Law in India Series. New Delhi: Oxford University Press, 2012. xli, 237 pp. Rs350.00, paper. ISBN 0-19-808535-4.
This is an illuminating book on a difficult subject, which highlights the glowing points of intersection of religion and law through the judgments of the Supreme Court of India, and in doing so throws light on several issues associated with nationalism, secularism, multiculturalism and Hinduism.
It explores in particular the Supreme Court’s attempts to (1) define Hinduism; (2) sift what is “essential to Hinduism” from what is not; (3) regulate use of religion, specially Hindutva, in electioneering; (4) adjudicate the relationship of religion and educational institutions; (5) address issues of conversion; and (6) clarify minority rights. Don’t let this skeleton sketch of the template mislead you; each theme is examined in granular detail with an abundance of facts and concepts. Nor is it a book merely for specialists, for at stake is the role of religion in modern India from one point of view, or the nature of Indian secularism from another. The selection of the judgments of the Supreme Court to shed light on these issues is justified by the fact that, unlike the debates in intellectual and political circles on these issues which might be termed descriptive, the rulings of the Supreme Court are prescriptive in nature and therefore shape the very nature of what concepts like secularism, religious reform and religious freedom actually come to mean. The author is therefore to be complimented for producing such a good book on such contested issues from which the student, the scholar, and the interested citizen may equally benefit.
The topics it discusses are however so contested that almost any reader will have some suggestions about what could have been additionally included in the discussion or carried to a more convincing conclusion. The author discusses how far-reaching the intervention of the court has been in the management of Hindu religious institutions (48, 194, 200). But the author doesn’t highlight its danger. If the government will manage Hindu temples on such a scale, then could not the Hindu community turn around and claim that the state should become a Hindu state, if it is going to do so, especially when the Court is apparently not intervening to the same extent in running the institutions of other religions. Now we can see why Donald Eugene Smith identified this feature of Indian secularism as potentially the most dangerous for it (see India as a Secular State, 1963, 497).
It seems to this reviewer that some of the problems regarding issues pertaining to defining Hinduism and to conversion stem from the Western background of these words and could be clarified if this was pointed out. The word religion has the connotation of exclusive identity in European languages, but the word has been applied blindly to the religions of Indian origin, which are more open to multiple religious identities. The Court is groping to find a way out of this bind by defining Hinduism as a way of life. If we realize that when a Hindu converts to Christianity he converts not just to another religion but to another concept of religion as well, then we may have a better appreciation of the Court’s predicament. What is true of religion is also true of conversion. The right to convert can mean two things: (1) my right to change my religion and (2) someone else’s right to ask me to change my religion. The courts are trying to uphold it in the first sense rather than in the second, but these two senses have not been distinguished in Western discourse because, as a missionary religion, Christianity has no need to. Hence the sense of confusion. Once conceptual clarity is reached on such points the Court’s efforts, while still clumsy, may appear less misguided.
Arvind Sharma
McGill University, Montreal, Canada
p. 423