A Communal Constitution: the Imprint of Religion on Indian Constitutional Identity

As the beacon of governmental state successful modern India, the Indian Constitution has held retired the committedness of secular wide values for each its citizens. In turn, this imaginativeness has animated a law aspiration to specify the Indian radical arsenic a assemblage of idiosyncratic citizens, escaped from the parochial divisions that historically plagued the law skyline of the preceding assemblage state. However, drafting connected my precocious published publication ‘India’s Communal Constitution: Law, Religion and the Making of a People’, I volition effort to show successful this effort a long-standing and little examined inclination that stands alongside the Constitution’s wide promise, but which identifies the Indian radical successful spiritual and communal terms. This inherent inclination, subtly yet powerfully, shapes however we, the radical of India, are understood and drawn into law practice.

 As a counter-intuitive statement that goes against the atom of accepted wisdom, I marque my lawsuit by drafting connected the making of governmental individuality successful modern India, arsenic it has influenced aspects of our law communal sense. Thus, I statesman with the proposition that the Constitution, arsenic good arsenic its practice, does not lone disclose a monolithic wide project, but is alternatively a tract of contestation. Here, the aspiration of idiosyncratic citizenship is presented against a almighty antagonist: the inclination to presumption Indians arsenic embodiments of spiritual communities. This is not simply a almighty societal force, similar the emergence of Hindu nationalism, influencing from the outside, arsenic it were, the workings of law institutions. Instead, the communal Constitution points to a structural predisposition interior to the Constitution’s plan and practice, profoundly embedded amidst its wide commitments. To each those who worth these wide commitments, the communal constitution mightiness adjacent beryllium termed a “pathological look of constituent power”, wherever the sovereign authorization of the Indian ‘people’ is articulated successful national, communal, and parochial terms, alternatively than solely arsenic a corporate of escaped and adjacent citizens.

 In making salient a communal constitution for this essay, I gully upon my enactment and bounds enquiry to religion, though determination could beryllium different Indian societal identities, specified arsenic caste, language, people and truthful on, that could besides beryllium mobilised to represent the Indian radical arsenic embodiments of these identities. However, fixed its profound interaction connected Indian law history, astir notably evidenced by the partition of British India, I absorption connected religion arsenic it has been constitutionally drawn upon to signifier the governmental individuality of the Indian people. To hint the imprint of spiritual identities connected modern India’s Constitution, I gully connected 3 humanities processes oregon axes – toleration, societal reform, and law representation, done which the assemblage authorities drew connected religion to operation governmental identity. Having traced this signifier successful which the assemblage authorities organised spiritual oregon communal identities, I past show its lasting power crossed assorted domains of Indian law law: spiritual freedom, idiosyncratic law, number rights, and the recognition of caste groups.

Drawing connected the crook of past and humanities studies, I deliberation it is instructive to spell implicit what I telephone a template of communalisation – comprising, toleration, societal betterment and law practice – arsenic they took signifier successful the assemblage state.

 Firstly, assemblage toleration became a peculiar instrumentality of communally demarcating the Indian people. While seemingly benign, the British argumentation of tolerating divers Indian spiritual practices, peculiarly done Governor General Warren Hastings’s Judicial Plan of 1772, mandated governing Hindus and Muslims according to their ‘respective spiritual laws…’. This committedness to toleration wasn’t simply pragmatic; it necessitated a pervasive assemblage hunt for what I telephone the existent and axiomatically applicable foundations of Indian spiritual traditions. As the illustration of ineligible strategies relating to Sati demonstrates, the assemblage authorities sought to separate practices existent to spiritual doctrine oregon axioms from those that were not, often tying these existent doctrines to the spiritual contented of a people. This truth-seeking attack inadvertently sharpened communal identities by reducing the immense swathes of section signifier to intelligibly defined doctrinal truths, thereby producing sharply defined conceptions of religion and a nine divided into spiritual communities oregon peoples.

 Secondly, this foundational knowing of chiseled spiritual communities informed the question for social reform. As assemblage officials grew much confident, they began reforming ethically and morally deficient aspects of Indian spiritual practices. Even the abolition of Sati successful 1829, portion seemingly progressive, was argued connected grounds of spiritual information — that Sati had nary instauration successful the spiritual canons and doctrines of the ‘Hindu’ people. This process gradually empowered Indian nationalists, who, drafting connected these colonially styled accounts of Hindu and Muslim identities, took implicit the betterment agenda. Reform frankincense became the communally organised crushed wherever elites spoke connected behalf of chap Indians by reinforcing their identities arsenic Hindu and Muslim people. Social betterment frankincense reiterated and solidified spiritual identities arsenic axes of societal solidarity and governmental identification.

 Thirdly, the British introduced law betterment done governmental practice for communal identities that their regularisation had solidified. Political practice for Indians, peculiarly done communally organised abstracted electorates, became the astir evident manifestation of this communal law imagination. Statutes similar the Indian Councils Act of 1909, the Government of India Act of 1919, and the Government of India Act of 1935, portion bringing Indians into government, reified societal identities and sharpened the responsibility lines of societal division. These statutes, driven by the cognition of India arsenic a “congeries of wide separated classes, races and communities”, implicitly fostered a law individuality wherever spiritual communities, astir notably Muslims, were recognised arsenic ‘minorities’. This communal shadiness of viewing India arsenic a postulation of chiseled and divided communities continued to exert a important power connected the plan and signifier of autarkic India’s Constitution, contempt the aspiration of the caller nation-state to determination past this assemblage logic.

 Despite the overwhelmingly wide and secular plan of the autarkic Indian Constitution, the humanities value of communal identities, arsenic I person conscionable outlined them, has seeped into the law imaginativeness of the Indian people. Let maine exemplify this imprint crossed cardinal areas:

Essential practices trial

The Indian Constitution’s provisions connected spiritual state (Articles 25-28) appear, connected the surface, to beryllium modular wide guarantees. However, the organization signifier of these provisions, peculiarly done the Supreme Court’s ‘essential practices test’, has functioned to foreground communal identities. This test, arsenic articulated successful the Shirur Mutt case (1954), initially suggested that ‘what constitutes the indispensable portion of a religion is chiefly to beryllium ascertained with notation to the doctrines of that religion itself’. Yet, Justice Gajendragadkar’s consequent decisions successful the 1960s fundamentally transformed this test, shifting the authorization from a community’s subjective knowing to what a tribunal judged to beryllium indispensable to that tradition. This interpretative determination allowed courts to enactment astir arsenic theologians, sifting betwixt antithetic kinds of spiritual claims, establishing immoderate portion denying others. For instance, courts person ruled connected whether cattle sacrifice is indispensable to Islam oregon if a peculiar creation is cardinal to the Anand Margi community.

 While ineligible scholars often critique this judicial hermeneutics for sitting uneasily with India’s secular law state, I would similar to suggest that this ‘error’ serves arsenic a important diagnostic. It reveals a deep-seated inclination to place religion done its ‘essential truths’, a conceptual framework that holds unneurotic a communal relationship of India, its people, and the occupation of establishing authorities for its divers peoples. By defining spiritual state this way, the indispensable practices trial has emphasised spiritual communities and the differences betwixt them arsenic the responsibility lines that person defined the identities of the Indian people.

 In fact, the Ram Janmabhoomi–Babri Masjid quality (Ayodhya case) stands arsenic a stark illustration of this relationship of the Indian people. What began successful assemblage courts arsenic a spot quality implicit a shared spiritual abstraction was gradually transformed into a struggle pertaining to the Indian people, understood arsenic divided by ‘Hindu’ and ‘Muslim’ identities. Colonial judges, successful their pronouncements, explicitly formed the disputed operation arsenic an emblem of a radical divided. Even the Supreme Court’s 2019 judgment, portion attempting to steer wide of explicit spiritual essentialism successful its main reasoning, notably included an antithetic addendum that slides backmost into casting the quality arsenic 1 requiring the solution of the question whether ‘the disputed operation is the beatified birthplace of Lord Rama arsenic per the faith, spot and content of Hindus’. This deployment of indispensable Hindu information successful the addendum, I argue, has continued a agelong contented of authorities signifier that identifies religion and spiritual state with the truths of a people. The Ayodhya case, therefore, illustrates however the indispensable practices test, erstwhile applied broadly, tin inflect Indian law individuality arsenic the embodiment of 1 oregon different community.

India’s idiosyncratic laws

The moving of India’s idiosyncratic laws provides my 2nd illustration of however the Indian radical are constitutionally characterised successful communal terms. These laws, which govern household relations based connected spiritual affiliation (e.g., Hindu Law, Muslim Law), person humanities roots successful assemblage toleration and the task of ‘legal recovery’ that reduced divers section practices to axiomatically applicable propositions identified arsenic indispensable doctrines of chiseled peoples. In this respect, the assemblage authorities presumed nationally organised spiritual communities (like Hindus, Muslims, and truthful on) and sought uniformity and certainty successful applying the texts similar the dharma sastras, fundamentally altering the plural and adaptable quality of these texts. When reasoning astir the improvement of idiosyncratic instrumentality successful narration to the Hindu tradition, it is utile to gully connected contrarian positions similar that of the assemblage justice James Henry Nelson, who argued that Anglo-Hindu instrumentality misapplied dharma sastra rules to groups who had small to bash with it. In its stead, helium emphasised the primacy of divers section customs. Nelson provocatively questioned “whether specified a happening arsenic Hindu Law… existed successful the world” and asserted that “there is not, and ... ne'er has been, a Hindu federation oregon people”. Yet, his arguments were mostly rejected, affirming the assemblage axiom of India arsenic a postulation of radical champion understood arsenic divided by doctrinal and axiomatically applicable truths ascertained and administered by the British state. This meant idiosyncratic laws became, among different things, a ineligible model that identified Indians arsenic chiseled groups of people.

 At Independence, the question of idiosyncratic laws was addressed successful Article 44, a directive rule urging the authorities to enactment towards a azygous civilian code. This was a compromise: idiosyncratic laws would continue, but the authorities aspired to yet supersede them successful its aspiration for a wide secular oregon possibly adjacent nationalist law culture. Those arguing for idiosyncratic laws, chiefly Muslim members of the Constituent Assembly, linked them straight to spiritual state and the mode of beingness of Muslims understood arsenic a people. However, proponents of a azygous civilian code, similar K.M. Munshi, argued for nationalist unity and the state’s sovereign powerfulness to enact secular authorities implicit matters antecedently deemed religious.

 The Narasu Appa Mali lawsuit (1952) was pivotal successful cementing the communal quality of idiosyncratic instrumentality successful Independent India. In this case, the Bombay High Court had to determine connected the constitutionality of a instrumentality banning bigamous Hindu marriages. While upholding the state’s powerfulness to betterment spiritual practices, the tribunal made a significant, and doubly puzzling, pronouncement: idiosyncratic laws, dissimilar different laws, bash not deduce their validity connected the crushed that they person been passed oregon made by a Legislature oregon different competent authorization but from their respective scriptural texts. This meant that idiosyncratic laws were deemed sui generis (unique) and, crucially, immune from cardinal rights scrutiny. This decision, which has not been reversed, paradoxically recognises and foregrounds the communal conceptualisation of the Indian radical connected which the assemblage authorities primitively founded idiosyncratic laws – that is, arsenic a radical founded connected and divided by spiritual doctrine.

 Even caller judgments similar Shayara Bano (2017) connected triple talaq, portion declaring the signifier unconstitutional, inactive saw immoderate judges reiterating that idiosyncratic laws are protected by Article 25 and frankincense immune from cardinal rights review, demonstrating the persistence of the Narasu legacy. Furthermore, it’s besides utile to announcement what I telephone a ‘jurisprudence of exasperation’ successful Supreme Court decisions (e.g., Shah Bano, Sarla Mudgal) concerning the azygous civilian code. While ostensibly pushing for nationalist unity, these judgments often marque gratuitous remarks connected the loyalty of Muslims arsenic citizens and azygous retired Muslim idiosyncratic law, thereby amplifying the practice of the Indian radical arsenic constituted and divided by spiritual identity. This reinforces a governmental sociology that casts India and Indians arsenic boxed into and divided by communal identities.

A lurking majoritarianism

The reorganisation of number rights successful Independent India was intended to foster nationalist unity and adjacent citizenship, moving distant from the assemblage strategy of communal representation. Articles 29 and 30 assistance rights to spiritual and linguistic minorities to support their traditions and found acquisition institutions. While B.R. Ambedkar envisioned a broader, inclusive knowing of ‘minority’ beyond the governmental safeguards granted to minorities successful assemblage India, adjudicatory signifier has carved retired Article 30 arsenic granting peculiar rights to a precise constrictive knowing of the term, starring to a scramble by antithetic groups to contiguous themselves arsenic minorities.

 In this signifier of number rights, the recognition of minorities (especially spiritual minorities) often implicitly relies connected a nationally, axiomatically, and doctrinally organised Hindu majority. This conceptual model sees spiritual minorities arsenic individuality groups chiseled from what was presumably a doctrinally demarcated and nationalist bulk of Hindus. The Ramakrishna Mission and Swaminarayan cases exemplify this attack to number rights. These groups, contempt their unsocial self-presentations and claims of distinctness accordant with India’s plural traditions, were deemed by the Supreme Court to beryllium portion of the broader, doctrinally defined ‘Hindu community.’ The courts, successful these instances, chose to drape an overarching axiomatic and doctrinal framework connected Hindu content and signifier to subsume these divers traditions wrong a singular, unified Hindu identity. This efficaciously incorporated and absorbed the plural position astir Indian nine arsenic a superstitious accretion implicit ‘Hindu individuality and doctrine’.

 Similarly, successful the Bal Patil lawsuit (concerning Jain claims for number status), the court, erstwhile confronted with the situation of locating Jains successful narration to a doctrinally understood conception of the Hindu community, yet resisted declaring Jains a number (though they aboriginal succeeded done authorities action). Notably, Justice Dharmadhikari argued against recognising minorities successful ways that encouraged ‘minority sentiment’, which would fragment the conceptualisation of a Hindu governmental assemblage connected which law individuality successful India was built. This reveals however a doctrinally and axiomatically conceived Hindu assemblage has fed into a nationalist and perchance majoritarian individuality against which number individuality has acquired salience and recognition. Even erstwhile tribunal decisions similar successful TMA Pai allowed for a antithetic and State-level determination of minorities, the underlying majoritarian framework often remained, simply shifting the standard of recognition alternatively than fundamentally altering the communal lens.

Sacralising caste

The law strategy to code caste injustice and the disabilities of the Scheduled Castes (formerly Depressed Classes) besides reveals a profoundly communal characterisation of the Indian people. While the Constitution aimed for transformative societal betterment and equality (e.g., Articles 14 and 17 abolishing untouchability), the occupation of caste was mostly framed arsenic a ‘Hindu problem’.

 The humanities debates starring to the Poona Pact (1932) exemplify this. While Ambedkar sought to code the systemic favoritism faced by untouchables arsenic a broader governmental occupation for the full polity, Mahatma Gandhi viewed it arsenic a ‘malignant and unjust accretion connected Hindu society’ to beryllium removed done reforms. This ‘Hindu’ framing, contempt Ambedkar’s efforts, continued to persist successful the Constitution arsenic well.

 The recognition of Scheduled Castes wrong the Constitution, peculiarly done the Constitution (Scheduled Castes) Order, 1950, explicitly states that ‘no idiosyncratic professing a religion antithetic from Hinduism shall beryllium deemed to beryllium a subordinate of the Scheduled Castes’. This, I argue, betrays a sacralized and communal relationship of caste. Drawing connected Marc Galanter’s framework, my enactment shows however caste came to beryllium chiefly understood done a sacral framework – arsenic constituent parts of a unified Hindu spiritual order, held unneurotic by axiomatically applied scriptural doctrines, contempt the beingness of ‘sectarian and associational’ understandings of caste that included non-Hindu groups.

 Judicial decisions reenforce this sacralization. In S. Rajagopal v. C. M. Armugam (1969), the Supreme Court ruled that a Scheduled Caste idiosyncratic mislaid their caste presumption upon converting to Christianity due to the fact that they understood Christianity to beryllium a religion that does not recognise immoderate caste classifications. This and different akin judgments cemented the thought that conversion is simply a sacral enactment that detaches individuals from preceding societal relations. Even successful Soosai v. Union of India (1985), portion the tribunal considered the anticipation that caste disablement could past conversion, it inactive operated nether the presumption that Christian doctrine effaced caste, requiring factual grounds to rebut the presumption of this ‘sacral model’. The ineligible doctrine of eclipse, seen successful cases similar K.P. Manu (2015), further solidifies this, holding that caste remains nether ‘eclipse’ upon conversion and automatically revives upon reconversion to the Hindu community. This is simply a wide lawsuit wherever caste inequity ensuing from sectarian and associational societal forms is pushed speech to firmly found a sacral Hindu exemplary of caste successful Indian law practice.

 Furthermore, the recognition of ‘Backward Classes’ for affirmative enactment (Articles 15(4), 15(5), 16(4)) besides aligns with this sacralized knowing of caste. Despite attempts to see different criteria for backwardness (like income oregon education), a sacral relationship of caste has remained the astir important societal marker of backwardness. For example, successful the landmark M.R. Balaji v. State of Mysore (1963) case, the court, portion not allowing caste to beryllium the sole determinant, nevertheless asserted that caste was a sacral enslaved that excluded non-Hindu communities. The Indra Sawhney judgment (1992), concerning the Mandal Commission recommendations, further underscored this, with Justice Jeevan Reddy articulating caste arsenic intrinsically linked to the Hindu religion, coating a sacral relationship of Indian nine arsenic the stark reality. Thus, adjacent erstwhile addressing broader societal backwardness, the inheritance presumption of caste arsenic a sacralized and axiomatically organised Hindu improvement prevails.

A layered knowing

Thus, to circular up, I person tried to contiguous a communal magnitude successful Indian law imaginativeness and signifier arsenic a descriptive, diagnostic, and explanatory lens aimed astatine bringing conceptual clarity to knowing alternate forms of representing the Indian people. In doing so, my analytical and descriptive canvas has tried to formed the constitutionally ascendant wide bid to manner the Indian radical arsenic a assemblage of idiosyncratic citizens arsenic 1 among different ways of conceptualising the Indian people. In particular, I person shown that the wide radical cohabit with, and are perpetually challenged by, the profoundly entrenched ‘communal-nationalist’ practice of India arsenic a fragmented governmental assemblage founded connected spiritual groups divided by their indispensable and axiomatic scriptural truths. This nationalist assertion often identifies the nationalist mainstream arsenic Hindu, acceptable against assorted minorities, chiefly Muslims.

 Even arsenic the effort foregrounds the communal-national vision, successful drafting it to a conclusion, it’s besides important to interaction upon little salient conceptual axes of the radical (as identified by overmuch scholarship), specified arsenic the ‘plural’ and ‘regional’ accounts of the Indian people. Arguments from plurality, for instance, situation the dominance of communally, nationally, axiomatically, and doctrinally demarcated forms of identifying minorities and castes. These arguments, reflecting a bottom-up and sociologically driven signifier of governmental identification, often find small abstraction successful mainstream law discourse. They connection an alternate lens, possibly akin to Gandhi’s imaginativeness of civilizational plurality, which sought to clasp India’s divers societal practices alternatively than homogenise them into singular, nationalised spiritual identities. Which of these perspectives connected the radical is astir due to mould the aboriginal of Indian law ideology is simply a question that I person astir wholly acceptable speech successful this essay, with the objection of pointing to the dangers presented by the communal-national conception of the people. That is, the insider-outsider, friend-enemy, us-them logic that is overtly portion of this mode of arguing for Indian law identity.

 Collectively, this contested law tract that I person tried to foreground brings to presumption the ecology of governmental projects that person sought to mould, articulate and support Indian law identity. Without this deeper understanding, I person implicitly suggested each on successful this effort that we hazard overlooking the subtle yet almighty ways successful which our law model continues to specify us, not simply arsenic citizens, but arsenic members of demarcated spiritual communities.

Mathew John is simply a Professor astatine the School of Law, BML Munjal University successful Delhi, India.