The London School of Economics and Political Science Rethinking The
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The London School of Economics and Political Science Rethinking the Secular State: Perspectives on Constitutional Law in Post-Colonial India Mathew John A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, May 2011 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. 2 Abstract This thesis examines the role of the secular State in the making of modern constitutional government in India and argues that the practice of constitutional secularism is an unrealised pedagogical project whose goal is the transformation of Indian society and its politics. Toleration is the core value defended by the liberal secular State and the Indian State is no exception; however, its institution in the Indian Constitution compels religious groups to reformulate their traditions as doctrinal truths. Through decisions of Indian courts I demonstrate that this is an odd demand made on non-Semitic traditions like Hinduism because even up the contemporary moment it is difficult to cast these traditions in terms of doctrinal truths. Though reformulated religious identities are occluded descriptions of Indian religious traditions, I argue that they have gained considerable force in contemporary India because they were drawn into constitutional government as the problem of accommodating minority interests. Accommodating minority identities was part of an explicitly stated pedagogical project through which the British colonial government was to steward what they supposed to be irreconcilably fragmented ‗interests‘ that comprised Indian society towards a unified polity. Though the Indian Constitution reworked the politics of interests toward the amelioration of social and economic ‗backwardness‘, I argue that the rights granted to the Scheduled Castes, Other Backward Classes, and Minorities continue to mobilise these groups as reformulated religious identities with associated interests. Thus as recognisably occluded accounts of Indian society, I demonstrate that reformed religious identities and indeed the practice of secular constitutionalism functions like a discursive veil that screens off Indian social experience from the task of generating solutions to legal and institutional problems. 3 Table of Contents Declaration ............................................................................................................................. 2 Abstract .................................................................................................................................. 3 Acknowledgements ................................................................................................................ 5 Introduction: The Problem of the Secular State in India ........................................................ 6 1. The Making of a Secular Constitution: Religious Freedom in the Indian Constitution... 28 2. Sacralising Constitutional Practice: The Case of Indian Equality Jurisprudence ............ 70 3. Defenders and Critics of Indian Secularism................................................................... 105 4. Towards a Genealogy of Liberal Toleration in India ..................................................... 141 5. Community and the Making of Constitutional Politics.................................................. 181 6. Rethinking the Ayodhya Case: On the Semantics of Secular Reform ........................... 214 Conclusion ......................................................................................................................... 227 Bibliography ....................................................................................................................... 230 4 Acknowledgements Looking back at the last four years I realise I have run up numerous debts of gratitude of which a few require special mention. First of all I would like to thank the Commonwealth Scholarship Commission whose generous scholarship made my studies in the UK possible. I am especially grateful to my supervisors Tim Murphy and Martin Loughlin for being extremely supportive of my intellectual concerns and yet keeping me on the course through their pointed questions and their acute sense of the possible. Discussions with Sudhir Krishnaswamy, Anuj Bhuwania, Lawrence Liang, Sharad Chari,Vivek Dhareshwar, Geetanjali Srikantan, and Shraddha Chigateri have helped me think about and refine various aspects of this thesis. Needless to say, the failures of this thesis are entirely my own. Writing this thesis has often been a deeply alienating process and nothing but a streak of madness can explain my choice to invite the isolation that the thesis brought with it. At some of these difficult moments I have had the good luck of friends and family who helped me realise that this thesis was only one of the many other things that make up my life. Finally I would like to thank Arkaja Singh for patience and good humour, and my parents who have been my first teachers and a constant source of inspiration. 5 Introduction: The Problem of the Secular State in India In this thesis I examine the role played by the liberal secular State in the making of constitutional government in modern India. I will argue that constitutional secularism is structured as a pedagogical project whose goal, though largely unrealised, is the reformulation of Indian society and its politics. The claim that the secular State is an agent of social and political reform might seem at odds with liberal constitutional theory within which the secular State is understood to be an institutional form that imposes normative restraints on government. Nonetheless I demonstrate that social and political reform is at the heart of the institution and practice of liberal secular government in India. As an unrealised and perhaps even unrealisable project of social and political reform, I also demonstrate that the secular State operates as a discursive veneer that screens off Indian social experience from constitutional debates about Indian society. In this chapter I introduce the contours of my problem by setting the challenge of Indian secularism both within contemporary global debates on the secular State as well as its practice in Indian constitutional history. i. On the Nature of the Secular State Debates on the nature of the liberal secular State present a sizeable body of literature that elaborates a highly contested terrain whose detail I cannot outline in this introductory chapter. Nonetheless to commence my enquiry I will proceed on the assumption that the central problem that the liberal secular State seeks to address is the manner in which contending ideas of what many liberals call the ‗good life‘ or ultimately cherished values can be tolerated in a neutral or secular public sphere.1 The task of managing and regulating a tolerant public sphere is cast on States who are charged with instituting and defending a form of government which is capable of tolerating diversity without establishing or overtly 1 Though secular constitutionalism is commonly associated with the toleration of religious difference, contemporary liberals draw on this model to deal with all kinds of cultural difference. I deal with this extension of the secular State in my discussion of the debate on multiculturalism in section ii of this chapter. See for instance Charles Taylor, Multiculturalism: examining the politics of recognition, ed. Amy Gutmann (Princeton, N.J.: Princeton University Press, 1994). 6 associating with any particular sectarian position. That is, the secular constitutional State is one that strives to be neutral and tolerant among contending ideas of the good life.2 Legally and constitutionally the task of liberal toleration has been made possible by imposing restrictions on the behaviour of the State through three normative propositions. First, the State is to ensure the unimpeded exercise of personal liberty, especially the freedom of religious belief and practice. Second, the State is required to maintain equality of treatment to its citizens irrespective of their religious or other parochial affiliations. Third, the State is to deal with all religious and parochial groups in an even-handed or neutral manner. In other words the State is to shape public institutions so that it favours no one group over others. 3 However, the toleration and protection of sectarian and even extreme sectarian opinions is critically dependent on the manner in which different States understand and interpret these normative propositions. It is important to note that within the liberal democratic tradition the normative commitments to liberty and equality (neutrality being understood as a proposition that derives from equality) are understood to be constitutively in tension with each other.4 In contemporary history one of the most dramatic instances of tension between these values was witnessed in the cold war conflict between the North Atlantic alliance and the erstwhile Soviet Union.5 However, even at a more prosaic level most liberal democracies have 2 For an interesting discussion the challenge of defending liberal