FROM NATIONALIST HINDU FUNDAMENTANLISM TO A COSMOPOLITAN

VANTAGE POINT: THE PANDEMIC LEGAL PARADIGM SHIFT AND THE

DIVINE SUBTEXT

INTRODUCTION

Nationalism often has a derogatory interpretation associated to it. Generally speaking,

there two lines of thought that criticize nationalism at the most fundamental level.
Nationalism is depicted either as a deteriorating force or a hazardous one. In this way, a
few experts believe that world affairs are no longer affected by nationalism in a noteworthy
manner. These experts believe that its larger world historical mission of dividing up the
planets into nation states has already been achieved by nationalism.1

More often, nationalism is acknowledged to be an on-going force, but presented as a risky

and violence prone one, likely to lead to domestic conflict or transnational war, or even
ethnic cleansing. This paper identifies the shift in the Indian political and legal narrative
from that of a heavily nationalistic and patriotic one towards “Cosmopolitan” thought
which is highly unsympathetic to nationalism. Through this research paper we seek to
analyse the change in legal and social ideologies since the demolition of the Babri
Masjid in 1992 and identify the source of this narrative of hate and murder propagated in
the name of nationalism and patriotism.

UNDERSTANDING NATIONALISM AND ITS CRITIQUES

When we discern nationalism even at the most superficial level, we can observe that there
is an unmistakable distinction between the sorts of nationalism communicated by a group
at a ball game in Wrigley Field ascending to sing the national song of devotion and by
another group at a Nazi Party rally in Nuremberg reciting its unwaveringness to Hitler.
Also, if the Serbian patriotism of the 1990s was harming, even destructive, what is one to
make of a rising Scottish patriotism that guarantees an "equitable" society, increasingly
social majority rule system, progressively liberal general human services, and a more
grounded welfare state than those found in England ? 2 Some writers have drawn legal and
1
Kwame Anthony Appiah., Cosmopolitan Patriots, Critical Inquiry, Jstor,www.jstor.org/stable/1344038.
2
Neal Ascherson, Scottish independence is in evitable The New York Times (Jul 18,2014)
https://www.nytimes.com/2014/07/20/opinion/sunday/The-Independence-Referendum-Is-a-Test-of-
Scotlands-Confidence.html
normative distinctions between “civic” and “ethnic” nationalism based on the differences
observed between the two groups mentioned above. 3 Countries such as France and United
States symbolize the former and are orthodoxly believed to be superior to the latter which
was originally associated with countries in Eastern and Central Europe.

Civic Nationalism V. Ethnic Nationalism

"Civic" nationalism is frequently named as voluntaristic, Universalist, liberal and inclusive.

Along these lines being "American" is viewed as a matter of being partnered to a political
network whose enrolment rules allow non-members to join (or leave) without regard to
lineage.4

"Ethnic" nationalism on the other hand is, particularistic, illiberal and exclusionary, a
"network of faith" in perspective of blood and family line, a homogenous semantic
structure, cultural history.5 Individuals are not able to enter or leave this network at will as
it is bound through tight ethnic bonds of nationalism. Anyway when driven, the distinction
among "civic" and "ethnic" nationalism, which began in the midst of the Second World
War and was used to help the Allied cause, has faded away. 6Although the distinction
between “civic” and “ethnic” nationalism is reasonable, It is unclear whether a country can
be bound together and practice popular democracy only through the forces of the former
without taking the latter into consideration.7At last, civic nationalism encounters its own
one of a kind trademark regulating deficiencies, especially in association with the
protection of minority rights.8 Despite illustration a refinement among civic and ethnic

3
Taras Kuzio, The Myth of the Civic State: A Critical Survey of Hans Kohn's Framework for
Understanding Nationalism, Taylor&FrancisOnline,
(Dec.7,2010)https://www.tandfonline.com/doi/abs/10.1080/08913819608443417?src=recsys
4
Kenneth L. Karst, The Bonds of American Nationhood, 21 Cardozo L. Rev. 1141, 1182 (2000)

5
Yael Tamir, The Enigma of Nationalism, 47 World Pol. 418, 440 (1995)
6
Rogers Brubaker. "The Manichean Myth: Rethinking the Distinction Between 'Civic' and 'Ethnic
‘Nationalism" Zurich Nation and National Identity: The European Experience in Perspective, 55-72
(HanspeterKriesl, Klaus Armingeon, Hannes Siegrist and Andreas Wimmer (eds.), VerlagRuegger1999) .
7
Craig Calhoun, Social Theory and the Law: Systems Theory, Normative Justification, and
Postmodernism , 83 Nw. U. L. Rev. 398, 460 (1988-1989)
8
Anthony D. smith, Nationalism: Theory, Ideology, History 44-5 ( 2d ed. 2010)
nationalism, along these lines, will not be sufficient to quiet the most intense commentators
of nationalism.

If the German Nationalist forces mobilized by Adolf Hitler marked unparalleled revulsions
on the pages of history, it could be countered only through the allied nationalist forces
organised by the likes of Joseph Stalin, Winston Churchill and Charles De Gaulle. In this
regard, authors Robert Fine and Will Smith contend that Nazism "is best conceived not as
an extreme form of nationalism but as a movement opposed to the parochialism of
nationalist politics in the name of global ambitions. " The longing for preservation of
freedom as promoted by countries like the United States and France and likewise countries
such as Ukraine and Poland attempting to recapture their sovereignty is what drove the
western alliance to it inevitable economic victory against the Eastern Bloc during the cold
war. Requests for greater political freedom driven by nationalism lead to reformation of
civil society all through territories of the Soviet coalition during the 1980s and 1990s.

In order to create a balanced opinion, two general critiques of nationalism need to be

examined with great caution. The first position being referred to as “statism” is common
among political pioneers and policy drafters. This is also recognised in International Legal
understanding as the default position. The second we can call "cosmopolitanism" which is
cluster of perspectives9, naturally connected with scholars, although political pioneers may
also hold a similar viewpoint.10 Let us quickly survey these two primary lines of assault on
nationalism;

A. Statism

Statist objections to nationalism inform and pervade policymaking. Statism perceives

nationalism from a conservative, power-political attitude, often that of a great power.
9
Noah Feldman, Cosmopolitan Law, The Yale Law Journal( Mar 2007)
https://www.yalelawjournal.org/review/cosmopolitan-law
10

James F. Pontuso, Transformation Politics: The Debate between Václav Havel and Václav Klaus on the
Free Market and Civil Society." Studies in East European Thought  JSTOR (2002)
http://www.jstor.org/stable/20099790
Certainly, statism often appears to be little more than a particular solicitation of the
acquainted theory of "realism" in international relations 11. From the statist perspective,
nationalism is hazardous as it portends to disrupt sensitive equilibrium among states and
stresses that prevailing limits of the state be redrawn. Statists may additionally, however,
opportunistically choose particular nationalist actions if the activities of these moves might
weaken a rival or enemy nation. However, statists might occasionally chose some
nationalist options if those in any way help to weaken an enemy state.

B. Cosmopolitanism

Cosmopolitanism due to its multi sided and sophisticated nature is much harder to
summarize than statism. Cosmopolitanism’s ancient lineage can be followed back through
time. Thinkers such as Cicero, Hugo Grotius, Emanuel Kant as well as the Greek
mastermind Sinope can help us to identify the ancient lineage of cosmopolitanism. 12The
modern restoration of cosmopolitan idea rises up out of and is laced with the wide social
patterns we include within the ambit of "post-modernism." Cosmopolitans hold on the
contemporary transnational elite helps us to estimate the amazing impact that
cosmopolitanism devises.13

In general, "cosmopolitanism" can be utilized to assign a style, a viewpoint, a portrayal of

certain global trends, or a normative program. Cosmopolitan thought is highly
unsympathetic to both nationalism and nation state regardless of it descriptive or
prescriptive nature. The staying power of nationalism is discounted by cosmopolitanism
and disregarded as a force that might be capable of some good. Cosmopolitanism also
accentuates the risk that nationalism might lead to violence among states. An assortment of
fundamental changes to the world order and framework are prescribed by cosmopolitanism
including the evaporation of national sovereignty and establishment of more powerful

11
Michael Lind, In Defence of Liberal Nationalism, Foreign Affairs (May 1994)
https://www.foreignaffairs.com/articles/1994-05-01/defense-liberal-nationalism
12
Thomas L. Pangle, Socratic Cosmopolitanism: Cicero's Critique and Transformation of the Stoic Ideal,
JSTOR (Jun 1998) https://www.jstor.org/stable/3232468?seq=1#metadata_info_tab_contents
13

Craig Calhaoun, Cosmopolitanism and Nationalism

https://is.muni.cz/el/1423/podzim2012/SAN237/um/Calhoun_cosmopolitan-and-nationalism.pdf
international organizations like the United Nations and European Union along with the
provision of a transnational global citizenship.

Three different kinds of arguments can be used to draw cosmopolitanism’s opposition to

nationalism and the nation state. The first argument relies on post-modernist culture; the
second argument acts on the politics of popular democracy; and the third on the
significance of a global economy. 14

 To start with, cosmopolitanism mirrors a viewpoint, typical for the international

elite, that the modern, global world bears "us" the chance to assume and combine a
wide range of different personal identities and to acknowledge a wide range of
loyalties; that it is just past the point where it would be possible to appoint national
character and reliability to the nation state as the overriding importance that it once
had; and that we should rejoice and grasp this new idea of freedom.15 If some
decisions made by the prosperous citizens of the first world have a decisive
economic impact on the lives of disadvantaged commodity manufacturers in the
“global south” ,then disadvantaged manufactures must also have a say in these
decisions with the same authority as those of their prosperous counterparts.

 Second, cosmopolitanism may depend on the standard premise that "people have a
right to [a global] institutional order under which those essentially and truly
influenced by political choices have a generally equivalent chance to impact the
creation of this choice specifically or through chosen agents or representatives."

 Third, cosmopolitan scholars may trust that states are no more capable to solve a
considerable lot of joint action issues that the modern world faces eminently. These
may include the ecological crisis, environmental change, terrorism, global
destitution, and the risk of atomic weapons-and thus asking for formation of more
powerful transnational establishments. 16.
14
Robert J. Delahunty, Nationalism, Statism, and Cosmopolitanism, 5 Nw. Inter disc. L. Rev. 77, 144 (2012)
15
Martii Koskenniemi, The Future of Statehood, Hein Online (1991). https://heinonline.org/HOL/Page?
handle=hein.journals/hilj32&div=22&g_sent=1&casa_token=&collection=journals
16

Habermas, Europe: The Faltering Project, Ciaran Cronin Polity Press (2009)
https://pure.au.dk/ws/files/44336047/Europe_the_faltering_project_Jan_Henrik_Meyer.pdf
Founded on the above critiques of nationalism and after grasping a better understanding of
the statist and cosmopolitan perspectives we now seek to apply the same in order to
understand the change in legal and social ideologies since the demolition of the Babri
Masjid in 1992 and identify the source of this narrative of hate and murder propagated in
the name of nationalism and patriotism by the Hindu Far Right and recognise the shift in
Indian political and legal narrative from that of a heavily nationalistic and patriotic one
towards “Cosmopolitan” thought which is highly unsympathetic to both nationalism and
the nation state. We also draw a understanding as to how the contours of religious belief in
India and the description of Hinduism have been increasingly driven and influenced by the
ideologies of the Hindu Right.

EVOLUTION OF HINDU NATIONALISM

HINDU
MAJORITARIANISM FUNDAMENTALISMAND
HINDU RIGHT

UPRISE OF
INDIAN SECULARISM AND
COSMOPOLITANISM IN
RIGHT TO RELIGION
CHANGING TIMES

Last three decades have seen major changes in the sense of alteration of sectorial views of
people in terms of “right to religion” and majoritatrianism in India. The first of the three
decades witnessed the appraisal of the conflict in interpretation of the right to religion and
assertion by the majoritarians followed by the destruction of Babri Mosque at Ayodha
which further led to development of the distinct jurisprudence on those lines. The last two
decades led to paradigm shift, with liberals taking stronger views regarding freedom of
religion, its propagation and motive of greater harmony. The phenomenon nips itself from
increasing globalisation, classes becoming Cosmopolitan in nature. Hence this section
 discusses the shifts from a predominantly Hindu nationalist ideology towards a liberal and
cosmopolitan approach driven be globalization and economic needs of the society.

MAJORITARIANISM, SECULAR RATIONALITY AND JUDICIAL SCRUTINITY

It has been an apple of discord for analysts and critics to decide whether the word
“secularism” is dependent on the concept of majoritarianism or if it is far based on the
paradigm of equal treatment or else “nation’s neutrality”. The attempt is made to not let
religion form the basis of both the premises but the unstated norm of
majoritarian/dominant religion also remain an eternal gift.

Thinkers have established how nation’s neutrality has catered to boost majoritarian views
and practices, the synergies of mass sects to outline the norms of the social fabric.
“Neutrality of states” does not comfortably concede the existence of religion in politics
since its very premise is denying the prohibition of religion in political setup. Hence the
problems posed by majoritarianism remain untreated.17

In assessment, the version based totally on identical remedy, although it's also complicit in
majoritarian politics, is highly capable of establishing the presence of religion in politics. It
has been observed in the recent times, that the attitude of Indian courts through there
judicial pronouncements has led to the advancement of Hindu majoritarianism, which
requires the times to call for serious attention in the light of Ayodhya case’s scenario.
However, the Supreme court has partially helped to penetrate this ideology through the
creation of the “essential practices of religion test”

The “Essential Practise Test”: Catalyst Of Hindu Majoritarianiam

17
Winnifred Fallers, Free religion:The Impossibility Of Religious Freedom (2005) JSTOR
http://www.jstor.org/stable/j.ctt7s89d.12.
 In this segment of the research paper we analyse how Hindu majoritarianism has purposed
the right to religion as a catalyst for its own enhancement. The Supreme court has partially
helped to penetrate this ideology through the creation of the “essential practices of religion
test” and partially through a competitive clash with the Hindu Far Right on content and
means of their “Freedom of Religion.”

Freedom of religion via the Apex Court has been concealed thru the "essential practices of
the religion" test concocted by means of it a good way to supposedly shield the “right to
freedom of religion”. As the research work displays, in applying this approximation, the
Court has time and again engaged in the action of determining the centrum of religious
notions applied within a religious network. It may be argued that the Apex court has been
vigorously involved in the creation of the religions via the crucial practices conception. In
Shirur Mutt case18, the higher Court was challenged with the question" What is the line to
be drawn between what are subjects of religion and what are not?"

In the prevailing scenario, “fundamental religious practices” are deciphered by the Apex
Court based totally on the disposition of a prevailing Hindu belief and subculture. While
the prior instances impelled to provide a much broader know-how of religion as which
includes “rituals” and “superstitious practices”, the scope of what constitutes religion has
been regularly examined by the Supreme Court by enforcing the demand that the exercise
should have a “scriptural” or “textual foundation” 19

In articulating an orthodox Hindu lifestyle and belief, the Court has forged Hinduism in the
equal framework as Syntactic ethics which implies that it is, as a monolithic faith primarily
based on primary spiritual texts and scriptures.20 The above set up leads to the convergence
which results in creation of ‘Hindu nationalists’. The content material of religion has been

18
AIR 1954 SC 282
19
Mrinalini Sinha, Colonial Masculinity: The "Manly English man" And The "Effeminate Bengali" In The Late
Nineteenth Century Research Gate (1995)
https://www.researchgate.net/publication/236816224_Colonial_Masculinity_The_Manly_Englishman_and_the_
Effeminate_Bengali_in_the_Late_Nineteenth_Century_review

20
S.N Balagangadhar, The Heathen In His Blindness": Asia, The West And The Dynamic Of Religion , (2005)
http://www.cultuurwetenschap.be/files/publications/Heathen_in_His_Blindness.pdf
 rearticulated due to the modernization of the country. The doctrine of essential practices is
thus reflective of a “secular nationality”

.
The Hindu Right and Freedom of Religion

The kind of monotheistic and institutionalised construction of Hinduism demanded by the

Hindu Right Wing often converges with the different approaches pursued by the highest court
in the country to determine the contours of religious belief in India .As explained earlier in the
article, the contours of religious belief in India and the description of Hinduism have been
increasingly driven and influenced by the ideologies of the Hindu Right. Initially, little
emphasis was placed on the right to freedom of faith inside the Hindu Rights attempts to
pursue its expertise of Indian secularism. The right to freedom of religion has been referred to
by the BJP(political wing of the Hindu right) in its official party constitution as a primary
objective sought to be achieved, however the timeline of these actions are not synonymous
with the Indian constitutional right to freedom of religion. 21 And this time period is used in
three notably confined and precise approaches.

 Firstly, in general parlance the “ freedom of religion” or “worship” is thought and

imbibed as the individualistic right, it is deemed that it is the liberty of the individual
to profess his/her religion. But contrary to above, Article 30 of the Indian constitution
provides the collective right in consonance with the rights of religious and linguistic
minorities, which provides for institutionalisation and administration of religious
schools and colleges with help of state subsidies and further could maintain their
communities with the same. This was challenged by Bhartiya Janta Party as it was
considered to be violating the constitutional precept of equality.22

 Further The Hindu right seeks to convey the rights to religious freedom underneath the
preface of Hinduism. The Hindu right argues that Hinduism is the only Truly Tolerant
religion as it does not seek to convert Non Hindus as opposed to Abrahamic Religions.
21
Bharatiya Janata Party, Constitution And Rules Art. II, (Sept.14, 2012), http://www.bjp.org/images/pdf 2012
h/constitution_engjan_10_2013.pdf.
.

22
Id. BJP ELECTION MANIFESTO 1998, supra note 95.
 This enables Hindu nationalism to justify its own position as a tolerant practice by
claiming that resilience is the premise of Indian secularism and it allows individuals to
pursue their individual religion or religious course. 23

 A comparative thinking is utilized to propel a third and related contention that the
Spread of Abrahamic religions especially by Christians and Muslims is perceived as
an infringement of the said tolerance and that the right to freedom of religion excludes
the right to propagation by religious minorities in the largely Hindu populated nation.
A number of anti-conversion laws established by BJP run state legislatures specifically
directed at curbing religious conversions throw light on the practical objections raised
by the Hindu right wing towards the spread of foreign religions in India. 24Thus the
discourse within the Hindu Right Wing has time and again diminished the scope and
ambit of freedom of religion for religious minorities. The movement however sought
to preserve its own selfish entitlement to secularism by reserving just enough of the
guarantees of freedom of religion (construed generally as the right of individual
worship).

CONCLUSION

The claims of the Hindu right that were based on an increasingly rigid understanding as of
freedom of religion that were observed in the Ayodhya case. At first little consideration was
given to the right to freedom of religion by the Hindu Right, as they continued to rely on the
23
Cossman & Kapur, supra note 22, at 147-48.
24
Laura Dudley Jenkins, Diversity and the Constitution in India: What is Religious Freedom, 57 Drake L. Rev.
913, 948 (2009)
importance of equality and tolerance, but during the Ayodhya legal conflict they started to
contend that religious freedom was to mean more that an individual’s right to worship. They
have all along sought to declare a progressively strong and substantive case of freedom of
religion as they continue to utilize the right to freedom of religion to push back against the
minorities’ demands for special treatment and religious accommodation.

Religious personality is perceived by Hindu parties as fundamentally comprising of a more

extensive system involving a group’s collective will for survival and their entitlement to
collective propagation of their religion. This includes the right to worship at the disputed
Ayodhya Ram temple site which holds profound reverence to the Hindu religion. The
collective understanding of religious freedom is consistent with the contention that religious
freedom is imperative for a majority community in order to guard its traditions.