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Program
 

73nd Annual Summer Conference, August 5–8, 2004


Getting Down to Cases: France, India and Turkey

Speaker’s Notes:
RINKU LAMBA, Scholar, University of Toronto

1. What is special and interesting about religious pluralism in India? Arguably, part of the answer to that question has to do with the fact of the centuries-old religious diversity on the subcontinent. It’s the land where Hinduism, Buddhism, and Sikhism took birth. Presently, 82% of India’s population is Hindu. 0.4% adheres to Jainism, .76% follows Buddhism, and 1.94% is Sikh. India is also the place into which Christianity came in 52 AD, much before many parts of Europe were exposed to Christianity; 2.34% of India’s present population is Christian. And, India is now the country with the second largest Muslim population in the world. 12 per cent of India’s population is Muslim; in terms of numbers that accounts for about 120 million people. It is also the country that has been home to Parsees and Jews.

The deep diversity on the subcontinent is fascinating because India has continually been an example of a context in which people with deeply diverse worldviews have coexisted. Admittedly, the coexistence has not always been peaceful. Consider for instance the violence that accompanied the partition of India in 1947, or the destruction of the Babri Masjid in 1992, or the horrendous religion-based violence in Gujarat in 2002.

However, the regrettable incidence of religious violence in modern India should not discourage us from studying India’s secular practice. In fact, what is interesting about India’s experience with religious pluralism is that despite the presence of incommensurable worldviews, and the deep disagreement between those views, there have been constant attempts to grapple with diversity to ensure that different people can live together well. These attempts have resulted in institutional arrangements for peacefully accommodating religious diversity. Some of those arrangements have contributed toward fashioning the trajectory of secularism in modern India.

In my presentation today, I will focus on one of these institutional arrangements, namely the regime of personal laws. I will talk about some of the tensions surrounding the application of that regime, and point out how those tensions become part of the basis of some objections to the possibility and desirability of secularism in India. I will argue out that the objections to Indian secular practice are surmountable because they are grounded in an impoverished conception of secularism itself. To demonstrate that the objections are surmountable, I will present what I believe is a robust and enlightened view of secularism. Finally, I will use that robust conception of Indian secularism to evaluate the force of some of the objections to Indian secular practice.

2. One of the features of independent India’s secular practice is the regime of religion-based personal laws. By personal laws I refer to the existence, within one country, of a regime wherein different persons are governed by laws specific to their respective religious identity. Hindus, Christians, Muslims, and Parsees in India are governed by their own religiously inspired codes in matters of family law (marriage, divorce, maintenance, and adoption), transfer of property, and administration of religious establishments (like temples, mosques, churches, and religious endowments). Legal pluralism in the above matters coexists with uniform territorial law in criminal, administrative, and commercial issues. The personal laws are administered by common-law-trained judges in the regular state courts.

The regime of diverse personal laws has attracted acclaim and criticism. Positively, legal pluralism is viewed as the just expression of India’s multi-religious character. Allowing religious minorities to self-govern in some matters is a respectful mode of accommodating them as different but equal members of the political community. Religious minorities like the Muslims, Christians, and Parsees value the political credence attached to their groups’ ways of being. Such a respectful stance toward minority groups has the consequence of generating trust within the political community, which in turn can enhance the stability of that community.

However, the regime of personal laws has also attracted criticism. Negatively, then, the regime of religion-based personal laws is problematic because it allows collectivist goals to trump the vital interests of individuals. More specifically, there is the concern that women-members of groups are systematically handicapped because, as it turns out, religiously inspired practices tend to violate the norm of gender equality. As such, allowing group-based norms to govern aspects of the lives of the group’s members is viewed as one way of entrenching patriarchal modes of being, and to the extent that the regime of religion-based personal laws permits that, it is culpable of inegalitarianism.

3. A perennial dilemma for secular India, then, has been one of how to reconcile the political accommodation of religious identity without neglecting the claims of gender justice. Some constitutional provisions suggest that the framers of the Indian constitution were aware of the dilemmas posed by the political accommodation of religion (with respect to the illiberal content of religiously sanctioned practices), and that the framers foresaw the need to institute arrangements that would enable the liberalization of religious practices. This might partly explain the inclusion of a notable constitutional provision which mandates state interference to secure the liberalization of religious practices. The inclusion of such a provision, whereby a secular state can reform religious practice, is often considered to be a puzzling feature of Indian secularism. The exercise of that power by the secular Indian state has generated much debate about the secularity of the Indian state. Let me elaborate.

Backed by the constitutional mandate to liberalize religiously sanctioned practices, the Indian Parliament passed a series of legislation in the 1950s and reformulated the Hindu provisions for marriage, inheritance, adoption, and maintenance. Jawaharlal Nehru claimed that the legislation to reform Hindu personal law was motivated by “the spirit of liberation and of freeing (our) people, and more especially, our womenfolk, from outworn customs and shackles that bound them”.

4. Predictably, and understandably, there was much resistance to such interventionism. It was construed as a violation of Hindus’ right to freedom of religion. For some, the reform of Hindu law was problematic because the secular state did not symmetrically subject Muslim law to reform. Indeed, the asymmetrical treatment of the two communities with respect to their personal laws forms part of the basis for at least two kinds of objection to Indian secularism – the Hindu fundamentalist, and the progressive-communitarian.

[While the two sources of objection to Indian secularism are grounded in many different reasons, the concerns of time and space prompt me to focus this discussion only on the reasons that relate to the regime of personal laws.]

Both, the Hindu fundamentalist and the progressive-communitarian, strands identify problems with the Indian state’s reformulation of Hindu personal law, and proceed toward the rejection of the ideal of secularism. However, my argument in this discussion is based on the premise that that both challenges to the possibility of secularism in India share a narrow conception of what secularism entails, and so ultimately they don’t pose any real hazard to secularism understood in a broader, more enlightened and robust manner. Now, what do I mean by secularism understood in a broader, more enlightened, and robust manner? Let me elaborate.

Secularism refers to the separation between state and religion. And, importantly, the principle of separation is instituted with some values in mind. Religion and the state are separated to preserve the commitment to the values of equal citizenship – all citizens are to be treated as equals, regardless of religious belief or non-belief; men and women are equal before law. Religion and state are also separated to enable freedom of religion, for groups and for individuals, and freedom from religion for those who are disinclined toward religion. Additionally, a commitment to the values of peace and stability demand the separation of state and religion; separating the domain of the political from the religious is sometimes the only way of keeping ordinary life going despite fundamental disagreement with respect to religious and other ethical doctrines.

What does a discussion of the values underlying the secular ideal tell us about the nature of separation between state and religion? If the commitment to secularism is constituted by the commitment to the values of freedom of religion, equality of citizenship, peace, stability, and to enable an ordinary life of dignity for all, then the extent and nature of separation between state and religion will necessarily be determined by these values, in relation to the circumstances at hand. In other words, as Rajeev Bhargava puts it, secularism entails the maintenance of a ‘principled distance’ between the state and religion. By that is meant that sometimes the realization of one of the above values may require non-intervention on the part of the state, while at other times the pursuit of one or more of those values may warrant state intervention. The strategy of principled distance doesn’t permanently predispose itself to active hostility to religion in the public sphere. Religion, on this view, is permissible in the public-political realm as long as that presence doesn’t disable the pursuit of the values constitutive of the secular doctrine.

Further, the pursuit of the values constituting secularism does not presuppose any single institutional arrangement that deserves to be called the secular mode of separation between religion and state institutions. So, the French, the Turkish, the Indian, and the American models of separation between state and religion are particular responses and arrangements, and their validity must be judged with respect to their particular contexts and to the adequacy with which they fulfill the values that constitute secularism.

5. In light of the above conceptual understanding of secularism, let me now examine the Hindu-fundamentalist and the progressive-communitarian challenge to Indian secularism, related to the regime of personal laws.

a) What is the position of the Hindu fundamentalist? First, the Hindu fundamentalist objects to the state’s intervention in Hinduism on the grounds that it violates the Hindus’ freedom of religion. The other criticism that the Hindu fundamentalist levels against secularism stems from the asymmetrical state intervention in Hindu Personal Law. This asymmetry of treatment has formed the basis for the charge that secularism in India implies pandering to the minorities (for electoral purposes), and not subjecting their practices to state evaluation in the way that Hindu practices have been. If secularism is compatible with the absence of symmetrical treatment, then the fundamentalist thinks that secularism is unable to live up to the idea that a secular state should treat all religious equally. The perceived violation of equality leads the fundamentalist to chastise secularism itself. At best, the practice of the Indian state is dubbed as ‘pseudo-secular’.

b) Why does the progressive-communitarian reject the secular ideal? Unlike the Hindu fundamentalists, the progressive-communitarian challenge does not hinge on a presumed supremacy of the Hindu way of life vis-à-vis other ethical conceptions of the good. The progressive-communitarian respects and values religious diversity on the subcontinent and seeks to preserve the same. However, the progressive communitarian position is skeptical of Indian secular practice because it is not consistent with the requirements imposed by the values constituting secularism. For the progressive communitarian, secularism implies commitment to the idea that all religions be treated equally. Equality, on this view, however, just as in the case of the Hindu fundamentalist view, is viewed to be coterminous with sameness of treatment.

For the progressive communitarian, secularism implies a separation of state and religion, and that separation is supposed to always imply an equidistant, symmetrical, and non-interventionist stance on the part of the state vis-à-vis all religious communities. Intervention and preferential treatment violate the expectation of religious neutrality on the part of the secular state. As such, the Indian state’s reform of Hindu personal law is classified as ‘anomalous’.

6. Does the Hindu-fundamentalist and progressive-communitarian justify a negative appraisal of Indian secular practice? I will argue not.

Both the Hindu-fundamentalist and progressive-communitarian critiques of the Indian state’s reform of Hindu personal law presuppose a restricted view of the requirements imposed by the idea of equality. Both hold the Indian state’s reformist intervention to be problematic because reforming only the Hindu personal law while leaving Muslim law untouched involves unequal treatment. It’s unequal because of the asymmetry. However, the principle of equality does not always entail treating different people in the same way. Treating people as equals requires taking due cognizance of the context within which we find the relevant entities. (As such, allowing different religious groups to retain their personal laws is a mark of treating them as different but equal members of the political community.) And, an adequate acknowledgement of differential contextual circumstances may very well merit differential treatment.

Acknowledging and according respect to ‘different’ ways of being, and meting out differential treatment in the relevant spheres is consistent with the idea of treating persons and groups as equals. Not subjecting all groups’ personal laws to simultaneous reform is also consistent with the norm of equality. It is consistent because the insecurity experienced by the Muslim minority, following the violent partition of India, precluded action that would appear to corrode the minority’s way of being. The robust conception of secularism espouses a broader view of equality; equal treatment of different groups doesn’t necessitate symmetrical treatment.

The robust conception of secularism also holds that enabling citizens to lead an ordinary life of dignity is an important reason for upholding the separation of state and religion. As such, state intervention in Muslim personal law at a time when Muslims are insecure may not help Muslim citizens to lead even minimally dignified lives.

The foregoing discussion tells us something about the justifiability of non-intervention in Muslim personal law. But what about the claim that the religious liberty of Hindus was violated when the state interfered in the reform of Hindu personal law? Is it justified for a secular state to intervene in religious affairs?

Arguably, an answer to this question legitimates an adequate appraisal of Indian socio-cultural context that led to state intervention in Hindu matters. The institution of religious-community-based personal law in India presupposes the accommodation of religious communities as relevant entities in the political process. However, the accommodation of community-based practices is accompanied by a tendency toward the endorsement of hierarchical conceptions sanctioned by the community. Hierarchical conceptions seriously impede the life-chances of many vulnerable members of the religious group in question. Women, for instance, are often at the receiving end of things. The Indian constitution grants the state the mandate to transform the communities with the intention of preventing an undiluted neglect of the vital interests of vulnerable members of religious groups in the interest of making them more egalitarian.

In addition to the above is the fact that Hinduism lacks any centralized form of organization which may facilitate reform from within the community; hence the need to rely on the state for reform. If secularism designates a separation between state and religion to foster the norm of equal citizenship, then the plight of vulnerable members of religious groups, systematically disadvantaged by the imposition of hierarchical worldviews of those groups, becomes the legitimate concern of the state. If politically accommodated religious communities are given a measure of self-governance, it does not mean that they may ride roughshod over citizens’ claims to equal citizenship; part of the meaning of equal citizenship is that citizens may not be subject to dignity-impairing socio-religious hierarchies. As such, the state’s foray into Hindu practices to illegalize polygamy, abolish child marriage, introduce the right to divorce, and so forth constitutes an intervention in religious matters to enable citizens to be free of hierarchical world views, and to lead dignified lives.

7. The above discussion was meant to provide an exposition of some aspects of Indian secularism. Since secularism is constituted by many values, a secular state’s policies will have to be evaluated in light of the limits and requirements imposed by those values. A clear articulation of the reasons underlying the separation of state and religion can help us evaluate policy options and sift defensible ones from indefensible ones. Indeed, as the discussion of just one aspect of Indian secularism reveals, normative values like that of equality can be institutionalized differently, but justifiably, in different contexts.