Secularism and Toleration

Author(s): Partha Chatterjee

Source: Economic and Political Weekly, Vol. 29, No. 28 (Jul. 9, 1994), pp. 1768-1777
Published by: Economic and Political Weekly
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 Secularism and Toleration
Partha Chatterjee

Thereis the very real possibility todayof a Hindu right locating itselffirmlywithinthe domainof the modernisingstate
and using all the ideological resources of that state to lead the charge against people who do not conformto its version
of the 'nationalculture'. From the position the Hinduright can not only deflect accusations of being anti-secularbut even
use the argumentsfor interventionistsecularisationto promoteintoleranceand violence against minorities.The question
thenis: Is the defence of secularism an appropriategroundfor meeting the challenge of the Hindu right? Or should the
responsebe a defence of tihedutn of the democraticstate to ensure policies of religious toleration?
THEREis little doubt that in the last two
orthreeyearswe haveseen a genuinerenewal
of both thinking and activism among left-
democraticforces in India on the question
of the fight for secularism. An important
element of the new thinking is the re-
examinationof the theoreticaland historical
foundationsof the liberal-democraticstate
in Indiaandof its relationto the history and
theoryof the modem state in Europeand the
Americas.
An interesting point of entry into the
problemis providedby the parallelsrecently
drawnbetweenthe rise of fascism in Europe
in the 1920s and 1930s andthatof the Hindu
right in India in the last few years. Sumit
Sarkar,amongothers,has noted some of the
chillingsimilarities.' But a morecarefullook
atpreciselythiscomparisonwill, I think,lead
us to ask a basic and somewhat unsettling
qusion: Is secularisman adequate, or even
appropriate,ground on which to meet the
politicalchallengeof Hindumajoritarianism?
TheNazicampaignsagainstJews andother
minority groups did not call for an
abandonmentof the secularprinciplesof the
statein Germany.If anything,Nazi rule was
accompanied by an attempt to de-
Christianisepubliclife andto underminethe
influenceof the Catholicas well as thevarious
Pltestant churches.Fascist ideology did not
seek the union of state and religion in Italy
where the presence of a large peasant
populationandtheholdof Cathoiicismmight
be supposedto have providedan opportune
conditionforsuchademand-and thisdespite
the virtually open collaboration of the
Roman Church with Mussolini's regime.
NaziGernanyandFascistItalyare,of course,
only two examplesof a featurethathas been
noticed many times in the career of the
modem statein manycountriesof the world:
namely, that state policies of religious
intolerance or of discrimination against
religious and other ethnic minoritiesdo not
necessarily require the collapsing ot state
and religion, nor do they presuppose the
existence of theocratic institutions.
The point is relevantin the context of the
currentpolitics of the Hindu right in India.
It is necessary to ask why the political
leadership.of that movement chooses so
meticulously to describe its adversariesas
'pseudo-secularists',conceding thereby its
approvalof the ideal as such of the secular
state.None of theseriouspoliticalstatements
madebythatleadershipcontainsanyadvocacy
of theocraticinstitutionsand,notwithstanding
the exuberanceof a few sadhus celebrating
their sudden rise to political prominence,it
is unlikely that a conception of the 'Hindu
Rashtra'will be seriously propagatedwhich
will include,for instance,a principlethatthe
laws of the state be in conformity with this
or that 'samhita' or even with the general
spiritof the Dharmasastra.In this sense, the
leading element in the currentmovementof
the Hindurightcanbe saidto haveundergone
a considerableshift in position from, let us
say, thatof the HinduMahasabhaat the time
of the debateover the HinduCode bill some
40 years ago. Its position is also quite
unlike that of most contemporary Islamic
fundamentalistmovementswhich explicitly
reject the theoreticalseparationof state and
religion as 'western' and un-Islamic. It is
similarly unlike the fundamentaliststrand
within the Sikh movements in recent years.
Tlhe majoritarianismof the Hindu right, it
seems to me, is perfectly at peace with the
institutionsand proceduresof the 'western'
or 'modern' state.
Indeed the mnature, and most formidable,
statementof the new political conceptionof
'Hindutva' is unlikely to pit itself at all
against the idea of the secular state. The
persuasive power, and even the emotional
charge, thatthe Hindutvacampaignappears
to havegainedin recentyearsdoes notdepend
on its demandinglegislative enforcementof
ritual or scriptural injunctions, a role for
religiousinstitutionsin legislativeor.judicial
processes, compulsoryreligiousinstruction,
statesupportforreligiousbodies, censorship
of science, literature and art in order to
safeguard religious dogma, or any other
similar demand undermining the secular
characterof the existing Indian state. This
is notto saythatinthefrenziedmel&eproduced
by the Hindutvabrigadesuch noises would
not be made; the point is that anti-secular
demands of this type are not crucial to the
political thrust.or even the publicappeal.of
the campaign.
Indeed,in its most sophisticatedforms,the
campaignof the Hindu rightoften seeks to
mobilise on its behalf the will of an
interventionistmodernisingstate in orderto
erase the presence of religious or ethnic
particularismsfrom the domains of law or
public life and to supply, in the name of
'nationalculture', a homogenisedcontentto
the notion of citizenship. In this role, the
Hindu right in fact seeks to projectitself as
a principled modernist critic of Islamic or
Sikh fundamentalism and to accuse the
'pseudo-secularists'of preachingtolerance
for religious obscurantismand bigotry. Te
most recentexample of this is the Allahabad
High Court pronouncement on divorce
practices among Muslims by a judge well
known for his views on the constitutional
sanctity of Lord Rama.
Thus the comparison with fascism in
Europepoints to the very real possibility of
a Hindu right locating itself quite firmly
within the domain of the modernisingstate
and using all of the ideological resourcesof
that state to lead the charge against people
who do not conform to its version of the
'national culture'. From this position, the
Hindurightcan not only deflect accusations
of being anti-secularbut can even use,he
argumentsfor interventionistsecularisation
to promoteintoleranceand violence against
minorities.
As a matterof fact, the comparisonwith
Nazi Germanyalso extendsto the exact point
that provides the Hindutvacampaign with
its venomous charge: as Sarkarnotes, 'the
Muslim here becomes the near exact
equivalent of the Jew.' The very fact of
belongingtothisminorityreligiouscommunity
is sufficient to put a question mark against
the statusof a Muslim as a citizen of India.
Theterm'communal',inthistwistedlanguage,
is reserved for the Muslim, whereas the
'pseudo-secular'is the Hindu who defends
the right of the Muslim citizen. (Note once
morethatthe tenn 'secular'itself is not made
a target of attack.) Similarly, on the vexed
question of migrantsfrom Bangladesh, the
Hinduimmigrantis by definitiona 'refugee',
while the Muslimis an 'infiltrator'.A whole
series of stereotypical features, now
sickeningly familiar in their repetitiveness,
arethenadducedinordertodeclareasdubios
the historical,civil and political statusof the
Muslim within the Indianstate. In short,the
current campaign of the Hindu right is
directednotagainsttheprincipleofthesecular
state,but rathertowardsmobilisingthe legal

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powersof thatstatein orderto systematically
persecuteand terrorisea specific religious
minority within its population.
The question then is as follows: Is the
defenceof secularisman appropriateground
formeetingthe challengeof the Hinduright?
Or should it be fought where the attack is
being made, ie, should the response be a
defence of the duty of the democratic state
to ensure policies of religious toleration?
Thequestionis importantbecause it reminds
usdat notall aggressivemajontarianisms pose
thesam sortof problemin the contextof the
democraticstate:Islamic fundamentalismin
Pakistanor Bangladeshor Sinhalachauvinism
in SriLankado not necessarilyhave available
to them the same political strategies as the
majontarianpolitics of the Hindu right in
India.Italso wams us the veryrealtheoretical
possibility that secularisationand religious
toleration may sometimes work at cross-
purposes.2 It is necessary therefore to be
clearaboutwhatisimpliedby theseconcepts.
MEANINGOF SECULARISM
At the very outset, let us face tip to a point
thatwillbe invariablymadein any discussion
on 'secularism' in India, viz, that in the
Indian context the word has very different
meaningsfromits standardusein the English
language. This fact is sometimes cited as
confirmationof the 'inevitable'differencein
the meaningsof a concept in two dissimilar
cultures('India is not Europe:secularismin
Indiacannot mean the same thing as it does
in Europe'). At other times, it is used to
underline the 'inevitable' shorfcomings of
the modem state in India ('There cannot be
a secularstate in Indiabecause Indianshave
an incorrect concept of secularism').
Of course, it could also be arguedthatthis
comparison with European conceptions is
irrelevantif our purpose is to intervene in
the Indiandebate on the subject. Whatdoes
it matter if 'secularism' means something
else in European and American politicai
discourse? As long as there are reasonably
clearandcommonly agreedreferentsfor the
word in the Indian context, we should go
aheadandaddress ourselvesto thespecifically
Indian meaning of 'secularism'.
Unfortunately,the mattercannotbe settled
Tbelndianmeaningsof
heateasily. 'secularism'
did not emerge in ignoranceof the European
or American meanings of the word. I also
thinkthat in its currentusage in India, with
apparentlywell-defined 'Indian' referents,
theloudandoften acrimoniousIndiandebate
on 'secularism'is never entirely innocentof
its westem genealogies. To pretendthat the
'Indian'meaning of secularismhas marked
out a conceptual world all of its own,
untroubledby its differences with 'western'
secularism,is to take an ideological position
whichrefuseseitherto recogniseor tojustify
its own grounds.
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In fact, I wish to make an even stronger
argument. Commenting upon Raymond
Williams'sjustlyfamousKeywords,Quentin
Skinnerhas pointedout that a concept takes
on a new meaningnot (as one would usually
suppose) when argumentsthat it should be
applied to a new circumstancesucceed, but
ratherwhen such argumentsfail.3 Thus, if
one is to considerthe'new' meaningacquired
by the word 'secularism' in India, it is not
as though the plea of the advocates of
secularismthattheconceptbearsapplication
to modem Indianstate and society has won
general acceptance and the concept has
therebytakenon a new meaning.If thathad
been the case, the 'original' meaning of the
word as understoodin its standardsense in
the west would have remainedunmutilated;
it would only have widened its range of
referentsby including within it the specific
circumstances of the Indian situation. The
reasonwhy argumentshave to be madeabout
'secularism'having a new meaningin India
is because there are serious difficulties in
applying the standardmeaning of the word
to the Indian circumstances.The 'original'
concept,in otherwords,will not easily admit
the Indiancase within its rangeof referents.
This, of course, could be a-good pretext
for insisting that Indians have their own
concept of secularism which is different
from the western concept bearingthe same
name;th.at,it could be argued,is exactly why
the westernconcept cannotbe appliedto the
Indian.case. The argument then would be
abouta differencein concepts:if the concept
is different, the question of referential
equivalence cannot be a very crucial issue.
At most, it would be a matter of family
resemblances, but conceptually western
secularism and Indian secularism would
inhabit entirely autonomous discursive
domains.
That, it is needless to say, is hardly the
case. We could begin by asking why, in all
recent discussions in India on the relation
between religion and the state, the central
concept is named by the English words
'secular' and 'secularism' or, in the Indian
languages, by neologisms such as 'dharma-
nirapeksata'which are translationsof those
English words and are clearly meantto refer
to the range of meanings indicated by the
English terms. As far as I know, there does
not exist in any Indianlanguage a term for
'secular'or 'secularism'which is standardly
used in talking about the role of religion in
the modern state and society and whose
meaning can be immediately explicated
withouthavingrecourseto theEnglishterms.
What this implies is thatalthoughthe use
of 'dharma' in dharma-nirapeksata or
'mazhab'in 'ghair-mazhabi'mightopen up
conceptualorreferentialpossibilitiesin lndian
discourse which were unavailable to the
concept of 'secularism' in the west, the
continued use of an awkward neologism,
besides of course the continued use of the
English term itself, indicates that the more
stable and well-defined reference for the
conceptlies in thewesternpoliticaldiscourse
about the modem state.4In fact, it is clear
from the discussions among the Indian
political and intellectualelites at least from
the 1920s that the proponentsof the secular
statein Indianeverhadanydoubtat all about
the meaning of the concept of secularism;
all thedoubtswereaboutwhetherthatconcept
would find a congenial field of application
in the Indiansocial andpoliticalcontext.The
continued use of the term 'secularism'is, it
seems to me, an expression of the desire of
the modernising elite to see the 'original'
meaning of the concept actualisedin India.
The resort to 'new meanings' is, to invoke
Skinner's point once more, a mark of the
failure of this attempt.
It might prove instructiveto do a 'history
of ideas' exercise for the use of the word
'secularism' in Indianpolitical discoursein
the lasthundredyears,butthisis nottheplace
for it. What is importantfor our purposes
is a discussion of how the nationalistproject
of putting an end to colonial riule and
inaugurating an independent nation-state
became implicated, from its very birth,in a
contradictorymovement with regardto the
modernist mission of secularisation.
Ignoring the details of a complicated
history, it would not be widely off the mark
to say that by the latter half of the 19th
centurythe Britishpowerin Indiahadarrived
at a reasonablyfirm policy of not involving
the statein mattersof religion.It triedto keep
neutral on disputes over religion and was
particularly careful not to be seen as
promoting Christianity. Immediately after
the assumption of power by the crown in
1858, the most significant step was takenin
institutingequalitybeforethelawbyenacting
uniformcodes of civil and criminallaw. The
area left out, however, was that of personal
law which continued to be governed by the
respective religious laws as recognisedand
interpretedby the courts. The reason why
personal law was not brought within the
scope of a uniformcivil code was precisely
thereluctanceofthecolonial statetointervene
in mattersclose to the very heartof religious
doctrineandpractice.rnthematterofreligious
endowments, while the British power in its
early years took over many of the functions
of patronageand administrationpreviously
carriedout by Indian rulers, by the middle
ofthe 19thcenturyit largelyrenouncedthose
responsibilities and handed them over to
local trusts and committees.
As far as the modemising efforts of the
Indianelite are concerned,the 19thcentury
attemptsat 'social reform' by solicitingthe
legal interventionof the colonial state are
well known. In the second half of the 19th
century,however,the rise of nationalismled
to a refusal on the part of the Indianelites
1769
to let the colonial state enter into areas that followed by similarlegislationin the Central the endowment funds on opening hospitals
wereregardedascrucialtotheculturalidentity Provinces, Bihar, Bombay and other or universitiesratherthanon more elaborate
of the nation. This did not mean a halt to provinces and finally by the temple entry ceremonies or on religious instruction,then
the project of 'reform'; all it meant was a provisions in the Constitutionof India. the choice will affect the way in which the
shift in the agency of reform-from the legal Althoughin the courseof the debatesover religiousaffairsoftheendowmentaremanaged.
authorityof the (colonial) state to the moral theseenactmentsviews wereoftenexpressed The issue has given rise to several disputes
authorityof the (national)community.5This aboutthe need to 'removea bloton the Hindu in court about the specific demarcation
shift is crucial, not so much because of its religion', it was clearly possible to justify betweenthereligiousandthesecularfunctions
apparentcoincidence with the policy of non- some of the laws on purelyseculargrounds. and to furtherlegislation, in Madrasas well
interventionof the colonial state in matters Thus, the devadasisystem could be declared as in other parts of India. The resulting
ofreligionin thelate 19thcentury,butbecause unlawful on the ground that it was a form situation led one commentatorin the early
of the underlyingassumption in nationalist of bondage or of enforced prostitution. 1960s to remarkthat "the commissionerfor
thinking about the role of state legislation Similarly, 'temple entry' wvassometimes Hindureligiousendowments,a publicservant
in religion: legal intervention in the cause defendedby extendingthe argumentthatthe of thesecularstate,todayexercisesfargreatei
of religious reform was not undesirableper denial of access to public places on the authorityover Hindureligionin Madrasstate
se, but it was undesirablewhen the state was grounds of untouchability was unl3wful. thanthe archbishopof Canterburydoes over
colonial. However, a contradictionappearedin this the Church of England."9
As it happened, there was considerable 'civil rights' argumentsince all places of Once again, it is possible to providea non-
change in the social beliefs and practicesof worship were not necessarily thrown open religious groundfor state interventionin the
the sections that came to constitute the new to all citizens; only Hindu temples were administrationof religious establishments,
middle class in the period leading up to declaredopen forall Hindusandnon-Hindus viz, prevention of misappropriation of
independence in 1947. Not only was there could be, and actuallystill are,denied entry. endowment funds and ensuring the proper
change in the actual practices surrounding But even more problematically,the right of supervision of what is after all a public
family and personal relations, and even in worship'of all classesandsectionsof Hindus' property.But what has been envisaged and
manyreligiouspractices,withouttherebeing at 'Hindu religious institutionsof a public actually practised since independencegoes
any significant change in the Jaws of the character,'as Article25(2) ofthe Constitution well beyond this strictlynegative role of the
state, but, plTaps more importantly,there has it, necessarily implies-thatthe state has state.Clearly,the prevailingviews aboutthe
was an overwhelming tide in the dominant to take up the onus of interpretingeven reform of Hindu religion saw it as entirely
attitudesamong these sections in favour of doctrinal and ritual injunctionsin order to fittingthattherepresentative andadministrativ.e
the legitimacy of 'social reform'. These assert the religious legitimacy of forms of wings of the state should take up the
reformist opinions affected the educated worshipthatwould not be discriminatoryin responsibility of managing Hindu temples
sections in virtually all partsof the country terms of caste.7 in, as it were,the 'publicinterest'of thegeneral
andfounda voice in most religious and caste Still more difficult to justify on non- body of Hindus.
communities. religious grounds was a reformistlaw like Thereformistagendawas,ofcourse,carried
One of the dramatic results of this the Madras Animal and Bird Sacrifices outmostcomprehensivelyduringthemaking
cumulation of reformist desire within the Abolition Act, 1950. The view that animal of the Constitutionand subsequentlyin the
nationalistmiddleclass was thesuddenspate sacrifices were repugnantand representeda enactme'ntin 1955 of what is known as the
of new legislation on religious and social primitive form of worship was clearly the HinduCode Bill."' During the discussions,
mattersimmediately afterindependence.This productofaveryspecificreligious interpretation objections were raised that in seeking to
is actually an extremely significant episode of religious ritualand could be describedas changepersonallaw thestatewasencroaching
in the development of the nation-state in a sectional opinion even among Hindus. (It uponanareaprotectedby therightto religious
Indiaand its deeply problematicnaturehds might even be describedas a view that was freedom. B R Ambedkar's reply to these
been seldom noticed in the currentdebates biased against the religious practicesof the objections summed up the general attitude
over secularism.It needs to be described in lower castes, especially in southernIndia.) of the reformist leadership:
some detail. Yet in bringing about this 'purification'of
the Hindu religion, the legislative wing of Thereligiousconceptionsin thiscountryare
RELIGiousREFORM ANDNATION-STATE thestatewasseenastheappropriate instrument. so vast thatthey cover e6ery aspectof life
The period after independencealso saw, frombirthto death.Thereis nothingwhich
Even as the provisions of the new apartfrom reformistlegislationof this kind, is not religion and if personallaw is to be
constitutionof India were being discussed an enormousincreasein the involvementof savedI amsureaboutitthatin socialmatters
in the constituent assembly, some of the the state administrationin the management we will come to a standstill...There is
provincial legislatures had begun to enact of the affairs of Hindu temples. The most nothingextraordinary insayingthatweought
laws for the reformof religious institutions significantenablinglegislationin this regard to strivehereafterto limit the definitionof
and practices.One of the most significantof was the Madras Hindu Religious and religionin such a mannerthatwe shall not
extendit beyondbeliefs andsuchritualsas
these was the MadrasDevadasis(Prevention CharitableEndowments Act, 1951, which
may be connectedwith ceremonialswhich
of Dedication) Act, 1947, which outlawed createdan entire departmentof government areessentiallyreligious.It is not necessary
the institutionof dedicating young girls to devoted to the administration of Hindu that the sort of laws, for instance, laws
temple deities and prohibited'dancing by a religious endowments.' The legal argument relating to tenancy or laws relating to
woman... in the precinctsof any temple or here is, of course, that the religious succession,shouldbegovernedbyreligion...
other religious institution, or in any denomination concerned still retains the I personally.do notunderstand whyreligion
procession of a Hindu deity, idol or object right to manage its own*aftairs in matters should be given this vast expansive
of worship... "' Equally importantwas the of religion, while the secular matters jurisdictionso as to cover the whole of life
Madras Temple Entry AuthorisatwonAct, concerned with the management of the and to prevent the legislature from
1947, which made it a punishable offence propertyof the cndowmentis takenover by encroachingupon that field."
to 'prevent any person on the ground of the state. But this is a separationof functions
untouchabilityfrom enteringor worshipping Sthatis impossible to maintain in practice. Impelledby this reformisturge,the Indian
in a Hindutemple. This act was immediately Thus, if the administratorschoose to spend parliament proceeded to cut through the

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 immensely complicated web of local and
sectarian variations that enveloped' the
corpus known as 'Hindu law' as it had
emergedthroughthe colonial courts and to
lay down a single code of personal law for
allHinducitizens.Manyof thenew provisions
were far-reachingin their departure from
taditional'brahmanical prnciples. Thus, the
new code legalised inter-caste marriage;it
legaliseddivorce and prohibitedpolygamy;
it gave to the daughter the same rights of
inheritanceas the son and permitted the
adoptionof daughtersas well as of sons. In
justifying these changes, the proponentsof
reform not only made the argument that
'tradition'could not remain stagnant and
needed to be reinterpretedin -the light of
changingconditions,they also hadto engage
in the exercise of deciding what was or was
notessendalto 'Hindureligion'. Once again,
the anomalyhas provoked comments from
criticalobservers:"An official of the secular
state(thelaw minister]became an interpreter
of Hindureligion, quoting and expounding
the ancientSanskritscripturesin defence of
his bills."12
Clearly,it is necessary here tounderstand
the force and internal consistency of the
nationalist-modernist project which sought,
in one and the same move, to rationalisethe
domain of religious discourse -and to
secularisethepublicdomainof personallaw.
It Wouldbe little more than reactionaryto
rail against the 'westem-educated Hindu'
who is scandalised by the profusion of
avaricious and corrupt priests at Hindu
temples and who, influenced by Christian
ideas of service and piety, rides roughshod
over the 'traditionalHindu notions' that a
religiousgift was nevermadefor any specific
purpose,that the priest entrusted with the
managementofatemplecouldforallpractical
purposestreatthe propertyaridits pfocceds
as imatterswithin his personal jurisdiction
andthatunlikethe Christianchurcha temple
was a place "in-whichthe idol condescends
to receivevisitors,who areexpected to bring
offeringswith them,like subjectspresenting
themselves before a maharaja".'3More
serious,of course, is the criticism that by
using the state as the agency of what was
veryoftenonly religiousreform,thepolitical
leadershipof the new nation-stateflagrantly
violatedthe principleof separationof state
andreligion."This is a matterwe will now
consider in detail, but it is necessary
neverthelessto point out that the violation
of this principle of the secular state was
justifiedpreciselyby the desire to sec4larise.
ANOMALIES
OFSECULAR
STATE
Whatarethe characteristicsof the secular
state?Threeprinciples areusuallymentioned
in the liberal-democraticdoctrine on this
subject.'5The first is the principleof liberty
which requires that the state permit the
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practiceof any religion, withinthe limits set
by certainother basic rights which the state
is also requiredto protect.The second is the
principleof equality which requiresthatthe
statenot give preferenceto one religionover
another.The thirdis theprincipleof neutrality
which is best described as the requirement
that the state not give preference to the
religious over the non-religious and which
*leads,in combination with the liberty and
equality principles,to what is known in US
constitutionallaw as the 'wall of separation'
doctrine,viz, thatthe state not involve itself
with religious affairs or organisations."6
Looking now at thedoctrineof the secular
state as it has evolved in practice in India,
it is clear that whereas all three principles
have beeninvokedtojustify the secularstate,
theirapplicationhas been contradictoryand
has led to majoranomalies.The principleof
liberty, which implies a right of freedom of
religion, has been incorporated in the
Constitution which gives to every citizen,
subjectto public order,moralityand health,
not only the equal right to freedom of
conscience but also, quite specifically, "the
rightfreelyto profess,practiseandpropagate
religion". It also gives "to every religious
denominationor any section thereof' certain
collective rights of religion. Besid,es, it
specifically mentions the right of "all
minorities, whether based on religion or
language",to establish and administertheir
own educationalinstitutions.Limitingthese
rightsof freedomof religion,however,is the
rightof the state to regulate"anyeconomic,
financial, political or other secular activity
which may be associated with religious
practice",to provide for social welfare and
reform and to throw open Hindu religious
institutions to all sections of Hindus. This
limit to the libertyprincipleis what enabled
the extensive reformunderstate auspices of
Hindupersonallaw andof theadministration
of Hindu temples.
Theliberal-democratic doctrineof freedom
of religiondoes recognise,of course,thatthis
right will be limited by other basic human
rights. Thus, for instance, it would be
perfectly justified for the state to deny that,
let us say, humansacrifice or causing injury
to humanbeingsor, as we have alreadynoted
in the case of devadasis,enforced servitude
to a deity or temple constitutespennissible
religious practice. However, it is also
recognised that there are,many grey areas
where it is difficult to lay down the limit.
A case very often cited in this connection
is the legal prohibitionof polygamy even
when it may be sanctioned by a particular
religion; the argument that polygamy
necessarily-vtoates otherbasic humanrights
is often thought of as problematical.
But no matterwhere this limit is drawn,
it is surelyrequiredby the idea of the secular
statethatthelibertyprinciplebelimitedonly althoughthe institutionof caste itself is
by the needto protectsomeotheruniversal supposedtoderiveitsbasisfromthedoctrines
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basic right and not-by appeal to a particular
interpretationof religious doctrine.This, as
we have mentioned before, has not been
possible in India. The urge to undertakeby
legislation the reformof Hindupersonallaw
and of Hindu religious institutionsmade it
difficult for the state not to transgressinto
the area of religious reform itself. Both the
legislature and the courts were led into the
exercise of interpretiuigreligiousdoctrineon
religious grounds. Thus, in deciding the
legally permissiblelimits of state regulation
of religious institutions,it became necessary
to identifythosepracticesthatwereessentially
of a religious characterbut, in accordance
with the judicial procedures of a modem
state, this decision could not be left to the
-religiousdenominationitself but had to be
determined'as an objective question' by the
courts." It can be easily seen that this could
lead to the entanglement of the state in a
series of disputes that are mainly religious
in character.
It could, of course, be argued that given
the dual characterof personallaw, inherited
from the colonial period, as religious law
recognised and codified as the laws of the
state, and in thc absence of approprate
institutionsoftheHindureligionthrugh wich
religious reform could be organised and
carried out outside the arena of the state,
therewas no alternativeto state intervention
in this matter.Which otheragency was there
with-the requisite power and legitimacy to
undertakethe reformof religious practices?
Theforceandpersuasivenessof thisargument
for the modernistleadershipof independent
India can hardly be overstated. The desire
was in fact to initiate a process of rational
interpretationof religious doctrine and to
findarepresentativeandcredibleinstitutional
process for the reform of religious practice.
That the use of state legislation to achieve
this modernist purpose must come into
conflict with anothermodernistprincipleof
thefreedomof religionis one of theanomalies
of -the secular state in India.
The second principle-that of equality-
is also explicitly recognised in the Indian
Constitutionwhich prohibitsthe state from
discriminating against any citizen on the
basis only of religion or caste, except when
it makes special provisions for the
advancementof socially and educationally
backwardclasses or for scheduledcastesapd
scheduled tribes. Such special provisionsin
the form of reserved quotas in employment
and education or of reserved seats in
representativebodies have, of course, led to
much controversy in India in the last few
decades.Butthese disputesaboutthevalidity
of positive discrimination in favour of
underprivilegedcastes or tribeshave almost
never taken the form of a dispute about
equality on the ground of religion. Indeed,
1771
of thebrahmanicalreligion,the recentdebates It is suggested that for historical reasons Act 1920 and 1938, and the NWFP Muslim
inthepoliticalarenaaboutcastediscrimination t)ere is a certainlag in the readinessof the PersonalLaw(Shari'at)ApplicationAct 1935
usually do not-make any appeals at all to different communities to accept reforms (which was the first time that the terms
relisidocnes.lhereisonlyorOsignificant intendedto rationalisethedomainof personal 'Muslim personal law' and 'Shari'at' were
way in which the question of positive law. In any case, if equality of citizenship usedinterchangeably in law).Theculmination
discriminationin favourof scheduled castes is what is desired, it already stands of these campaigns for a uniform set of
is circumsncribedby religion: in order to compromisedby the very system of religion- personal laws for all Muslims in India was
qulify as a member of a scheduled caste, based personallaws inheritedfromcolonial reached with the passing of the so-called
a person must profess to be either Hindu or times.Whatshouldbedone thereforeis, first, Shari'at Act by the central legislature in
Sikh; a public declaration of the adoption to declare the desirability of replacing the 1937. Interestingly, it was because of the
of any other religion would lead to separate personal laws by a uniforn civil persistentefforts of MuhammadAli Jinnah,
disqualification.However, in some recent code, but proceedingtowardsthis objective whose political standing was in this case
provisions relating to 'other backward in a pragmaticway,$restpecting the sensitivity exceeded by his prestigeas a legal luminary,
classes', especially in the much disputed of the religious communities about their that only certain sections of this act were
recommendations of the MandalCommission, freedom of religion and going ahead with required to be applied compulsorily to all
attemptshave been made to go beyond this state-sponsored reforms only when the Muslims; on other matters its provisions
limitation. communitiesthemselves are readyto accept were optional.
The problem with the equality principle them. Accordingly, there is an item in the The logic of completing the process of
which concerns us mnoredirectly is the way non-justiciableDirective Principles of the uniformapplicationof Muslim personallaw
in which it has been affected by the project Constitution which declares that the state has continued in independent India. The
of reforming Hindu religion by state should endeavourto providea uniformcivil optional clauses in the 1937 Act have been
legislation. All of the legislative and code for all citizens. On theotherhind, those removed. The act has been applied to areas
administrativemeasureswe have mentioned claiming to speak on behalf of the minority that were earlier excluded, especially the
before concernthe institutionsand practices communitiestend to take a firm standin the princely states that merged with India after
of the Hindus, including the reform of freedomof religionprincipleandto deny that 1947, the latest in that series being Cooch
personallaws and of religious endowments. the state should have any right at all to Behar where the local customary law for
That this was discriminatorywas arguedin interfereintheirreligiousaffairs.Theanomaly Muslims was superseded by the Shari'at
the 1950s by the socially conservative has, in the last few years, proyidedsome of laws through legislation by the Left Front
sections of Hindu opinion and by political the most potent ammunitionto the Hindu government of West Bengal in 1980.
parties like the Hindu Mahasabha which rightin its campaignagainstwhatit describes Thus, even while resisting the idea of a
wereopposed to the idea of reformitself. But as the 'appeasement'of minorities. uniform civil code on the ground that this
the fact that the use of state legislation to It would not be irrelevantto mentionhere would be a fundamentalencroachmenton
bring about reforms in only the religion of that there have also occurred among the the freedom of religion and destructive of
the majoritywas creatinga serious anomaly minorityreligious communitiesin Indianot the culturalidentity of religious minorities,
in the very notion of equal citizenship was entirelydissimilarmovementsforthe reform the Muslim leadership in India has not
pointedout by only a few lone voices within of religious laws and institutions. In the shunned state interventionaltogether. One
the progressivesections. One stich belonged earlier decades of this century, there were notices, in fact, the same attempt to seek
to J B Kripalani,the socialist leader, who organised attempts, for instance, to put an rationalisationand uniformityas one sees in
argued:"Ifwe area democraticstate,I submit endtolocalcustomarypracticesamongMuslim the case of Hindu personal law or Hindu
we must make laws not for one community communities in various parts of India and religious institutions.The crucialdifference
alone... It is not the Mahasabhiteswho alone replacethemwitha uniformMuslimpersonal after1947is, of course,thatunlikethemajority
arecommunal;it is the governmentalso that law. This campaign,led in particularby the community, the minorities cannot grant to
is communal, whatever it may say." Jamiyat al-ulama-i Hind of Deoband, well a legislatureelected by universalsuffragethe
Elaborating,he said, knownforits closeness to theIndianNational power to legislate the reform of their
If they [the membersof Parliament]single Congress,wasdirectedagainsttherecognition religions-. On the other hand, there do not
outtheHinducommunityfortheirreforming by the courts of special marriage and exist any other institutions which have the
zeal, theycannotescapethechargeof being inheritance practices among communities representativelegitimacy to supervise such
communalists inthesensethattheyfavourthe such as the Mapilla of southern India, the a process of reform. That, to put it in a
Hinducommunityandare indifferentto the Memonof westernIndia,andvariousgroups nutshell,is thepresentimpasseontheequality
good of the Muslim community or the -inRajasthanandPunjab.The argumentgiven principle.
Catholiccommunity...Whetherthemarriage was not only that such practices were 'un- The thirdprinciplewe have mentionedof
bill favoursthe Hinducommunityor places Islamic'; specific criticisms were also made the secular state-that of the separationof
it at a disadvantage,bothways, it becomes abouthow thesecustomswere backwardand stateandreligion-has also been recognised
a communalmeasure.'" iniquitous, especially in the matter of the in the Constitutionwhich declaresthatthere
The basic problem here was obvious. If treatmentdf women. The preambleto a bill shallbe no.officialstatereligion,no religious
it was acceptedthatthe statecould intervene to change the customarysuccession law of instructionin state schools and no taxes to
in religious institutionsor practicesin order theMapilla,forinstance,said,usingarhetoric support aypyarticular religion. But, as we
to protect other social and economic rights, not unlike what would be used later for the have seen, 't e state has become entangled
then what was the ground for intervening reform of Hindu law, "The Muhammadat- in the affairs of religion in numerousways.
only in the affairsof one religiouscommunity communitynow feels the incongruityof the This was the case even in colonial times,
dnotofothers? Clearly,thefirstprinciple- usage and looks upon the prevailingcustom but the 'degree and extent of the
that of freedom of religion-could not be as a discredit to their religion and to their entanglement, paradoxically,has increasd:
invoked here only for the minority community".'9 since" ind:ependence. Not only is this
communities when it had been set aside in The reform campaigns led to a series of involvement limited to the sortsof cases we
dte case of the majority community. new laws in various provinces and in the havementionedbeforewhichweretheresults
Theprnoblemhasbeengotaroundbyresorting central legislature, such as the Mapilla- of staesponsore religiouls
reform.Manyof
to whatis essentiallya pragmatic argument. Succession Act 1918, the Cutchi Memons the''oldersystems of state patronageof

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religious institutions carried out by the
colonialgovernmentor by theprincelystates
sfillcontinueunderthepresentregime.Thus,
Article 290A of the Constitutioi makes a
specificprovisionof money to be paid every
yearby the governmentsof KeralaandTamil
Nadu to tfie.TravancoreDevaswom Fund.
Ardcle 28(2) says that although there will
be no religious Instruction in educational
instiutions wholly-maintained out of-state
funds, this would not apply to those
institutions where (he original endowment
or trustrequiresthatreligious instructionbe
given. Underthis provision, Benares Hindu
University.and Aligarh Muslim University,
bothcentraluniversitia, do impartreligious
instruction. Besides, there are numerous
educationalinstitutionsall over the country
runbyreligiousdenontinations whichreceive
state finaneial aid.
Theconclusionisinescapablethatthe'wall
of separation'doctrine of US constitutional
law can hardly be applied to the present
Indian situation (as indeed it cannot in the
case of many European democracies, but
there at least it could be argued that the
entanglemientsare politically insignificant
and.often obsolete remnantsof older legal
conventions). This is precisely the ground
on which the argumentis sometimes made
that'Indiansecularism'hastg havea different
meaningfrom 'westernsecularism'.Whatis
suggested is in fact that the cultural and
historicalrealitiesof the Indiansituationcall
fora differentrelationshipbetween state and
civil society than what is regarded as
normative,inwestern political discourse, at
least in the matterof religion. Sometimes it
is said that in Indian conditions, the
neutrality principle cannot apply; the state
will necessarily have to involve itself in the
affairs of religion. What must be regarded
as normative here is an extension of the
equalityprinciple, i e, that the state should
favourall religions equally. This argument,
however, cannot offer a defence for the
selecfiveinterventionof thestatein reforming
the personal laws only of the majority
community. On the other hand, arguments
are also made about secularism having
'manymeanings',"tsuggestingtherebythata
democraticstatemust be expectedto protect
culturaldiversity and the right of people to
follow their own culture. The difficulty is
that this demand cannot be easily squared
with the homogenisingseculardesire for, let
us say, a uniforn civil code.
Wherewe end up then is a quandary.The
desirefora secularstatemustconcede defeat
even as it claims to have discovered new
meaningsof secularism.On the other hand,
therespectforculturaldiversityanddifferent
ways of life finds it impossible to articulate
itsdfintheunitaryrationalismofthelanguage
ofrights.It sems to me thatthereis no viable
way out of this problemwithinthe given free speech, free association,etc. But in
theorywhich orderto guaranteefreedomandequalityat
contoursof liberal-democratic
Economic and Political Weekly July 9. 1994
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mustdefinetherelationbetweentherelatively the same time, the locus of rights must be
autonomousdomainsof stateandcivil society the individualcitizen, the bearerof universal
in termsalways of individualrights.As has needs; to recognise rights that belong only
been noticed for many other aspects of the to particularculturalgroups withinthe body
emerging forms of non-westernmodernity, of citizens is to destroy both equality and
thisis one moreinstancewherethesupposedly freedom.
universalforms of the modem state turnout Needless to say, this puristversion of the
to be inadequatefor the postcolonial world. liberal doctrine is regardedas unduly rigid
To reconfigurethe problem posed by the and narrowby many who otherwiseidentify
career of the secular state in India, we will withthevaluesof liberal-democraticpolitics.
need to locate it on a somewhat different But the attempts to make room within the
conceptualgrounld.In the remainderof this doctrinesof liberalismfor some recognition
paper, I will suggest the outlines of an of collective cultural identities have not
alternativetheoreticalargumentwhichholds yielded solutionsthatenjoy wide acceptance.
thepromiseof takingus outsidethedilemmas I cannot enter here into the details of this
of the secular-modernistdiscourse. In this, controversy which, spurred on by the
I will not take the easy route of appealing challenge of 'multiculturalism' in many
to an 'Indian exception'. In other words, I western countries, has emerged as perhaps
will not trot out yet another version of the the liveliest area of debate in contemporary
'new meaningof secularism'argument.But liberal philosophy. A mention only of the
to avoid thatroute,I mustlocate my problem principalmodes of argumentinsofaras they
on a groundwhich will include, at'one and are relevant to the problems posed by the
the same time, the history of the rise of the Indian situation will have to suffice.
modern state in both its western and non- Oneresponsetotheproblemof fundamental
western forms. I will attemptto do this by moral disagreements caused by a plurality
invoking Michel Foucault. ofconflictingandsometimesincommensurable
culturalvalues is to seek an extension of the
LIBERAL-DEMOCRATIC CONUNDRUM principle of neutrality in order to preclude
such conflicts from the political arena.The
But before I do that, let me briefly refer argumenthere is thatjust as in the case of
to thecurrentstateof thedebateoverminority religions, the existence of fundamentally
rights in liberal political theory and why I divergentmoralvaluesin societywouldimply
think the problem posed by the Indian that -there is no- rational way in which
situationwill notfindanysatisfactoryanswers reasonablepeople mightresolve the dispute,
within the termsof thatdebate. A reference and since the state should not arbitrarily
to thistheoreticalcorpusis necessarybecause, favourone set of beliefs over anotherit must
first, left-democratic thinking in India on not be asked to intervene in such conflicts.
secularismand minorityrights shares many John Rawls and Thomas Nagel, among
of its premises with liberal-democratic others, have made arguments of this kind
thought and, second, the legally instituted seeking therebyto extend thenotionsof state
processes of the state and the public domain impartialityand religious tolerationto other
in India have clearly avowed affiliations to areas of moral disagreement.21
the conceptual world of liberal political Not all liberals, however, like the deep
theory. Pointing out the limits of liberal scepticismand'epistemicabstinence'implied
thoughtwill also allow me then to make the inthis view.22Morerelevantforus,however,
suggestion that political practice in lndia is the criticism made fropn within liberal
must seek to develop new institutionalsites theory that these attempts to cope with
that cut across the divide between state diversity by taking the disputes off the
sovereignty on the one hand and people's political agenda are "increasinglyevasive.
rights on the other. They offer a false impartialityin place of
To begin with, liberal political theory in social recognition of the persistence of
its strict sense cannot recognise the validity fundamental conflicts of value in our
of any collective rights of cultural groups. society"." If this is a judgment that can be
Liberalism must hold as a fundamental' made for societies where the 'wall of
principle the idea that the state, and indeed separation' doctrine is solidly establishld,
all public institutions,will treat all citizens the remotenessof these argumentsfrom the
equally, regardlessof race, sex, religion or realities of the Indiansituationhardlyneeds
otherculturalparticularities.It is only when to be emphasised.
everyoneis treatedequally,liberalswill argue, However, ratherthan evade the question
that the basic needs of people, shared of cultural diversity, some theorists have
universally by all, can be adequately and attemptedto take up the 'justiceas fairness'
fairly satisfied. These universal needs will idea developed by liberals such as John
include not only 'material' goods such as Rawls and Ronald Dworkin and extend it
livelihood, healthcare or educationbut also to cultural groups. Justice, accordingto this
'cultural'goods such as religious freedom, argument, requires that undeserved or
'morallyarbitrary'
disadvantages
shouldbe
removed or compensated for.~If such
1773
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disadvantagesattachto personsbecausethey
were born into particularminority cultural
groups, then liberal equality itself must
demandthatindividualrightsbedifferentially
allocatedonthebasisof culture.Will Kymlicka
has made-sucha case for the recognition of
the rightsof culturalminorities whose very
survival as distinct groups is in question.24
We should note, of course, that the
examplesusuallygiven in thisliberalliterature
to illustrate the need for minority cultural
rights are those of the indigenous peoples
of North America and Australia. But in
principlethereis no reasonwhy the argument
about 'being disadvantaged' should be
restrictedonly to such indubitablecases of
endangeredculturalgroups; it should apply
to any group that can be reasonablydefined
as a culturalminoritywithin a given political
entity. And this is where its problems as a
liberaltheory become insuperable.Could a
collective cultural right be used as an
instrumentto perpetuatethoroughlyilliberal
practiceswithinthegroup?Wouldindividual
members of such groups have the right to
leave the group?If an individualtight of exit
is granted, would that not in effect
underminethe rightof the group to preserve
its identity? On the other hand, if a rightof
exit is denied, would we still have a liberal
society?25
Clearly, it is extremely hardto justify the
grantingof substantivelydifferentcollective
rights to cultural groups on the basis of
liberalism's commitment to procedural
equality and universal citizenship. Several
recent attempts to make a case, for special
rights for culturalminorities and oppressed
groups have consequently gone on to
question the idea of universal citizenship
itself; in doing this, the arguments come
fairly close to upholding some sort of
culturalrelativism. The charge thatis made
against universal citizenship is not merely
that it forces everyone into a single
homogeneous cultural mould, thus
threateningthe distinctidentitiesof minority
groups, but that the homogeneous mould
itself is by no means a neutral one, being
invariablythe cultureof the dominantgroup,
so that it is not everybody but only the
minorities and the disadvantaged who are
forcedto foregotheirculturalidentities.That
being the case, neither universalism nor
neutralitycan have any moral priorityover
the rights of culturalgroups to protect their
autonomous existence.
Once again,argumentssuch as this go well
beyond the recognised limits of the liberal
doctrine,andeven thosewho aresympathetic
to the demands for the protectionof plural
cultural identities feel compelled to assert
that the recognition of difference cannot
mean the abandonmentof all commitment
toauniversalistframeworicason.26Usually,
terefore, the 'challengeof multiculturalism'
is sought to be met by asserting the value
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of diversityitself for the floweringof culture the modem form of power, whether inside
and making room for divergentways of life or outside the domainof the state,is capable
within a fundamentally agreed set of ofallowingforanimmenselyflexiblebraiding
universalistvalues. Even when one expects of coercion and consent.
recognitionofone's'righttoculture',therefore, If we bear in mind these featuresof the
one must always be preparedto act within modem regime of power, it will be easier
a cultureof rights and thus give reasons for for us to grasp what is at stakein the politics
insisting on being different.2" of secularisation. It is naive to think of
None of these liberalargumentsseems to secularisationas simply the onwatd march
have enough strengthto come to grips with of rationality,devoid of coercionandpower
-theproblemsposed by the Indiansituation. struggles.Even if secularisationas a process
Apartfrom resortingto platitudesaboutthe of the decreasing significance of religionin
value of diversity, respectfor other ways of publiclife is connectedwith such 'objective'
life andtheneedforfurtheringunderstanding social processes as mechanisation or the
between different cultures, they do not segmentation of social relationships (as
provide any means for relocating the sociologists such as Bryan Wilson have
institutions of rights or refashioning the argued),29it does not necessarily evoke a
practices of identity in order to get out of uniform set of responses from all groups.
what often appearsto be a politicalimpasse. Indeed,contraryphenomenasuchas religious
revivalism, fundamentalismand the rise of
GOVERNMENTALrry new cults have sometimes also been
explained as the consequence of the same
I make use of Foucault's idea of processes of mechanisation or segmenta-
governmentality not because I think it is tion. Similarly, argumentsaboutthe need to
conceptuallyneat or free of difficulties. Nor holdon to a universalistframeworkof reason
is the way in which I will use the idea here even as one acknowledges the fact of
onethat,asfarasIknow, Foucaulthasadvanced difference ('deliberative universalism' or
himself. I could have, therefore, gone on 'discourse ethics') tend to sound like pious
from the precedingparagraphto set out my homilies because they ignore the strategic
own scheme for reproblematisingthe issue context of power in which identity or
of secularism in India without making this difference is often asserted.
gesturetowardsFoucault.The reasonI think The limit of liberal-rationalisttheory is
the referenceis necessary, however, is that reachedwhen one is forced to acknowledge
by invoking Foucault I will be better able that,withinthespeciflcstrategicconfiguration
to emphasisethe need to shift ourfocus from of a power contestation, what is asserted
the rigid frameworklaid out by the concepts in a collective culturalrightis in fast the right
of sovereignty and right to the constantly not to offer a reason for being different.
shifting strategiclocations of the politics of Thus, when a minority group demands a
identity and difference. culturalright, it in fact says, "We have our
Foucault's idea of governmentality28 own reasonsfor doing things the way we do,
remindsus, first,thatcuttingacrosstheliberal but since you don't share the fundamentals
divide between state and civil society there of our world-view, you will never come to
is a very specific form of power that understand or appreciate those reasons.
entrenchesitself in modernsociety, having Therefore,leave us alone andlet us mindour
'as its goal the well-being of a population, own business." If this demand is admitted,
its mode of reasoninga certaininstrumental it amountsin effect to a concessionto cultural
notion of economy and its apparatus an relativism.
elaboratenetworkof surveillance.True,there But the matter does not necessarily end
have been other attemptsat conceptualising there.Foucault's notion of govemmentality
this ubiquitous form of modern power, leads us to examine the other aspect of this
most notably in Max Weber's theory of strategic contestation. Why is the demand
rationalisation and bureaucracy (or more made in the languageof rights?Why arethe
recently in the writings of the Frankfurt ideasof autonomyandfreedominvoked?Even
School and in our own time in those of as one assertsa basic incommensurabilityin
Jurgen Habermas). However, unlike frameworks of reason, why does one
Weberian sociology, Foucault's idea of neverthelesssay 'we have ourown reasons'?
governmentality does not lend itself to Consider then- the two aspects of the
appropriation by a liberal doctrine process that Foucault describes as the
characterising the state as a domain of 'governmentalisation of the state':juridicial
coercion('monopolyof legitimateviolence') sovereignty on the one hand, goverrmental
andcivil society as the zone of freedom.The technology on the other. In his account of
idea of governmentality-and this is its this processin westem Europesince the 18th
second important feature-insists that by century, Foucault tends to suggest that the
exercising itself through forms of second aspect completely envelops and
representation,and hence by otfering itself contains the first.30 That is to say, in
as an aspect of the self-dtiscipliningof the distributing itselfthroughout thesocialbody
very populationover which it is exercised. by meansof thetechnologies of disciplinary.
Economic and Political Weekly July 9, 1994
power, the modem regime no longer retains
a distinct aspect of sovereignty. I do not
think, however, that this is a necessary
implicationof Foucault's argument.On the
contrary,I find it more useful, especially of
course in situations where the sway of
disciplinarypower is far from general, to
lookforadisjuncturebetweenthetwo aspects
and thus to identify the sites of application
of power where governmentalityis unable
successfully to encompass sovereignty.
Tb assadon of minority cultural rights
occurson precisely such a site. It is because
of a contestation on the ground of
sovereignty thatthe rightis assertedagainst
governmentality. To say 'we will not give
reasons for not being like you' is to resist
enteringthatdeliberativeor discursivespace
where the technologies of governmentality
operate.But then, in a situationlike this, the
only way to-resistsubmittingto the powers
of sovereigntyis literally to declare oneself
unreasonable.
TOLERATIONAND DEMOCRACY
It is necessary for me to clarify here that
in the remainderof this paper, I will be
concerned exclusively with finding a
defensible argument for minority cultural
rights in the given legal-political situation
prevailing in India. I am not therefore
proposing an abstractinstitutional scheme
fortheprotectionof minorityrightsin general.
Nor will I be concerned with hypothetical
questions such as: "If your proposal is put,
into practice,what will happen to national
unity?"I am not arguing from the position
of the state;consequently, the problem as I
see it is not whatthe state,or those who think
and act on behalf of the state, can grant to
the minorities. My problem is to find a
defensible ground for a strategic politics,
bothwithin and outside the field defined by
theinstitutionsof thestate,in whichaminority
group,or one who is preparedto think from
the positionof a minoritygroup,can engage
in India today.
When a group asserts a right against
govemmentality, i e, a right not to offer
reasons for being different, can it expect
othersto respectits autonomyandbe tolerant
of its 'unreasonable' ways? The liberal
understandingof tolerationwill have serious
problemswith such a request. If toleration
is the willing acceptance of something of
which one disapproves, then it is usually
justified on one of three grounds: a
contractualist argument (persons entering
into the social contract cannot know
beforehandwhich religion they will end up
having and hence will agree to mutual
toleration),3' aconsequentialistargument(the
consequencesof acting tolerantlyare better
than those of acting intolerantly),32or an
xgmn about respect
forpersons.33Wehave
adray pointedouttheinappropriateness
o!f
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acontractualistsolution to theproblemsposed
by the Indiansituation.The consequentialist
argumentis precisely what is used when it
is said thatone mustgo slow on the universal
civil code. But this is only a pragmatic
argumentfor toleration,based on a tactical
consideration about the costs of imposing
what is otherwise the right thing to do. As
such, it always remains.vulnerable to
righteous moral attack.
The principleof respect for persons does
provide a moral argumentfor toleration.It
acknowledges the right of the toleratedand
construestolerationas somethingthatcan be
claimed as an entitlement.It also sets limits
to tolerationandtherebyresolvestheproblem
of justifying something of which one
disapproves: toleration is required by the
principleof respectfor persons,butpractices
which fail to show respect for personsneed
not be tolerated.Applying this principle to
the case of minorityculturalrights,one can
easily see where the difficulty will arise. If
a groupis intoleranttowardsits own members
and shows inadequaterespect for persons,
how can it claim tolerance from others? If
indeed the group chooses not to einterinto
a reasonable dialogue with others on the
validity of its practices, how can it claim
respect for its ways?
Once again, I think that the strategic
location of the contestation.over cultural
rights is crucial. The assertionof a right to
be differentdoes not exhaustall of the points
where the contestationis grounded.Equally
importantis the other half of the assertion:
"We have our own reasons for doing things
the way we do." This implies the existence
of a field of reasons, of processes through
which reasons can be exchanged and
validated, even if such processes are open
only to those who sharethe viewpointof the
group. The existence of this autonomous
discursivefield may only be implied andnot
activated,but the implicationis a necessary
partof the assertionof culturalautonomyas
a matter of right.34
The liberal doctrine tends to treat the
question of collective rights of cultural
minorities from a position of externality.
Thus, its usual stand on toleratingcultural
groups with illiberalpracticesis to advocate
some.sort of right of exit for individual
dissident members.(One is remindedof the
insistence of the liberal Jinnah that not all
sections of the. Shari'at Bill should apply
compulsorilyto all Muslims.)The argument
I am advancingwould, however,give a very
different construction to the concept of
toleration.Tolerationherewouldrequireone
to accept thattherewill be politicalcontexts
where a group could insist on its right not
to give reasons for doing things differently
provided it explains itself adequatelyin its
own chosen forum.Inotherwords,toleration
here-would be premised on autonomy and
respectfor persons,butit would be sensitive
All use subject to JSTOR Terms and Conditions
to the varying political salience of the
institutionalcontexts in which reasons are
debated.
To returnto the specificities of the Indian
situation,then, my approachwould not call
for any axiomaticapprovalto a uniformcivil
code for all citizens. Rather,it would start
fromthe historicallygiven realityof separate
religion-basedpersonallaws andtheintricate
involvement of state agencies in the affairs
of religious institutions. Here equal
citizenship already stands qualified by the
legal recognitionof religiousdifferences;the
'wallof separation'doctrinecannotbestrictly
applied either. Given the inapplicabilityof
theneutralityprinciple,therefore,it becomes
necessary to find a criterionby which state
involvement, when it occurs in the domain
of religion, can appearto the membersof a
religious group as both legitimate and fair.
Toleration,as describedabove, can, it seems
to me, supply us with this criterion.
What this will mean in institutionaltenns
are processes throughwhich each religious
group will publicly seek and obtainfromits
membersco'lsent for its practicesinsofaras
th-osepractices have regulative power over
the members. It is not necessary that there
be a single unifcrmpatternof seekingconsent
that each group will be requiredto follow.
But it is necessary, if toleradon is to be
demanded,thattheprocessessatisfythesame
condition of representativeness that is
invoked when a legislative body elected
underuniversalfranchiseis foundunsuitable
to act on matters concerning the religion
of minority groups. In other words, even if
a religious group declares that the validity
of its practices can only be discussed and
judged in its own forums, those institutions
must have the same degree of publicityand
representativenessthat is demanded of all
public institutions having regulatory
functions. That would be a necessary
implication of engaging in the politics of
collective rights.I might also usefully repeat
that these institutions would not be bodies
which the state will legislathinto existence,
let us say, tomorrow,as prerequisitesfor the
protectionof minorityrights;they will have
to be given actual form througha political
processprimarilywithineachminoritygroup.
Contraryto the apprehensionsof many
who think of minority religious groups as
inherentlyauthoritarianand opposed to the
democratisationof theirreligiousinstitution's,
it is unlikely, I think, that the principal
impedimentto the-openingof suchprocesses
within the religious communitieswill come
from the minoritygroupsthemselves.Tlere
is considerablehistoricalevidenceto suggest
thatwhencollective culturalrightshavebeen
asserted on behalf of minority religious
groups in India,they have oftenbeenbacked
by the claim of popular consent through
democratic processes.Thus,thecampaign
in-
the 1920s for reformin themanagemento?
1775
Sikh gurdwaraswas accompanied by the in the regulationof the li'vesand activities Nandy, Gyan Pahdey, Manas Roy and Asok
Akali demand that Sikh shrines and of its members, then their very stature as Sen for their commnents.]
I Sumit Sarkar, 'The Fascism of the Sangh
religious establishments be handed over to elected bodies representative of their
Parivar',Economicand Political Weekly,Jan-
elected bodies. Indeed the campaign was constituentswill be construedas diminishing uary 30, 1993, pp 163-67; Jan Breman, 'The
successful in forcing a reluctant colonial -the sovereignty of the state. I can hear the HinduRight:Comparisonswith Nazi Germa-
government to provide in t<heSikh murmursalready:"Rememberhow theSGPC ny,' The Times of India, March 15, 1993.
Gurdwaras and Shrines Bill 1925 for a was used to provide legitimacy to Sikh 2 Ashis Nandy makes a distinction between
committee elected by all adult Sikhs, men separatism? Imagine what will happen if religion-as-faith, by which he means a way
and wom,n, to take over the management Muslims gel their own parliament!"The of life that is operationally plural and tol-
of Sikh ieligiois places.35 The Shiromani 'deadweightof juridical sovereignty cannot erant, and religion-as-ideology which iden-
tifies and enumeratespopulationsof follow-
Gurdwara Prabandhak Committee was be easily pushed aside even by those who ers fighting for non-religious; usually polit-
perhapsthe first legally constituted public otherwise subscribe to ideas of autonomy ical and economic, interests. He then sug-
body in colonial 'India for, which- the and self-regulatingcivil social institutions. gests, quite correctly, that the politics of
principle of universal suffrage w'as I do not, therefore,make these proposals secularism is part of the same process of
recognised. It is also importantto note that for a reconfigurat'ionof the problem of formation of modem state practices which
the so-called 'traditional' ulemd in India secularismin Indiaand a redefinitionof the promotesreligion-as-ideology. Nandy's con-
whencampaigningin the 1920sforthe reform concept of toleration with any degree of clusion is that rather than relying on the
secularism of a modernised elite we should
of Muslim religious institutions demanded optimism. All I can hope for is that faced 'explore the philosophy, the symbolism and
from.thecolonial governmentthatofficially withapotentiallydisastrous politicalimpasse, the theology of tolerance in the variousfaiths
appoiited bodies such as Wakf committees some at least will prefer to err on the'side of the citizens and hope thatthe state systems
be replacedby representativebodies elected of democracy. in south Asia may learn something about
by local Muslims.36The persuasive force of religious tolerance from everyday.Hinduism,
Notes Islam, Buddhism, and/or Sikhism....' 'The
the claim of representativeness is often
[Partof theresearchfor thispaperwas done Politics of Secularism and the Recovery of
irresistiblein the politics of collective rights. Religious Tolerance' in Veena Das (ed),
The mobreserious opposition to this duringa visit to the Universityof Leidenin
October-November 1993. I have discussed Mirrorsof Violence: Communities,Riotsand
proposal i* likely to come from those who Survivors in South Asia, Oxford University
earlierdraftsof the paperin meetingsat
will see in the separaterepresentativepublic Calcutta,Colomboand Kampala.I am es- Press, Delhi, 1990, pp 69-93. I am raising the
institutions"ofthe religious communities a peciallygratefulto ImtiazAhmed,Javeed same doubt about whether secularism nec-
threatto the sovereign powers of the state. Alam,NirmalaBanerjee,PradipBose,Vivek essarily ensures toleration,but,unlikeNandy,
If such institutionsare to be given any role Dhareshwar, TapatiGuhaThakurta,Ashis I am here looking for political possibilities

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1776 Economic and Political Weekly July 9 1994

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 within the domain of the modem state.insti-
tutions as they now exist in India.
3 Quentin Skinner. 'Language and Political
Change' in Terence Ball, James Farr and
RussellL Hanson,(eds), Political Innovation
and ConceptualChange.CambridgeUni-
versityPress,Cambridge,1989, pp 6-23.
4 Even in the mid-1960s, Ziya-ut Hasan Faruqi
was complaining about the use of 'ghair-
mnazhbi'and 'la-dini'."Ghayrmazhabimeans
sqthing conirary to religious command-
nnts and la dini is irreligious or atheistic....
The common man was very easily led to
conclude that the Indian state was against
religion. It is, however, gratifying to see that
the Urdu papers have started to transliterate
theword 'secular'. "'Indian Muslims andthe
Ideology of the Secular State' in Donald
Eugene S-mith(ed), South Asian Politics and
Religion, Princeton University Press,
Princeton, 1966, pp 138-49.
5 I have discussed the point more elaborately
in The Nation and its Fragcments:Colonzial
and Postcolonial Histories; Princeton Uni-
versity Press, Princeton, 1993.
6 Cited in Donald Eugene Smith, India as a
SecularState, Princeton University Press,
Princeton 1963, p 239.
7 In fact, the courts, recognising that the right
of a religious denomination 'ta manage its
own affairs in matters of religion' (Article
26(b)) could come into conflict with the right
of the-state to throw open Hindu temiiplesto
all classes of Hindus (Article 25(2)(b)), have
had to come up with ingenious, and often
extremely aroitraty,arrangementsin orderto
strike a compromise between the two provi-
sions. Some of these judgments are referred
to in Smith, India as a Secular State,
pp 242-43. For a detailed account of a case
illustratingthe extent ofjudicial involvement
in ihe interpretationof religious doctrineand
ritual,see Aijun Appadurai,Worshipand
CovflictunderColonialRuk:ASouthIndian
Cw, CambridgeUniversityPss, Cambridge,
1981, pp 3,6-5O.
8 Actually, the increased role of the govem-
mentinconstollingtheadministratonofHindu
temples in Madrasbegan with the Religious
EndowmentsActs of 1925 and-1927-l-is
interestingto note that there was nationalist
oppositiontothemoveatthetinme: S Satyamurthi
said during the debates IWthe provincial
legislature in 1923 that "the blighting hand
of this governmentwill also fall tight on our
temples and maths, with the result that they
will also become partof the great machinery
whichtheHon'ble ministerandhis colleagues
are blackening every day." During the de-
*batespreceding the 1951 Act, on the other
hand, T S S Rajan, the law minister, said.
"...thefear of interferingwith religious insti-
tutions has always been,there with an alien
Govemnmentbut with us it is very different.
Ours may be called a secular Government,
and so it is. But it does not absol've us from
protectingthe funds of the institutions which
are meant for the service of the people." For
an account of these changes in law, see
ChandraY Mudaliar,The SecularState and
Religious Institutions in India: A Study of
the Administration of Hindu Public Reli-
gious Trustsin Madras, FritzSteinerVerlag,
Wiesbaden, 1974.
9 Smith,India
r_I_te.as a Secular p 246.
10 Actually,a seriesof laws calledfte' H'4ri. 26 See, for example,CharlesTaylor.Multi-
MarriageBill,theHinduSuccessionBill,the culturalismand 'ThePolitcs of Recognition ',
E&onomicand Political Weekly July 9, 1994
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All use subject to JSTOR Terms and Conditions
HinduMinorityand Guard3^shipBill andthe
Hindu Adoptions an4,MKaintenance Bill.
II ConstituentA.s.sembIyDbates, Vol 7, p 781.
12 Smith, India as a Secular State, pp 281-82.
13 See, for instance, J Duncan M Derrett, 'The
Reformrof Hindu Religious Endowments' in
Smith (ed), South Asidn Politics and Reli-
gion, pp 311-36.
14 The two most comprehenisivestudies on the
subject of the secular state in Indiafrnakethis
point. V P Luthera in The Concept of the
Secular State and India, Oxford University
Press,'Calkutta, 1964, concludes that India
should not properlybe regardedas a secular
state. D E Smith in India as a Secular Stat
disagrees,arguingthat Lutherabases his con-
clusion on too narrow a definition of the
secular state, but nevertheless points out the
numerousanomalies in the currentsituation.
15 For a recent exchange on this matter, see
RobertAudi, 'The Separationof Churchand
State and the Obligations of Citizenship',
Philosophy and Public Affifirs, 18, 3 (Sum-
mer 1989), pp 259-96; Paul J Weithman,
Separation of Church and State: Some
Questions for Professor Audi', Philosophy
and Public Aflfiirs, 20, 1 (Winter 1991), pp
52-65; RobertAudi, 'Religious Cominitment
and Secular Reason: A Reply to Professor
Weithman', Philosophy and Public Affiuirs,
20, 1 (Winter 1991), pp 66-76.
16 The US Supreme Court defined the doctrine
as follows: 'Neither a state nor the federal
government can set up a church. Neither can
pass laws which aid one religion, aid all
religions, or prefer one religion over anoth-
er.... Neither a state nor the federal govern-
inent can, openly or secretly, participatein
the affairs of any religious organisation or
groups and vice versa,' Everson v Board of
Educationi,330, US I (1947), cited in Smith,
India as a Secular State, pp 125-26.
17 Durgah Committee v Hussain, A 1961 S C
1402 (1415), cited in Durga Das Basu, Con-
stitutional Law of India, Prentice-Hall
of India, New Delhi, 1977, p 84.
18 Cited in Smith, India as a Secular State,
pp 286, 288.
19 Cited in Tahir Mahinood, MuslinmPersonal
Law:RoleoftheStateinthelndianSubcotntinent,
All India Reporter,Nagpur, 1983, p 21.
20 Sumnit Sarkar,'TlheFascismofthleS(angI,P(arivar'.
21 John Rawls, 'Julsticeas Fairness:Politicalnot
Metaphysical.' Philosoph'v (aindPublic Af-
fiirs. 14(1985),pp248-51l Rawls,'ThePriority
of the Right and Ideas of the Good,' Philo-
sophyandPublicAffairs,17(1988),pp 260-64;
'ThomasNagel, 'MoralConflict and Political
Legitimacy,' Philosophy and Public Affairs,
16(1987), pp 218-40.
22 For instance, Joseph Raz, 'Facing Diversity:
The Case of Epistemic Abstinence', Philo-
sophyand Public Affairs, 19(1990), pp 3-46.
23 Amy Gutmannand Dennis Thompson, 'Mor-
al Conflict and Political Consensus,' Ethics,
101 (October 1990), pp 64-88.
24 Will Kymlicka, Liberalism, Communityand
Culture,OxfordUniversityPress,Oxford,1989.
25 See, for example, the following exchange:
ChandranKukathas,'Are there any Cultural
Rights?' and Will Kymlicka, 'The Rights of
Minority Cultures', Political Tlheory, 20,
I(February 1992), pp 105-46; Kukathas,
'CulturalRightsAgain,' Political Theory,20,
4 (November 1992), pp 674-80.
Princeton UniversityPlress,Princeton, 1992;
Amy Gutmann, 'The Challenge of
Multiculturalism in Political Ethics',
Philo.sphy and Public Affairs,22(1993);
pp 173-206.
27 Rajeev Bhargava has sought to make the
case for the rights of minorities in India
in these terms. 'The Right to Culture' in
K N Panikkar (ed), Communalism in
India:History,PoliticsandCulture, Manohar,
New Delhi, 1991, pp 165-172.
2-8 See, in particular, Michel FoNcault,
'Governmentality' in Graham Burchell,
Colin Gordon and Peter Miller (eds), The
FoucaultEffect:Studiesin Governmentality,
University of Chicago Press, Chicago, 1991,
pp 87-104; and 'Politics and Reason' in
Foucault,Politics.Philosophy,Culture:In-
terviews and Other Writings1977-1984,
Routledge, New York, 1988, pp 57-85.
29 BryanWilson,Religionin SecularSociety,
Watts, London, 1966; Wilson, Religion in
SociologicalPerspective,OxfordUniversity
Press, Oxford, 1982. Also, David Martin,A
General Theory of Secularisation,Basil
Blackwell, Oxford, 1978.
30 "Maybe what is really important for our
modernity-that is, for our present-is not
so much the etatisation of society, as the
'governmentalisation' of the state....This
govemmentalisation of the state is a singu-
larlyparadoxicalphenomenon,since if in fact
the problems of governmentality and the
techniques of government have become the
only political issue, the only real space for
political struggle and contestation, this is
because the govemmentalisation of the state
is at the same time what has pennitted the
state to survive, and it is possible to suppose
that if the state is what it is today,.this is so
precisely thanks to this governmentality,
which is at once internal and extemal to the-
state..." Foucault, 'governmentality', p 103.
31 The most well known such argument is in
*John Rawls, A Theory of Justice, Oxford
University Press, London, 1971, pp 205-21.
32 See, for instance, Preston King, Toleration,
George,Allen and Unwin, London, 1976;D D
Raphal, 'Theintolerable' inSusanMendus(ed),
andHistor-
Conceptual
Toleration:
Justifying
Press,
ical Perspectives,Cambridge.University
Camnbridge, 1988, pp 137-53.
33 For instance, Joseph Raz, .Autonomy, toler-
ation and the harmprinci4le' in Mendus(ed),
JustifyingToleration,pp 155-75.
34 In some ways, this is the obverse of the
implication which Ashis Nandy derives from
his Gandhian conception of tolerance. His
'religious' conception of tolerance "must
impute to other faiths the same spirit of
tolerance.Whethera largeenough proportion
of those belonging to the other religious
tmditionsshow in practiceand at a particylar
point of time and place the same tolerance
or not is a secondary matter.Because it is the
imputation or presumption of tolerance in
others, 4ot its existence, which defines one's
own tolerance...N Nandy, 'The Politics of
Secularism.' My search is in the otherdirec-
tion. I am looking for a 'political' conception
of tolerance which will set out the practical
conditions I must meet in order to demand
and expect tolerance from others.
35 Forthis history,see MohinderSingh,TheAkai
Movement, Macmillan,Delhi, 1978.
36 Tahir Mahmood,MuslimPersonal Law,
pp 66-67.
1777