Secularism and Toleration Author(s): Partha Chatterjee Source: Economic and Political Weekly, Vol. 29, No. 28 (Jul. 9, 1994), pp.

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Partha Chatterjee Thereis the very real possibility todayof a Hindu right locating itselffirmlywithinthe domainof the modernising state and using all the ideological resources of that state to lead the charge against people who do not conformto its version of the 'nationalculture'. From the position the Hinduright can not only deflect accusations of being anti-secularbut even use the arguments interventionist secularisationto promoteintoleranceand violence against minorities.The question for thenis: Is the defence of secularism an appropriategroundfor meeting the challenge of the Hindu right? Or should the responsebe a defence of tihedutn of the democraticstate to ensure policies of religious toleration?
THEREis little doubt that in the last two orthree yearswe haveseen a genuinerenewal of both thinking and activism among leftdemocraticforces in India on the question of the fight for secularism. An important element of the new thinking is the reof examination the theoreticaland historical foundationsof the liberal-democraticstate in Indiaandof its relationto the history and theoryof the modem state in Europeand the Americas. An interesting point of entry into the problem providedby the parallelsrecently is drawnbetweenthe rise of fascism in Europe in the 1920s and 1930s andthatof the Hindu right in India in the last few years. Sumit Sarkar, amongothers,has noted some of the ' chillingsimilarities. But a morecarefullook atpreciselythiscomparisonwill, I think,lead us to ask a basic and somewhat unsettling an qusion: Is secularism adequate, or even ground on which to meet the appropriate, political challengeof Hindumajoritarianism? TheNazicampaigns againstJews andother minority groups did not call for an of abandonment the secularprinciplesof the statein Germany.If anything,Nazi rule was accompanied by an attempt to deChristianisepubliclife andto underminethe influenceof the Catholic well as thevarious as Pltestant churches.Fascist ideology did not seek the union of state and religion in Italy where the presence of a large peasant and population theholdof Cathoiicismmight be supposedto have providedan opportune condition forsuchademand-and thisdespite the virtually open collaboration of the Roman Church with Mussolini's regime. NaziGernanyandFascistItalyare,of course, only two examplesof a featurethathas been noticed many times in the career of the modem statein manycountriesof the world: namely, that state policies of religious intolerance or of discrimination against religious and other ethnic minoritiesdo not necessarily require the collapsing ot state and religion, nor do they presuppose the existence of theocratic institutions. The point is relevantin the context of the currentpolitics of the Hindu right in India. It is necessary to ask why the political leadership.of that movement chooses so meticulously to describe its adversariesas 'pseudo-secularists',conceding thereby its approvalof the ideal as such of the secular state.None of theseriouspoliticalstatements madebythatleadership contains advocacy any of theocratic institutions notwithstanding and, the exuberanceof a few sadhus celebrating their sudden rise to political prominence,it is unlikely that a conception of the 'Hindu Rashtra'will be seriously propagated which will include,for instance,a principlethatthe laws of the state be in conformity with this or that 'samhita' or even with the general spiritof the Dharmasastra. this sense, the In leading element in the currentmovementof the Hindurightcanbe saidto haveundergone a considerableshift in position from, let us say, thatof the HinduMahasabha the time at of the debateover the HinduCode bill some 40 years ago. Its position is also quite unlike that of most contemporary Islamic fundamentalist movementswhich explicitly reject the theoreticalseparationof state and religion as 'western' and un-Islamic. It is similarly unlike the fundamentaliststrand within the Sikh movements in recent years. Tlhe majoritarianism the Hindu right, it of seems to me, is perfectly at peace with the institutionsand proceduresof the 'western' or 'modern' state. Indeed the mnature, most formidable, and statementof the new political conceptionof 'Hindutva' is unlikely to pit itself at all against the idea of the secular state. The persuasive power, and even the emotional charge, thatthe Hindutvacampaignappears to havegainedin recentyearsdoes notdepend on its demandinglegislative enforcementof ritual or scriptural injunctions, a role for religiousinstitutionsin legislativeor.judicial processes, compulsoryreligiousinstruction, statesupportforreligiousbodies, censorship of science, literature and art in order to safeguard religious dogma, or any other similar demand undermining the secular characterof the existing Indian state. This is notto saythatinthefrenzied mel&e produced by the Hindutvabrigadesuch noises would not be made; the point is that anti-secular demands of this type are not crucial to the political thrust.or even the publicappeal.of the campaign. Indeed,in its most sophisticatedforms,the campaignof the Hindu rightoften seeks to mobilise on its behalf the will of an interventionist modernisingstate in orderto erase the presence of religious or ethnic particularismsfrom the domains of law or public life and to supply, in the name of 'nationalculture', a homogenisedcontentto the notion of citizenship. In this role, the Hindu right in fact seeks to projectitself as a principled modernist critic of Islamic or Sikh fundamentalism and to accuse the 'pseudo-secularists'of preachingtolerance for religious obscurantismand bigotry. Te most recentexample of this is the Allahabad High Court pronouncement on divorce practices among Muslims by a judge well known for his views on the constitutional sanctity of Lord Rama. Thus the comparison with fascism in Europepoints to the very real possibility of a Hindu right locating itself quite firmly within the domain of the modernisingstate and using all of the ideological resourcesof that state to lead the charge against people who do not conform to its version of the 'national culture'. From this position, the Hindurightcan not only deflect accusations of being anti-secularbut can even use,he argumentsfor interventionistsecularisation to promoteintoleranceand violence against minorities. As a matterof fact, the comparisonwith Nazi Germanyalso extendsto the exact point that provides the Hindutvacampaign with its venomous charge: as Sarkarnotes, 'the Muslim here becomes the near exact equivalent of the Jew.' The very fact of to belonging thisminority religious community is sufficient to put a question mark against the statusof a Muslim as a citizen of India. Theterm'communal', thistwistedlanguage, in is reserved for the Muslim, whereas the 'pseudo-secular'is the Hindu who defends the right of the Muslim citizen. (Note once morethatthe tenn 'secular'itself is not made a target of attack.) Similarly, on the vexed question of migrantsfrom Bangladesh, the Hinduimmigrant by definitiona 'refugee', is while the Muslimis an 'infiltrator'.A whole series of stereotypical features, now sickeningly familiar in their repetitiveness, arethenadducedinordertodeclareasdubios the historical,civil and political statusof the Muslim within the Indianstate. In short,the current campaign of the Hindu right is directednotagainsttheprincipleofthesecular state,but rathertowardsmobilisingthe legal


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powersof thatstatein orderto systematically persecuteand terrorisea specific religious minority within its population. The question then is as follows: Is the ground defenceof secularisman appropriate formeetingthe challengeof the Hinduright? Or should it be fought where the attack is being made, ie, should the response be a defence of the duty of the democratic state to ensure policies of religious toleration? because it reminds Thequestionis important pose usdat notall aggressivemajontarianisms thesam sortof problemin the contextof the in democraticstate:Islamic fundamentalism or Pakistan Bangladesh Sinhalachauvinism or do in SriLanka not necessarilyhave available to them the same political strategies as the majontarianpolitics of the Hindu right in India.Italso wams us the veryrealtheoretical possibility that secularisationand religious toleration may sometimes work at crosspurposes.2 It is necessary therefore to be clearaboutwhatisimpliedby theseconcepts.

At the very outset, let us face tip to a point thatwillbe invariablymadein any discussion on 'secularism' in India, viz, that in the Indian context the word has very different usein the English meaningsfromits standard language. This fact is sometimes cited as of confirmation the 'inevitable'differencein the meaningsof a concept in two dissimilar cultures('India is not Europe:secularismin Indiacannot mean the same thing as it does in Europe'). At other times, it is used to underline the 'inevitable' shorfcomings of the modem state in India ('There cannot be a secularstate in Indiabecause Indianshave an incorrect concept of secularism'). Of course, it could also be arguedthatthis comparison with European conceptions is irrelevantif our purpose is to intervene in the Indiandebate on the subject. Whatdoes it matter if 'secularism' means something else in European and American politicai discourse? As long as there are reasonably clearandcommonly agreedreferentsfor the word in the Indian context, we should go ourselvesto thespecifically aheadandaddress Indian meaning of 'secularism'. the Unfortunately, mattercannotbe settled 'secularism' Tbelndianmeaningsof heateasily. did not emerge in ignoranceof the European or American meanings of the word. I also thinkthat in its currentusage in India, with apparentlywell-defined 'Indian' referents, theloudandoften acrimoniousIndiandebate on 'secularism'is never entirely innocentof its westem genealogies. To pretendthat the 'Indian'meaning of secularismhas marked out a conceptual world all of its own, untroubled its differences with 'western' by secularism,is to take an ideological position whichrefuseseitherto recogniseor tojustify

its own grounds.

In fact, I wish to make an even stronger argument. Commenting upon Raymond Williams'sjustlyfamousKeywords, Quentin Skinnerhas pointedout that a concept takes on a new meaningnot (as one would usually suppose) when argumentsthat it should be applied to a new circumstancesucceed, but ratherwhen such argumentsfail.3 Thus, if one is to considerthe'new' meaningacquired by the word 'secularism' in India, it is not as though the plea of the advocates of secularismthattheconceptbearsapplication to modem Indianstate and society has won general acceptance and the concept has therebytakenon a new meaning.If thathad been the case, the 'original' meaning of the word as understoodin its standardsense in the west would have remainedunmutilated; it would only have widened its range of referentsby including within it the specific circumstances of the Indian situation. The reasonwhy arguments have to be madeabout 'secularism'having a new meaningin India is because there are serious difficulties in applying the standardmeaning of the word to the Indian circumstances.The 'original' concept,in otherwords,will not easily admit the Indiancase within its rangeof referents. This, of course, could be a-good pretext for insisting that Indians have their own concept of secularism which is different from the western concept bearingthe same it name;, could be argued,is exactly why the westernconcept cannotbe appliedto the The argument then would be abouta differencein concepts:if the concept is different, the question of referential equivalence cannot be a very crucial issue. At most, it would be a matter of family resemblances, but conceptually western secularism and Indian secularism would inhabit entirely autonomous discursive domains. That, it is needless to say, is hardly the case. We could begin by asking why, in all recent discussions in India on the relation between religion and the state, the central concept is named by the English words 'secular' and 'secularism' or, in the Indian languages, by neologisms such as 'dharmanirapeksata'which are translationsof those English words and are clearly meantto refer to the range of meanings indicated by the English terms. As far as I know, there does not exist in any Indianlanguage a term for 'secular'or 'secularism'which is standardly used in talking about the role of religion in the modern state and society and whose meaning can be immediately explicated withouthavingrecourseto theEnglishterms. What this implies is thatalthoughthe use of 'dharma' in dharma-nirapeksata or 'mazhab'in 'ghair-mazhabi' mightopen up in orreferential conceptual possibilities lndian discourse which were unavailable to the concept of 'secularism' in the west, the continued use of an awkward neologism,

besides of course the continued use of the English term itself, indicates that the more stable and well-defined reference for the conceptlies in thewesternpoliticaldiscourse about the modem state.4In fact, it is clear from the discussions among the Indian political and intellectualelites at least from the 1920s that the proponentsof the secular statein Indianeverhadanydoubtat all about the meaning of the concept of secularism; all thedoubtswereaboutwhether concept that would find a congenial field of application in the Indiansocial andpoliticalcontext.The continued use of the term 'secularism'is, it seems to me, an expression of the desire of the modernising elite to see the 'original' meaning of the concept actualisedin India. The resort to 'new meanings' is, to invoke Skinner's point once more, a mark of the failure of this attempt. It might prove instructiveto do a 'history of ideas' exercise for the use of the word 'secularism' in Indianpolitical discoursein the lasthundred years,butthisis nottheplace for it. What is importantfor our purposes is a discussion of how the nationalistproject of putting an end to colonial riule and inaugurating an independent nation-state became implicated, from its very birth,in a contradictorymovement with regardto the modernist mission of secularisation. Ignoring the details of a complicated history, it would not be widely off the mark to say that by the latter half of the 19th centurythe Britishpowerin Indiahadarrived at a reasonablyfirm policy of not involving the statein mattersof religion.It triedto keep neutral on disputes over religion and was particularly careful not to be seen as promoting Christianity. Immediately after the assumption of power by the crown in 1858, the most significant step was takenin institutingequalitybeforethelawbyenacting uniformcodes of civil and criminallaw. The area left out, however, was that of personal law which continued to be governed by the respective religious laws as recognisedand interpretedby the courts. The reason why personal law was not brought within the scope of a uniformcivil code was precisely thereluctance ofthecolonial statetointervene in mattersclose to the very heartof religious doctrine practice.rnthematterof and religious endowments, while the British power in its early years took over many of the functions of patronageand administration previously carriedout by Indian rulers, by the middle ofthe 19thcenturyit largelyrenounced those responsibilities and handed them over to local trusts and committees. As far as the modemising efforts of the Indianelite are concerned,the 19thcentury attemptsat 'social reform' by solicitingthe legal interventionof the colonial state are well known. In the second half of the 19th century,however,the rise of nationalism led to a refusal on the part of the Indianelites

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to let the colonial state enter into areas that followed by similarlegislationin the Central identity Provinces, Bihar, Bombay and other as wereregarded crucialtothecultural of the nation. This did not mean a halt to provinces and finally by the temple entry the project of 'reform'; all it meant was a provisions in the Constitutionof India. Althoughin the courseof the debatesover shift in the agency of reform-from the legal authorityof the (colonial) state to the moral theseenactmentsviews wereoftenexpressed This aboutthe need to 'removea bloton the Hindu of authority the (national)community.5 shift is crucial, not so much because of its religion', it was clearly possible to justify coincidence with the policy of non- some of the laws on purelyseculargrounds. apparent interventionof the colonial state in matters Thus, the devadasisystem could be declared ofreligionin thelate 19thcentury,butbecause unlawful on the ground that it was a form of the underlyingassumption in nationalist of bondage or of enforced prostitution. thinking about the role of state legislation Similarly, 'temple entry' wvassometimes that in religion: legal intervention in the cause defendedby extendingthe argument the of religious reform was not undesirableper denial of access to public places on the se, but it was undesirablewhen the state was grounds of untouchability was unl3wful. However, a contradictionappearedin this colonial. As it happened, there was considerable 'civil rights' argumentsince all places of change in the social beliefs and practicesof worship were not necessarily thrown open the sections that came to constitute the new to all citizens; only Hindu temples were middle class in the period leading up to declaredopen forall Hindusandnon-Hindus independence in 1947. Not only was there could be, and actuallystill are,denied entry. change in the actual practices surrounding But even more problematically,the right of family and personal relations, and even in worship'of all classesandsectionsof Hindus' manyreligiouspractices,withouttherebeing at 'Hindu religious institutionsof a public as any significant change in the Jaws of the character,' Article25(2) ofthe Constitution state, but, plTaps more importantly,there has it, necessarily implies-thatthe state has was an overwhelming tide in the dominant to take up the onus of interpretingeven attitudesamong these sections in favour of doctrinal and ritual injunctionsin order to the legitimacy of 'social reform'. These assert the religious legitimacy of forms of in reformist opinions affected the educated worshipthatwould not be discriminatory sections in virtually all partsof the country terms of caste.7 Still more difficult to justify on nonandfounda voice in most religious and caste religious grounds was a reformistlaw like communities. One of the dramatic results of this the Madras Animal and Bird Sacrifices cumulation of reformist desire within the Abolition Act, 1950. The view that animal and a nationalist middleclass was thesuddenspate sacrifices were repugnant represented of new legislation on religious and social primitive form of worship was clearly the This productofaveryspecificreligious interpretation afterindependence. mattersimmediately is actually an extremely significant episode of religious ritualand could be describedas in the development of the nation-state in a sectional opinion even among Hindus. (It Indiaand its deeply problematicnaturehds might even be describedas a view that was been seldom noticed in the currentdebates biased against the religious practicesof the over secularism.It needs to be described in lower castes, especially in southernIndia.) Yet in bringing about this 'purification'of some detail. the Hindu religion, the legislative wing of thestate seenastheappropriate was instrument. REFORM NATION-STATE AND RELIGious The period after independencealso saw, Even as the provisions of the new apartfrom reformistlegislationof this kind, constitutionof India were being discussed an enormousincreasein the involvementof in in the constituent assembly, some of the the state administration the management provincial legislatures had begun to enact of the affairs of Hindu temples. The most laws for the reformof religious institutions significantenablinglegislationin this regard and practices.One of the most significantof was the Madras Hindu Religious and these was the MadrasDevadasis(Prevention CharitableEndowments Act, 1951, which of of Dedication) Act, 1947, which outlawed createdan entire department government the institutionof dedicating young girls to devoted to the administration of Hindu temple deities and prohibited'dancing by a religious endowments.' The legal argument woman... in the precinctsof any temple or here is, of course, that the religious other religious institution, or in any denomination concerned still retains the procession of a Hindu deity, idol or object right to manage its own*aftairs in matters of worship... "' Equally importantwas the of religion, while the secular matters Act, concerned with the management of the Madras Temple Entry Authorisatwon 1947, which made it a punishable offence propertyof the cndowmentis takenover by of to 'prevent any person on the ground of the state. But this is a separation functions is or from entering worshipping Sthat impossible to maintain in practice. untouchability choose to spend in a Hindutemple. This act was immediately Thus, if the administrators

the endowment funds on opening hospitals or universitiesratherthanon more elaborate ceremonies or on religious instruction,then the choice will affect the way in which the religiousaffairsoftheendowmentaremanaged. The issue has given rise to several disputes in court about the specific demarcation betweenthereligious thesecular and functions and to furtherlegislation, in Madrasas well as in other parts of India. The resulting situation led one commentatorin the early 1960s to remarkthat "the commissionerfor Hindureligiousendowments,a publicservant of thesecularstate,todayexercisesfargreatei over Hindureligionin Madras state authority thanthe archbishopof Canterbury does over the Church of England."9 Once again, it is possible to providea nonreligious groundfor state interventionin the administrationof religious establishments, viz, prevention of misappropriation of endowment funds and ensuring the proper supervision of what is after all a public property.But what has been envisaged and actually practised since independencegoes well beyond this strictlynegative role of the state.Clearly,the prevailingviews aboutthe reform of Hindu religion saw it as entirely that and fitting therepresentative administrativ.e wings of the state should take up the responsibility of managing Hindu temples of in, as it were,the 'publicinterest' thegeneral body of Hindus. Thereformist agendawas,ofcourse,carried outmostcomprehensivelyduringthemaking of the Constitutionand subsequentlyin the in enactme'nt 1955 of what is known as the HinduCode Bill."' During the discussions, objections were raised that in seeking to changepersonal thestatewasencroaching law uponanareaprotected therightto religious by freedom. B R Ambedkar's reply to these objections summed up the general attitude of the reformist leadership: in Thereligiousconceptions thiscountry are so vast thatthey cover e6ery aspectof life frombirthto death.Thereis nothingwhich is not religion and if personallaw is to be savedI amsureaboutitthatin socialmatters we will come to a standstill...There is in nothing extraordinary sayingthatweought to strivehereafter limit the definitionof to religionin such a mannerthatwe shall not extendit beyondbeliefs andsuchritualsas which may be connectedwith ceremonials areessentiallyreligious.It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to shouldbegoverned religion... succession, by I notunderstand religion why should be given this vast expansive jurisdictionso as to cover the whole of life and to prevent the legislature from encroachingupon that field." Impelledby this reformisturge,the Indian parliament proceeded to cut through the


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immensely complicated web of local and sectarian variations that enveloped' the corpus known as 'Hindu law' as it had emergedthroughthe colonial courts and to lay down a single code of personal law for citizens.Manyof thenew provisions allHindu were far-reachingin their departure from taditional'brahmanical prnciples. Thus, the new code legalised inter-caste marriage;it legaliseddivorce and prohibitedpolygamy; it gave to the daughter the same rights of inheritanceas the son and permitted the adoptionof daughtersas well as of sons. In justifying these changes, the proponentsof reform not only made the argument that 'tradition'could not remain stagnant and needed to be reinterpretedin -the light of changingconditions,they also hadto engage in the exercise of deciding what was or was notessendalto 'Hindureligion'. Once again, the anomalyhas provoked comments from criticalobservers:"An official of the secular state(thelaw minister]became an interpreter of Hindureligion, quoting and expounding the ancientSanskritscripturesin defence of his bills."12 Clearly,it is necessary here tounderstand the force and internal consistency of the nationalist-modernist project which sought, in one and the same move, to rationalisethe domain of religious discourse -and to secularise publicdomainof personallaw. the It Wouldbe little more than reactionaryto rail against the 'westem-educated Hindu' who is scandalised by the profusion of avaricious and corrupt priests at Hindu temples and who, influenced by Christian ideas of service and piety, rides roughshod over the 'traditionalHindu notions' that a religiousgift was nevermadefor any specific purpose,that the priest entrusted with the managementofatemplecouldforall practical purposestreatthe propertyaridits pfocceds as imatters within his personal jurisdiction andthatunlikethe Christianchurcha temple was a place "in-whichthe idol condescends to receivevisitors,who areexpected to bring offeringswith them,like subjectspresenting themselves before a maharaja".'3More serious,of course, is the criticism that by using the state as the agency of what was veryoftenonly religiousreform,thepolitical of leadership the new nation-stateflagrantly violatedthe principleof separationof state andreligion."This is a matterwe will now consider in detail, but it is necessary neverthelessto point out that the violation of this principle of the secular state was justifiedpreciselyby the desire to sec4larise. ANOMALIES OF SECULAR STATE Whatarethe characteristics the secular of are state?Threeprinciples usuallymentioned in the liberal-democraticdoctrine on this The subject.'5 first is the principleof liberty which requires that the state permit the

practiceof any religion, withinthe limits set by certainother basic rights which the state is also requiredto protect.The second is the principleof equality which requiresthatthe statenot give preferenceto one religionover another. thirdis theprinciple neutrality The of which is best described as the requirement that the state not give preference to the religious over the non-religious and which *leads,in combination with the liberty and equality principles,to what is known in US constitutionallaw as the 'wall of separation' doctrine,viz, thatthe state not involve itself with religious affairs or organisations."6 Looking now at thedoctrineof the secular state as it has evolved in practice in India, it is clear that whereas all three principles have beeninvokedtojustify the secularstate, theirapplicationhas been contradictory and has led to majoranomalies.The principleof liberty, which implies a right of freedom of religion, has been incorporated in the Constitution which gives to every citizen, subjectto public order,moralityand health, not only the equal right to freedom of conscience but also, quite specifically, "the rightfreelyto profess,practiseandpropagate religion". It also gives "to every religious denomination any section thereof' certain or collective rights of religion. Besid,es, it specifically mentions the right of "all minorities, whether based on religion or language",to establish and administertheir own educationalinstitutions.Limitingthese rightsof freedomof religion,however,is the rightof the state to regulate"anyeconomic, financial, political or other secular activity which may be associated with religious practice",to provide for social welfare and reform and to throw open Hindu religious institutions to all sections of Hindus. This limit to the libertyprincipleis what enabled the extensive reformunderstate auspices of Hindupersonallaw andof theadministration of Hindu temples. Theliberal-democratic doctrine freedom of of religiondoes recognise,of course,thatthis right will be limited by other basic human rights. Thus, for instance, it would be perfectly justified for the state to deny that, let us say, humansacrifice or causing injury to humanbeingsor, as we have alreadynoted in the case of devadasis,enforced servitude to a deity or temple constitutespennissible religious practice. However, it is also recognised that there are,many grey areas where it is difficult to lay down the limit. A case very often cited in this connection is the legal prohibitionof polygamy even when it may be sanctioned by a particular religion; the argument that polygamy necessarily-v toates otherbasic humanrights is often thought of as problematical. But no matterwhere this limit is drawn, it is surelyrequiredby the idea of the secular

state theliberty that principle limited be only althoughthe institution caste itself is of by the needto protect someotheruniversal supposed derive basis to its from thedoctrines

basic right and not-by appeal to a particular of interpretation religious doctrine.This, as we have mentioned before, has not been possible in India. The urge to undertakeby legislation the reformof Hindupersonallaw and of Hindu religious institutionsmade it difficult for the state not to transgressinto the area of religious reform itself. Both the legislature and the courts were led into the exercise of interpretiuig religiousdoctrineon religious grounds. Thus, in deciding the legally permissiblelimits of state regulation of religious institutions,it became necessary to identifythosepractices wereessentially that of a religious characterbut, in accordance with the judicial procedures of a modem state, this decision could not be left to the -religiousdenominationitself but had to be determined'as an objective question' by the courts." It can be easily seen that this could lead to the entanglement of the state in a series of disputes that are mainly religious in character. It could, of course, be argued that given the dual characterof personallaw, inherited from the colonial period, as religious law recognised and codified as the laws of the state, and in thc absence of approprate oftheHindu institutions religion thrugh wich religious reform could be organised and carried out outside the arena of the state, therewas no alternativeto state intervention in this matter.Which otheragency was there with-the requisite power and legitimacy to undertakethe reformof religious practices? Theforceandpersuasiveness thisargument of for the modernistleadershipof independent India can hardly be overstated. The desire was in fact to initiate a process of rational interpretationof religious doctrine and to findarepresentative credibleinstitutional and process for the reform of religious practice. That the use of state legislation to achieve this modernist purpose must come into conflict with anothermodernistprincipleof thefreedomof religionis one of theanomalies of -the secular state in India. The second principle-that of equalityis also explicitly recognised in the Indian Constitutionwhich prohibitsthe state from discriminating against any citizen on the basis only of religion or caste, except when it makes special provisions for the advancementof socially and educationally backwardclasses or for scheduledcastesapd scheduled tribes. Such special provisionsin the form of reserved quotas in employment and education or of reserved seats in representative bodies have, of course, led to much controversy in India in the last few decades.Butthese disputesaboutthevalidity of positive discrimination in favour of castes or tribeshave almost underprivileged never taken the form of a dispute about equality on the ground of religion. Indeed,

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of thebrahmanical religion,the recentdebates It is suggested that for historical reasons inthepoliticalarenaaboutcastediscrimination t)ere is a certainlag in the readinessof the usually do not-make any appeals at all to different communities to accept reforms intendedto rationalise domainof personal relisidocnes.lhereisonlyorOsignificant the way in which the question of positive law. In any case, if equality of citizenship in discrimination favourof scheduled castes is what is desired, it already stands is circumsncribed religion: in order to compromisedby the very system of religionby qulify as a member of a scheduled caste, based personallaws inheritedfromcolonial a person must profess to be either Hindu or times.Whatshouldbedone thereforeis, first, Sikh; a public declaration of the adoption to declare the desirability of replacing the of any other religion would lead to separate personal laws by a uniforn civil disqualification.However, in some recent code, but proceedingtowardsthis objective the provisions relating to 'other backward in a pragmatic way,$restpecting sensitivity classes', especially in the much disputed of the religious communities about their recommendations the Mandal of Commission, freedom of religion and going ahead with have been made to go beyond this state-sponsored reforms only when the attempts limitation. communitiesthemselves are readyto accept The problem with the equality principle them. Accordingly, there is an item in the which concerns us mnore directly is the way non-justiciableDirective Principles of the in which it has been affected by the project Constitution which declares that the state of reforming Hindu religion by state should endeavourto providea uniformcivil legislation. All of the legislative and code for all citizens. On theotherhind, those administrative measureswe have mentioned claiming to speak on behalf of the minority before concernthe institutionsand practices communitiestend to take a firm standin the of the Hindus, including the reform of freedomof religionprincipleandto deny that personallaws and of religious endowments. the state should have any right at all to That this was discriminatorywas arguedin interfere theirreligiousaffairs. anomaly in The the 1950s by the socially conservative has, in the last few years, proyidedsome of sections of Hindu opinion and by political the most potent ammunitionto the Hindu parties like the Hindu Mahasabha which rightin its campaignagainstwhatit describes wereopposed to the idea of reformitself. But as the 'appeasement'of minorities. the fact that the use of state legislation to It would not be irrelevantto mentionhere bring about reforms in only the religion of that there have also occurred among the the majoritywas creatinga serious anomaly minorityreligious communitiesin Indianot in the very notion of equal citizenship was entirelydissimilarmovementsforthe reform pointedout by only a few lone voices within of religious laws and institutions. In the the progressivesections. One stich belonged earlier decades of this century, there were to J B Kripalani,the socialist leader, who organised attempts, for instance, to put an argued:"Ifwe area democraticstate,I submit endtolocalcustomary practices amongMuslim we must make laws not for one community communities in various parts of India and alone... It is not the Mahasabhiteswho alone replacethemwitha uniformMuslimpersonal arecommunal;it is the governmentalso that law. This campaign,led in particular the by is communal, whatever it may say." Jamiyat al-ulama-i Hind of Deoband, well Elaborating,he said, knownforits closeness to theIndianNational againsttherecognition If they [the membersof Parliament] single Congress,wasdirected outtheHindu for community theirreforming by the courts of special marriage and zeal, theycannotescapethechargeof being inheritance practices among communities in communalists thesensethat the such as the Mapilla of southern India, the theyfavour Hinducommunity are indifferent the Memonof westernIndia,andvariousgroups and to good of the Muslim community or the -inRajasthan Punjab. argument and The given Whether marriage was not only that such practices were 'unthe Catholic community... bill favoursthe Hinducommunity places Islamic'; specific criticisms were also made or it at a disadvantage, bothways, it becomes abouthow thesecustomswere backward and a communalmeasure.'" iniquitous, especially in the matter of the The basic problem here was obvious. If treatmentdf women. The preambleto a bill it was acceptedthatthe statecould intervene to change the customarysuccession law of in religious institutionsor practicesin order theMapilla,forinstance,said,usingarhetoric to protect other social and economic rights, not unlike what would be used later for the then what was the ground for intervening reform of Hindu law, "The Muhammadatonly in the affairsof one religiouscommunity communitynow feels the incongruityof the dnotofothers? Clearly,thefirstprincipleusage and looks upon the prevailingcustom that of freedom of religion-could not be as a discredit to their religion and to their invoked here only for the minority community".'9 The reform campaigns led to a series of communities when it had been set aside in new laws in various provinces and in the dte case of the majority community. central Theprnoblemhasbeengotaroundbyresorting legislature, such as the Mapillato whatis essentially pragmatic a argument. Succession Act 1918, the Cutchi Memons

Act 1920 and 1938, and the NWFP Muslim Law(Shari'at) Personal Act Application 1935 (which was the first time that the terms 'Muslim personal law' and 'Shari'at' were usedinterchangeably law).Theculmination in of these campaigns for a uniform set of personal laws for all Muslims in India was reached with the passing of the so-called Shari'at Act by the central legislature in 1937. Interestingly, it was because of the persistentefforts of MuhammadAli Jinnah, whose political standing was in this case exceeded by his prestigeas a legal luminary, that only certain sections of this act were required to be applied compulsorily to all Muslims; on other matters its provisions were optional. The logic of completing the process of uniformapplicationof Muslim personallaw has continued in independent India. The optional clauses in the 1937 Act have been removed. The act has been applied to areas that were earlier excluded, especially the princely states that merged with India after 1947, the latest in that series being Cooch Behar where the local customary law for Muslims was superseded by the Shari'at laws through legislation by the Left Front government of West Bengal in 1980. Thus, even while resisting the idea of a uniform civil code on the ground that this would be a fundamentalencroachmenton the freedom of religion and destructive of the culturalidentity of religious minorities, the Muslim leadership in India has not shunned state interventionaltogether. One notices, in fact, the same attempt to seek rationalisation uniformityas one sees in and the case of Hindu personal law or Hindu religious institutions.The crucialdifference after1947is, of course,thatunlikethemajority community, the minorities cannot grant to a legislature elected by universalsuffragethe power to legislate the reform of their religions-. On the other hand, there do not exist any other institutions which have the representativelegitimacy to supervise such a process of reform. That, to put it in a nutshell,is thepresentimpasseontheequality

The thirdprinciplewe have mentionedof the secular state-that of the separationof stateandreligion-has also been recognised in the Constitutionwhich declaresthatthere shallbe no.officialstatereligion,no religious instructionin state schools and no taxes to support aypyarticular religion. But, as we have seen, 't e state has become entangled in the affairs of religion in numerousways. This was the case even in colonial times, but the 'degree and extent of the entanglement, paradoxically,has increasd: since" ind:ependence. Not only is this involvement limited to the sortsof cases we havementionedbeforewhichweretheresults

of staesponsore religiouls reform. Many of of the''oldersystems of state patronage


Econonic a P



religious institutions carried out by the or colonialgovernment by theprincelystates sfillcontinueunderthepresentregime.Thus, Article 290A of the Constitutioi makes a specificprovisionof money to be paid every yearby the governmentsof KeralaandTamil Nadu to tfie.TravancoreDevaswom Fund. Ardcle 28(2) says that although there will be no religious Instruction in educational instiutions wholly-maintained out of-state funds, this would not apply to those institutions where (he original endowment or trustrequiresthatreligious instructionbe given. Underthis provision, Benares Hindu and University. Aligarh Muslim University, bothcentraluniversitia, do impartreligious instruction. Besides, there are numerous educationalinstitutionsall over the country whichreceive runbyreligiousdenontinations state finaneial aid. Theconclusionisinescapablethatthe'wall of separation'doctrine of US constitutional law can hardly be applied to the present Indian situation (as indeed it cannot in the case of many European democracies, but there at least it could be argued that the entanglemientsare politically insignificant and.often obsolete remnantsof older legal conventions). This is precisely the ground on which the argumentis sometimes made secularism'hastg havea different that'Indian meaningfrom 'westernsecularism'.Whatis suggested is in fact that the cultural and historicalrealitiesof the Indiansituationcall fora differentrelationshipbetween state and civil society than what is regarded as normative,inwestern political discourse, at least in the matterof religion. Sometimes it is said that in Indian conditions, the neutrality principle cannot apply; the state will necessarily have to involve itself in the affairs of religion. What must be regarded as normative here is an extension of the equalityprinciple, i e, that the state should favourall religions equally. This argument, however, cannot offer a defence for the selecfiveintervention thestatein reforming of the personal laws only of the majority community. On the other hand, arguments are also made about secularism having suggestingtherebythata 'manymeanings',"t democratic statemust be expectedto protect culturaldiversity and the right of people to follow their own culture. The difficulty is that this demand cannot be easily squared with the homogenisingseculardesire for, let us say, a uniforn civil code. Wherewe end up then is a quandary.The desirefora secularstatemustconcede defeat even as it claims to have discovered new meaningsof secularism.On the other hand, diversityanddifferent therespectforcultural ways of life finds it impossible to articulate the itsdfintheunitaryrationalismof language ofrights.It sems to me thatthereis no viable

mustdefinetherelation betweentherelatively the same time, the locus of rights must be autonomous domainsof stateandcivil society the individualcitizen, the bearerof universal in termsalways of individualrights.As has needs; to recognise rights that belong only been noticed for many other aspects of the to particular culturalgroups withinthe body emerging forms of non-westernmodernity, of citizens is to destroy both equality and thisis one moreinstance wherethesupposedly freedom. Needless to say, this puristversion of the universalforms of the modem state turnout to be inadequatefor the postcolonial world. liberal doctrine is regardedas unduly rigid To reconfigurethe problem posed by the and narrowby many who otherwiseidentify politics. career of the secular state in India, we will withthevaluesof liberal-democratic need to locate it on a somewhat different But the attempts to make room within the In conceptualgrounld. the remainderof this doctrinesof liberalismfor some recognition paper, I will suggest the outlines of an of collective cultural identities have not alternative theoreticalargumentwhichholds yielded solutionsthatenjoy wide acceptance. thepromiseof takingus outsidethedilemmas I cannot enter here into the details of this of the secular-modernist discourse. In this, controversy which, spurred on by the I will not take the easy route of appealing challenge of 'multiculturalism' in many to an 'Indian exception'. In other words, I western countries, has emerged as perhaps will not trot out yet another version of the the liveliest area of debate in contemporary 'new meaningof secularism'argument.But liberal philosophy. A mention only of the to avoid thatroute,I mustlocate my problem principalmodes of argumentinsofaras they on a groundwhich will include, at'one and are relevant to the problems posed by the the same time, the history of the rise of the Indian situation will have to suffice. modern state in both its western and nonOneresponse theproblem fundamental to of western forms. I will attemptto do this by moral disagreements caused by a plurality invoking Michel Foucault. ofconflictingandsometimesincommensurable culturalvalues is to seek an extension of the LIBERAL-DEMOCRATIC CONUNDRUM principle of neutrality in order to preclude such conflicts from the political arena.The But before I do that, let me briefly refer argumenthere is thatjust as in the case of to thecurrent stateof thedebateoverminority religions, the existence of fundamentally rights in liberal political theory and why I divergentmoralvaluesin societywouldimply think the problem posed by the Indian that -there is no- rational way in which situation notfindanysatisfactory will answers reasonablepeople mightresolve the dispute, within the termsof thatdebate. A reference and since the state should not arbitrarily to thistheoretical corpusis necessarybecause, favourone set of beliefs over anotherit must first, left-democratic thinking in India on not be asked to intervene in such conflicts. secularismand minorityrights shares many John Rawls and Thomas Nagel, among of its premises with liberal-democratic others, have made arguments of this kind thought and, second, the legally instituted seeking therebyto extend thenotionsof state processes of the state and the public domain impartialityand religious tolerationto other in India have clearly avowed affiliations to areas of moral disagreement.21 the conceptual world of liberal political Not all liberals, however, like the deep theory. Pointing out the limits of liberal scepticismand'epistemicabstinence' implied thoughtwill also allow me then to make the inthis view.22Morerelevantforus,however, suggestion that political practice in lndia is the criticism made fropn within liberal must seek to develop new institutionalsites theory that these attempts to cope with that cut across the divide between state diversity by taking the disputes off the sovereignty on the one hand and people's political agenda are "increasinglyevasive. rights on the other. They offer a false impartialityin place of To begin with, liberal political theory in social recognition of the persistence of its strict sense cannot recognise the validity fundamental conflicts of value in our of any collective rights of cultural groups. society"." If this is a judgment that can be Liberalism must hold as a fundamental' made for societies where the 'wall of principle the idea that the state, and indeed separation' doctrine is solidly establishld, all public institutions,will treat all citizens the remotenessof these argumentsfrom the equally, regardlessof race, sex, religion or realities of the Indiansituationhardlyneeds otherculturalparticularities. is only when to be emphasised. It will everyoneis treated equally,liberals argue, However, ratherthan evade the question that the basic needs of people, shared of cultural diversity, some theorists have universally by all, can be adequately and attemptedto take up the 'justiceas fairness' fairly satisfied. These universal needs will idea developed by liberals such as John include not only 'material' goods such as Rawls and Ronald Dworkin and extend it livelihood, healthcare or educationbut also to cultural groups. Justice, accordingto this 'cultural'goods such as religious freedom, argument, requires that undeserved or

withinthe given free speech, free association,etc. But in way out of this problem freedom equality and theory at contours liberal-democratic which orderto guarantee of

'morally arbitrary' disadvantages should be removed or compensated for.~If such

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July 9. 1994


disadvantages attachto personsbecausethey were born into particularminority cultural groups, then liberal equality itself must demand individual that rightsbedifferentially Will Kymlicka thebasisof culture. allocatedon has made-sucha case for the recognition of the rightsof culturalminorities whose very survival as distinct groups is in question.24 We should note, of course, that the examplesusuallygiven in thisliberalliterature to illustrate the need for minority cultural rights are those of the indigenous peoples of North America and Australia. But in principle thereis no reasonwhy the argument about 'being disadvantaged' should be restrictedonly to such indubitablecases of endangeredculturalgroups; it should apply to any group that can be reasonablydefined as a culturalminoritywithin a given political entity. And this is where its problems as a liberaltheory become insuperable.Could a collective cultural right be used as an instrument perpetuate to thoroughlyilliberal practiceswithinthegroup?Wouldindividual members of such groups have the right to leave the group?If an individualtight of exit is granted, would that not in effect underminethe rightof the group to preserve its identity? On the other hand, if a rightof exit is denied, would we still have a liberal society?25 Clearly, it is extremely hardto justify the grantingof substantivelydifferentcollective rights to cultural groups on the basis of liberalism's commitment to procedural equality and universal citizenship. Several recent attempts to make a case, for special rights for culturalminorities and oppressed groups have consequently gone on to question the idea of universal citizenship itself; in doing this, the arguments come fairly close to upholding some sort of culturalrelativism. The charge thatis made against universal citizenship is not merely that it forces everyone into a single homogeneous cultural mould, thus threatening distinctidentitiesof minority the groups, but that the homogeneous mould itself is by no means a neutral one, being invariably cultureof the dominantgroup, the so that it is not everybody but only the minorities and the disadvantaged who are forcedto foregotheirculturalidentities.That being the case, neither universalism nor neutralitycan have any moral priorityover the rights of culturalgroups to protect their autonomous existence. Once again,arguments such as this go well beyond the recognised limits of the liberal doctrine,andeven thosewho aresympathetic to the demands for the protectionof plural cultural identities feel compelled to assert that the recognition of difference cannot mean the abandonmentof all commitment toauniversalistframeworic ason.26Usually, terefore, the 'challengeof multiculturalism' is sought to be met by asserting the value

of diversityitself for the floweringof culture the modem form of power, whether inside and making room for divergentways of life or outside the domainof the state,is capable within a fundamentally agreed set of ofallowingforanimmenselyflexiblebraiding universalistvalues. Even when one expects of coercion and consent. recognitionofone's 'righttoculture',therefore, If we bear in mind these featuresof the one must always be preparedto act within modem regime of power, it will be easier a cultureof rights and thus give reasons for for us to grasp what is at stakein the politics insisting on being different.2" of secularisation. It is naive to think of None of these liberalargumentsseems to secularisationas simply the onwatd march have enough strengthto come to grips with of rationality,devoid of coercionandpower -theproblemsposed by the Indiansituation. struggles.Even if secularisation a process as Apartfrom resortingto platitudesaboutthe of the decreasing significance of religionin value of diversity, respectfor other ways of publiclife is connectedwith such 'objective' life andtheneedforfurthering understanding social processes as mechanisation or the between different cultures, they do not segmentation of social relationships (as provide any means for relocating the sociologists such as Bryan Wilson have it institutions of rights or refashioning the argued),29 does not necessarily evoke a practices of identity in order to get out of uniform set of responses from all groups. what often appearsto be a politicalimpasse. Indeed,contrary phenomenasuchas religious revivalism, fundamentalismand the rise of GOVERNMENTALrry new cults have sometimes also been explained as the consequence of the same I make use of Foucault's idea of processes of mechanisation or segmentagovernmentality not because I think it is tion. Similarly, argumentsaboutthe need to conceptuallyneat or free of difficulties. Nor holdon to a universalistframework reason of is the way in which I will use the idea here even as one acknowledges the fact of Foucaulthas advanced difference ('deliberative universalism' or onethat,asfarasIknow, himself. I could have, therefore, gone on 'discourse ethics') tend to sound like pious from the precedingparagraph set out my homilies because they ignore the strategic to own scheme for reproblematising issue context of power in which identity or the of secularism in India without making this difference is often asserted. The limit of liberal-rationalisttheory is gesturetowardsFoucault.The reasonI think the referenceis necessary, however, is that reachedwhen one is forced to acknowledge within speciflcstrategic the configuration by invoking Foucault I will be better able that, to emphasisethe need to shift ourfocus from of a power contestation, what is asserted the rigid frameworklaid out by the concepts in a collective culturalrightis in fast the right of sovereignty and right to the constantly not to offer a reason for being different. shifting strategiclocations of the politics of Thus, when a minority group demands a culturalright, it in fact says, "We have our identity and difference. Foucault's idea of governmentality28 own reasonsfor doing things the way we do, remindsus, first,thatcuttingacrosstheliberal but since you don't share the fundamentals divide between state and civil society there of our world-view, you will never come to is a very specific form of power that understand or appreciate those reasons. entrenchesitself in modernsociety, having Therefore,leave us alone andlet us mindour 'as its goal the well-being of a population, own business." If this demand is admitted, its mode of reasoninga certaininstrumental it amountsin effect to a concessionto cultural notion of economy and its apparatus an relativism. elaborate networkof surveillance. But the matter does not necessarily end True,there have been other attemptsat conceptualising there.Foucault's notion of govemmentality this ubiquitous form of modern power, leads us to examine the other aspect of this most notably in Max Weber's theory of strategic contestation. Why is the demand rationalisation and bureaucracy (or more made in the languageof rights?Why arethe and invoked? Even recently in the writings of the Frankfurt ideasof autonomy freedom School and in our own time in those of as one assertsa basic incommensurabilityin Jurgen Habermas). However, unlike frameworks of reason, why does one Weberian sociology, Foucault's idea of neverthelesssay 'we have ourown reasons'? Consider then- the two aspects of the governmentality does not lend itself to process that Foucault describes as the appropriation by a liberal doctrine of characterising the state as a domain of 'governmentalisation the state':juridicial coercion('monopolyof legitimateviolence') sovereignty on the one hand, goverrmental andcivil society as the zone of freedom.The technology on the other. In his account of idea of governmentality-and this is its this processin westem Europesince the 18th second important feature-insists that by century, Foucault tends to suggest that the exercising itself through forms of second aspect completely envelops and and hence by otfering itself contains the first.30 That is to say, in representation, as an aspect of the self-dtisciplining the distributing throughout social of itself the body very populationover which it is exercised. by means thetechnologies disciplinary. of of


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July 9, 1994

power, the modem regime no longer retains a distinct aspect of sovereignty. I do not think, however, that this is a necessary implicationof Foucault's argument.On the I contrary, find it more useful, especially of course in situations where the sway of disciplinarypower is far from general, to the lookforadisjuncturebetween two aspects and thus to identify the sites of application of power where governmentalityis unable successfully to encompass sovereignty. Tb assadon of minority cultural rights occurson precisely such a site. It is because of a contestation on the ground of sovereignty thatthe rightis assertedagainst governmentality. To say 'we will not give reasons for not being like you' is to resist enteringthatdeliberativeor discursivespace where the technologies of governmentality operate.But then, in a situationlike this, the only way to-resistsubmittingto the powers of sovereigntyis literally to declare oneself unreasonable.

It is necessary for me to clarify here that in the remainderof this paper, I will be concerned exclusively with finding a defensible argument for minority cultural rights in the given legal-political situation prevailing in India. I am not therefore proposing an abstractinstitutional scheme fortheprotection minorityrightsin general. of Nor will I be concerned with hypothetical questions such as: "If your proposal is put, into practice,what will happen to national unity?"I am not arguing from the position of the state;consequently, the problem as I see it is not whatthe state,or those who think and act on behalf of the state, can grant to the minorities. My problem is to find a defensible ground for a strategic politics, bothwithin and outside the field defined by theinstitutions thestate,in whichaminority of group,or one who is preparedto think from the positionof a minoritygroup,can engage in India today. When a group asserts a right against govemmentality, i e, a right not to offer reasons for being different, can it expect othersto respectits autonomyandbe tolerant of its 'unreasonable' ways? The liberal of understanding tolerationwill have serious problemswith such a request. If toleration is the willing acceptance of something of which one disapproves, then it is usually justified on one of three grounds: a contractualist argument (persons entering into the social contract cannot know beforehandwhich religion they will end up having and hence will agree to mutual toleration),3' aconsequentialist argument (the consequencesof acting tolerantlyare better than those of acting intolerantly),32 an or

xgmn about respect persons.33Wehave for out adray pointed theinappropriateness o!f

acontractualistsolution theproblems to posed by the Indiansituation.The consequentialist argumentis precisely what is used when it is said thatone mustgo slow on the universal civil code. But this is only a pragmatic argumentfor toleration,based on a tactical consideration about the costs of imposing what is otherwise the right thing to do. As such, it always remains.vulnerable to righteous moral attack. The principleof respect for persons does provide a moral argumentfor toleration.It acknowledges the right of the toleratedand construestolerationas somethingthatcan be claimed as an entitlement.It also sets limits to toleration therebyresolvestheproblem and of justifying something of which one disapproves: toleration is required by the principleof respectfor persons,butpractices which fail to show respect for personsneed not be tolerated.Applying this principle to the case of minorityculturalrights,one can easily see where the difficulty will arise. If a groupis intolerant towardsits own members and shows inadequaterespect for persons, how can it claim tolerance from others? If indeed the group chooses not to einterinto a reasonable dialogue with others on the validity of its practices, how can it claim respect for its ways? Once again, I think that the strategic location of the contestation.over cultural rights is crucial. The assertionof a right to be differentdoes not exhaustall of the points where the contestationis grounded.Equally importantis the other half of the assertion: "We have our own reasons for doing things the way we do." This implies the existence of a field of reasons, of processes through which reasons can be exchanged and validated, even if such processes are open only to those who sharethe viewpointof the group. The existence of this autonomous discursivefield may only be implied andnot activated,but the implicationis a necessary partof the assertionof culturalautonomyas a matter of right.34 The liberal doctrine tends to treat the question of collective rights of cultural minorities from a position of externality. Thus, its usual stand on toleratingcultural groups with illiberalpracticesis to advocate some.sort of right of exit for individual dissident members.(One is remindedof the insistence of the liberal Jinnah that not all sections of the. Shari'at Bill should apply compulsorilyto all Muslims.)The argument I am advancingwould, however,give a very different construction to the concept of toleration.Tolerationherewouldrequire one to accept thattherewill be politicalcontexts where a group could insist on its right not to give reasons for doing things differently provided it explains itself adequatelyin its own chosen forum.Inotherwords,toleration here-would be premised on autonomy and respectfor persons,butit would be sensitive

to the varying political salience of the institutionalcontexts in which reasons are debated. To returnto the specificities of the Indian situation,then, my approachwould not call for any axiomaticapprovalto a uniformcivil code for all citizens. Rather,it would start fromthe historicallygiven realityof separate religion-basedpersonallaws andtheintricate involvement of state agencies in the affairs of religious institutions. Here equal citizenship already stands qualified by the legal recognitionof religiousdifferences;the 'wallof separation' doctrinecannotbe strictly applied either. Given the inapplicabilityof theneutrality principle,therefore, becomes it necessary to find a criterionby which state involvement, when it occurs in the domain of religion, can appearto the membersof a religious group as both legitimate and fair. Toleration,as describedabove, can, it seems to me, supply us with this criterion. What this will mean in institutionaltenns are processes throughwhich each religious group will publicly seek and obtainfromits membersco'lsent for its practicesinsofaras th-osepractices have regulative power over the members. It is not necessary that there be a single unifcrmpattern seekingconsent of that each group will be requiredto follow. But it is necessary, if toleradon is to be that demanded, theprocessessatisfythesame condition of representativeness that is invoked when a legislative body elected underuniversalfranchiseis foundunsuitable to act on matters concerning the religion of minority groups. In other words, even if a religious group declares that the validity of its practices can only be discussed and judged in its own forums, those institutions must have the same degree of publicityand representativenessthat is demanded of all public institutions having regulatory functions. That would be a necessary implication of engaging in the politics of collective rights.I might also usefully repeat that these institutions would not be bodies which the state will legislathinto existence, let us say, tomorrow,as prerequisites the for protectionof minorityrights;they will have to be given actual form througha political processprimarily withineachminoritygroup. Contraryto the apprehensionsof many who think of minority religious groups as inherentlyauthoritarian opposed to the and democratisation theirreligiousinstitution's, of it is unlikely, I think, that the principal impedimentto the-opening suchprocesses of within the religious communitieswill come from the minoritygroupsthemselves.Tlere is considerablehistoricalevidenceto suggest thatwhencollective cultural rightshavebeen asserted on behalf of minority religious groups in India,they have oftenbeenbacked by the claim of popular consent through

democratic processes. Thus, campaign the inthe 1920s for reform themanagement in o?

and Weekly July 9, 1994 Economic Political


Sikh gurdwaraswas accompanied by the in the regulationof the li'vesand activities Akali demand that Sikh shrines and of its members, then their very stature as religious establishments be handed over to elected bodies representative of their elected bodies. Indeed the campaign was constituentswill be construedas diminishing successful in forcing a reluctant colonial -the sovereignty of the state. I can hear the government to provide in t<heSikh murmurs already: "Remember theSGPC how Gurdwaras and Shrines Bill 1925 for a was used to provide legitimacy to Sikh committee elected by all adult Sikhs, men separatism? Imagine what will happen if and wom,n, to take over the management Muslims gel their own parliament!"The of Sikh ieligiois places.35 The Shiromani 'deadweightof juridical sovereignty cannot Gurdwara Prabandhak Committee was be easily pushed aside even by those who perhapsthe first legally constituted public otherwise subscribe to ideas of autonomy body in colonial 'India for, which- the and self-regulatingcivil social institutions. principle of universal suffrage w'as I do not, therefore,make these proposals recognised. It is also importantto note that for a reconfigurat'ionof the problem of the so-called 'traditional' ulemd in India secularismin Indiaand a redefinitionof the whencampaigning the 1920sforthe reform concept of toleration with any degree of in of Muslim religious institutions demanded optimism. All I can hope for is that faced politicalimpasse, from.thecolonial governmentthatofficially withapotentiallydisastrous appoiited bodies such as Wakf committees some at least will prefer to err on the'side be replacedby representativebodies elected of democracy. by local Muslims.36 The persuasive force of Notes the claim of representativeness is often [Part theresearch thispaper done of for was irresistiblein the politics of collective rights. during visit to the University Leidenin a of The mobreserious opposition to this October-November 1993. I have discussed proposal i* likely to come from those who earlierdraftsof the paperin meetingsat will see in the separaterepresentativepublic Calcutta, Colomboand Kampala. am esI institutions"ofthe religious communities a peciallygratefulto ImtiazAhmed,Javeed threatto the sovereign powers of the state. Alam,Nirmala Pradip Bose,Vivek Banerjee, If such institutionsare to be given any role Dhareshwar, TapatiGuhaThakurta, Ashis

Nandy, Gyan Pahdey, Manas Roy and Asok Sen for their commnents.] I Sumit Sarkar, 'The Fascism of the Sangh Parivar',Economicand Political Weekly, January 30, 1993, pp 163-67; Jan Breman, 'The HinduRight:Comparisonswith Nazi Germany,' The Times of India, March 15, 1993. 2 Ashis Nandy makes a distinction between religion-as-faith, by which he means a way of life that is operationally plural and tolerant, and religion-as-ideology which identifies and enumeratespopulationsof followers fighting for non-religious; usually political and economic, interests. He then suggests, quite correctly, that the politics of secularism is part of the same process of formation of modem state practices which promotesreligion-as-ideology. Nandy's conclusion is that rather than relying on the secularism of a modernised elite we should 'explore the philosophy, the symbolism and the theology of tolerance in the variousfaiths of the citizens and hope thatthe state systems in south Asia may learn something about religious tolerance from everyday.Hinduism, Islam, Buddhism, and/or Sikhism....' 'The Politics of Secularism and the Recovery of Religious Tolerance' in Veena Das (ed), Mirrorsof Violence: Communities,Riotsand Survivors in South Asia, Oxford University Press, Delhi, 1990, pp 69-93. I am raising the same doubt about whether secularism necessarily ensures toleration,but,unlikeNandy, I am here looking for political possibilities

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Economic and Political Weekly

July 9 1994

within the domain of the modem state.institutions as they now exist in India. 3 Quentin Skinner. 'Language and Political Change' in Terence Ball, James Farr and RussellL Hanson,(eds), Political Innovation 4 Even in the mid-1960s, Ziya-ut Hasan Faruqi was complaining about the use of 'ghairmnazhbi'and 'la-dini'."Ghayrmazhabi means sqthing conirary to religious commandnnts and la dini is irreligious or atheistic.... The common man was very easily led to conclude that the Indian state was against religion. It is, however, gratifying to see that the Urdu papers have started to transliterate theword 'secular'. "'Indian Muslims andthe Ideology of the Secular State' in Donald Eugene S-mith (ed), South Asian Politics and Religion, Princeton University Press, Princeton, 1966, pp 138-49. 5 I have discussed the point more elaborately in The Nation and its Fragcments: Colonzial and Postcolonial Histories; Princeton University Press, Princeton, 1993. 6 Cited in Donald Eugene Smith, India as a SecularState, Princeton University Press, Princeton 1963, p 239. 7 In fact, the courts, recognising that the right of a religious denomination 'ta manage its own affairs in matters of religion' (Article 26(b)) could come into conflict with the right of the-state to throw open Hindu temiiples to all classes of Hindus (Article 25(2)(b)), have had to come up with ingenious, and often extremely aroitraty,arrangementsin orderto strike a compromise between the two provisions. Some of these judgments are referred to in Smith, India as a Secular State, pp 242-43. For a detailed account of a case illustratingthe extent ofjudicial involvement in ihe interpretation religious doctrineand of

and ConceptualChange.Cambridge Uni1989, pp 6-23. versityPress,Cambridge,

ritual,see Aijun Appadurai, and Worship under Colonial Covflict Ruk:ASouth Indian

10 Actually, seriesof laws calledfte' H'4ri. 26 See, for example,CharlesTaylor.Multia Marriage theHindu Succession the Bill, Bill, culturalism and 'ThePolitcs of Recognition ',

Cw, Cambridge University Pss, Cambridge, 1981, pp 3,6-5O. 8 Actually, the increased role of the govemmentinconstollingtheadministratonofHindu temples in Madrasbegan with the Religious EndowmentsActs of 1925 and-1927-l-is interestingto note that there was nationalist opposition themoveatthetinme:Satyamurthi to S said during the debates IWthe provincial legislature in 1923 that "the blighting hand of this governmentwill also fall tight on our temples and maths, with the result that they will also become partof the great machinery whichtheHon'ble ministerandhis colleagues are blackening every day." During the de*batespreceding the 1951 Act, on the other hand, T S S Rajan, the law minister, said. "...thefear of interferingwith religious institutions has always been,there with an alien Govemnment with us it is very different. but Ours may be called a secular Government, and so it is. But it does not absol've us from protectingthe funds of the institutions which are meant for the service of the people." For an account of these changes in law, see ChandraY Mudaliar,The SecularState and Religious Institutions in India: A Study of the Administration of Hindu Public Religious Trustsin Madras, FritzSteinerVerlag, Wiesbaden, 1974. 9 Smith,Indiaas a Secular r_I_te. p 246.

HinduMinorityand Guard3^ship andthe Bill Hindu Adoptions an4,MKaintenance Bill. II ConstituentA.s.sembIyD bates, Vol 7, p 781. 12 Smith, India as a Secular State, pp 281-82. 13 See, for instance, J Duncan M Derrett, 'The of Reformr Hindu Religious Endowments' in Smith (ed), South Asidn Politics and Religion, pp 311-36. 14 The two most comprehenisive studies on the subject of the secular state in Indiafrnake this point. V P Luthera in The Concept of the Secular State and India, Oxford University Press,'Calkutta, 1964, concludes that India should not properlybe regardedas a secular state. D E Smith in India as a Secular Stat disagrees,arguingthat Luthera bases his conclusion on too narrow a definition of the secular state, but nevertheless points out the numerousanomalies in the currentsituation. 15 For a recent exchange on this matter, see RobertAudi, 'The Separationof Churchand State and the Obligations of Citizenship', Philosophy and Public Affifirs, 18, 3 (Summer 1989), pp 259-96; Paul J Weithman, Separation of Church and State: Some Questions for Professor Audi', Philosophy and Public Aflfiirs, 20, 1 (Winter 1991), pp 52-65; RobertAudi, 'Religious Cominitment and Secular Reason: A Reply to Professor Weithman', Philosophy and Public Affiuirs, 20, 1 (Winter 1991), pp 66-76. 16 The US Supreme Court defined the doctrine as follows: 'Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... Neither a state nor the federal governinent can, openly or secretly, participatein the affairs of any religious organisation or groups and vice versa,' Everson v Board of Educationi, 330, US I (1947), cited in Smith, India as a Secular State, pp 125-26. 17 Durgah Committee v Hussain, A 1961 S C 1402 (1415), cited in Durga Das Basu, Constitutional Law of India, Prentice-Hall of India, New Delhi, 1977, p 84. 18 Cited in Smith, India as a Secular State, pp 286, 288. 19 Cited in Tahir Mahinood, Muslinm Personal Law:RoleoftheStateinthelndianSubcotntinent, All India Reporter,Nagpur, 1983, p 21. 20 Sumnit Sarkar,'Tlhe Fascismof thleS(an gI,P(arivar'. 21 John Rawls, 'Julstice Fairness:Politicalnot as Metaphysical.' Philosoph'v (aindPublic Affiirs. 14(1985),pp248-51l Rawls,'ThePriority of the Right and Ideas of the Good,' PhilosophyandPublicAffairs,17(1988),pp 260-64; 'ThomasNagel, 'MoralConflict and Political Legitimacy,' Philosophy and Public Affairs, 16(1987), pp 218-40. 22 For instance, Joseph Raz, 'Facing Diversity: The Case of Epistemic Abstinence', Philosophyand Public Affairs, 19(1990), pp 3-46. 23 Amy Gutmannand Dennis Thompson, 'Moral Conflict and Political Consensus,' Ethics, 101 (October 1990), pp 64-88. 24 Will Kymlicka, Liberalism, Communityand Culture, OxfordUniversity Press,Oxford,1989. 25 See, for example, the following exchange: ChandranKukathas,'Are there any Cultural Rights?' and Will Kymlicka, 'The Rights of Minority Cultures', Political Tlheory, 20, I(February 1992), pp 105-46; Kukathas, 'CulturalRightsAgain,' Political Theory,20, 4 (November 1992), pp 674-80.

Princeton UniversityPlress,Princeton, 1992; Amy Gutmann, 'The Challenge of Multiculturalism in Political Ethics',

Philo.sphy and Public Affairs,22(1993); pp 173-206.
27 Rajeev Bhargava has sought to make the case for the rights of minorities in India in these terms. 'The Right to Culture' in K N Panikkar (ed), Communalism in Manohar, P History, oliticsandCulture, India: New Delhi, 1991, pp 165-172. 2-8 See, in particular, Michel FoNcault, 'Governmentality' in Graham Burchell, Colin Gordon and Peter Miller (eds), The

in Studies Governmentality, Foucault Effect:
University of Chicago Press, Chicago, 1991, pp 87-104; and 'Politics and Reason' in

InCulture: Foucault, Politics.Philosophy, terviews and Other Writings1977-1984,
Routledge, New York, 1988, pp 57-85.

29 BryanWilson,Religionin SecularSociety,
Watts, London, 1966; Wilson, Religion in

University Oxford Perspective, Sociological
Press, Oxford, 1982. Also, David Martin,A

General Theory of Secularisation,Basil
Blackwell, Oxford, 1978. 30 "Maybe what is really important for our modernity-that is, for our present-is not so much the etatisation of society, as the 'governmentalisation' of the state....This govemmentalisation of the state is a singularlyparadoxicalphenomenon,since if in fact the problems of governmentality and the techniques of government have become the only political issue, the only real space for political struggle and contestation, this is because the govemmentalisation of the state is at the same time what has pennitted the state to survive, and it is possible to suppose that if the state is what it is today,.this is so precisely thanks to this governmentality, which is at once internal and extemal to thestate..." Foucault, 'governmentality', p 103. 31 The most well known such argument is in *John Rawls, A Theory of Justice, Oxford University Press, London, 1971, pp 205-21. 32 See, for instance, Preston King, Toleration, George,Allen and Unwin, London, 1976;D D inSusanMendus(ed), Raphal, 'Theintolerable'

and Conceptual HistorToleration: Justifying
Press, ical Perspectives,Cambridge.University 1988, pp 137-53. Camnbridge, 33 For instance, Joseph Raz, .Autonomy, toleration and the harmprinci4le' in Mendus(ed),

pp Toleration, 155-75. Justifying
34 In some ways, this is the obverse of the implication which Ashis Nandy derives from his Gandhian conception of tolerance. His 'religious' conception of tolerance "must impute to other faiths the same spirit of tolerance.Whethera largeenough proportion of those belonging to the other religious tmditionsshow in practiceand at a particylar point of time and place the same tolerance or not is a secondary matter.Because it is the imputation or presumption of tolerance in others, 4ot its existence, which defines one's own tolerance...N Nandy, 'The Politics of Secularism.' My search is in the otherdirection. I am looking for a 'political' conception of tolerance which will set out the practical conditions I must meet in order to demand and expect tolerance from others. 35 Forthis history,see MohinderSingh,TheAkai Movement, Macmillan,Delhi, 1978.

Personal Law, 36 Tahir Mahmood,Muslim pp 66-67.

E&onomicand Political Weekly

July 9, 1994


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