This is a preprint of a review whose final and definite form has been published in Contemporary South Asia © Taylor & Francis; see publisher's version and entry in my publication list. The book itself is here.
Articles of faith: Religion, secularism, and the Indian Supreme Court, by Ronojoy Sen, New Delhi, Oxford University Press, 2010, xli + 237 pp., ISBN 0-19-806380-6
After independence, India established a ‘principled distance’ between religion and the state as part and parcel of becoming a ‘modern nation’. At the same time, India also saw the rise of Hindu nationalist forces which question this very distance. Both seemingly opposed trends share common roots, argues Ronojoy Sen in his detailed exegesis of Supreme Court judgments on religion: the court ‘significantly narrowed the space for religious freedom’ by ‘homogenizing and rationalizing religion and religious practices’ – which in turn ‘strengthened the hand of Hindu nationalists, whose ideology is based on a monolithic conception of Hinduism and intolerance of minorities’ (xxix, xxx). While identifying the link between exclusivist Hindutva and wider trends towards a more homogeneous and standardized Hinduism ‘as a religion’ is not that new, Sen manages to shift this debate from colonial to post-colonial times, and is the first to highlight the key role of the judiciary. This makes his book an important contribution to the study of religion, law and politics in contemporary India.
After a concise introduction, Sen turns to the court’s famous definition of Hinduism as a ‘way a life’ in the 1960s and its controversial conflation of this inclusivist ‘way of life’ with exclusivist Hindutva in the 1990s. In chapter one, he argues that the latter conflation is no aberration, but a logical consequence of earlier ‘difference-blind’ inclusivism, which already excluded much of the noisy empirical diversity of ‘Hindu’ traditions and practices. In chapter two he further substantiates this argument by tracing the development of the ‘essential practices doctrine’ as the key tool for the court ‘to fashion religion in the way a modernist state would like it to be, rather than accept religion as represented by its practitioners’ (41).
The next chapters turn to the negative consequences of this agenda at various examples. Chapter three demonstrates how restrictions on religious appeal in elections denied voters agency and legitimized severe restrictions on free speech out of benevolent educationalism. Chapters four and five take further examples from judgments on religious educational institutions, religion-based reservations, and conversion. In all these cases, Sen argues, did the reformist agenda of the court lead to benevolent dismissal of individual agency of believers – ignoring that, for instance, ‘conversion does not in any way interfere with the freedom of conscience but is a fulfillment of it and gives a meaning to it’ (117).
The last two chapters examine the court’s advocacy for legal universalism at the example of Muslim personal law (chapter six) and the judicial-political philosophy of Justice Gajendragadkar, who wrote many of the foundational judgments on religion (chapter seven). In his conclusion, Sen finally advocates that ‘the Court should rethink its language of uniformity in favor of one that is more accommodative of religious and legal pluralism [or] risk matters of religion and faith being hijacked by the Hindu nationalists or Islamic radicals’ (206).
Overall, Sen’s argument is carefully crafted and thus convincing; the only logical lapse is his insufficient explanation of why the court chose to focus on reform in the case of Hinduism, but conservation in the case of minority religion, especially Islam. Suggesting the judges took shelter in the written constitution is not consistent with Sen’s socio-legal approach. Suggesting that the Hindu identity of most judges might make them reluctant to reform minority religions is at odds with the severe restrictions on Christian mission endorsed by the Supreme Court (197). This inconsistency apart, Sen’s study is a solid building block for the emerging field of socio-legal studies in India. His book is well written and remains accessible even when he turns to legal details. Finally, the political implication of his study could not be clearer: that India should grant more, not less, freedom to religious actors in order to fight back communal violence and religious exclusivism (ix, 204).