisite for public deliberation among contestants holding widely disparate views;27 illusory in its presumption of having transcended religious-like dogma;28 impractical in its rendering of liberalism inaccessible to those most in need of its principles; 29 and opposed to a life of integrity in its insistence on refashioning arguments to make them conform to the dictates of reason.30 On the other hand, theorists of note have borrowed from and refined the Rawlsian ideal, as they have developed reciprocity-based exclusions of religion from the jurisdiction of political action;31 formulated a “principle of secular rationale” to govern advocacy in the public forum;32 and established limiting principles for the intervention of religious convictions in the making of political choices.33
In reflecting on the Indian Court’s consideration of political corruption, these perspectives can be deployed in supportive or critical ways. One need not take a position here on the merits of these claims, except to observe in regard to both sides of the debate that their focus, like that of Rawls’s, is on the criteria appropriate for secular democracies in general. The Court’s constitutional evaluation of RPA proceeds in similar fashion, as it develops an understanding of corrupt practices on the basis of theoretically driven liberal aspirations to a just political order. In so doing, however, it fails to provide an adequately textured account of political corruption, one that conveys a fuller sense of why it is that an appeal to voters to exercise their democratic freedom on the basis of religious considerations threatens the core principles of this secular regime; and how the legal proscription of such appeals may possess a logic consistent with secular democratic expectations. In the next section I suggest what such an account might look like.
RELIGION, EQUALITY, AND CONSTITUTIONAL ESSENTIALS
The ideal of public reason in Rawls is meant to apply to the discussion of constitutional essentials and matters of basic justice. Constitutional essentials are of two kinds: (1) fundamental principles specifying the general structure of government and the political process and (2) equal basic rights of citizenship, including rights connected to voting and political participation, conscience, thought and association, and the rule of law.34 Specifically excluded by Rawls from this enumeration are principles regulating basic matters of fair opportunity and social and economic inequalities. 35 Though important, these latter are questioned more often, and answered less urgently, than the essentials dealing with basic freedoms.
Upon first glance, the Indian Constitution addresses Rawls’s constitutional essentials. As we saw in chapter 2, Part III of the document contains a detailed enumeration of the sort of fundamental rights mentioned by Rawls in (2), followed in Part IV with a listing of the Directive Principles of State Policy. Included in this latter section are the directives to the State concerning the achievement of social justice. “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” (Article 38) But as the preceding Article states, this section, unlike Part III, is not enforceable by any court; while important, it is essentially hortatory in nature. Thus one might suppose that the principles contained therein are both more contestable and less urgent than those specified in Part III.
Such a supposition, however, is unwarranted. If under the rubric of constitutional essentials in India are not to be found principles regulating basic matters of social and economic inequality, then much of the history of the Indian Constitution will need to be rewritten. And more directly to the point of this chapter, the regulation of these matters is deeply enmeshed in constitutional policy concerning religious freedom, so much so that to imagine one without the other is radically to misconstrue the essence of Indian constitutionalism.36 Thus, as noted earlier, the nonjusticia ble aspirations of the directive principles are in fact manifest in the explicit limitations attached to constitutionally guaranteed rights, such as are to be found in Article 25’s protection of religious freedom.
The application of the term corrupt practice to religiously framed campaign rhetoric is therefore consistent with the underlying logic of these limitations. The constitutional essentials of the Indian polity were forged out of the tension between religion and equality. To the extent that political corruption represents an erosion of the core commitments of a given polity, then the most compelling interpretation of RPA is that it seeks to reinforce the special character of Indian secular constitutionalism. Officials responsible for the enforcement and interpretation of the law need to reflect on the contemporary challenge to these constitutional essentials in light of the fundamental purposes of the election law.
Corruption’s Conceptual Expansion
Not surprisingly the historical antecedent for the Indian election law is to be found in England. The corrupt practices provisions of the Representation of the People Act are traceable to an 1883 British statute, which became the model for the Government of India Act of 1919. There, for the first time in Indian law, sanctions were detailed for the violation of provisions regulating corrupt election practices. Postindependence legislation was also modeled after the British example, as Section 123 of the Representation of the People Act of 1951 was “basically a by-product of the English law on corrupt practices.”37 With only minor changes, the Indian approach incorporated the substance of British law as promulgated as late as 1949 in the British Representation of the People Act. But there was one significant departure from the list of corrupt practices borrowed from the British experience: Unlike in England, electoral corruption in India may involve abuses associated with religious speech.
The departure is no mystery. As the Court said in Bukhari, “[T]he provisions [of Section 123] . . . seem wider in scope [than English law] and also contain specific mention of what may be construed as ‘undue influence’ viewed in the background of our political history and the special conditions which have prevailed in this country.”38 Justice Beg clearly had in mind the terrible violence generated over many years by the ethnic and religious divisions in the country. The attachment of significant costs to the use of rhetoric that increases the likelihood of such occurrences is a legal and political response to this historically based Indian social reality.Surely in 1951, with the horrific images of Partition and its aftermath still vivid in people’s minds, the dampening of the violent impulses that were known to cause incalculable destruction and harm would understandably be a high priority on the legislative agenda. But along with these concerns were others relating to “special conditions,” specifically that religion in India had been a massive impediment to the achievement of social reform.
The appeal in Bukhari to “the spirit of secular democracy” clearly resonates with the ameliorative aspirations of the document, providing guidance for the work of constitutional interpretation.39 One interpretive opportunity presents itself in the linkage of those aspirations and RPA’s corrupt practices provision. Thus to “persuade electors by showing them the light of reason” has both substantive as well as procedural possibilities. One way in which the State can take the initiative to pursue its reconstructive ambitions is to minimize religiously based electoral interference with that pursuit. The connection between constitutional aspiration and regulatory purpose is personified by Dr. Ambedkar, the prime mover behind both the adoption of the Constitution and the passage of the Representation of the People Act. As minister of law he navigated the complex elections law through Parliament, although very little of the debate occurring during the seven months between introduction and signing pertained to the speech-limiting provisions of Section 123, and of that much less actually illuminates the question of legislative intent.
Indeed, Ambedkar’s own interventions raise as many questions as they answer. For example, on May 9, 1951, during a critical phase of the debate, he said: “I think that elections ought to be conducted on issues which have nothing to do with . . . religion or culture. A political party should not be permitted to appeal to any emotion which is aroused by reason of something which has nothing to do with the daily affairs of the people.”40 The apparent clarity of this remark cannot prevent one from asking: What could this possibly mean? After all, Ambedkar’s role in Indian history and politics, including his work at the Constituent Assembly, is in essence a reflection of his profound awareness of the constitutive place of religion in the “daily affairs of the people.” The idea that religion should be excluded from the rhetoric of campaigns on the basis of its remoteness from the concerns of the temporal world makes no sense at all, unless, that is, it was intended to express a normative rather than an empirical point. Suppose, in other words, Ambedkar had said: “A political party should not be permitted to appeal to any emotion which is aroused by reason of something which should have nothing to do with the daily affairs of the people.” Such a sentiment would at least display a discernible consistency with the radical impulses that had impelled Ambedkar to confront the injustice of a society in which gross inequities were predominantly an expression of historically evolved religious experience.
This normative gloss allows the logic of Indian constitutional secularism (which Ambedkar had been instrumental in configuring) to manifest itself in legislation that, for all practical purposes, is an extension of the Constitution. Article 327 provides for the power of Parliament to make provision with respect to elections. RPA flows from this delegated authority. Its superintendence is, according to Article 324, placed under the aegis of an Election Commission headed by a chair and however many (currently two) additional commissioners Parliament may choose to appoint. While the actions of the Commission are not entirely unreviewable, its powers are very substantial, and widely recognized as such within the Indian political system. The Commission’s considerable authority stems in large measure from its justly perceived independence; its incorruptibility and impartiality are of inestimable value to the political system. With respect to its role in enforcing the corrupt practices provisions of RPA, in particular the sections relating to improper religious appeals, it can easily jeopardize its reputation for objectivity by getting sucked into a vortex of controversy in this inherently polarized political arena.41 This possibility, however, has not prevented the current chair,Dr. M. S. Gill, from emphatically endorsing the ameliorative understanding of corrupt practices. “Religion is a conservative force in society. Religion, all religions, cover injustice.Ambedkar was right to think in those terms [as a social reformer] and to frame the law [RPA] accordingly.”42
The Bukhari case illustrates Gill’s point. It concerned an election in Bombay between two Muslim candidates, one supported by the Muslim League and the other by Congress. Bukhari, the Muslim League candidate, stridently attacked his opponent, declaring in his campaign oratory that voters would become objects of divine displeasure if they supported Chagla, the candidate of Congress. The latter was an advocate of Muslim personal law reform, which, according to Bukhari, rendered him unfit to get the support of “any Muslim.”43 The Court found his diatribes to be in violation of RPA. “The whole outlook revealed by the speeches of Bukhari is that of a medieval crusader who had embarked on a Jehad for the extirpation of . . . heresy . . . which, in Bukhari’s imagination, was represented by Chagla and his party. We do not consider such speeches to have any place in a democratic set-up under our Constitution. Indeed, they have none in the world of modern science which has compelled every type of religion, for its own survival, to seek securer foundations than child-like faith in and unquestioning conformity or obedience to an invariable set of religious beliefs and practices.”44
Justice Beg went out of his way to make clear that the Court’s objection to the speeches was not content specific. “We are not concerned so much with the real nature of what is opposed or supported as with the grounds on which a candidate claims support over a rival. We have to primarily examine the cloak which the appeal wears to parade in and not only what lies beneath it.”45 What lie beneath it of course are issues of social justice that in India extend well beyond the concerns and confines of the Muslim community. Emphasizing the packaging of the message rather than its substance is consistent with the public reason motif of the opinion as a whole and its understandable anxiety over the divisive potential of rhetoric that “whip[s] up low herd instincts and animosities.”46 However, this process-oriented gesture did little to conceal the Court’s evident concern with substantive issues. The “medieval crusader” has no “place in a democratic set-up under [the Indian] Constitution,” for his intolerant ways are clearly offensive to the norms by which such a polity is expected to conduct its business. But he is also out of place in a modern democracy in which the spirit of science has seeped into the fabric of political life.47 His “unquestioning conformity or obedience to an invariable set of religious beliefs and practices” puts him in a confrontational position vis-à-vis the democratic commitments of the Constitution. This “child-like faith” in traditional religious beliefs and practices expresses itself not simply in Bukhari’s condemnation of one who advocated reform of the Muslim personal law, but in his consignment of all those who support such advocacy to the sorry predicament of divinely sanctioned subordination. Beg suggests that modern science is the key to the survival of religion. What seems more likely, however, is that absent a scientifically assisted reform of society, the survival of Indian democracy will be at risk. And given the centrality of religion to any reasonable assessment of the societal status quo, RPA’s corrupt practice provisions become useful tools in the service of a legitimate, as well as worthy, constitutional cause.
The Contemporary Challenge
This brings us back to the irony of the Court’s rumination on the dominant religion of India. Correctly construing Hinduism as much more than theology, as a social and cultural presence that requires treatment as “a way of life,” it then went on to reverse holdings against politicians who had promised to establish a Hindu State and commit it to the essentials of Hindutva. But it is precisely the fact that religion in India is so pervasive and all-encompassing, with consequences deeply problematic for the egalitarian objectives of the Constitution, that provides RPA’s campaign restrictions with a measure of coherence and principled consistency.48 Thus, the very conflation of religion and culture that the Court then proceeded to find exculpatory as applied to the charge of political corruption is what provides a compelling policy rationale for RPA. Moreover, it is a rationale that fits comfortably within the secular logic and commitments of the Constitution, the latter aptly characterized by an observation from an earlier opinion cited by the Court, but not fully appreciated by the judges for the implications it contains. “The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution.”49 One does not have to embrace wholeheartedly the late nineteenth-century Indian social reformer K. T. Telang’s indictment of Hinduism for “preach[ing] not the equality of men but their inequality,” and for being in a state of “war against the principles of democracy,” to grasp the significance in India of religion’s challenge to the secular State and its reconstructive aspirations.
That challenge, of course, is most evident in the resurgence of Hindu nationalism, a movement that should never be viewed as representing Hindus generally (an impossibility, given the radically heterodox nature of the religion), but one that voices a sociocultural agenda that historically qualifies as the foil of Indian nationalism. The democratization of a rigidly hierarchical social order that is correlated strongly with a thickly constituted religious presence had always been an animating principle of the Indian independence movement, one that continued to give meaning to postcolonial constitutional politics. Hence it must be observed with more than just passing interest that historically the spirit of Hindu nationalism has been nurtured by high-caste Hindus who have been notable in their insensitivity to India’s downtrodden. “Hindutva is a political movement for upper caste hegemony, based on Hinduism.”50 As Christophe Jaffrelot has pointed out, “Hindu nationalism . . . largely reflects the Brahminical view of the high caste reformers who shaped its ideology.”51 Indeed it has been the pervasiveness of this ethic in both ideology and practice that explains why it has had only minimal success in attracting support from low-caste Hindus.52 Even the efforts to reshape the movement’s appeal to disadvantaged Hindus by capitalizing on resentments against Muslims have been notably unproductive as exercises in mass mobilization. In this respect Hindu nationalism, if not unique, is distinguishable from most contemporary religious nationalist movements in not being a populistbased movement directed against the entrenched economic power of established interests. The threat in all of this to the ameliorative constitution, which is to say secular constitutionalism in India, is clear.53
What, then, is wrong with this bit of nasty campaign rhetoric from Mr. Thackeray? “We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so.”54 The Court found this sentiment in violation of RPA’s proscription against speech that promotes enmity and hatred against classes of citizens, which it most assuredly does. But it might also be seen as a verbal assault on secular democracy in India, because indirectly it serves to perpetuate an unjust status quo structured around a radically skewed distribution of wealth, status, and influence. Votes gained as a result of an attack on the Muslim minority are votes that surely will, if sufficient in number, translate into policies adverse to the interests of lower-class Hindus (as well as Muslims and others), and so may be seen as violating the spirit of secular democracy as outlined in the Constitution. What qualifies this speech as a “corrupt practice” is only partially revealed by its explicit attack on Indian national unity; a complete account must also clarify the meaning of its implicit attack on ameliorative secularism.
Indeed, this attack is evident in some of the journalistic reactions to the Supreme Court decisions by Hindu nationalist writers. “It is unfortunate,” said one, “that fault is being found with a clear, rational, fair, incisive and sound enunciation of law, constitution and culture of India by the apex court.”55 This approval provided an opportunity to claim vindication for longstanding political positions. Thus Arun Shourie pointed out, “A major sin of the judgment for the secularists arose from the fact the Court accepted, indeed adopted in toto the definition of Hindu, of Hindutva which the RSS and the BJP have been maintaining is what they have meant whenever they have used these expressions.”56 The author then revealingly moved from approval to advice, expressing the hope that one day the Court will examine, as part of its interpretive role in relation to the illegalities of corrupt practices, the solicitation of votes on the basis of class antagonism. “How come that, while it is an offense under our laws to spread hatred or solicit votes on the basis of religion, caste, etc.,it is perfectly all right to spread hatred and enmity, and to solicit votes on the basis of class?”57 To which the secularist disturbed by the Court’s obliviousness to the ameliorative logic of RPA might respond with wry admiration—as well as contempt—for his opponent’s clever effort to steer the Court toward the embrace of an opposing logic.
We now have a plausible non-Rawlsian answer to the question of why Section 123 seeks to minimize the occasions for elected officials to exercise their powers on religious grounds. Or at least it is an answer that illustrates that the norms of public reason must be framed in such a way that culturally specific iterations are given their due. Indian restrictions on religious speech can be justified according to content-neutral principles that conform to contemporary conceptualizations of the liberal State; but those principles do not readily conform to the nonneutrality of the Indian State as delineated in the nation’s Constitution. It is only when political liberalism is identified with neutrality that the alternative rationale for these restrictions—one that finds in the substance of religious belief and practice a reason for action—will be deemed illiberal. And as taken up in the next section, notions of corrupt practices ingrained in legal precedent reinforce the noninterventionist constitutional requirement of contemporary liberalism while providing a sympathetic, if ultimately unsuccessful, hearing for the Rawlsian case for public reason.
CORRUPTION: PROCESS AND SUBSTANCE
Section 298 of the Indian Penal Code makes punishable whoever “with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person.” It is the sort of regulation that may remind Americans of some campus speech codes, most of which are widely seen, since the Supreme Court’s decision in R.A.V. v St. Paul, as unconstitutional viewpoint-based violations of the First Amendment. R.A.V. was the case cited by the Court in Rosenberger v University of Virginia, where it held that a public university could not withhold funding for a Christian publication while providing support to other student publications. In his majority opinion, Justice Anthony Kennedy wrote, “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”58 There was much in Justice Kennedy’s opinion that the minority contested, including the application of this principle to the case at hand; with the doctrine, they generally agreed.
Viewpoint neutrality has become the axiomatic precept of First Amendment jurisprudence, as well as the grundnorm of the “procedural republic.” It need not distinguish between religious speech and other types of expression, since in a liberal polity a religious point of view is in principle no different from any other perspective one chooses to embrace. This follows from what Michael Sandel refers to as “the voluntarist justification of neutrality,” the requirement that “[G]overnment should be neutral toward religion in order to respect persons as free and independent selves, capable of choosing their religious convictions for themselves.”59 Sandel of course is critical of this ascendant view. “Protecting religion as a lifestyle, as one among the values that an independent self may have, may miss the role that religion plays in the lives of those for whom the observance of religious duties is a constitutive end, essential to their good and indispensable to their identity.”60 In the American context this argument leads to deference and accommodation in the face of religious obligations that compete with State policies. In India just the opposite is true; where it more readily may serve to legitimate an unjust status quo, such accommodation is a much costlier indulgence.
As we think about restrictions on religious speech in Indian penal and electoral law, the case for their reasonability turns on the sociopolitical implications of deeply encumbered selves. The Indian Constitution’s various exceptions to “First Amendment” freedoms are an implicit rejection of the American neutrality axiom, since religion as a lived experience is, for most people in India, much more than a constellation of views and beliefs that one chooses to adopt. Hence State indifference to the substance of ideas cannot so easily be justified as it can in the United States.Interestingly, Justice Kennedy’s opinion in Rosenberger acknowledges that the doctrine of viewpoint neutrality possesses a certain awkwardness when applied to religious speech. “It is, in a sense, something of an understatement to speak of religious thought and discussion as just a viewpoint, as distinct from a comprehensive body of thought. The nature of our origins and destiny and their dependence on the existence of a divine being have been subjects of philosophic inquiry throughout human history.”61 But there is nothing in this acknowledgment to the effect that religious expression, though comprehensive, is anything more than “a vast area of inquiry,”62 that it might constitute, in Justice Gajendragadkar’s phrase, “a way of life and nothing more.”63 It is this characteristically American separation between comprehensiveness and consequence that makes a principled commitment to judicial agnosticism relatively uncontroversial.
Viewpoint neutrality has a connection as well to political corruption.In the United States, the constitutional debate over corrupt practices centers on statutory restrictions on campaign financing. Nothing in this debate bears directly on questions of religion; nevertheless American judicial scrutiny of these restrictions shows why the notion of corruption is important to a comparative analysis of religious speech in the public arena.The same principle that protects candidates and politicians who publicly proclaim the Christian content of American identity also protects the unlimited expenditures of those who support their political ambitions.
Consider in this regard Justice Scalia’s criticism of a majority opinion upholding a Michigan limitation on corporate campaign expenditures.“Under [the Court’s] mode of analysis virtually anything the Court deems politically undesirable can be turned into political corruption—by simply describing its effects as politically ‘corrosive,’ which is close enough to ‘corruptive’ to qualify.”64 Scalia was objecting to the Court’s discovery of a “New Corruption,” found to exist in the distortive effect of massive infusions of corporate wealth into the political process. According to the Court, there was no correlation between immense aggregations of corporate wealth and the public’s support for the corporation’s ideas, a lack of association that constitutionally justified the State’s representation-reinforcing restriction. Scalia’s critique parallels Martin Shapiro’s argument that “By calling various inequalities corruption we can ignore the risks to freedom that are endemic in the pursuit of equality.”65 Underlying the criticisms of both Scalia and Shapiro is the latter’s further observation: “Americans enjoy an ambivalent relationship with freedom of speech. They believe in it for the good guys but not the bad guys. There was a time when the bad guys were on the left and the hated danger was ‘subversion.’ Today the bad guys are on the right and the danger is ‘corruption.’”66
From this perspective the judicial abuse of the term corruption represents a departure from the constitutional requirement of viewpoint neutrality. It is a perspective perhaps reflective of what has been called “the liberal transvaluation of corruption,” a development traceable to Hobbes, in which “[t]o call a regime corrupt is to say something about the speaker’s preferences, not about the regime itself.”67 Just as subversion was a term used in the past to delegitimate ideas on the left, the term corruption has assumed a similar role today in attacking the system opposed by the left. In both instances the terms should be applied narrowly by judges only to specific acts of malfeasance, for example, a conspiracy to overthrow the government or a bribe offered to a public official. Scalia’s sharply worded dissent in Austin seeks to restore to the law of campaign finance restrictions the logic behind the Court’s landmark decision in Buckley v Valeo, in which the meaning of corruption was to be limited to quid pro quo arrangements (or the appearance thereof) connected to large contributions. Or as Chief Justice William Rehnquist wrote in Federal Election Commission v NCPAC: “Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.”68 This quid pro quo emphasis had led the Court in Buckley to strike down limitations on independent expenditures, since the implicit meaning of corruption contained in such limitations was a broader political one having to do with the best way to organize a society. “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed . . .‘to assure unfettered exchange of ideas for the bringing about of political and social changes desired by the people.’”69
What, under this account, can we say of the Indian use of the term corrupt practice to refer to certain kinds of religiously inspired speech in electoral campaigns? Following the argument in the previous section, we might conclude that the validity of the usage hinges on the fact that the Constitution itself is a principal agent of social change, not just the people, as suggested in Buckley about the American scheme. Moreover, in the spirit of ameliorative secularism, it is a specific kind of social change that is constitutionally prescribed, so that corruption—the departure from the politics of first principles and collective self-understanding—need not be subject to the American-like limitations of viewpoint neutrality. Where, in the United States, “[p]olitical corruption violates and undermines the norms of the system of public order which is deemed indispensable for the maintenance of political democracy,”70 in India a more ambitious democratic agenda serves to broaden the scope of corrupt practices to cover, as we have seen, campaign speech that advances the prospects that governmental policy will be based on religious considerations.71
To be sure, the Court in Austin ignored Justice Scalia’s concerns about the New Corruption and extended the mantle of corrupt practices beyond the narrow quid pro quo focus of Buckley. But the Court’s extension stays well within the procedural boundaries of representative government. The infirmity of massive corporate expenditures to advance particular policy objectives is found in the disjunction between political speech and the amount of public support for the funded positions. This introduces a distortion into the political process that may be legislatively corrected consistent with constitutionally mandated First Amendment requirements, including viewpoint neutrality. As Dennis Thompson notes, “The idea that corruption involves bypassing the democratic process is not partial toward any particular view about democracy.”72 Removing the distortion opens the way to a fuller realization of what Rawls refers to as “a political conception of justice for the main institutions of political and social life.”73 Indeed, as one commentator points out, “[W]e can best explain Austin’s redefinition of political corruption by returning to some basic legal and political theory,” namely Rawls’s principle of an equal right to participation, a principle of course included among the constitutional essentials for a liberal and just polity.74
Another finds in Austin support for Thompson’s deliberative theory of liberal democratic governance, in which Rawlsian public reason considerations are evident. “[I]f representation involves deliberation about the public good, then contributions that influence representatives are a corruption of the democratic process.”75 Genuine reflection will not occur if representatives are, by virtue of their obligations to contributors, essentially unreachable through reasoned argument. What Thompson refers to as “the improper use of public office” can mean both the pursuit of private gain through official misconduct, and the subversion of the democratic process with obstacles that preclude reasoned deliberation. It is this second invocation of the language of impropriety that links campaign financing and religious speech, since the excesses of both have in common the tendency to undercut the liberal polity’s ideal of public reason. “A belief in the importance of public deliberation is essential for a reasonable constitutional regime, and specific institutions and arrangements need to be laid down to support and encourage it.”76 Acting on this belief might cause one to favor limitations on activities that lead to public decisions based on “nonpublic reasons”—as arguably would be the case for the legislative recipient of large amounts of money and for the exponent of a comprehensive religious doctrine.77
Of course, despite this connecting logic, it is extremely doubtful that an American court would ever use the “new corruption” as a constitutional impetus for upholding restrictions on religious speech in the public arena.Were the judges all political liberals in the Rawlsian sense, they very likely would still value untrammeled speech rights over public reason-inspired legal limits on expression; but they would undoubtedly see the restrictions as having some principled foundation. Yet if they were so inclined, they could view their efforts as responsive to corrupt practices, as a judicial defense of the constitutive commitments of a liberal polity. That indeed is what the Indian Court appears to have done in upholding the constitutionality of RPA’s regulation of religious speech in campaigns. The fact that the Court then proceeded to overturn the convictions of Hindu nationalist politicians prosecuted under the statute suggests very strongly that the principled underpinnings of the constitutional ruling were more in line with Rawlsian assumptions about liberal constitutionalism than with the logic of ameliorative secularism. But the Court never made clear why the need to govern “by the light of reason” required legally enforceable sanctions, why unlike other secular democratic polities such as the United States, reliance on other mechanisms would not be sufficient. Indeed Rawls himself does not advocate the legal codification of his ideal of public reason. The most telling criticism of the Court’s rulings—that together they constituted a “watering down” of the provisions of RPA and “a very severe blow to the principle of secular democracy”—derives whatever force it may have from the special needs of this secular democracy and not from the constitutional essentials of political liberalism.78
CONCLUSION
Suppose a familiarity with Indian law persuaded American lawmakers of the wisdom of enacting an RPA in the United States. Let us assume further that after its enactment into law, it is quickly applied to the governor of Mississippi, who has persisted in pushing his Christian nation claim. For example, in campaigning for one of his followers who is running for Congress, he is quoted as saying: “Joe deserves your support because he understands the meaning of America, that it is and has always been in essence a Christian nation. I can promise you that in all that Joe will do as your representative, he will be guided by the precepts of his Christian identity.” Joe then gets elected but is deprived of his victory for having permitted his campaign to run afoul of the new law.
How might the United States Supreme Court respond to this result? Consider three possibilities. (1) The finding against Joe is reversed, and the statute under which his election was denied to him is held unconstitutional. The law violates both the freedom of speech and free exercise clauses of the First Amendment. (2) The finding against Joe is reversed, but the statute under which the election was denied to him is held constitutional. Joe has done nothing wrong since his Christian identity is a cultural affiliation, not a religious calling. The law, however, is consistent with the spirit of the Constitution, specifically its secular commitment to reasoned deliberation in the public arena. (3) The finding against Joe is upheld, and the statute under which his election was denied to him is constitutional. The First Amendment is not an absolute, and the rights guaranteed under it are bounded by important public welfare considerations, among which is the discouragement of religious motivations in the making of public policy.
Option (1) is the obvious candidate for selection for reasons that should be quite evident. It fits all the expectations Americans bring to the case based on prevailing precedent and doctrine. But it is worth considering why (2) and (3) appear on their face to be implausible choices; doing so will highlight the major point of this chapter, that the effort to derive guidelines and principles for the regulation of religious discourse in the public sphere cannot proceed only from an exercise in abstract moral reasoning, but must confront as well the diversity of experience in secular constitutional arrangements.
Option (2) represents the approach taken by the Indian Supreme Court in the RPA cases. It involved a decision by the Court to understate the religious significance of Hinduism in favor of a cultural understanding, thereby freeing the defendant Hindu nationalists of legal liability in the face of a statute that legitimately seeks to structure campaign debate according to a constitutional norm of reasoned deliberation. In the American context this norm (deduced from the essentials of a liberal polity) must, unlike in India, confront the categorical language of the First Amendment without the support of any exception clauses that might be viewed textually as a convenient constitutional location for asserting the relevant ideal. An additional (and more interesting, if debatable) obstacle resides in the greater difficulty one would have in making a cultural claim on behalf of Christian identity, which much more so than its Hindu counterpart is something one experiences as a matter of faith rather than (at least in most instances) as a way of life. So an American court would have even less success than an Indian one in eliding the religious significance of a candidate’s promise to pursue a sectarian agenda grounded in religious tradition.
Option (3) looks like a coherent and perhaps sensible solution for India, but makes very little sense for the United States. Not only is there much less warrant for perceiving the majority religion in the United States as a way of life, but to the limited extent that it can be so viewed, its role in structuring social institutions and relations hardly compares in magnitude with the role in that regard of the majority religion in India. Therefore, the legally sanctioned discouragement of religiously motivated public pol-icy has minimal constitutional standing when, as in the United States, it is not necessary for the attainment of public welfare objectives that are at once urgent and constitutionally directed. To be sure, the secularization of political discourse can always be asserted to have policy consequences.And occasionally, as, say, in the case of legislation affecting people’s sexual behavior, religious arguments may play a critical role in explaining, for better or worse, the evolution of policies. But to imagine something comparable to the Indian situation would require viewing the historic systematic subordination of a class of people in the United States as having been the result largely of religious beliefs and practices that are now illegal by dint of constitutional mandate.
It is quite revealing that when public welfare considerations are introduced in the United States as an occasion for limiting religious freedom, it occurs in response to someone’s claim for an exemption on religious grounds from an otherwise unexceptionable law. Since the Supreme Court’s controversial decision in Employment Division v Smith (and its subsequent invalidation of the Religious Freedom Restoration Act), upholding the public welfare, defined neutrally as the need to reinforce civil authority, does not require the demonstration of a compelling State interest. The Indian Constitution, on the other hand, defines with unmistakable certainty what constitutes a compelling State interest.79 So clear is its incorporation of the egalitarian ideal into the text of the document that the meaning of corruption as having something to do with the direct (or as in the case of RPA, indirect) frustration of that aspiration is not a fanciful notion. This suggests that the appeal of public reason as an ideal for liberal polities is more variable than any abstract account of its virtues might lead one to presume. Indeed it turns out that the case for limiting certain kinds of religious speech in democratic deliberation is strongest when it is identified with the defense of constitutional essentials that are not recognized as such in the articulated premises of political liberalism.
1 In a poll taken in 1996, 28 percent of the respondents supported the idea of a constitutional amendment to declare that “the United States is a Christian nation.” Sixty-two per-cent were opposed. Just what to infer from this is unclear, since 60 percent agreed that “the United States [is] a Christian nation.” Kohut et al 2000, 100. The most sensible interpretation is that a clear majority believes that empirically most Americans are indeed Christian, but that a minority believes in addition that this is the way it ought to be.
2 The key case is Cantwell v Connecticut. In reversing the conviction of someone who employed offensive and abusive speech in denouncing the Roman Catholic Church, the Court concluded that “[T]he people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these [First Amendment] liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Ibid. at 310.
3 On this point see J. Patrick Dobel 1978, 958. Dobel appeals to Plato, Aristotle, Machiavelli, and Rousseau for the view that “[T]he source of systematic corruption lies in certain patterns of inequality.” Ibid., 961.
4 In the United States, religious organizations that participate in politics do run the risk of losing their tax exemption, but there is very little enforcement of this penalty. On those rare occasions when it is—as in the case of the Christian Coalition—the sanctions imposed have been more symbolic than real.
5 As will be explored more fully in the next chapter, these decisions were extremely controversial. While they were applauded in Hindu nationalist circles, they were seen by others as a watering down of the provisions of the Representation of the People Act. For example, one commentator wrote: “Would the normal electorate in India understand that what is meant by Hindutva is the culture of all the people of India including those of non-Hindu faiths? Obviously, by Hindutva most of the voters would understand the culture of Hindus including their religious faith, and not the faith and culture of non-Hindus.” He concluded:“These decisions of the Supreme Court Bench are thus highly derogatory to the principle of secular democracy and the letter and spirit of Section 123(3) of the Representation of the People Act, 1951.” V. M. Tarkunde, “Hindutva and the Supreme Court,” Hindustan Times, January 10, 1996, 13. Said another scathing review: “The judgment is yet another instance of a widespread confusion in the discourse on secularism, pluralism, and humanism.” Nauriya 1996. Criticism of the Court for its interpretations of RPA extended to judgments in earlier years as well. See, for example, V. S. Rekhi 1993.
6 Prabhoo at 159.
7 Ibid. at 159.
8 Montesquieu 1966, 109. For an interesting discussion of corruption as it has been understood in political philosophy, see Dobel 1978; see also Euben 1989.
9 Integrity as a virtue in liberal political theory has been most fully developed by Ronald Dworkin.“Integrity becomes a political ideal when we make the same demand of the state or community taken to be a moral agent, when we insist that the state act on a single, coherent set of principles even when its citizens are divided about what the right principles of justice and fairness really are.” Dworkin 1986, 166. Corruption, in short, represents the loss of integrity. J. Peter Euben’s discussion of corruption in Aristotle’s thought also captures this sense of integrity. “When a constitution systematically falls short of the paradigms of action, character, and justice which give it unity and definition, it is corrupt.” Euben 1989, 227.
10 Prabhoo at 145. “Section 123(3) is a provision which is in consonance with the policy of the framers of the Constitution to make India a secular State, a State which has no religion of its own and which refrains from discrimination on grounds of religion.” Tripathi 1974, 499. As in most discussions of the electoral law, only a superficial consideration of the Indian secular State is provided, leaving unresolved an explanation for the comparative uniqueness of the statute.
11 Ibid., 147.
12 Ibid., 149. The quote was taken from Justice Beg’s opinion in Ziyauddin Burkharrudin Bukhari v Brigmohan Ramdass Mehra and Others at 24. Obviously the reference to caste speaks directly to the Indian experience, but for present purposes its connection to religion is so intimate that the general argument in which it appears may still be viewed as derivative from the nature of a secular polity and not just the Indian case.
13 Ibid. at 160.
14 Ibid. at 150. This language was again borrowed from Bukhari. The italics that the Court used to emphasize its point in the later case do not appear in the original.
15 Mansfield 1989, 223. Mansfield, however, does not investigate the reasons for this policy objective, something I take up in the next section.
16 Thiemann 1996, 89.
17 Weithman 1997, 4. Weithman argues that the liberalism of reasoned respect is ad-dressed to advanced democracies, one manifestation of which is that reasoned discourse, rather than the prevention of civil strife, is the animating concern driving its proponents. Ibid., 33. This of course raises the obvious question as to the appropriateness of the principled application of the scheme to a place such as India.
18 Rawls 1993, 4.
19 Rawls’s philosophic method is occasionally insufficiently sensitive to questions of degree as they relate to societal division. He says, for example, that “Liberty of conscience and freedom of association, and the political rights of freedom of speech, voting, and running for office, are characterized in more or less the same manner in all free regimes.” Ibid., 228. Much depends on the meaning of ”more or less,” but as the differences between India and the United States on the issue of religious expression illustrates, free regimes can differ rather significantly on constitutional essentials in light of their alternative pluralist experiences. I pursue these differences in detail in Apple of Gold: Constitutionalism in Israel and the United States, ch. 6.
20 There are, in addition, many cases concerning provisions of the Penal Code in which restrictions on religious speech have been upheld under the Article 19 exception. However, as John Mansfield points out, “[T]he struggle between conflicting values--—freedom of speech in matters of religion on the one hand and the protection of public order, religious sensibilities and religious identities on the other—has continued at the level of statutory interpretation.” Mansfield 1989, 211.
21 Prabhoo at 153.
22 Rawls 1993, 10. “[T]he ideal of citizenship imposes a moral, not a legal, duty—the duty of civility—to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason.” Ibid., 217.
23 “[A] democratic constitution,” Rawls writes, “is a principled expression in higher law of the political ideal of a people to govern itself in a certain way. The aim of public reason is to articulate this ideal.” Ibid., 232.
24 Ibid., 215.
25 The Ayodhya Reference 1995, 36. When asked about his use of Rawls, the colleague, Chief Justice Venkatachaliah, explained that it is entirely appropriate to use concepts from Western philosophical liberalism in Indian constitutional cases, because there are universals that apply to all societies. Interview with the author, New Delhi, March 10, 1999.
26 Perry 1997.
27 Waldron 1993.
28 Galston 1994.
29 Hurd 1995.
30 Wolgast 1994.
31 Gutmann and Thompson 1996.
32 Audi 1989.
33 Greenawalt 1988.
34 Rawls 1993, 227.
35 Ibid., 228. The relevance of Rawlsian philosophy to the Indian setting is considered in Rajan 1998. Rajan does not consider the question of religious speech in relation to the argument for public reason, but does use Rawls to urge a more principled separation of Church and State in India. For example, Rajan argues that the adoption of a uniform civil code is required by Rawlsian philosophy, and that “[A] logically coherent application of Rawlsian theory . . . would require radical changes in existing power structures.” Ibid., 207.
36 In this holistic conception, the distinction between the secular and the religious largely disappears. It is a disappearance that, in the case of India, renders problematic (as we shall see) the application of Rawlsian public reasoning, which, predicated on the existence of a distinct secular realm, insists on separating what may be indivisible. For an insightful analysis of Rawlsian theory and the anthropological view, see Stolzenberg 1997. Stolzenberg focuses on the Satmar Hasidim of Kiryas Joel, where, she argues, “The conventional distinc-tion between the religious and the secular realms is not a part of the Hasidic vocabulary.” Ibid., 309.
37 Jhingta 1996, xiii.
38 Bukhari at 25.
39 As we have seen, the ameliorative model embraces the social reform impulse of Indian nationalism without ignoring countervailing impulses within the entrenched religious diversity of Indian society. Some accounts attach much greater emphasis to these countervailing impulses, seeing the commitment to group autonomy as more prominent than egalitarian justice. See, for example, Mahajan 1998. Consistent with this view, Mahajan’s interpretation of the Hindutva Cases differs from mine. She understands the rulings to be an affirmation of the constitutional value of group autonomy. “The interpretation of the Supreme Court has . . . affirmed the autonomy of the religious domain, including its right to participate in the political domain. . . . By refusing to restrict the use of religion in politics, the Supreme Court has ensured that religious denominations and institutions are not excluded from or disadvantaged in the public realm.” Ibid., 67–8.
40 Parliamentary Debates—Parliament of India 1985, 8365.
41 Thus A. G. Noorani asks, “What business is it of the Election Commission or for that matter of any external authority but the party members and electorate at large to sit in judgment on changes in a party’s ‘policies’? Or its ‘principles’ or ‘aims and objects’?” Noorani 1996, 235. It should be noted here that the jurisdiction of the Commission has been broadened since 1951. This has been done by amending the law to strengthen the exclusion of religion from political life. For example, in 1961 the scope of the provision on religious appeals was enlarged by deleting the word systematic from Section 123(3), thereby making even a single such appeal a corrupt practice. In 1989 Section 29A was added to RPA, requir-ing registration of all political parties, accompanied by a commitment “to the principles of socialism, secularism and democracy.” In 1993 a proposal to strengthen 29A was extensively debated but never enacted into law. It would have banned associations bearing religious names from electoral competition. The proposal flowed from the widely perceived paradox that while RPA prohibited religious appeals, it permitted the formation and activities of parties (such as the Sikh Akali Dal) that had a religious or communal basis.
42 Interview with the author, New Delhi, December 16, 1998. This is a point made also by some Indian scholars. For example, S. L. Verma writes: “In practice, religions are a conservative force. As such, they hamper economic growth, neglect material aspects of life, and obstruct growth of nationalism as a vehicle of modernization and development.” Verma 1986, 33. It is important to point out here that much of the debate in 1951 relating to passage of the Representation of the People Act was directly concerned with the general issue of equality in Indian political life. Thus many of the provisions were argued in the context of the generally accepted commitment to limiting the influence of the wealthy in elections.
43 Bukhari at 28.
44 Ibid. at 31.
45 Ibid.
46 Ibid. at 24.
47 “[Modern scientific man] does not permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics, and technology, even when its administration is institutionalised and it operates as a social force.” Ibid. at 32.
48 V. S. Rekhi’s criticism of earlier rulings on RPA is predicated on the recognition of this all-encompassing religious presence. “No opinion of the Court shows an awareness of the relation of religion to social structure either in general or in particular relation to elections.” Rekhi 1993, 200. In particular, Rekhi is dismayed by the Court’s failure to appreciate that religion may be the only way for the have-nots in India to organize politically in pursuit of their interests. While perceptive in its critique of the Court’s failures, his analysis is insufficiently attentive to the ways in which religious practices and discourse serve to limit the socioeconomic progress of the disadvantaged, and thus the reasons why a consistent application of RPA may reasonably be seen as serving these people’s long-term interests.
49 Prabhoo at 148.
50 Ram 1996, 519.
51 Jaffrelot 1996, 13. See also Sarkar 1996, 277. “The votaries of Hindutva have tended to come in the main from high castes quite self-conscious about their status privileges.” And Arun Patnaik and K.S.R.V.S. Chalam point out that the discourse of Hindutva “aims at a reaffirmation of the Hindu caste order.” To the extent that “[I]ndian history is a history of unfinished tasks set by the critics of Brahminism,” the Hindu nationalists can rightly be viewed as historically retrograde. Patnaik and Chalam 1966, 268, 263.
52 Jaffrelot 1995, 47.
53 As Sumit Sarkar points out, “A construction of Hindu unity that evaded rather than sought to reform or even significantly ameliorate hierarchy needs for its sustenance the notion of the Muslim as an ever-present, existential threat, actualized and renewed, further-more, in recurrent communal riots.” Sarkar 1996, 289.
54 Quoted in Prabhoo at 139.
55 Jagmohan, “Hinduism and Hindutva: What the Supreme Court Says,” Hindustan Times, January 8, 1996.
56 Shourie 1996. But this vindication provided only partial satisfaction. “The Court’s formulation is also evidence of our state—namely that the only way in which references to Hinduism in election speeches can be defended is by defining Hinduism out of existence. . . .It can be small satisfaction that a formulation that came to be put out as a defensive reaction is now to be the official definition of the faith, that is, by which it is not a faith at all.” The author then shrewdly employs the logic of the Court’s obfuscation of the distinction between religion and culture to defend the nationalist position against the Court’s criticism of its campaign rhetoric. “As the word Hindu is not to be understood in terms of narrow-minded religion, as Hindutva, . . . how come it became despicable to say that Maharashtra shall be the first Hindu state, by what reasoning did the expression merit the disdain of the Court?” In an interview with the author, Shourie explained that such a statement may well be grounds for an RPA violation, but only, he claimed, if the law is applied uniformly. But because, he maintained, Muslim politicians are permitted to say things that Hindus running for office are not, Shourie questioned the appropriateness of overturning the election result in this case. Indeed, the official Sangh Parivar line on RPA appears to be nominal support for the law as long as it is narrowly and uniformly applied. Thus in the Parliament debate in 1993 over the banning of religiously based parties, L. K. Advani said, “I would never object to [RPA]. I think this is a sound law.” Lok Sabha Debates 1993, 518. He then went on to vigorously denounce the proposed addition to the law.
57 Ibid.
58 Rosenberger at 829.
59 Sandel 1996, 63.
60 Ibid., 67.
61 Rosenberger at 831.
62 Ibid.
63 Yagnapurushdasji at 513. Or as another justice said while sitting as a delegate in the Constituent Assembly that framed the Constitution, “[Y]ou can never separate social life from religious life.” Government of India Press 1967, vol. 2, 266.
64 Austin at 684.
65 Shapiro 1989, 393.
66 Ibid.
67 Euben 1989, 230.
68 Federal Election Commission at 497.
69 Buckley at 48.
70 Berg, Hahn, and Schmidhauser 1976, 3. This is fairly typical of the definitions found in the literature of political corruption in the United States.
71 The one empirical study that examines opinion on the use of religious and caste appeals in elections shows a strong majority of respondents believing that such appeals interfere with the right to vote. Interestingly, this belief is correlated with caste affiliation, with sched-uled caste respondents most opposed to the use of these appeals and Brahmin respondents least opposed. Jhingta 1996, 282.
72 Thompson 1995, 29. Thompson focuses on what he calls “the modern conception of corruption,” which he suggests is more limited in scope than the traditional conception in its emphasis on the pursuit of private purposes rather than on broader social and economic forces. The distinction, however, could be misleading if it deflects attention from critical differences ingrained in the constitutive choices of different constitutional polities. As the Indian example suggests, the relevant distinction has less to do with contrasting conceptions of corruption than with the fact that alternative conceptions of democracy produce contrasting understandings of what constitutes a corrupt act. In both cases, though, corruption involves an attack on regime principles.
73 Rawls 1993, 175.
74 Edwards 1996, 20.
75 Burke 1997, 148.
76 Rawls 1993, lix.
77 Or as Gutmann and Thompson write, “Deliberative democracy asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it. This disposition to seek mutually justifiable reasons expresses the core of the process of deliberation.” Gutmann and Thompson 1996, 52.
78 The criticism is taken from V. M. Tarkunde, “Hindutva and the Supreme Court,” Hindustan Times, January 10, 1996. The weakness of Tarkunde’s argument is precisely that it does not explain why “an appeal for the creation of a Hindu State is obviously contrary to the principle of secular democracy and is a corrupt practice.” Clearly the creation of such a State, just as the creation of a Christian State, would conflict with secular democracy; but why the speech itself is a corrupt practice requires an argument that connects the expression to the specific aims of secular democracy in India. One version of such an argument may be found in Martha Nussbaum 1997. Focusing on India, she argues that all religious discourse that encourages the denial of equality to women should be viewed as unacceptable within a constitutional democracy.
79 In chapter 9 I argue that Smith might have been better decided had the Court been more sensitive to egalitarian considerations that are more familiar within the Indian Church/ State jurisprudential tradition. However, as we shall see, in the United States these considerations push in the direction of a more expansive interpretation of religious freedom in the face of State regulation.