A precise cut

Written by Shylashri Shankar | Updated: Jan 31 2010, 05:06am hrs
Understanding the role of religion in society and the effect of judicial intervention on a countrys polity is vitally important today, says Ronojoy Sen in Articles of Faith. True, but how does one write in an interesting fashion about a topic (court judgments on secularism) that has been over-analysed The lateness of the authors entry is a function of the process where the transformation of a Ph.D thesis (in his case from the University of Chicago) into a book takes years. The author, a journalist and a Visiting Fellow at the National Endowment for Democracy and the East West Centre in Washington DC, faces the insurmountab le challenge of introducing a fresh flavour to a jaded palate.

Ronojoy Sens driving question is: how has the higher judiciary interpreted the right to freedom of religion, and, in turn, influenced the discourse on secularism and nationalism (p. xiii). He focuses on the Indian Supreme Courts rulings on the constitutional Articles of Faith (25-30), a topic that has already been addressed by many scholars.

The book reviews landmark cases such as the 1966 Sastri Yagnapurushdasji vs Muldas Bhundardas, where the apex court defined Hinduism as a way of life; the Shirur Mutt case where the test for the essential practices of religion that qualified for constitutional protection was first proposed; the Aruna Roy vs Union of India ruling where the court made a distinction between religious instruction and religious education; the TMA Pai and other cases on the rights of minority educational institutions; the Stanislaus case that denied constitutional protection to a right to propagate; the Jasani case where courts enforced disincentives for converting out of Hinduism, and the Shah Bano and Sarla Mudgal cases where the court linked the uniform civil code with national unity, and the Hindutva judgment. The final chapter analyses the Nehruvian motivations for former chief justice PB Gajendragadkars judgments because he is a key figure in the tendency to rationalise and ultimately homogenise Hinduism. (p. xxxvi).

Ronojoy Sens argument, which mirrors previous arguments by other scholars, is that the courts rulings have homogenised and rationalised religion and religious practices, especially in Hinduism, along the lines of classical or high Hinduism that originated with the 19th century reformation of Hinduism (p. xxxii). The courts emphasis on an inclusivist form of Hinduism, the author argues, led inexorably to the Hindutva judgment where the court conflated inclusivist forms with an exclusivist version of Hinduism promoted by Hindu nationalists. Like Derrett and many others, the author argues that the inclusivist discourse failed to take into account the pluralist nature of Hinduism and instead created a monolithic version of Hinduism.

Through an analysis of the main positions in the Constituent Assembly debates, he traces the muddy contours of secularism in India. He argues that the Nehruvian formulation of secularism won the day but its oscillation between sarvadharma sambhava (goodwill towards all religions) and dharma nirapekshata (religious neutrality) (p. xxiv) later contributed to the legitimisation of an exclusivist Hindu nationalism within Hinduism.

However, Rononjoy Sens discussion of the relationship between the court and the political arena is unclear. At several points in the analysis, he seems to be arguing that the court influenced the political movement towards an exclusivist Hindu nationalism, and at other points he argues that the courts ruling was representative of the politics of a time when Hindu nationalists had acquired a legitimacy (p.195). If so, Sens argument that the courts propensity to homogenise Hinduism in the name of modernisation led to an overlap with the Hindu nationalist agenda seems more a function of the inclination of the political elite. In response to such a critique, the author says too much though should not be read into the judiciary being influenced by the tides and currents of the time (p.196). The author then goes on to cite Rajeev Dhavans warning about analysing the behaviour of the court as being technically unpredictable (p.196). However, his discussion of chief justice Gajendra- gadkars rulings shows a symmetry between the desire of the elites in the judiciary and Parliament to bring about enormous changes in peoples habits, work, living patterns, moral conduct and world view, (p.194), but the fact that Gajendragadkars intellectual mentor was Jawaharlal Nehru implies that the court was influenced by the political elite rather than the other way around.

For the lay reader lost in a thicket of debates on secularism, the book provides a nifty summary of the main position, the patterns of the apex courts rulings, and the historical sources of the judiciarys position when it tries to balance religious even-handedness on the one hand and religious reform on the other.

The reviewer is Senior Fellow, Centre for Policy Research