Recent cases are once again exposing the unexamined conceptual faultlines of law and religion in India. Take a small selection of relevant issues that have come up: The Sabarimala case and the entry of women into temples; the appointment of priests according to agamas; the power of religious communities to excommunicate; the growing discontent over the exemptions granted to minority schools under RTE; and in a strange way, even the jallikattu case and beef bans (which are not framed as freedom of religion cases), are all part of an undercurrent of disquiet about the relationship between state and religion. Each case has its own nuances. Each has been subjected to random pathologies of judging in India. But, cumulatively, they are exposing the problems of legal secularism in India. The political undercurrents they unleash could be potent, if not handled properly.
These cases are exposing three faultlines. The first is the familiar one: Whether the state exercises asymmetric authority over different religious and cultural communities. In charged political terms, this is the view that the court is more than willing to rush into reforms of Hindu law and institutions, while being more taciturn about nudging minority institutions and practice in a progressive direction. As an empirical matter, this is not, strictly speaking, true (think of the Danial Latifi judgment, for example). But this narrative has become dominant. Hinduism, on this view, becomes more a creature of the state than other religions. Its temples are taken over, social reform is zealously, though still incompletely, pursued, the freedom to run education institutions on par with others is denied, and so forth. The Faustian bargain in this relationship between state and Hinduism is often forgotten. The state’s institutions were the mechanism through which Hindus settled their disputes over reform. In turn, the courts produced a consolidated legal identity for Hinduism. The point of social reform was as much to protect Hinduism as it was to interfere with it. This happened in two ways. First, radical self-identification is not possible in Indian law; the court decides who is a Hindu and who is not, effectively reducing the scope of “breakaway” religions.
And reform was a way of preserving religion in the face of social protest. Nevertheless, the question of the asymmetric way in which the authority of the state has been exercised over different religions is a potent political question. It also extends to a deeper unresolved question, whether institutions like Parliament and the courts can claim the same representative status in relation to all communities in India. The not entirely unfounded fear of majoritarianism has led to a perpetual deferment of questions like the common civil code. But there is, equally, a genuine political resentment at the fact that this conversation is constantly deferred.
The second faultline is the deep contradiction between freedom of religion and modern conceptions of liberty, justice and equality. The courts perpetuated the fiction that freedom of religion can easily be combined with modern ideas of freedom and equality simply by redefining religion, largely through the essential practices test. The courts have not merely interfered with appointments of priests; they have effectively acted as priests. The contradiction is even sharper if you believe the idea that all social spheres, including civil society and the intimate sphere, are sites of power and the reproduction of inequality and discrimination. These sites, the temples and the family, must be subject to the demands of justice as well. The state will always define the permissible boundaries of religious practice. What is religious and what is secular is a distinction internal to the demands of the exercise of sovereign power; it is not given independently of that power. It is time to be open about this conflict.
Liberals have historically dealt with associational life outside the state with a light hand for two reasons. They worry about giving the state too much power over associational life. This is not an irrelevant consideration, even if it means putting up with a degree of messiness. And second, the conviction that forces of reform within associations will be strong enough to push in the right direction: Oppressive communities will lose adherents over time. But the contradiction between existing religion and justice is sharp. This contradiction cannot be framed in the vocabulary of secularism; it is a conflict between competing conceptions of justice. We will be better off if all communities begin to accept that the arc of moral and social demands bends towards individual freedom, non-discrimination and equality, particularly on the issue of gender. But there is no question there is a deep conflict here that will impinge on freedom of religion. Securing even a non-discriminatory right of access to places of worship will require deep transformations in religious worldviews on everything from the nature of the body, to notions of purity and pollution. And the large question is whether this will be done in ways that do not reinforce the idea that the state is using its authority asymmetrically.
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The third faultline is how difficult it is to find a secular language in which to articulate common meanings on moral and political issues. The jallikattu case is interesting because it shows the difficulty of articulating a common understanding of cruelty. Defenders of the tradition have a point that on any conceivable measure of cruelty to animals, we tolerate far more in the name of religion or even our eating habits. If the application of a standard of cruelty to animals is not to appear arbitrary, it will have to involve a far-reaching transformation of our practices. The growing resentment over RTE exemptions to minority schools raises the question of whether this issue necessarily needed to be framed in terms of minority and majority. Could we not have found a way to conduct this argument through a consideration of what first-principles thinking on freedom of association and property would look like. Instead, the organisation of education has already been legally communalised with the imprimatur of the court. The question is: Can issues like cruelty to animals, freedom of association, gender justice, non-discrimination in civil society, all elements of a secular morality, be articulated in a way that they become an object of “overlapping consensus”, to use Rawls’s famous phrase. And can they be enforced in ways that do not reinforce the sense of communal competition, state arbitrariness? Unfortunately, the courts are not yet providing a framework that produces clarity on these issues. And our politics, of course, never takes any bull by the horns.