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The wheel of law: India's secularism in comparative constitutional context
Abstract
How can religious liberty be guaranteed in societies where religion pervades everyday life? InThe Wheel of Law, Gary Jacobsohn addresses this dilemma by examining the constitutional development of secularism in India within an unprecedented cross-national framework that includes Israel and the United States. He argues that a country's particular constitutional theory and practice must be understood within its social and political context. The experience of India, where religious life is in profound tension with secular democratic commitment, offers a valuable perspective not only on questions of jurisprudence and political theory arising in countries where religion permeates the fabric of society, but also on the broader task of ensuring religious liberty in constitutional polities. India's social structure is so entwined with religion, Jacobsohn emphasizes, that meaningful social reform presupposes state intervention in the spiritual domain. Hence India's "ameliorative" model of secular constitutionalism, designed to ameliorate the disabling effects of the caste system and other religiously based practices. Jacobsohn contrasts this with the "visionary" secularism of Israel, where the state identifies itself with a particular religion, and with America's "assimilative" secularism. Constitutional globalization is as much a reality as economic globalization, Jacobsohn concludes, and within this phenomenon the place of religion in liberal democracy is among the most vexing challenges confronting us today. A richly textured account of the Indian experience with secularism, developed in a broad comparative framework, this book is for all those seeking ways to respond to this challenge.
... The claim that group law is unable to keep abreast of social change seems to apply particularly to the laws of the cultural minorities. This is because policy makers claim that the concerned groups ought to initiate changes in these laws, but conservative religious and political elites are often regarded as the relevant group representatives and they are usually unwilling to initiate such changes (Sunder Rajan 2003; Jacobsohn 2003; Menon 1998; Cossman and Kapur1996; Parashar 1992). The major family laws underwent greater change over the last generation than its critics suggest. ...
... Indeed, Parashar (1992, 160) claims that " there has been no reform of Islamic personal law in the independent state of India, " and Singh (1994, 375) writes that most of India's family laws " have either remained static or have changed in retrogressive ways. " Reform is said to have been inhibited by the authority of conservative elites and the close links that many felt between group identity and group law (Parashar 1992; Sunder Rajan 2003; Kapur and Cossman 1996; Jacobsohn 2003). This interpretation suffers from many problems. ...
... This is also what Bhargava (2002), for example, calls a policy of 'principled distance', where the Indian state has adopted a flexible approach to intervention, based on the nature and context of the religions under review, with a consideration of how this intervention affects religious liberty and equal citizenship. This drew from the Indian state's dilemma stemming from respect for religious liberty and the commitment to justice and equality which required intervention in discriminatory social customs that were sanctioned by religion (Bhargava 2002), an approach termed 'ameliorative secularism' (Jacobsohn 2009)a model that simultaneously undertakes social reform and protects religious plurality. Other scholars similarly suggest that the Indian Constitution adopts a restricted multiculturalism in making provisions for differential treatment on the path to equal citizenship, where equal citizenship might demand the unequal treatment of marginalised groups, identified along religious lines in some contexts (Bajpai 2022). ...
This paper examines the core twin concepts of secularism and pluralism and their location within the Indian constitutional discourse, through a discussion of the hijab ban in the South Indian state of Karnataka. I suggest that attempts at Hindu majoritarian subversion of these core principles face challenges due to the structure of the Indian Constitution, and due to the constitutional agency and mutinies set in motion by women through their legal challenge of state action. I discuss the hijab ban in India and the two judgments on the ban as an example of this attempted subversion but also of its failure, suggesting that these judgments fall short in their reading of this interrelationship between secularism and pluralism. In doing so, I introduce a threefold analytical categorisation, pluralist constitutionalism , constitutional appropriation and constitutional derailment , to help us outline the tensions inherent in constitutional politics in the present.
... Although the Indian constitution, under its fundamental right, part III, article 25, guarantees freedom of conscience and free profession, practice and propagation of religion (Thiruvengadam, 2017), it explicitly disallows state-sponsored religious ceremonies and the promotion of any particular religion (Bose, 2018). The constitution warns that the state will have no religion (Jacobsohn, 2009). In the current cultural landscape, the open endorsement of Hinduism by the state and public institutions not only undermines the secular ideals of the constitution but also poses a threat to the peaceful co-existence of minorities, especially in recent years, seven decades after gaining independence. ...
This paper examines the recent emergence of statue-making in India, a powerful political-cultural state apparatus. Statue-making commemorates historical figures and events, thereby recreating dominant cultural narratives. The study focuses on how the Modi government has favoured Hindu culture and iconography through statue-making, particularly reinforcing the revival of Hindu visuals in public space. The paper uses qualitative approaches and data analysis to investigate contemporary Indian statues as examples of the complex relationship between statue-making and cultural politics. It highlights the conflicts that arise when monuments become contested sites. The paper argues that statue-making in India is a significant cultural practice that reflects and influences the political landscape. This Hindu iconography challenges the secular ideals of leaders like Nehru and Ambedkar, reshaping India’s religious and cultural identities through Modi’s policies, which feature statues and Hindu symbolism in public spaces.
... 146 This can incentivize capturing the judicial power to give meaning to India's constitutional identity, which can have a destabilizing and delegitimizing impact on the judiciary. 147 This is where I see danger in the Court's expansive use of constitutional identity in adjudication. From the very founding of India's Constitution, there have been multiple and alternative imaginations of India's constitutional project. ...
The Supreme Court of India has invoked ‘constitutional identity’ as a doctrinal device for adjudicating some of the most fundamental legal and political conflicts in independent India. Most famously, in Kesavananda Bharati v. State of Kerala ,1 the Court deployed this concept, through the device of the basic structure doctrine, to place substantive limits on Parliament’s power to amend the Constitution. Today, the Court’s invocation of the basic structure doctrine is not limited to adjudicating the constitutionality of constitutional amendments. The Court deploys this doctrine to perform a range of adjudicative functions alongside two other concepts that invoke the identity of the Indian Constitution as the basis for adjudication – ‘constitutional morality’ and ‘transformative constitutionalism.’ These terms denote that there are inherent values and purposes within the Indian Constitution that go to the core of its identity and that can be invoked in making constitutional decisions. In this article, I explore the value or otherwise of using constitutional identity in adjudication by examining how the Supreme Court has used these three concepts. I argue that in recent years, the Supreme Court has been invoking constitutional identity much beyond its initial use of protecting the Constitution from radical amendments. Rather, the Court now uses constitutional identity to discipline all exercises of state power by treating the preservation of constitutional identity as both justification for and limitation on the exercise of state power. I argue that this expansive use of constitutional identity is dangerous.
... 5 Examining religious constitutions can also enhance our understanding of the relationship between religion and constitutional law in contemporary nation-states. While there is no shortage of excellent studies on the topic (for example , Jacobsohn 2005;Greenawalt 2006;Hirschl 2010), more often than not, these studies treat the norms and institutions of religion as though they were naturally opposed to those of state law, different in kind. As a result, much of the research in this area-as in other areas of socio-legal studies (Oraby and Sullivan 2020, 258-59)-has focused on the tensions (and required accommodations) that follow from the interaction of two presumptively heterogenous domains. ...
This article argues that there is body of governing laws appearing widely throughout the global history of religions that warrants classification as constitutions. Like national constitutions, these religious constitutions present themselves as a form of “higher law” that declare the identity of a given a community, organize its structures of governing power, define its foundational norms, and authorize further acts of rulemaking. In this article, I offer an overview of these texts across several traditions and a defense of their importance in the study of comparative constitutional law. I then draw on fieldwork from Sri Lanka to provide a firsthand account of what a modern religious constitution looks like and how it works to govern one of the country’s largest communities of Buddhist monks. I conclude by urging scholars to view religion and constitutional law not as opposing legal domains but, rather, as homologous forms of social ordering that draw upon similar concepts and logics to address common human dilemmas.
... 77 Deker ve Ester, 1996. 78 Bhargava, 2007Jacobsohn, 2003. 79 Lyon ve Die, 2000Monsma ve Soper, 1997, s. 87-120. ...
Ahmet T. Kuru, laik devletlerin dine yönelik politikalarındaki ayrılıkları ABD, Fransa ve Türkiye'deki uygulamalar üzerinden inceliyor. Laiklikle ilgili politikaların şekillenmesinde etkili olan ideolojik mücadelenin tarihi koşullar altında belirlendiğini aktaran yazar, ABD'de dine toleranslı "pasif laiklik" ile Fransa ve Türkiye'de dini kamusal alandan dışlayan "dışlayıcı laiklik"i karşılaştırıyor. (Baskısı tükendiği için tüm metni internete koydum).
... 57 The Indian concept of secularism contrasts sharply with, for instance, the US-American understanding of a strict divide between church and state and the assumption that religion can be distilled from the public sphere. 58 While American secularism was developed in the context of a single religion society, Indian secularism meets the needs of a society with deep religious diversity while complying with the principles of freedom and equality. 59 It is concerned as much with interreligious domination as it is with intrareligious domination. ...
Discussing several methods of comparative legal research and emphasizing upon the point that the two or more systems to be compared should not either be so similar that there is nothing for the one to learn from the other, nor should they be so dissimilar that there is no relationship whatsoever between them. Following this principle, this chapter finds that there is enough similarity as well as dissimilarity between the Indian legal system and the legal system of the European Union. Acknowledging that fact, the chapter then proceeds to compare some of the aspects of European and Indian legal systems from which both of them may benefit.
... Instead, each of the multiple models and meanings of 'secularism' has its own legitimacy, as it emerges from a particular set of historical constellations. Following this line of reasoning, scholars have characterized Indian secularism in terms of its distinct meaning and form: 'principled distance between religion and state', 'basic symmetry of treatment', 'equal respect for all religions', or an 'ameliorative' model constituted by the attempt to find an equilibrium between religious freedom and social justice (Acevedo 2013;Bhargava 2007;Sen 2005, 294-316;Depaigne 2017, 135-164;Jacobsohn 2003). ...
Disputes concerning state interference in the religious practices and traditions of citizens have created uproar in public debate in India and Europe during the past decades. The contributors to this colloquium on Europe, India, and the Limits of Secularism point to the importance of two domains in addressing these disputes: the comparative study of court decisions and the budding domain of comparative political theory. In this response, I discuss several issues that emerge from these domains and argue that the problem of cultural asymmetry continues to create major pitfalls in the debates on secularism and religious freedom.
... (Cohn 1987: 569) 7 This emphasis on the contradictions and oppositions between an 'alien' state and an 'indigenous' custom has been critically discussed by Anderson (1990), who points out the fact that these studies focus on cultural differences to the detriment of an understanding of 'how the structural distribution of political authority is related to processes of production and social 3 See for instance Mudaliar (1974), Appadurai (1981), Presler (1987), Chatterjee (2011). 4 To mention but a few: Smith (1963), Derrett (1968), Bhargava (1998Bhargava ( , 2010, Larson (2001), Jha (2002), Jacobsohn (2003), Basu (2003), Baird (2005), Parikh (2005, John (2006), Mahmood (2006), Nanda (2007, Needham and Rajan (2007), Sen (2007Sen ( , 2010, Thapar (2007), Tejani (2008), Jaffrelot and Mohammad-Arif (2012). 5 For a Marxist criticism of this current widespread culturalism, see Desai (1999). ...
... This idea came from the conception of Sarva Dharma Samabhaav -which means let all the faiths grow. This Indian model is called 'ameliorative Secularism' (Jacobsohn 2003). However, the majority is still dominated by Hindus and it is difficult for the government to hold a neutral position. ...
... Separate religious personal laws for Hindus, Muslims and Christians are recognised. Second, Indian secularism has been termed "ameliorative secularism" (Jacobsohn 2003) as the Constitution contains provisions reforming Hinduism (abolition of untouchability, temple access for untouchables). ...
This paper looks at how the concepts of secularisation and secularism can be reinterpreted in
the light of the constitutional experience in South and South East Asia.
First, the European origin of the concept of secularisation is examined in the light of the
Weberian idea of “disenchantment of the world” as a (social and religious) rationalisation
process. The foundation of an “Asian secularisation” in Hinduism and Buddhism are then
examined.
Second, three models of secularism are outlined: “multicultural” secularism (India),
“asymmetric” secularism (Malaysia) and “religious” secularism (Cambodia, Thailand). I
suggest that these models are based on a “religious” conception of secularism.
... With regard to the second dimension, I am critical of highly individualized, subjectivized, privatized, 'enlightened' or 'thin' conceptions of religion that reduce toleration to principles of individual tolerance. Such conceptions of idealized Protestant religion (Bader, 2007a: 1.2.2, more extensively in Jacobsohn, 2003;Bader, 2005a;Spinner-Halev, 2005; Bader, 2011c) discriminate against other religions and are incompatible with the reasonable accommodation of early modern and recent religious diversity (Kaplan, 2007: 239-240, 293, 328-330, 357-358). Moreover, they are incompatible with liberal-democratic principles and legal freedoms of religion which explicitly take into account not only individual or 'internal' religious freedoms (of belief, of conscience, foro interno) that are exclusively highlighted by secularist 'enlightenment' defenders of 'individual autonomy'. ...
Recently, we have seen powerful trends in many European countries that one can describe as different but interlinked varieties of ‘muscular’ secularist, republican or liberal-democratic intolerance.1 These trends make use of and juxtapose arguments from the following domains:
i.
comprehensive liberal autonomy and paternalist ‘emancipation’ versus external freedoms of religion and collective/associational autonomy (banning male circumcision, kosher slaughtering, hijab, burqa, etc.);
ii.
non-discrimination (or ‘non-domination.as an overriding principle/ right) versus individual freedom of belief/conscience (e.g. conscientious objection to perform same-sex marriages) and associational autonomy of (organized) religions and faith-based organizations (e.g. selection of teachers and students by religious schools);
iii.
emphatic substantive equality (of opportunities) imposed on nonliberal and non-democratic (religious) minorities and organizations;
iv.
aggressive individualist secularism and absolute freedom of speech/ expression versus non-discrimination and minority protection.
... Recent work has started to place Indian secularism into broader comparative context and analyze the personal laws in greater historical depth. 2 The three books under review advance this literature even further by foregrounding the multiple historical and economic, comparative political, and human rights aspects of personal laws, not just in India but globally. Starting with Newbigin, then moving to Subramanian, and finally to Sezgin, they expand our knowledge about India's personal laws in both depth and breadth, moving progressively from detailed historical analysis toward increasingly comparative frameworks. ...
The review essay examines three recently published books: Eleanor Newbigin’s The Hindu Family and the Emergence of Modern India: Law, Citizenship and Community, Narendra Subramanian’s Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India, and Yüksel Sezgin’s Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India.
... This point of view, which gained considerable prominence in the late 1980s and 1990s, acknowledges that the Indian constitutional framework advocates neither complete separation of religion from politics nor the banishment of religion to the private sphere of life. In our view, its error lies in assuming that secularism entails complete separation -it overlooks the fact that many secular democracies in Europe, like England, Italy, Germany, Sweden, do not observe complete separation of religion from politics (Jacobsohn, 2003;Mahajan, 2002Mahajan, , 2003; some even have a state religion, while pursuing the ideal of religious non-discrimination in more complex ways. This is ignored by those who maintain that secularism is an alien concept that is out of place in India. ...
This paper examines the dynamics of religion and democratic politics by looking at political mobilisations of marginalised groups in Punjab and Maharashtra. It argues that even when religious identity remains the bedrock of social life and individual experience, democratic politics brings out new configurations and alignments, in which neat boundaries of religious difference are occasionally blurred or overwritten by other identities. The Indian experience also reveals that religious groups are not homogeneous. While political mobilisation tends to unite them as communities with common interests, development policies have invariably disaggregated them, reinforcing the internal divisions and diversities within religious communities.
... In this respect, the early Congress governments perhaps considered the delegation of religious issues to a "reformist-minded" judiciary demonstrating a great deal of loyalty to the regime and constitutional principles both a politically sensible and cost-efficient move. However, in the postemergency era (after 1977) the high courts' preferences, particularly regarding such issues as secularism, the UCC, and personal laws, started to diverge from the political and ideological interest of the Congress governments, and often aligned with those of rising right-wing Hindu groups, which later, from 1998 to 2004, assumed the control of the national government (Jacobsohn 2003;Rao 2004). Apart from Rajeev Gandhi's government's attempt to reverse the Supreme Court decision in the Shah Bano case (1985), both the Congress and later Bharatiya Janata Party governments have refrained from interfering with the decisions of the Supreme Court and high courts, often due to the prohibitive costs of intervention. ...
This article compares the strategies through which Hindu-majority India and Muslim-majority Indonesia have regulated religion and addressed questions of what constitutes “the religious” in the post-independence period. We show that the dominant approach pursued by the Indian state has been one of judicialization—the delegation of religious questions to the high courts—while in Indonesia it has predominantly been one of bureaucratization—the regulation of religious issues by the Ministry of Religious Affairs. Contrary to the expectation that judicialization devitalizes normative conflicts while bureaucratization, more frequently associated with authoritarian politics, “locks” these conflicts “in,” we show that these expectations have not materialized, and at times, the effects have been reverse. Engaging the literatures on judicialization and on bureaucratization, we argue that what determines the consequences of the policy toward religion is less the choice of the implementing institution (i.e., the judiciary or bureaucracy) than the mode of delegation (vertical versus horizontal) which shapes the relationship between the policy-maker and the institution implementing it. Bureaucrats, judges, and elected politicians in multicultural societies around the world encounter questions of religious nature very similar to those that authorities in India and Indonesia have faced. How they address the challenge of religious heterogeneity has a profound impact on prospects of nation-building and democratization. It is therefore imperative that the consequences of the policy toward religion, and even more so the consequences of political delegation, be studied more systematically.
Unamendability is often viewed as a ‘lock on the door’ that can keep enemies of constitutional democracy out, at least for a time. Unsurprisingly, it has also been invoked as a potential bulwark democratic backsliding. While it may not entirely thwart authoritarian populist takeovers, unamendability – including in the form of basic structure doctrines or constitutional identity review – is said to at least delay them, buy some time for defenders of constitutional democracy to resist, and clearly signal to the outside world (including supranational institutions such as the European Union) that foul play is afoot. This article questions such easy assumptions about the nature and operation of unamendability, both in general and in an authoritarian populist context in particular. It argues, based on the examples of India and Hungary, that unamendability is a tool either too ineffective to be deployed against authoritarian populists in power, even while courts may not have been fully captured, or one they are just as comfortable wielding as their opponents. For example, the Indian Supreme Court’s hitherto celebrated basic structure doctrine has been useless in the face of the court’s refusal to hear or decide key challenges against the government. Additionally, drawing on the Hungarian case, the article shows the dark side of constitutional identity review includes captured courts defending majoritarianism and exclusion in the name of a national identity perceived as under attack. In other words, doctrines of unamendability may quickly and subversively turn into instruments of entrenching the very authoritarian populist projects proponents of such doctrines abhor.
The last decade and a half saw what we can call a historical turn in the study of India's democracy. By drawing on some of these new works and on archival materials, this article offers a new way of thinking about the rooting and workings of democracy in India and its endurance. The article explores how India and Indians produced a concrete and convincing notion of a shared functioning purpose, a common good, for their deeply plural society, while allowing a meaningful space for the conflicts and inherent contradictions that underlay their democracy. I suggest that the persistence of these conflicts was important for the resilience of India's democracy. I examine three interrelated processes that with independence contributed to this outcome: the nature of the constitution and its making; the first election and the preparation for them between 1947 and 1952; and the articulation of the principle of state resource distribution and its development projects. The conclusion reflects on the significance of the historical turn to our understanding of post‐independence India.
Among the countries which have experienced a political transition away from authoritarianism in the 1980s, South Korea is usually considered as a model of both democracy and judicial review. Relying on an interpretive reading of jurisprudence, the present research however uncovers the double-edged way in which the Constitutional Court of Korea has discharged its role as guardian of the constitution. A critical analysis of constitutional jurisprudence indeed reveals how the court’s commitment to define and defend the post-transition constitutional order has translated into both liberal and illiberal outcomes. This ambivalent dimension of the court’s role has unfolded as the institution came to intervene in the major dispute opposing the state and parts of civil society after the 1987 change of regime: reshaping the contours of enmity in the post-transitional period. Through the contentious issue of enmity, what has been put at stake in the constitutional arena is the very challenge of delineating the boundaries of inclusion and exclusion in South Korean democracy. in light of this task, constitutional justice has imposed itself as a paradoxical site, where the post-transitional disagreement about what counts as ‘‘national’’ and ‘‘anti-national’’ has been both staged and interrupted.
Cesari argues that both religious and national communities are defined by the three Bs: belief, behaviour and belonging. By focusing on the ways in which these three Bs intersect, overlap or clash, she identifies the patterns of the politicization of religion, and vice versa, in any given context. Her approach has four advantages: firstly, it combines an exploration of institutional and ideational changes across time, which are usually separated by disciplinary boundaries. Secondly, it illustrates the heuristic value of combining qualitative and quantitative methods by statistically testing the validity of the patterns identified in the qualitative historical phase of the research. Thirdly, it avoids reducing religion to beliefs by investigating the significance of the institution-ideas connections, and fourthly, it broadens the political approach beyond state-religion relations to take into account actions and ideas conveyed in other arenas such as education, welfare, and culture.
Women, a girl, a wife, a mother, a grandmother, overall woman is a key of a family. World can never be absolute without a woman. Law is the set of rules imposed to govern the behavior of people. From the beginning of this world women is treated as a weaker section of the society and they are the wounded of the crimes like rape, eve teasing, female infanticide, dowry, domestic violence and child marriage. They were only allowed to live under the shoes of their husbands and fathers. Laws are being made to secure the lives of the women from the violence of their families and societies and to provide them with their rights of which they are the owners. This paper covers the aspect of women from past history to the present world. It shows how the law of our country has contributed its best to change the lives of women, to make them live with pride and respect not as a slave.
In this article, I argue that religious nationalism poses a unique challenge to the liberal theory of religious freedom. In arguing this, the article first develops and defines an ideal type of religious nationalism through an analysis of Hindu-nationalist and religious Zionist thought. I show that religious nationalism in states like India and Israel have the unique status of intimate rivals . They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. As a result, they are free of much of the unifying pressures of state nationalism. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. The paper then turns to the justifications and rationales of religious freedom—both in seminal cases and in political and legal scholarship—and applies them to religious nationalism. It argues that the status of intimate rivalry should, depending on which justification of religious freedom we adhere to, change the way in which we morally and legally understand religious nationalism. First, because religious nationalism is intimate— that is, acceptable and mainstream—it should be approached as a part of the culture of the majority. This implies that we should be less concerned about infringements of religious freedom in the case of the adherents and organizations of religious nationalism. Second, the rivalry of religious nationalism is in itself a good reason for the nation-state not to accommodate it.
The purpose of this article is to present the review of publications about the problem of teaching intercultural communication at the lessons of foreign languages at universities. The carried out analysis shows that the efficiency of intercultural communication is influenced both by objective and subjective factors. The most serious problems are ethnocentrism, conforming to stereotypes, insufficient foreign language proficiency, mismatching of norms and behavior of native and target culture. The knowledge of native language and culture as well as identification with them is very important for successful cross-cultural communication because it makes the communicating parties interesting for each other.
As for the problems of teaching intercultural communication, they are related to the decreasing number of academic hours allocated for foreign language teaching and some students’ lack of interest to interact with representatives of other cultures. The practical experience described in the publications suggests that teachers should thoroughly define the content in regards with objectives of the course and preferably choose authentic materials. It is also recommended to use active forms of teaching and information and communication technologies.
Key words: intercultural communication; target culture; native culture; methods of teaching
The tricoloured flag India adopted in 1947 to mark its independence from Britain, the Tiraṅgā, results in fact from the combination of four elements whose official and popular semiotics has traversed several waves of negotiations during the decades preceding the foundation of contemporary India. Three of these elements are its equally sized, horizontal colours: saffron, white, and green; theirs is a chronicle of embeddedness in both confessional and secularist narratives which had shaped ancient and modern India, whereby the colour at the top—the saffron—best testifies to the intensity of and controversies surrounding mentioned narratives. Related struggles are subsumed under the choice to replace the 1921/1931 spinning wheel (charkha) with the blue-stained Ashok/Dharma Chakra, the “Wheel of Law”. Significant legal accounts coalesce indeed into the Tiraṅgā, from both spiritual-philosophical and positivistic standpoints. Despite conveying a supposedly ethnicity-neutral identity, the Chakra is often replaced with sectarian symbols by “minority” movements when they protest against the Hindu majority’s legislative radicalism.
Returning to Isaiah Berlin’s “Two Concepts of Liberty” offers a defense of liberal democracy that can help us come to terms with its limits, as well as the implicit tradeoffs that are an inescapable feature of politics in a liberal democracy. While critics of Berlin are right to note his neglect of Enlightenment constitutionalism, his skeptical liberalism is illuminated by comparative constitutional law, where we see how different constitutional regimes balance different values—such as democracy, liberty, and equality—in different ways that are attuned to the particulars of place and history that both Berlin and critics of liberalism insist are so important.
Does liberal democracy require a strict separation between state and religion? In Anglophone liberal political theory, the separationist model of the First Amendment of the US Constitution has provided the basic template for the rightful relationship between state and religion. Yet this model is ill-suited to the evaluation of the secular achievements of most states, including India. This article sets out a new framework, minimal secularism, as a transnational framework of normative comparison. Minimal secularism does not single out religion as special, and it appeals to abstract liberal democratic ideals such as equal inclusion and personal liberty. Actual debates about secularism in India are shown to revolve around these ideals. The study of recent Indian controversies—about the Uniform Civil Code, the status of Muslims, and the rise of BJP nationalism—also sheds light on some blind spots of Western secularism and the conception of sovereignty and religion it relies on.
This thesis examines the role of the secular State in the making of modern constitutional government in India and argues that the practice of constitutional secularism is an unrealised pedagogical project whose goal is the transformation of Indian society and its politics. Toleration is the core value defended by the liberal secular State and the Indian State is no exception; however, its institution in the Indian Constitution compels religious groups to reformulate their traditions as doctrinal truths. Through decisions of Indian courts I demonstrate that this is an odd demand made on non-Semitic traditions like Hinduism because even up the contemporary moment it is difficult to cast these traditions in terms of doctrinal truths. Though reformulated religious identities are occluded descriptions of Indian religious traditions, I argue that they have gained considerable force in contemporary India because they were drawn into constitutional government as the problem of accommodating minority interests. Accommodating minority identities was part of an explicitly stated pedagogical project through which the British colonial government was to steward what they supposed to be irreconcilably fragmented ‗interests‘ that comprised Indian society towards a unified polity. Though the Indian Constitution reworked the politics of interests toward the amelioration of social and economic ‗backwardness‘, I argue that the rights granted to the Scheduled Castes, Other Backward Classes, and Minorities continue to mobilise these groups as reformulated religious identities with associated interests. Thus as recognisably occluded accounts of Indian society, I demonstrate that reformed religious identities and indeed the practice of secular constitutionalism functions like a discursive veil that screens off Indian social experience from the task of generating solutions to legal and institutional problems.
What impact does India’s acclaimed “basic structure” doctrine have on the text of the Constitution? Constitutional theorists have long neglected this question in favour of debates surrounding the implications of the doctrine on separation of powers, popular sovereignty and the role of the judiciary in a constitutional democracy. Over the years, the Indian Supreme Court has struck down multiple provisions of the Constitution on basic structure grounds. These provisions have formally remained part of the text, producing constitutional falsehoods—significant disjunctures between text and practice. By considerably extending the contours of the basic structure doctrine, the Indian Supreme Court’s decision in the Fourth Judges Case exacerbates the potential for these falsehoods. This chapter considers how these falsehoods have arisen, the attempts to redress them, and what they mean for constitutional interpretation outside of the courts.
Dieser Handbucheintrag bietet einen Überblick über soziologische Perspektiven auf das Verhältnis von Religion und Recht. Zunächst werden am Beispiel von Emile Durkheim und Max Weber integrations- und differenzierungstheoretische Konzeptionen entfaltet und auf ihren bleibenden systematischen Gehalt hin geprüft. Sodann werden mit dem Investiturstreit, der Reformation und dem Zeitalter der Revolutionen einige Stationen der europäischen Religions- und Rechtsgeschichte rekapituliert, die einen wichtigen, wenngleich nicht den einzigen historischen Hintergrund für moderne Arrangements von Religion und Recht darstellen. Und schließlich werden mit religiöser Mobilisierung des (staatlichen) Rechts, mit der rechtlichen Regulierung religiöser Diversität und mit religiösen Deutungskonflikten um die Menschenrechte einige aktuelle Forschungsfelder an der Schnittstelle von Religions- und Rechtssoziologie beleuchtet, die über konventionelle säkularisierungstheoretische Annahmen beider Teildisziplinen hinausführen.
This essay on Mitra Sharafi's Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (2014) focuses on the relationship between certain minorities and the law of the state. It seeks to expand the discussion found in Sharafi's book in three directions: first, by comparing the attitude of Parsis in South Asia to the law of the state with the attitude of German Jewish immigrants in mandatory Palestine and Israel to state law; second, by asking whether the Parsis' embracing of state law was linked to their economic success; and, finally, by pointing to the nature of law itself as a “minority discourse.”
Introduction to a Special Issue of South Asia Chronicle available at:
https://edoc.hu-berlin.de/handle/18452/9165
Südasien-Chronik - South Asia Chronicle 6/2016, S. 3
-10 © Südasien- Seminar der Humboldt-Universität zu Berlin ISBN: 978-3-86004-324-0
The religious freedom clauses of the Indian Constitution attempt to mediate between the competing claims of individuals, religious groups and the state, in a manner that is born out of specific historical circumstances. This article examines the controversial questions of whether, and to what extent, the Constitution grants individuals (specifically, dissenters) rights against the religious communities to which they belong. Taking as its point of departure a landmark Supreme Court judgment that struck down an anti-excommunication law, the article argues that the Indian Constitution is committed to an ‘anti-exclusion principle’: that is, group rights and group integrity are guaranteed to the extent – and only to the extent – that religious groups do not block individuals’ access to the basic public goods required to sustain a dignified life. Moreover – and unlike most other Constitutions – an individual may vindicate this right directly against her community in a court of law, by invoking the Constitution. This remedy is justified both philosophically, and in the specific context of Indian history. In this manner, Indian constitutionalism offers a novel and innovative solution to the perennial problem of balancing individual rights to religious freedom against the claims of community.
The concept of the constitutional revolution has become ubiquitous, but it is applied to all manner of things that are unlike each other in notable ways. It has been generously applied to events in such far-flung places as South Africa, Eastern Europe, Great Britain, India, Canada, Iran, Israel, and the United States. Despite its oxymoronic character, it has the potential to illuminate a much-vexed subject of scholarly inquiry. This article seeks to sharpen conceptual clarity in the way we depict constitutional change, specifically that species of change that entails significant breaks or departures in the workings of the constitutional order.
Modernist thinkers once presumed a progressive secularity, with the novel replacing religious texts as society’s moral epics. Yet religion—beginning with the Iranian revolution of 1979, through the collapse of communism, and culminating in the singular rupture of September 11, 2001—has not retreated quietly out of sight. In Fiction Beyond Secularism, Justin Neuman argues that contemporary novelists who are most commonly identified as antireligious—among them Orhan Pamuk, Salman Rushdie, Ian McEwan, Margaret Atwood, Nadine Gordimer, Haruki Murakami, and J. M. Coetzee—have defied assumptions and have instead written some of the most trenchant critiques of secular ideologies, as well as the most exciting and rigorous inquiries into the legacies of the religious imagination. As a result, many readers (or nonreaders) on either side of the religious divide neglect the insights of works like The Satanic Verses, Disgrace, and Snow. Fiction Beyond Secularism serves as a timely corrective. © 2014 by Northwestern University Press. Published 2014. All rights reserved.
How do multireligious and multiethnic societies construct accommodative arrangements that can both facilitate cultural diversity and ensure women's rights? Based on a study of legal adjudication of marriage and divorce across formal and informal arenas in contemporary Mumbai, this book argues that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. In this model the civic and religious sources of legal authority construct, transmit, and communicate heterogeneous notions of the conjugal family, gender relations, and religious membership within the interstices of state and society. In so doing, they fracture the homogenized religious identities grounded in hierarchical gender relations within the conjugal family. The shared adjudication model facilitates diversity as it allows the construction of hybrid religious identities, creates fissures in ossified group boundaries, and provides institutional spaces for ongoing intersocietal dialogue. This pluralized legal sphere, governed by ideologically diverse legal actors, can thus increase gender equality and individual and collective legal mobilization by women effects institutional change.
The question of why some countries have democratic regimes and others do not is a significant issue in comparative politics. This book looks at India and Pakistan, two countries with clearly contrasting political regime histories, and presents an argument on why India is a democracy and Pakistan is not. Focusing on the specificities and the nuances of each state system, the author examines in detail the balance of authority and power between popular or elected politicians and the state apparatus through substantial historical analysis. India and Pakistan are both large, multi-religious and multi-lingual countries sharing a geographic and historical space that in 1947, when they became independent from British rule, gave them a virtually indistinguishable level of both extreme poverty and inequality. All of those factors militate against democracy, according to most theories, and in Pakistan democracy did indeed fail very quickly after Independence. It has only been restored as a facade for military-bureaucratic rule for brief periods since then. In comparison, after almost thirty years of democracy, India had a brush with authoritarian rule, in the 1975-76 Emergency, and some analysts were perversely reassured that the India exception had been erased. But instead, after a momentous election in 1977, democracy has become stronger over the last thirty years.
The debates in the Turkish Grand National Assembly (1923–1928) and the Indian Constituent Assembly (1946–1949) inscribed the secular infrastructures of these states into law. A close examination of these debates shows that while the separation of religion and state was an important aspect of Turkish and Indian secularisms, both allowed the state to intervene in the religious sphere. In both, state intervention in religion sought to transform the majority religion into a secularized and modernized form that would complement national identity. However, whereas Turkish secularism adopted “restrictive intervention,” which sanctions state interference to construct a monolithic national identity, the Indian nationalist leaders adopted “emancipative intervention,” which seeks to create an overarching national identity while preserving the cultural and religious diversity of society. While the former type of secularist intervention limits religion's public visibility and places it under state control, the latter seeks to eliminate and reform religious practices that hinder social justice and equality. Based on this analysis, I argue that secularism may be seen as a tool state authorities utilize in the service of the political project of creating a modern nation.
Both India and Israel are often involved in a conflict between their commitment to the major ethnic community of the state and their obligation to treat all citizens equally on the basis of the liberal value of equality, regardless of religion, race or sex. Although each of these states is defined differently – Israel as a Jewish and democratic state and India as a secular democratic state – it is fascinating to note that they both use similar policies to cope with ultranationalist groups. We found that these countries suffer from the same symptom of "normative duality," which drives the state and its ruling bodies in two opposite directions: an aspiration to protect democracy and equality for all its citizens and a clear tendency toward, and often identification with, nationalist right-wing entities that seek to emphasize the nationalist and exclusive nature of the state. We analyze the ways in which the two states deal with this normative duality by examining the responses of each to ultranationalist right-wing terror attacks and by examining the limitations on participation in politics. We found that despite the major difference between the definitions of the two states, both India and Israel allow partial freedom of action to ultranationalist groups, and a significant gap exists between the declared policy and its implementation.
As we know, the status of religion in public and political life in liberal democracies has been heavily contested for centuries. In recent philosophy and politics, the focus of this debate has been rather narrowly on reasons, arguments and doctrines (i.e. principles, values and norms) or symbolic universes. We can discern three possible positions. First position: religions in this narrow sense should be excluded from public or political debate in political society, from democratic debate or discourse, from elaborating alternatives for democratic decision-making and, particularly, from legislative decision-making, implementation of laws and regulations and from adjudication (different varieties of exclusivist secularism, ethical secularism and foundational secularism). Second position: religions should not be restricted to private life or civil society but should be allowed to play a fair and equal role in public discourse, in civil society and in democratic debates and deliberation on all issues without being allowed a privileged role, let alone a foundational or monopolistic role (different varieties of inclusivist secularism or, in my terminology, public and political religions compatible with priority for liberal-democratic constitutionalism). Third position: religions, or more narrowly one religion, claim a foundational status over competing religions or against non-religious morals, reasons, arguments or doctrines. This is usually combined with 'cultural' and 'political' but also 'legal' and 'constitutional' establishment. In earlier publications (Bader, 1999; 2007a: ch. 3; 2009a) I have dealt extensively with the first two positions and there is no need to repeat the arguments in detail by adding an updated version to this ever-growing body of literature.
The article aims at advancing our understanding of critical junctures in the evolution of religious/secular regulations, referring to those moments in history when one particular arrangement is adopted among several alternatives, establishing an institutional trajectory that is resistant to change in the following years. It traces the regulation of personal status laws in Israel and India, which, despite attempts by political leaders at time of independence to defer clear choices regarding the role of religious law, became generally entrenched in later decades. Based on the Israeli and Indian cases, and in contrast with common approaches, the article demonstrates how decisions made by influential political actors during the foundational stage of the state appear difficult to reform, regardless of the content of these decisions—whether they introduce a radical change or maintain existing practices—or the level of decision making—whether constitutional or ordinary parliamentary legislation.
This article describes the competing models of secularism that have been debated and contested in postcolonial India. I focus on the constitutional legal discourse and judicial pronouncements on the meaning of secularism in India and on the increasing influence of the Hindu Right—a conservative and religious political movement seeking to set up India as a Hindu state—on shaping the contours of secularism in contemporary law. The struggle over the meaning of secularism came to a head in an Indian High Court decision in 2010. The case involved a dispute over the legal title to a piece of land in the northern Indian town of Ayodhya, where a sixteenth-century mosque once stood and was destroyed by the mobs of the Hindu Right, and the Hindu Right’s claim that the site marks the spot where the Hindu god Ram was born. The case reveals how the right to freedom of religion has been used to establish and reinforce Hindu majoritarianism through secular law in India.
The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.
Liberalism and pluralism are seen as being in tension in liberal Western nation-states, while multiculturalism, as a policy of resource allocation to minority groups, has been the standard response to pluralization. This limits the pluralist potential of a constitutional liberalism. The fusion of a liberal theory of autonomous individuality with a pluralist theory of multiple belonging has to look beyond multicultural policy in order to enhance liberal commitments to citizens through pluralist provisions. An analysis of the Indian Constitution’s Fundamental Rights, as a normative document, shows that the citizen can be understood as an autonomous individual given identity through belonging to a plurality of groups. Consequently, rights are taken to accrue to all citizens equally as autonomous individuals, but also by virtue of their belonging to groups, with special provisions made available for vulnerable ones. Rights for a plurality of vulnerable groups should not be seen as illiberal additions but integral to the conception of liberalism. If such a view of citizenship were to be integrated into the liberal constitutions of irreversibly pluralizing Western democracies, then a pluralistic constitutional patriotism could be fostered amongst members of vulnerable groups, while demonstrating that standard liberal rights guarantee equal citizenship for all.
For generations the question of the political form worthy of its apparent
telos
has occupied the best legal, philosophical and rabbinical minds of the Jewish tradition. Resolution of the political question presupposes resolution of the theological question of whether the Jewish people indeed have a unique
telos
, and whether this
telos
is linked to a particular political or social form. This ongoing deliberation is one of the defining features of the inter-generational dialogue within the Jewish heritage.
When the Zionist movement declared its intention to initiate the founding of a Jewish State in Zion, this decision caused unprecedented turmoil in Jewish communities. For some, the creation of a political entity in the Land of Israel signaled a brash and unwelcome rejection of the Orthodox belief that the return will occur only in the days of the Messiah, until which time political inaction is the appropriate conduct.
This article presents a theory of corruption which unifies the moral, political, economic and social causes and patterns of corruption in one theoretical framework. The theory is constructed from the scattered insights about the @'corruption of the body politic,@' building in particular upon the work of five theorists--Thucydides, Plato, Aristotle, Machiavelli and Rousseau. Corruption is defined as the moral incapacity of citizens to make reasonably disinterested commitments to actions, symbols and institutions which benefit the substantive common welfare. This extensive demise of loyalty to the commonwealth comes from the interaction of human nature with systematic inequality of wealth, power and status. The corruption of the polity results in certain identifiable patterns of political conflict and competition. The central feature of these patterns is the emergence of quasi-governmental factions and an increasingly polarized class system. The politics of the factions leads to an undermining of the efficacy of the basic political structures of the society and the emergence of systematic corruption in all aspects of political life. The theory advanced in this article identifies several crucial prescriptions to stave off the tendency towards corruption. Among these are an extension of maximum substantive participation by all citizens in all aspects of political life and a stringent control over all sources of great or permanent inequality in the polity.
Know from where you come and where you are going. (Akavya Ben-Mahalalel, Avot, 3)
It has been argued that the difference between liberal democracies and theocratic, communist, or fascist states is not that liberal states promote different ideals of the good, but that they promote none. Whereas illiberal states regard it as a primary function of the state to prescribe the moral character of society, liberal states shun such attempts and allow freedom to citizens to develop their own conceptions. Liberals hold that governments cannot use as their justification for any action the fact that one person's plan of life is more or less worthy than that of another. Since many people believe in more than one objective “correct” set of values, every person should enjoy the freedom to arrive at her own conception of the good. By “conception of the good” is meant a more or less determinate scheme of ends that the doer aspires to carry out for their own sake as well as of attachments to other individuals and loyalties to various groups and associations. It involves a mixture of moral, philosophical, ideological, and religious notions, together with personal values that contain some picture of a worthy life.
… ‘true’ democracy recognizes the power of the constitution — fruit of the constituent authority — to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not impair democracy but constitutes its full realization.
In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.
In March 1992, Israel underwent a Constitutional Revolution. In March 1992, two new Basic Laws were passed: Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Under these new Basic Laws, several human rights — among them Dignity, Liberty, Mobility, Privacy, Property — acquired a constitutional force above the regular statutes. Most of these rights were already protected, prior to the constitutionalization. While a few were protected by the legislator, most were protected by the case law of the Supreme Court, developed by some of our greatest judges since the establishment of the State. The main difference made by the Basic Laws is the strengthening of the normative value of these rights. A regular Knesset (Parliamentary) statute can no longer infringe upon these rights, unless it fulfils the requirements of the Basic Laws (the ‘limitation clause’) namely, it befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose. Thus, we became a constitutional democracy.
In a recent paper, I argue that the “new constitutionalism” — the transformation in the relations between courts and representative institutions that has swept the world and that is now sweeping Israel too — can best be understood as one of those “changes of everything so that everything would remain the same”. The promotion of courts and the demotion of legislatures through the judicial enforcement of “rigid” Charters and Bills of Rights has “legalized politics,” changing its nature as well as its locus. Contrary to those who regard this as an essentially democratic development, I argue that it is, to paraphrase Reuben Hasson, a weapon in the hands of democracy's enemies. I argue that the new constitutionalism was intended to operate and does operate as an
antidote
to democracy, that it was meant to preserve the oligarchy of private property from the mortal danger posed by representative institutions elected by people without property, the original Greek “
demos
” from whence the term.
Notes 1. The 1953 Act did not impose a single uniform system of education. There are four types References Albert, J. (1969). “Constitutional adjudication without a constitution: the case of Israel.”.
This article offers a measure of judicial legitimation of marginal religious groups in litigation involving the free exercise of religion clause of the First Amendment. Throughout the greater part of history, marginal religious faiths have found the path to acceptance filled with legal obstacles. Pfeffer (1974) noted that legitimation of marginal groups occurs either when the secular norms change or when such groups change their religious doctrines. The Pfeffer thesis is generally consistent with the sect-church continuum defined by sociologists of religion. In the research reported below, we examined an alternative thesis, namely that official legitimation by the judiciary of marginal religions is a function of their marginality. We compared the results of the universe of all reported state and federal judicial opinions from 1946 through 1956 and 1970 through 1980. We found substantial increases in the percentage of successfully litigated free exercise claims, and furthermore, that success in litigating these claims is closely associated with those factors that distinguish these groups as marginal.
As a subject for serious investigation, constitutionalism in faraway places seems finally to have come of age. To appropriate the famous metaphor from the First Amendment arena that is the concern of this paper, it is as if, until relatively recently, a “wall of separation” had shielded both scholarly and judicial analysis of American constitutional issues from the experience of other polities. As a result, too often constitutional inquiry has been denied the illumination and insights of comparative research. My specific aim in this article is to explore the concept and practice of the secular constitution within three nations that are committed, albeit in different ways, to the principle of religious liberty.