The politics of religious freedom:

Religious freedom as crisis claims

posted by Nandini Chatterjee

Adopted in 1950, Article 17 of the Indian Constitution legally abolished untouchability—the ancient Hindu system of social discrimination—forbade its practice in any form, and made the enforcement of any discrimination arising out of this disability a criminal offence. At the same time, the Indian Constitution guaranteed freedom of religious belief and practice under Article 25 and autonomy of religious institutions under Article 26. The discussion of Employment Division v. Smith in Winnifred Sullivan’s post and subsequent comments reminded me of the very substantial jurisprudence surrounding Article 26. As I understood it, in Smith the U.S. Supreme Court made it clear that law was law, from which nobody was exempt, whatever their religious reasons; and this judgment sent up the cry of religion under threat, leading to the formation of religio-political alliances that have since managed to reclaim much ground using the argument of autonomy of religious institutions.

How odd, since that is exactly what happened in India in the 1950s and 1960s. In those decades, Article 26 was brandished all over India in response to reformist legislation passed in most states in order to give effect to Article 17. These “Temple Entry” laws opened Hindu temples to Dalits—people considered untouchable by caste Hindus. However, unlike American jurists and judges, the makers of the Indian Constitution had foreseen constitutional conflict, hence the freedom of religion clauses (Articles 25 and 26) came qualified ab initio with declarations of the ability of the Indian state to regulate the non-religious aspects of religion and to undertake social reform. Thus, when Gouda Saraswath Brahman trustees attempted to keep the temple of Sri Venkataramanah, in Mulki, South Karnataka, free of pollution from untouchables by claiming that it was a denominational temple and hence entitled to limit its benefits to members of the denomination or those admitted at their discretion, the Supreme Court stated that the constitutional clauses enabling the state to open Hindu temples to all Hindus (i.e. including Dalits) overrode other considerations. And when the Gujarati Swaminarayan Sampradaya, or Satsangis, claimed exception, in Sastri Yagnapurushdasji v. Muldas Bhundardas,  on the basis that they were not Hindus at all, an activist judiciary, led by then Chief Justice P.B. Gajendragadkar, committed all those epistemic sins that writers in this series have discussed: he reduced Hinduism to certain basics, and then told Satsangi escapists that they jolly well were Hindus and had better behave like good, modern, but also authentic Hindus. In pursuit of a century-long effort to make Hinduism ethical and democratic, an act was passed by the state of Madras in 1951 reinforcing the power of a government department called the Hindu Religious and Charitable Endowments Commission to inspect and supervise Hindu temples and maths (monasteries) and audit their accounts. In response, several Article 26 cases were lodged, which led to certain sections of the Hindu Religious and Charitable Endowments Act (1951) being deemed unconstitutional. But in one case, the judges of the Madras High Court also explained why the freedom of religion clauses did not offer a secure escape route from the reformist agenda of the Indian state. Charmingly, they said it was because India was not America—in India there was no rigid and complete wall of separation between the Church and State.

All this is old hat, and eminent American scholars have commented extensively on the Indian judiciary’s predilection for unseemly meddling in religious matters. Striking a somewhat lone note, Marc Galanter did suggest five decades ago that the Indian case was neither unique nor necessarily distinct from the American one—and anticipating Talal Asad, he observed: “No secular state is or can be merely neutral or impartial among religions, for the State defines the boundaries within which neutrality must operate.”

But however universal these legal conundrums are revealed to be, to the outside observer (in this case, me) it does appear that Americans have rather abruptly woken up to a problem that was surely always there—since both the constitutional provisions and the religious denominations have been around for much longer. Not being acquainted with American case law nor with the American religious landscape, I wonder whether the question is really “Why now?” Were all religious folk behaving just right until that moment, or had they taken legal restrictions lying down, not noticing until twenty years ago that such restrictions threatened the freedoms supposedly intended by the founding fathers of the nation? If, as Haefeli suggests, toleration is inevitably a partisan phenomenon (and I totally agree with him there), what element of the partisan equilibrium was shaken in the U.S.A. twenty years ago, around Smith? In India, there was a very specific socio-political context in which Article 26 was deployed in the 1950s and 60s, which I have cursorily outlined above. That context, incidentally, has changed. Dalit activism has long since moved on from temples and found greater value and justice in accessing the material means of social advancement—educational facilities, government jobs, and political representation. Since the 1980s, Article 26 has again been frequently deployed, but this time by institutions that have since been clubbed together under the bureaucratic appellation of Minority Educational Institutions. Seeking autonomy, in most cases from the supervisory authority of universities that they are affiliated with, or exemption from general rules of admission of students or appointment of staff, including (note the irony) rules based on affirmative action (i.e. Dalit empowerment) policies, these institutions seem to be behaving in very similar ways to the post-Smith religious alliances in the U.S.A. India, it appears, has become more similar to America in the past half century.

I will dare more, and wonder aloud about the status of “belief” in this tortuous history of religious freedom, or claims thereof, in these two countries. It appears to me that in spite of the demonstrably greater frequency of appeals to it, “belief” threads in and out rather than providing a stable central pattern at the core of a peculiarly modern re-inscription of religion. In India at least, religious reformism, which has afflicted Parsis, Sikhs, Christians, Muslims, and Hindus since the early nineteenth century, was not even rhetorically about identifying and defending true “belief” alone. If it had been only a matter of untrammeled possession of beliefs, the freedom of religion clauses in the Indian Constitution could have permitted the Saraswat Brahmans and the Dalits in Mulki, to each maintain their own beliefs and carry on with their unequal daily lives as usual. The new “belief-centrism”—of which P.B. Gajendragadkar et al were guilty—was essentially about ethically validated belief. In that he may be considered an intellectual descendant of the “father of  modern India,” Rammohan Roy (d. 1833), who believed for a while that he had found such socially responsible belief in The Precepts of Jesus—until missionary dogmatism convinced him that a new and truly monotheistic and un-superstitious religion was needed in order to create an amicable society with women’s rights and so on. About the same time, a man with a very different social vision fulminated against Protestant missionaries going on about caste disabilities. The upper caste Tamil Christian poet, Vedanayagam Pillai, told mission authorities in London that a new generation of missionaries was getting it all wrong by insisting on caste de-segregation in church. Belief is what ought to matter, he said, whereas: “…who should preach on the faith of the Son of God [but] preach now all the day long …  upon the subject of eating with the Pallar and Parayer promiscuously.” The missionary authorities disagreed—and Pillai was excommunicated in 1829. I wonder, in the light of these counter-intuitive examples—the “reformist” foregrounding social ethics and the “orthodox” asserting faith—whether the novelty of “belief” is less its adoption as a normative description of religion per se, or rather, its increased use as a rhetorical device especially in contexts where specialist religious authority is challenged.

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