Organizer: Rina Verma, Harvard University
Chair: Ashutosh Varshney, Harvard University
Discussant: Paul R. Brass, University of Washington; John H. Mansfield, Harvard University
This panel explores some of the dilemmas of Indian secularism. At Independence India was declared a secular state. Yet religion was seen as so constitutive of Indian society that the leaders of that era felt "western" secularism, involving the separation of state and religion, would be unsuited to India. So under Nehru, a specifically Indian conception of secularism evolved that called for equal respect for all religions by the Indian state. Some state interference in religious matters was mandated for social reform purposes, but the state was to treat all religions equally, favoring none.
This vision of secularism, embodied in the Indian Constitution, contains basic tensions and competing objectives; for example, with regard to issues such as polygamy, the right of the state to legislate social reform arguably collides with the right of individual freedom of religious practice.
Gary Jacobsohn's paper begins with the premise of the rootedness of religion in Indian society, then compares India's unique institutional resolution of the state-religion relationship with the cases of Israel and the U.S. We then consider specific cases of the implementation of secularism. Rina Verma's paper examines how an unstable equilibrium emerged from the struggles over the Hindu Code Bill of the 1950s, in which the state adopted a compromise approach to the reform of the personal laws. Finally, Jon Fullerton examines why the Shah Bano decision, though it had legal precedent, provoked such protest, concluding that the decision could be seen as an attempt to move India to a more western conception of secularism.
The Question of the Secular Constitution in India: A Comparative Perspective
Gary Jeffrey Jacobsohn, Williams College
The Indian Constitution evinces a complex awareness of the sometimes contradictory impulses that have figured so prominently in the Indian national experience. The common source of these impulses-to uproot and to preserve-is religion's thickness as a social phenomenon, the depth of its penetration into the fabric of Indian life. In this paper I use the term ameliorative secularism to describe the essence of the constitutional approach to religion in India, and to distinguish that regime's distinctive solution from alternative models present in other polities. The term is a conceptual projection of the multifaceted character and layered meanings of Indian nationalism, including both its commitment to social reform and its mooring in rival and contentious religious/cultural traditions. Thus the Constitution seeks an amelioration of the social conditions of people long burdened by the inequities of religiously based hierarchies, but it also embodies a vision of inter-group harmony whose fulfillment necessitates deliberateness in the pursuit of abstract justice. The constitutional challenge implicit in this agenda involves reconciling two ways of life that are in fundamental tension with one another. To illustrate the jurisprudential response to this challenge, I compare Indian judicial experience with that of Israel and the United States, two countries whose orientations towards the secular constitution are expressive of salient aspects of national identity that serve, by way of contrast, to highlight the special role of religion in the Indian polity.
The Hindu Code Bill: Forging an Uneasy Peace
Rina Verma, Harvard University
The debate today over India's system of religious personal laws is polarized around extreme options and divided primarily along Hindu-Muslim lines. Yet this situation has really only obtained since the 1985 Shah Bano ruling. Prior to that time, I argue that multiple options for resolving the issue of personal laws versus a uniform civil code were available, including a moderate approach; and that the issue was not split along religious lines. To demonstrate this, I examine the passing of the Hindu Code Bill in the 1950s.
Between 1954 and 1956 this series of Acts, which codified and modernized the diverse and ancient Hindu personal laws, was passed by the Parliament. I will argue that during this period, "progressive" voices called for the abolishment of religious personal laws and the establishment of a secular, uniform law for all Indians. Other "conservative" voices opposed the Bill and called for the preservation of the religious laws as they were. Ultimately, a "moderate" approach, advocated by PM Jawaharlal Nehru, prevailed, which called for the gradual, stepwise implementation of a uniform civil code by first reforming the personal laws of the religious communities, at the initiative of the communities themselves. The Hindu community itself was split among these options, and the Muslim community largely refrained from participating in the debate.
I suggest that this (admittedly uneasy) modus vivendi that evolved in the mid-1950s between Hindu and Muslim community leaders with regard to the personal laws versus a uniform civil code set the pattern for coexistence in the following years, until it was disturbed following the 1985 Shah Bano ruling.
The Shah Bano Affair: Refounding the Indian Regime
Jon Fullerton, Harvard University
The 1985 ruling in the case of Shah Bano Begum v. Mohd Ahmed Khan precipitated a storm of debate about the existence and future of personal laws in India. As is well known, this judgment found that Muslim men had to pay support to their divorced wives in spite of the fact that this was not traditionally required according to Muslim personal law as it had been interpreted in India. The Muslim outcry against this ruling was overwhelming, forcing the government, which had originally supported the Supreme Court's ruling, to overturn it with new legislation reimplementing the more conservative interpretation of the personal law. Some even blame this ruling and the political struggles which followed it for the resurgence of communal passions and politics during the last decade. Curiously, however, the Supreme Court had already decided that Muslim men must pay maintenance to their divorced wives in spite of their personal law in several cases prior to Shah Bano (Bai Tahira, Fuzlunbi). What made the Shah Bano opinion so threatening to the Muslim community?
This paper attempts to answer this question. First, it examines the three seemingly heterogeneous justifications presented by Justice Chandrachud in his decision: the priority of the criminal law, the Koranic justification of maintenance, and the necessity of a common civil code. Next it shows how the three parts of the opinion in spite of appearances actually hang together and are part of the same intellectual project: the refounding of India as a secular state along "Western" lines. Parallels between the arguments of Justice Chandrachud and early liberal thinkers' dialogues with religion will be noted. These parallels will, I hope, suggest some of the reasons why this ruling provoked such opposition and passionate debate and why, if the personal law is going to be abolished, it will be impossible for the courts to take the lead.