The opening of the Indian Constitution proudly proclaims its resolve to constitute India into a “secular democratic republic” and to secure to all its
citizens “liberty of thought, expression, belief, faith and worship” and “equality of status and of opportunity.” Though the
country’s constitutional vision may be clear, the appropriateness of such a vision for a society as deeply religious and socially
stratified as India is continuously subject to social and political challenge.
The task of securing religious liberty while upholding secular aspirations in a deeply religious society is a daunting one.
Hinduism, the professed religion of over 80 percent of Indians, is often described as a “way of life,” highlighting the “profound
tension that penetrates to the core of Indian constitutionalism, where ‘the State is secular . . . but the people are not’”
(Jacobsohn
2003: 35–6). On one side of what is often a very polemical debate are those who advocate for equal treatment of religious groups
in India, where the language of equal treatment may disguise a quest for assimilation through subordination. On the other
side of the debate are those who argue that neutrality toward religion is a prescription for majoritarian rule, adding that
minorities must be protected against the dominance of the majority Hindu culture.
Hindu nationalism therefore poses a dual challenge to secularism in India: as a movement that seeks to mobilize support on
the basis of advocating for a Hindu nation, thereby challenging secular ideals; and as a movement that purports to defend
secular values through its admonition of “pseudo-secularists” and the “minority appeasement” of Muslims. Both sets of challenges
have found their way to the
Supreme Court: the first in
cases involving the prosecution of elected representatives of Hindu nationalist political parties for corrupt practices, and
in cases following the aftermath of large-scale episodes of communal violence fomented and led by militant Hindu nationalist
groups; and the second in cases involving
Muslim
personal law and the associated endeavor to create a uniform civil code.
This paper provides an overview of the key areas of intersection between Hindu nationalism and the law, as set against the
backdrop of the origins, organization, and tactics of the Hindu nationalist movement. A journey into this heated terrain quickly
reveals that the Supreme Court’s interpretation of the Constitution’s secular vision is highly contextual and highly contested. Case law related to secularism oscillates between
the twin poles of emphasizing the rights and sensibilities of religious minorities, and conflating Hindu religion with Indian
culture, all the while frustrating the achievement of equal treatment among religions.
Any inquiry into the influence of Hindu nationalism on the law, as well as the challenge it poses to India’s secular aspirations,
must begin with a brief examination of the origins, organization, and objectives of Hindu nationalist groups. The ideology
of Hindutva, or a movement for “Hindu awakening,” is a political strategy rooted in the teachings of the founders of the Rashtriya
Swayamsevak Sangh (“RSS,” National Volunteer Corps). The RSS was founded in the city of Nagpur in 1925 by Keshav Baliram Hedgewar
with the mission of creating a Hindu state. Since its founding, it has promulgated a form of Hindu nationalism as the dominant
basis for national
identity in India (Tamminen
1996).
According to the RSS, both the leaders of India’s nationalist movement and those of post-Independence India failed to create
a nation based on Hindu culture. The role of the RSS in the nationalist struggle for independence was defined in opposition
to its ideological differences with the Indian National Congress. While the latter sought to end British rule, the RSS argued
that the restoration of
Hinduism should be the cornerstone of the movement. In particular, the RSS was critical of what it termed the Congress’s policy
of “appeasement of Muslims” and opposed the
partition of India and the creation of Pakistan as a separate
Muslim state (Tamminen
1996). The RSS wanted “the entire gamut of social life” to be designed “on the rock-bed of Hindu nationalism” (Rashtriya Swayamsevak
Sangh n.d.: Part
VII), a goal that inspired the creation of the political, social, and
educational wings of the RSS, a family of organizations that is now referred to collectively as the Sangh Parivar, or “family”
of Hindu nationalist organizations.
Although different from one another in many respects, Sangh Parivar–affiliated groups have collectively promoted the argument
– in political, cultural, and social spheres – that India should be a Hindu state because Hindus constitute the majority of
Indians (Narula
2007: 367). The following organizations are among the more prominent Sangh Parivar–affiliated groups. The Jana Sangh Party was
formed in 1951 as the political wing of the RSS, and was later replaced in 1980 by the Bharatiya Janata Party
(BJP). The
BJP – which has emerged as a national party alternative to the
Congress Party – claims to be an inclusive political party (Nussbaum
2007: 67) and has attempted to portray itself as a party devoted to economic reform and battling corruption (Nussbaum
2007: 179). Still, it continues to “derive . . . its support in part from its religious roots, not only from its political values”
(Nussbaum
2007: 138).
The Vishwa Hindu Parishad (VHP) was formed in 1964 to cover the social aspects of the RSS activities. It organizes and communicates
the RSS message to Hindus living outside India and holds conferences for Hindu religious leaders from across the country.
The Bajrang Dal is the militant youth wing of the VHP and was formed in 1984. The Vidya Bharati (or the Vidya Bharati Akhil
Bharatiya Shiksha Sansthan) was established in 1978 with the objective of organizing the activities of the RSS in education.
Similar organizations at the state and regional levels have existed since the 1940s (Narula
2003a: 45). The RSS and the VHP/Bajrang Dal, whose membership is exclusively male, have set up counterpart women’s organizations
– namely the Rashtriya Sevika Samiti and the Durga Vahini, respectively. Like the Bajrang Dal, the Durga Vahini plays a paramilitary
role (Sarkar and Butalia
1995). Collectively, these groups focus on restoring what they see as women’s traditional roles in the family as mothers and wives
(Cossman and Kapur
1995: 92–102).
What began as a fringe movement has over time become a formidable force whose members are well represented in the wide spectrum
of Indian political, social, and cultural life. Sangh Parivar–affiliated groups have also proliferated overseas in countries
with large Hindu diaspora populations. Moreover, what was initially envisioned as a long-term project in which state power
was subordinated to the primacy of organizing society around Hindu ideals (Jaffrelot
1996: 77) now has its sights firmly trained on the goal of capturing political power. In the process, Hindu nationalist leaders
have pushed the boundaries of the law in their electioneering while militant allied
groups have been accused of trampling human rights in the Sangh Parivar’s collective quest for sociopolitical dominance.
The law has proved a malleable ally in such an undertaking. As noted below, Hindu nationalist groups have made ample and effective
use of the legal space afforded by the
Constitution, the courts, and the legislature to advance their agenda, and have in the process co-opted members of the law-enforcement
machinery for wholly unlawful ends. In many respects, the law operates in the context of Hindu nationalism and not the other
way around. More than six decades after Independence, Hindu nationalists continue to see themselves as the antidote to the
“erosion of the nation’s integrity in the name of secularism” (Rashtriya Swayamsevak Sangh n.d.:
Part II). And all the while, their call for a restoration of that integrity seamlessly manages to cloak itself in secular liberal
terms. The Constitution’s own internal contradictions have proven ripe for such manipulation.
Secularism in the Indian context has long been the focus of academic inquiry, most notably as a curious alternative to the
Western liberal democratic brand of secularism as separation of religion and state.
1 The Indian
Constitution, which is “determinedly secular” (Galanter
1984: 305), guarantees an expansive vision of religious freedom that embodies religious thought, beliefs, and rituals, and freedom
from discrimination on religious, racial, or
caste-related grounds (Dhavan
2001: 311). The
Supreme Court has also “consistently defined the limits of state power in terms of constitutional secularism” (Baxi
2000: 891). But in sharp contrast to Western conceptions of secularism, religion in India can never truly be separate from the
state (Jacobsohn
2003: 10). Indian society does not lend itself to such an interpretation, nor does the Constitution require it of the state (Sathe
2002: 161). Rather, the state is charged with the arduous project of guaranteeing freedom of religion while reforming the Indian
citizenry away from religion-based practices that offend liberal sensibilities. The Indian Constitution not only makes room
for state intervention, but implicitly invites it; as a result “the two can, and often do, interact and intervene in each
other’s affairs within the legally prescribed and judicially settled parameters” (Mahmood
2006: 756–7).
India’s constitutional commitment to secularism is therefore neither indifferent nor impartial to religion; rather, it seeks
to ensure that all religions are accorded equal treatment (Sripati
1998: 413) while simultaneously subjugating
religious freedom to the project of social reform. Article 25 of the Indian
Constitution, which guarantees individuals the right to freely “profess, practise and propagate religion,” explicitly invites
this project of social reform by stipulating that the right is “subject to public order, morality and health and to the other
provisions” of the Fundamental Rights section of the Constitution. Article 25 adds that nothing in the article shall “prevent
the State from making any law . . . providing for social welfare and reform.” A number of provisions of the Indian Constitution,
under the headings of Fundamental Rights and Directive Principles, underscore these reformist intentions. These include provisions
calling on the state to “endeavour to secure for the citizens a uniform civil code” subjecting all religions to the same set
of
personal laws (Article 44); to abolish the
caste-based practice of
untouchability (Article 17); and to protect
Scheduled Castes (so-called
“Untouchables”) and Scheduled Tribes from social injustice (Article 46), to name a few. The Constitution additionally empowers
the state to make special provisions, including through reservations or quotas, for the advancement of any socially and educationally
backward classes of citizens, or for
Scheduled Castes and Scheduled Tribes (for instance in Articles 15[4], 16[4], 330, 332). Such “compensatory discrimination” programs “permit departure from formal
equality for the purpose of favoring specialized groups” in order to protect them from exploitation and injustice (Galanter
1984: 41–2).
The
Constitution’s dual commitments to social reform and the preservation of religious group
identity can and do come into conflict. The Hindu nationalist movement has strategically stepped into this disharmonic context
to position itself as a defender of secularism whenever the state acts to preserve the group identity of religious minorities.
The Hindu nationalists’ claim of upholding secularism has been characterized as a distortion of the dominant understanding
of secularism, from one of equal respect of all religions to a majoritarianist strategy whereby the Hindu majority sets the
norm by which religious minorities must abide (Cossman and Kapur
1997: 115). Perhaps nowhere is this distortion more pronounced than in the Hindu nationalists’ support for the development of
a secular uniform civil code (UCC), which would apply with equal force to all religious communities, and in particular to
the
Muslim community whose practices, they argue, discriminate against women.
Article 44 of the Indian
Constitution calls upon the state to
endeavor to establish a uniform civil code (UCC) that would subject the Indian citizenry
to a uniform set of
personal laws. Such an endeavor, however, is fraught with tension. Compelling India’s
Muslim community to abandon their religious practices (in the areas of marriage,
divorce,
inheritance, and
maintenance) risks imposing majoritarian values on a minority community, while the ongoing failure to enact the UCC undermines
the project of liberal constitutionalism and institutionalizes differential treatment based on religion (Narula
2006).
These tensions have given rise to a peculiar anomaly in India wherein both proponents and opponents of the UCC can lay claim
to the mantle of secularism when making arguments in defense of their position. Those opposed to the UCC, including dominant
members of the
Muslim community, view the code as a threat to their cultural and religious
identity that they claim must be protected as part of their constitutional right to religious freedom. Enacting the UCC would
elevate secular laws while trivializing the importance of culturally anchored
personal laws as a basis for law-making in India (Menski
2008: 227). Support for the UCC, or more generally for the equal treatment of religions, can be born of two very different motives:
one that comes out of a “principled commitment to procedural liberalism” and another that “recognize[s] the utility of this
position because it facilitates a desirable political objective, namely the subordination of minorities to majoritarian Hindu
norms” (Jacobsohn
2003: 148).
The call for a uniform civil code has, as a result, made strange bedfellows of women’s rights advocates (who support the UCC
as beneficial to the rights of
Muslim women who are significantly disadvantaged under Muslim
personal law) and Hindu nationalists (who extract considerable political mileage from supporting the UCC as a counterweight
to minority appeasement or the extending of special privileges to the Muslim minority) (Narula
2006). The
BJP, for instance, has criticized “pseudo-secularism” as inadequately protecting the interests of Hindu communities (Baxi
2000: 891).
Though argued in
ameliorative terms (i.e., as supportive of
Muslim women’s rights) the rights discourse deployed by the Hindu nationalist movement is said to be in furtherance of its
assimilationist strategy that demands that religious minorities “owe allegiance to Hindu symbols of
identity because these were the embodiment of the Indian nation” and because of “the conviction that Hindu culture contains
within it the essence of Indian identity” (Jaffrelot
1996: 57). The Hindu nationalists’ distortion of the dominant understanding of secularism has been compounded by the
Supreme Court’s problematic engagement with the issue, as seen in cases concerning the relationship between secular law and
religious law as associated with the rights under Articles 25 and 26 of the
Constitution to profess
and practice religion and manage religious affairs. The issue of whether an allegedly secular right could be claimed despite
conflicting provisions of religious
personal law was explored in the landmark case of
Mohammed Ahmed Khan v.
Shah Bano Begum (AIR 1985 SC 945) (Basu
1999: 271; Engineer
1987). There, the Supreme Court addressed this relationship in the context of a possible conflict between the Muslim
personal law and Section 125(1)(a) of the Code of Criminal Procedure. Section 125(1)(a) allows a destitute wife to sue her
divorced husband for monthly
maintenance (financial support), provided that the husband has sufficient means and has neglected or refused to support his
former wife. Under Muslim
personal law, a Muslim man is required only to provide maintenance to his divorced wife during the period of
iddat – the obligatory three-month period following a
divorce during which marriage is prohibited.
In a highly controversial ruling, the Supreme Court first asserted the primacy of secular law over religious law in cases of conflict, holding that religion “cannot
have any repercussion on the applicability of such laws,” as Section 125 “cut across the barriers of religion” (Shah Bano 948–9). The Court went on to find no such conflict in the instant case, despite the accepted interpretation of the Muslim personal law as limiting a husband’s liability to maintain his divorced wife to the period of iddat. Instead, the Court noted that the “true position” of the Muslim personal law distinguished between divorced wives able to maintain themselves, in which case the husband’s liability would
cease with the expiration of the iddat period, and divorced wives left destitute, who would be “entitled to take recourse to section 125” (Shah Bano 950–1).
The Court reached this conclusion based upon its own analysis of the Quran and other Islamic texts, which left “no doubt that
the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.” Submissions by the All India Muslim Personal Board arguing otherwise were dismissed as
“facile” or as “a shuffling plea” (Shah Bano 951–2, 954). The Court evinced a clear preference for secular law on the grounds that “a common Civil Code will help the
cause of national integration by removing disparate loyalties in laws which have conflicting ideologies” (Shah Bano 954). While the case served in part to advance Muslim women’s rights, the language of “national integration” and the disapproval
of citizens’ “loyalties” to their personal laws were deeply troubling for India’s minority groups.
The ruling sparked an outcry from the
Muslim right and the Ulema (scholar clerics) issued a widely publicized proclamation condemning the judgment as contrary to
Islamic teachings (Kumar
1994: 84). The anger was
in part directed at the fact that a presumably Hindu judge issued the judgment’s commentary on
iddat and its Quranic origins (Basu
1999: 272–3). Soon after the ruling, the Congress Party, presumably fearing a loss of Muslim votes following their endorsement
of the
Shah Bano decision, passed the
Muslim Women (Protection of Rights on Divorce) Act (1986), which declared that Section 125 of the criminal code was not applicable
to Muslims, thereby nullifying the judgment. In response, Hindu nationalists engaged in acts of hostility and violence toward
Muslims, claiming the bill was proof of Muslim domination. Playing on this fear, the Hindu nationalist movement acquired unprecedented
support by framing the bill as “minority appeasement” and as a crisis revealing secularism to be inimical to national integrity
(Hasan
1998: 81).
The
Shah Bano controversy enabled the Hindu nationalist movement to spin the recognition of cultural difference as a vehicle of
Muslim minority privilege and unfair oppression of the Hindu majority. In so doing, the Hindu nationalists effectively oriented
the political discourse to incite mass outrage toward symbolic edifices such as the sixteenth-century
Babri Masjid (mosque) in Ayodhya, Uttar Pradesh (Panikkar
1993: 67). The VHP claimed that the Babri Masjid was built on a site that was the birthplace of the Hindu Lord Ram, and that a
temple at that site had been destroyed in order to build the mosque. The Bajrang Dal – the militant youth wing of the VHP
– was formed in order to mobilize youth for the campaign to build a temple to Lord Ram at the site of the mosque (Narula
2003a: 47), a campaign that has led to much violence and legal wrangling.
The Sangh Parivar’s strategy was to portray the alleged destruction of the
temple as an act of aggression against Hindus for which the entire
Muslim community – as descendants of the Muslim rulers accused of the destruction – must be held responsible. This symbolic
meaning of Ayodhya was communicated to the masses through a series of organized public interventions and through political
campaigns that made Ayodhya “a powerful mobilizing force” (Panikkar
1993: 67). The Ram temple campaign also enabled the rapid expansion of the
BJP’s electoral base (Panikkar
1993: 63) as it was easily folded into their electioneering strategy described below. The ultimate result – a toxic mix of violence
and feelings of Hindu inferiority aroused by portraying Muslims as a formidable threat – led ultimately to the destruction
of the
Babri Masjid, also described below.
A decade after the
Shah Bano decision, the Court once again reiterated the need for a uniform civil code. In
Sarla Mudgal v.
Union of India (AIR 1995 SC 1,531) the Court considered the legal validity of second marriages by Hindu men after they had converted to
Islam, holding that such marriages
were void (
Sarla Mudgal 1,537). The Court did not limit itself, however, to answering the specific legal question presented; instead, it called for
a uniform
personal law to supersede the
Muslim marriage laws on the ground that the
Constitution mandated “the establishment of a ‘common civil Code’ for the whole of India” (
Sarla Mudgal 1,538). In so doing, the Court implied that the Muslim practice of bigamous marriage ran counter not only to “the cause of
the national unity and integration,” but to the Constitution itself. Specifically, the Court stated that “The Hindus along
with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other
communities would not, though the Constitution enjoins the establishment of a ‘common civil Code’ for the whole of India”
(
Sarla Mudgal 1,538).
According to Ahmad, in cases such as
Sarla Mudgal, the question of what it means to be “un-Indian” is usually defined in opposition to a nationalist, monolithic, and static
notion of what constitutes the “true Indian”
identity – which often coincides with the identity of the Hindu majority (Ahmad
1996: 330–5). The Court’s reasoning reflects to some extent the success of the Hindu nationalist project to recast Indian identity
as one that is synonymous with being Hindu. The language of the decision did little to camouflage this perspective; it noted
that “[w]hen more than 80% of the citizens have already been brought under the
codified [Hindu]
personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of ‘uniform civil code’
for all citizens,” in effect assuming that Hindu law, being the majority law, should apply to all (
Sarla Mudgal 1,531–2; cf. Ahmad
1996: 330–2). Such a conflation of identity, culture, and religion was also on display in the so-called Hindutva cases described
below.
In 2001, the
Supreme Court revisited the
maintenance issue in
Danial Latifi v.
Union of India ([2001], 7 SCC 740) and found
Shah Bano to be good law (
Danial Latifi, paragraph 44). The Court interpreted the
Muslim Women (Protection of Rights on Divorce) Act – passed after the
Shah Bano ruling ostensibly to exempt Muslims from Section 125 – as codifying rather than nullifying the
Shah Bano holding (
Danial Latifi, paragraph 44). The Court drew on the language of the act that mandates “reasonable and fair provision and maintenance” for
Muslim ex-wives (
Danial Latifi, paragraph 44) and noted that a reading of the act that deprived Muslim women the protections of Section 125 would discriminate
on the basis of religion and would therefore be unconstitutional (
Danial Latifi, paragraph 46). Relying explicitly on the interpretation of Muslim
personal law in the
Shah Bano decision (
Danial Latifi, paragraph 46), the Court found that under Section 125 of the Criminal Procedure Code, Muslim
women were entitled to “reasonable and fair” maintenance from their husband beyond the
iddat period (
Danial Latifi, paragraph 48). Though there continues to be no uniform civil code at least one commentator argues that the current system
manages to achieve a measure of
legal uniformity stemming in part from the harmonization of the
personal law system through both legislation and judicial interpretation (Menski
2008: 213, 220).
As the goal of capturing political power took center stage in the Hindu nationalist movement so too did religion-based electioneering.
The nature of such electioneering came to light in the Hindutva cases whereby the Court erroneously accepted the “secular”
nature of election speeches by Hindu nationalist leaders and failed to interrogate the “anti-secular vision of secularism”
that such speeches represent (Cossman and Kapur
1997: 114–15). The case of
Ramesh Yeshwant Prabhoo v.
Prabhakar Kasinath Kunte (AIR 1996 SC 1,113) involved the prosecution of elected representatives of the
BJP–
Shiv Sena alliance government in the western state of
Maharashtra for corrupt practices under the
Representation of the People Act of 1951. (The Shiv Sena is a Maharashtra-based Hindu nationalist political party.) The act
prohibits and defines as a corrupt practice the use of religion or religious symbols,
inter alia, to promote one’s candidacy or to adversely affect the election of another candidate. The
BJP–Shiv Sena candidate
Ramesh Yeshwant Prabhoo appealed a
Bombay High Court judgment that pronounced
Prabhoo and Shiv Sena leader
Bal Thackeray (as
Prabhoo’s agent) guilty of violating the act.
Thackeray addressed several meetings during the course of
Prabhoo’s 1987 election. During one such meeting he stated, “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” (
Prabhoo, paragraph 6). Soon thereafter at another election meeting,
Thackeray stated:
Hinduism will triumph in this election and we must become hon’ble recipients of this victory to ward off the danger on Hinduism,
elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out . . . A candidate by [the] name [of] Prabhoo should be led to victory in the name of religion. (Prabhoo, paragraph 11)
Prabhoo argued that the election campaign speeches made by
Thackeray, which were the basis of the High Court’s decision, “did not amount to
appeal for votes on the ground of his religion [as] the substance and main thrust thereof was ‘Hindutava’ which means the
Indian culture and not merely the Hindu religion” (
Prabhoo, paragraph 15). Although the
Supreme Court upheld the High Court’s conviction, it agreed with
Prabhoo that Hindutva “is related more to the way of life of the people in the sub-continent [and] is not to be equated with,
or understood as religious Hindu fundamentalism” (
Prabhoo, paragraph 60). Rather, the Court found, the term “is used and understood as a synonym of ‘Indianisation’, i.e., development
of uniform culture by obliterating the differences between all the cultures co-existing in the country.”
In Manohar Joshi v. Nitin Bhaurao Patil (AIR 1996 SC 796), Joshi, a candidate of the BJP–Shiv Sena alliance, appealed to the Supreme Court after the Bombay High Court declared the election result void under the Representation of the People Act of 1951, finding that speeches given by Joshi and other leaders of the BJP–Shiv Sena alliance constituted “corrupt practices” under the act. The Supreme Court reversed the decision, dismissing
much of the election petition on essentially procedural grounds. With regard to Joshi’s own statements, the Court reiterated
that “the word ‘Hindutva’ by itself does not invariably mean Hindu religion” (Joshi, paragraph 58). Without much explanation, the Court added that Joshi’s declaration that “the first Hindu State will be established
in Maharashtra” did not constitute an appeal for votes on the basis of religion, but merely an “expression, at best, of such
a hope” (Joshi, paragraph 73).
In contrast to the Court’s understanding of “Hindutva,” the term “Hindutva” was developed by early leaders of the Hindu right
as a political conceptualization of the Hindu nation that was centered around religion (Cossman and Kapur
1997: 129–34). As noted above, the Hindutva movement is at its core a political strategy that aspires toward the creation of a
Hindu state and the subordination and assimilation of religious minorities therein. The Court’s conflation of Hindutva with
“Indian culture” also assumed a level of cultural homogeneity that in reality does not exist. The Hindu nationalist movement
is both led by, and protects the interests of, a small minority of India’s “upper”
castes and classes. The success of the movement, however, relies on its ability to lay claim to the majority mantle and develop
a collective consciousness that in many ways defies the “essential characteristics of
Hinduism” (Jaffrelot
1996: 1) and the
caste system’s rigid and hierarchical social stratification.
Jaffrelot sees Hindu nationalism as a modern sociocultural and political phenomenon “which took place despite the original
characteristics of
Hinduism” (Jaffrelot
1996: 5) and sketches a “process of cultural
reorganisation launched in reaction to external threats, real and/or imagined, in the form of proselytisation by
Christian missionaries, the impact of British rule and the militancy of the
Muslim minority” (Jaffrelot
1996: 6). This process of cultural reorganization includes a deliberate strategy to recast traditionally marginalized groups –
such as Dalits (so-called
“Untouchables”) and Adivasis (tribal community members) – into a
Hindu identity and deploy them in opposition to the Christian/Muslim Other. Politically, the vilification of Christians and
Muslims is also a synthesizing feature of Hindutva that helps to consolidate the Hindu vote bank while stemming the tide of
defecting
Dalit and Adivasi voters to other parties (Narula
2003a: 52).
2The Hindutva decision was seen as a victory for the “upper-
caste” dominated Hindu right. Citing the
Prabhoo decision, the
BJP’s 1999 manifesto declared Hindutva to be compatible with secularism (Jacobsohn
2003: 201). The Sangh Parivar’s overall political strategy has led to electoral success on both the state and the central level,
which in turn has given rise to the introduction of legislation in a number of states to ban religious conversions under the
pretext of “protecting”
Dalits and Adivasis from
Christian missionaries. A spate of attacks on members of the Christian community since 1998 in
BJP-dominant states has also been blamed on the violent activities and hate propaganda of Sangh Parivar–affiliated groups,
as has the forcible “reconversion” of Dalits and Adivasis to
Hinduism (Narula
2007: 367). The movement’s turn to violence is not a recent phenomenon, however. Numerous commissions of inquiry officially appointed
to investigate communal riots between Hindus and Muslims in India since the
partition of India and Pakistan have indicted Hindu nationalist groups for their role in violent crimes against India’s minorities.
The two most prominent episodes of violence related directly to the Ram
temple campaign.
The tension inherent in the Indian
Constitution’s dual commitment to ensuring equal treatment of all religions while subjugating religious freedom to the project
of social reform has proven ripe for manipulation by the Hindu nationalist movement. The movement’s majoritarian strain of
secularism has served as a vehicle to oppose religious-minority interests under the guise of equal treatment, co-opting the
rhetoric of secularism to legitimize Hindu primacy. The
Supreme Court’s record on issues concerning secularism has been mixed at best. The Court’s decisions in
Shah Bano and
Sarla Mudgal, while serving in part to advance
Muslim women’s rights, did
so through assimilationist language that called for national unity and disapproved of citizens’ “loyalties” to their
personal laws. While the Court was lauded for reaffirming the principle of secularism in cases such as
Bommai, its subsequent decisions in the Hindutva cases were heavily critiqued for failing to protect secularism from the threat
of the Hindutva agenda.
Despite the Court’s problematic engagement with personal laws and its mixed record on issues concerning the challenge posed to secularism by Hindu nationalists, it has stepped
in to provide much-needed accountability checks in the face of grave episodes of communal violence. The Court’s actions following
the post-Godhra violence were, for example, seen as a scathing rebuke of the government of Gujarat. But while these procedural interventions helped stem the tide of acquittals, the Court fell short of holding the
state and its institutions responsible for the violence itself, revealing once again the extent to which the law operates
in the context of Hindu nationalism, and not the other way around.
The Sangh Parivar’s success in capturing political power and infiltrating the machinery of law enforcement in a number of
states has also led to a selective application of the law and to the passing of legislation that harms minority interests.
Ultimately, while civil society has attempted to use the courts and the Constitution to provide a stalwart defense against the rise of Hindu nationalism, as noted throughout this chapter, the law
itself has been unduly influenced by the power of the movement.