PREFACE

“RELIGION,” wrote Jawaharlal Nehru from a prison cell in 1944, “though it has undoubtedly brought comfort to innumerable human beings and stabilized society by its values, has checked the tendency to change and progress inherent in human society.”¹ About a century earlier, Alexis de Tocqueville, after traversing the United States to examine its prison system, instead reflected on the place of religion in democracy. “When . . . any religion has struck its roots deep into a democracy, beware that you do not disturb it; but rather watch it carefully, as the most precious bequest of aristocratic ages.”² For both Nehru and Tocqueville, religion was a restraining influence on changes in civil society, which for the Indian nationalist was a problem and for the French legislator a blessing. Their common devotion to constitutional democracy led them to weigh the political contributions of piety and spirituality quite differently.

This divergence is certainly understandable. As much as the transition to democracy in Tocqueville’s America had occurred without a protracted social struggle, in Nehru’s India prospects for democracy were directly tied to a transcendence of social divisions entrenched over many centuries as natural and just. If in some democracies religion has been attractive as a potential ally of regime principles, in others it has had a distinctly more adversarial relationship with the democratic way of life.

Religion is most threatening to liberal democracy where it informs national identity or permeates everyday life. In such places the problem of religion is more acute, and the task of securing religious liberty more urgent. How can courts that aspire to defend religious liberty meet such challenges? We have a surer grasp over how religious liberty is protected in societies where religion is fragmented and where its reach into everyday life is relatively shallow. The project of defending religious liberty and secular aspirations in a deeply religious society—India—is the subject of this book.

How do constitutional design and interpretation address this question? I strive for an answer by exploring some striking facets of the Indian experiment in secular governance. Though the book focuses on India and the constitutional dimensions of its commitment to secularism, I hope these pages will contribute more broadly to a spirited discussion within jurisprudential circles that centers on the constitutional essentials of a liberal democratic polity. Accordingly, I have placed the Indian case within a comparative trio that includes the United States and Israel, whose contrasting experiences in secular constitutionalism support an analytical framework that illuminates the complex political interface between spiritual and temporal concerns.

Why the United States and Israel? Through a long scholarly engagement with the constitutional systems in these countries, I have come to appreciate the wisdom in Seymour Martin Lipset’s observation that “Nations can be understood only in comparative perspective.”³ Comparing both of these polities clarifies each; adding yet a third country only further enhances the images. But a more compelling reason—certainly more so than my personal interests—lies in the specific analytical perspectives Israel and the United States offer for enriching a comparative study of secularism, targeting India as its principal player.

Religion in Israel, much like in India, presents such a formidable challenge to constitutional forms and aspirations that the failure (or at least extended delay) to codify a formal constitution in the Jewish State stems from the centrality of religious identity in defining the nation’s political identity. No similar commitment to religious nationalism has obstructed the development of India’s constitution, even if some voices in India continue to deem Israel a model worth emulating. Rather, the strongest religious contender in India’s bout with constitutional ideals has always been Nehru’s professed fear that ingrained theological beliefs and practices will complicate the movement to embrace democratic justice. India’s complex secularism is, at its core, a commitment to major social reconstruction. If this commitment is to be undermined, the source of its undoing will likely be the politics of ethno/religious revivalism, rather than any explicit campaign to defend historically sanctioned social privilege. Viewed comparatively, the model of a nation as a homeland for a particular people may, as in Israel, comport with a genuine secular regard for religious freedom, yet elsewhere, as in India, contradict the essentials of secular aspiration.

The American approach to the Church/State divide recalls its Western roots in assuming that religion can be distilled from the public sphere, though whether they should be maintained separately is still debated. This contrasts sharply with the Indian setting, where, despite a similar call for State neutrality toward the country’s various religions, a profoundly different view prevails on the possibility, let alone the desirability, of relegating the spiritual life to the private realm. Religion pervades both places, but how deeply it penetrates the fabric of daily life has decisive constitutional implications for the two polities. Thus in India, where faith and piety are more directly inscribed in routine social patterns, judges cannot avoid the perilous jurisprudential vortex of theological controversy as conveniently as their American counterparts. The pressures on them to establish which contested practices are essential to the belief structures of religious communities can be, and sometimes are, resisted. But more frequently than American judges, Indian jurists in religion cases are burdened by interpretive responsibilities that exceed their field of expertise. Once again, these alternative perspectives underscore Nehru’s caution against religion’s regressive tendencies. The American comparison reveals an important constitutional reality: liberal indifference to the substance of religious belief more readily thrives where social conditions are less dictated by religion.

Undoubtedly, including additional examples would appeal to some readers.Were my main objective to test specific hypotheses about secularism and constitutional democracy, a larger field of comparison would be necessary. I hope, however, that even these readers will ultimately value what is essentially an interpretive work that comprehends the “comparative context” of India’s secularism. As I have suggested above, only a broader political context illuminates the qualities that distinguish, or at least highlight, the Indian constitutional experience. But this context also incorporates the extended cultural setting that moors a constitutional document or arrangement. Such an attempt to discern a system’s constitutional logic from its background social and cultural circumstances embodies the Tocquevillian method. Tocqueville, however, did not explicitly discuss methodology, a void we have since filled through greater self-consciousness about the methods in our social science. Recently, for example, the term constitutional ethnography has come to define an approach that relies heavily upon “thick” accounts of actual polities to probe how constitutional systems function.⁴ I do not view my work as quite as anthropological as this term suggests, but I have pursued its process in scrutinizing context to develop theoretical possibilities about the trajectory of constitutional design and experience. Above all, I trace the ways in which regimes’ founding commitments become encoded in their constitutional schemes and, in turn, inform such fundamental issues as the role of religion in politics and society.

Evidence of these commitments abounds in all the obvious sources: constituent assembly debates, testimonies of key participants in the work of constitutional construction, Supreme Court opinions, and, of course, the official texts themselves. However, understanding how founding principles—idealized abstractions—apply to concrete constitutional scenarios should not depend solely on evidence from the printed page. When Tocqueville arrived in the United States to begin his famous nine-month visit, he immediately noted the strong spirit of religion and its salutary political impact for democratic prospects. This diverged from his experience in France, where religion and freedom were in great tension with one another. “My desire to discover the causes of this phenomenon increased from day to day. In order to satisfy it I questioned the members of all the sects; I sought especially the society of the clergy, who are the depositaries of the different creeds and are especially interested in their duration.”⁵ From these encounters, he learned that the “peaceful dominion of religion” in the United States was attributable “mainly to the separation of church and state.”⁶ Intrigued, he continued to troll for the meaning and characteristics of this separation.

Through direct contact with India’s constitutional culture, I have sharpened my understanding of that particular nation’s secular vision. I have spoken with judges, politicians, scholars, journalists, and academics about many topics, including their involvement in the controversies discussed in these pages. Others have helped me to appreciate more fully the points of contact between the Constitution and the broader political culture. The cab driver in Mumbai, who was “honored” to deliver me to an interview with the leader of the most extreme Hindu nationalist political party in India, worshipfully referred to this leader as “the King of India.” The architect in New Delhi, who, while displaying all the worldly characteristics one has come to associate with the burgeoning Indian middle class, allowed me to see how devoted he and his family remained to a traditional discipline of religious practice and belief. Some of the insights inspired by these and other encounters are, admittedly, possible to glean from prose accounts available in many local American libraries; but to satisfy myself of their import for, and relevance to, an interpretive work of constitutional analysis, I relied very heavily on firsthand experience.

The book is divided into two parts. Part 1 presents India’s model of secular constitutional design within an analytical framework that incorporates the Israeli and American alternatives. The term alternatives may be questioned, since it implies a degree of freedom in the choice of a secular model that may, given my emphasis on the variability of religion’s penetration into social institutions and practices, be difficult to justify.Whether religion is “thickly” or “thinly” constituted determines the options available to constitution-makers and reformers alike. However, there are always choices to be made, even if they are limited by circumstance. For example, though what I term the assimilative model of American secularism may not transfer seamlessly to the Israeli or Indian environments, aspects of American Church/State jurisprudence could benefit places where religion and political experience differ from the United States. Similarly, the American and Israeli cultures may not welcome the wholesale transplantation of India’s ameliorative model to their respective shores, but each could selectively borrow ideas and approaches from Indian jurists and politicians. Whether such comparative reflection on the diversity of secular experience can spark creative thinking about optimizing the performance of constitutional democracies is by no means certain.But I would like to think it could.

Among the challenges to secularism and constitutional democracy in India, the political ascendance of forces identified with Hindu nationalism has attracted worldwide attention. In part 2 I consider this threat through the lens of several landmark cases in which the Supreme Court became a dramatic venue for the ongoing struggle to legitimize the conflation of Hinduism and Indian nationhood. These cases implicate two controversial pillars of Indian governance—one constitutional (the Center’s [Central Government of India] power to dismiss elected governments in the states), the other statutory (the rules for conducting elections)—that expand the argument over Indian secularism to include current questions hotly debated among political and legal theorists. Are there features of a liberal political order so fundamental that they should be protected from ever being nullified by constitutional amendment? Does such a regime’s commitment to democratic deliberation require that it ban religious rhetoric, which can be seen to conflict with reasoned discourse, from the public arena?

These questions do not necessarily spring to mind when we first consider secularism in the modern State. Particularly for Americans, a more obvious list would include such matters as prayer in the schools, financial aid to religious institutions, and the display of sectarian symbols on public property. India too confronts issues arising from specific constitutional provisions on religion that I have not addressed in part 2: for example, religious instruction in educational institutions funded by the State, maintenance of religious charities without governmental interference, and legal protection for cows. Had I endeavored to write a comprehensive survey of religion and law in India, these and other issues would warrant greater attention. I focus on dismissing elected governments, using religious appeals in electoral campaigns, and (in part 1) practicing polygamy, because these controversies prove unusually instructive in highlighting, often in surprising ways, the animating principles of Indian secularism. These examples, moreover, each contribute to the evolution of liberal constitutional theory, the primary goal of the comparative enterprise. In the end, Tocqueville’s motivation to study the United States best expresses my sentiments about India: “It is not . . . merely to satisfy a curiosity, however legitimate, that I have examined America; my wish has been to find there instruction by which we may ourselves profit.”⁷

1 Jawaharlal Nehru 1997, 511.

2 Tocqueville 1945, vol. 1.

3 Lipset 1990, xiii.

4 The term has been developed by Kim Lane Scheppele, a constitutional scholar at the University of Pennsylvania Law School.

5 Tocqueville 1945, vol. 1, 319.

6 Ibid.

7 Ibid., 14.