Europe, India, and the Limits of Secularism

When revolutions fail, the dreams behind them live on. His fight for radical change may have died, but his dream of a better world never did. This book is dedicated to my father, Willem De Roover, For passing the dream on to us, so that we may do our bit to bring it closer to realization. 2 Acknowledgements The past ten years have been a lively period. There were beautiful and difficult, peaceful and turbulent times, but never a dull moment. During these years, new research groups in Europe and India came into being, under the guidance of S.N. Balagangadhara (Balu). It has been a privilege and an honour to be witness to—and, hopefully, sometimes part of—the growth of his research programme. Learning from a real teacher is not easy; at least, it has not always been easy for me. But what appears to be a struggle with the teacher is really a struggle of the student with his own ignorance. It often seems difficult to let go of the delusions about ourselves that we embrace so happily, even though they are the cause of our unhappiness. I feel a deep gratitude towards Balu for his guidance, generosity, patience, and thoughtfulness as a teacher, and (perhaps most of all) for his command of the art of being angry ‘with the right person and to the right degree and at the right time and for the right purpose, and in the right way’. It is impossible to describe all the ways in which the members of our core group in Ghent have helped, guided, and supported me over the years. Without Sarika, Nele, Marianne, and Sarah, this would not only have been a lonely journey but I would also be nowhere today. More than companions alone, they are stars that brighten the darkest of nights. It has been a joy to travel along the roads of our research programme with so many comrades in India, Europe, and the US: Anil, Anne, Arun, Ashok, Ashwin, Ashwini, Chaitra, Divya, Dunkin, Emanuel, GSR, Jolien, Kannan, Kavita, Martin, Polly, Prakash, Praveen, Rajaram, Ramananda, Sadananda, Sandeep, Santhosh, Satya, Shankarappa, Shanmukha, Sufiya, Venkat, Vivek, vnr, Willem, and many others. At different times and in different ways, the generosity of friends, family members, and colleagues in giving me their time, thoughts, and support proved invaluable. I owe much to all of you and look forward to the future that all of us will build together. Finally, I would also like to thank the publishers of the journals and edited volumes where earlier drafts of sections of this book appeared, for their permission to include this material here. Earlier 3 drafts of sections of chapters 1, 4, 5, and 6 appeared in the following journal articles and book chapters: Sage Publications for ‘John Locke, Christian Liberty, and the Predicament of Liberal Toleration’, Political Theory, 36(4); Imprint Academic for ‘Liberty, Tyranny, and the Will of God: The Principle of Toleration in Early Modern Europe and Colonial India’, History of Political Thought, 30(1); Routledge for ‘The Dark Hour of Secularism: Colonial Liberalism and Hindu Fundamentalism in India’, in Ranjan Ghosh (ed.), Making Sense of the Secular: Critical Perspectives from Europe to Asia (New York: Routledge, 2013) (all three essays co-authored with S.N. Balagangadhara); and Stanford University Press for ‘Secular Law and the Realm of False Religion’, in Winnifred Fallers Sullivan, Robert A. Yelle and Mateo Taussig-Rubbo (eds.), After Secular Law (Stanford: Stanford University Press, 2011). 4 Introduction The Crisis of Secularism One need not be a prophet of doom to suggest that our coping with the cultural and religious diversity of humanity has seen little progress during the last century. From Iraq to Israel, India to the Balkan, Nigeria to Northern Ireland, Pakistan to Sudan, the list of plural societies disrupted by violent conflict between their different religious and ethnic communities is long. Yet, in this same period, some parts of the world were witness to the growing dominance and success of a particular way of solving the problems of diversity: the liberal model of religious toleration and the secular state. Even though this model took various forms in the nation-states that implemented it and among the political thinkers who elaborated it, these share a number of formal properties. The liberal model of secularism and toleration consists of a set of norms as to how a diverse society and its state ought to be organized. On one hand, it claims that the state should be secular or religiously neutral. The state’s policies and legal system cannot be based on any religious doctrine. Generally, religious authorities should stay away from political authority and vice versa. Under this model, the state is prohibited from endorsing the truth of any religion and from using its powers to enforce adherence to some religion. On the other hand, the liberal model insists that the right to religious freedom should be granted to all citizens. Each citizen ought to be free to believe and worship as he or she pleases, and all should respect this freedom and tolerate each other’s forms of religious belief or unbelief. In this way, the model divides plural societies into two spheres: a political or public sphere, where citizens are subject to the laws and coercive power of the secular state, and another sphere, where they ought to be free to live according to their religious values or conceptions of the good life. The liberal model met with considerable success in the nation-states of Western Europe and North America. After centuries of devastating wars of religion, these states enjoyed more than two hundred years of relative peace among the religious groups in their societies. Systematic persecution 5 and discrimination of groups considered ‘heretic’ or ‘heathen’ gave way to toleration, religious freedom, and the granting of equal rights to all citizens. We should never underestimate this achievement. In early modern Europe, human beings were burned, pilloried, mutilated, and denied access to all kinds of benefits for holding the wrong beliefs. As recently as 1826, a schoolmaster in Spain could still be executed for heresy because of his deist views.1 Later in the same century, Protestant ‘nativists’ in the United States clashed with Catholics in violent riots and demanded exclusion of the latter from political office.2 In 1886, a grand jury saw fit to have an American citizen sentenced on charges of blasphemy.3 Liberal toleration may not have ended all forms of religious intolerance in the Western world, but it certainly provided a powerful instrument to prevent these from shaping state policies and laws. A Model in Crisis Today, the liberal model is under increasing pressure. Journalists and academics often blame this ‘crisis of secularism’ on the re-emergence of ‘political religion’ across the world: Hindu nationalism in India; political Islam in Turkey, the Middle East, and Northern Africa; Zionism in Israel; Protestant evangelicals in the US. The separation of politics and religion, they suggest, is being challenged by retrograde forces that once again seek their unity.4 This account attributes the growing pressures on the liberal model to external factors that negate the norms of secularism. In doing so, it covers up major flaws internal to this model, which have come to the surface in recent decades. First, liberal secularism did not deliver the goods it had promised when it was implemented in non-western societies. Take the case of India. From the declaration of Independence in 1947, the 1 Haliczer (1990), p. 357. 2 Jenkins (2003), pp. 27-8. 3 Sehat (2011), p. 1. 4 Bhargava (2010), pp. 81-2; Hibbard (2010); Juergensmeyer (2008); Lilla (2008); Needham and Sunder Rajan (2007). 6 country’s first Prime Minister Jawaharlal Nehru made secularism part of the state credo; in 1976, the declaration that India is a ‘secular’ republic was added to the Preamble to the Constitution. But here the attempt to map the state onto the model of liberal secularism resulted in a rise rather than decline in conflict between Hindus and Muslims. Systematic violence between different communities has grown in frequency and intensity over the last six decades.5 Some argue that the elitist imposition of secularism on Indian society lies at the root of the rising intolerance.6 Others suggest that the situation should be blamed on the failure of Indian politicians to be truly secular and impartial.7 Wherever the truth lies, the fact of the matter remains that the liberal model has failed to reproduce its European successes in India. In countries like India, some intellectuals now reject liberal secularism as a typically Western invention that cannot be exported to other cultures. This does not mean they reject the model merely because of its Western origins. Most of these intellectuals would not exclude basic physics, chemistry, or biology from their countries’ educational curricula, even though these theories also hail from the West. The problem, they suggest, is that liberal secularism is so intertwined with a Western cultural context that it is bound to fail outside this context. For these thinkers, the liberal model lost much of its shine because of its failure to offer a viable framework for peaceful co-existence in plural societies outside the West.8 Second, in Europe also, the modus vivendi that crystallized within the outlines of the liberal model is beginning to show cracks. In the second half of the twentieth century, new migrant communities carried with them religious beliefs and practices that had earlier not been present in modern Europe on any large scale, especially various forms of Islam. The attempt to accommodate 5 Brass (2003), pp. 6-9, 60-70; Chandra et al. (2000), pp. 434-5; Nandy et al. (1998). 6 Madan (1987), pp. 747-59; Nandy (1985), pp. 14-24. 7 Brass (1999), pp. 370-1, 375; Chandra et al. (2000), pp. 438-9; Chatterji (1995), p. ix; Tambiah (1998), p. 427. 8 See, for instance, Madan (1987); Nandy (1985), (1998b). 7 these groups within liberal secular states uncovered some limitations. In the name of secularism, certain practices of Muslim groups, such as the wearing of headscarves, were banned from the public sphere. Such policies had the effect of radicalizing some Muslims and creating antagonism towards the government and the majority population of the European nation-states where they lived. They began to advocate a strict religious identity that included such controversial practices. Many European intellectuals blame this on the nature of Islam and the fact that it does not allow for the separation of religion from politics. It is said that the Islamic world should go through its own Enlightenment in order to learn the art of separation.9 Thus, the problem is again reduced to an external threat to the liberal model: because of their illiberal religious convictions, certain Muslim groups are not ready to accept the norms of secularism and toleration; therefore, they cannot currently be integrated into this model. Hence, so the reasoning goes, we need a democratic Islam adapted to liberal secular values.10 This explanation misses crucial dimensions of the growing diversity in European societies. Other groups face similar problems: to protect the neutrality of the public sphere, governments have disputed the right of Sikhs to wear turbans in schools, public office, and other settings. The liberal model has also compelled such communities to take a particular form. In order to be recognized as proper religious communities by Western democracies, groups need to identify their ‘religious beliefs’ and appoint ‘religious authorities’ that speak for the entire community, even where they lack such structures. The traditions of these groups are not opposed to liberal secularism in any obvious sense. Yet, the liberal model faces great difficulty in accommodating such communities new to the modus vivendi that originally emerged in modern Europe. 9 See, for instance, Massie (2012). 10 See the discussion in Buruma (2010). 8 Third, recent analyses show that the liberal model is plagued by conceptual problems. Its norms prescribe a particular relationship between the state and religion: the state ought to be neutral with respect to religion; citizens ought to be free to practice their religion; religion should not intrude into the public sphere. But what counts as religion? How do we distinguish the religious from the secular? Secular states and courts of law across the world have had great difficulty in determining the scope of religion. Still, they are compelled to take up this task in several types of cases: not only when groups claim exemption from specific laws or some special status in the name of religion, but also when civil authorities desire to ban certain symbols or modes of dress as religious intrusions into the neutral public sphere. 11 Liberal states and courts are expected to be neutral towards all religions in their judgment as to what counts as religion. Yet, when they ban certain practices from the public sphere because these are ‘religious’, or determine that some practices are not ‘religious’ and do not fall under the scope of religious freedom, the failure to be religiously neutral appears inevitable. No state or court possesses an impartial scientific conception of religion; there are no shared secular criteria that enable one to identify and delimit the sphere of religion in a manner neutral to all religions. Consequently, judges and other secular authorities are bound to smuggle in some metaphysical or theological conception of religion.12 That is, a specific religious language becomes the meta-language to discuss and decide on matters of religion in courts of law and serves as the standard to reject certain practices as not ‘truly’ religious. This calls into question the very claim to religious neutrality and secularity at the heart of the liberal model. 11 This matter will be discussed in detail in chapter 1. For illustrations of the problem, see Greenawalt (2006), pp. 124-56; Jensen (2011), pp. 341-64; Sullivan (2007). 12 On this practice of smuggling metaphysical positions into ‘neutral’ secular discourse, see Smith (2010), pp. 26- 38. 9 The coming chapters will closely examine these difficulties. At this point, just note that the liberal model of secularism and religious toleration has lost much of the self-evident value it once had. Yet, the problems it was designed to solve remain as acute as ever: states around the world continue to confront tension and conflict between communities. How should we respond to the increasing failure of the liberal model to produce peacefully diverse societies? The situation compels us to start looking for alternatives elsewhere. Perhaps the flaws of the liberal model can be remedied. Even then, the growing complexity of plural societies across the world calls for the exploration of potential alternatives to this model. The Asymmetry of Cultures So far political theory has presented the models crafted in the modern West as the best options for all other societies. There is a strong belief that all civilized countries ought to be liberal secular democracies abiding by norms of neutrality, toleration, religious freedom, and the separation of politics and religion. But it has become less credible today than before that the political models that happened to emerge in early modern Europe are the norm for all human societies. This stance could survive in a world of Western hegemony but is bound to crumble in our current ‘multipolar’ world. In the early twenty-first century, our globe has seen fundamental shifts in its political and economic power configurations. The fact that it has become trite to declare that the hegemony of Western culture is coming to an end indicates the impact of these global shifts. The rise of Asian countries like India and China to world power is significant here. For the first time in more than four centuries, political leaders and thinkers from these cultures will play a central role in giving shape to global debates. The rise of Asia is likely to affect our political thinking, particularly that about the problems of diversity.13 13 For an eye-opening account of these developments from an Asian perspective, see Mahbubani (2008). 10 In the twenty-first century, different cultures will meet as genuine alternatives for the first time—as forms of life that offer alternatives to each other.14 This does not entail some ‘clash of civilizations’ where cultures will compete as rivals and one will emerge as victor. Rather, the current situation can be viewed in simplified terms: each form of life with some stability over time has approached and solved the problems of human existence in certain ways. Let us pitch our description of these problems at a high level of abstraction. In order to survive and flourish, human groups had to solve problems like political organization, creating an environment fit for human habitation, coping with human diversity and human suffering … . Different cultures conceived of such problems differently and also developed different solutions. When such cultural forms of life meet, their approaches to the problems of human flourishing face each other as alternatives. This opens up the possibility of choosing between such alternatives. Human groups will not be able to adopt cultures as wholes. Cultures are not like shirts that can be changed at will. However, we can imagine some society appropriating the solution that another has developed for certain problems of human flourishing. In fact, the last three centuries provide instances of this process. Many societies adopted the scientific theories, technological inventions, and political models originating in the modern West. The fact that this process happened one-sidedly should not prevent us from appreciating how it occurred: to some extent, through imposition by colonial states, but, where successful, it happened largely through imitation and experimentation. It is likely that the twenty-first century will see such practical imitation and experimentation between cultures on a large scale. But the fact that we are still far away from this point calls for realism and reflection on the obstacles before us. On one hand, this process needs to be guided by theoretical reflection: intellectuals should reflect on the obstacles and differences between the forms of life that 14 Balagangadhara, (2012), p. 72. 11 face each other as alternatives. Importantly, they will have to devise reasonable criteria for finding out which particular solutions to some specific problem of human flourishing are better than others. On the other hand, the major obstacle is that the playing field is skewed. That is, cultural forms of life are not meeting as alternatives in the contemporary world. In the words of S.N. Balagangadhara, a peculiar asymmetry structures the encounter between cultures. At a macro-level, the Western form of life is viewed as an alternative to all non-western forms of life, while the latter are rarely seen as alternatives to the former. This is peculiar because the relationship of ‘being an alternative to’ always presupposes symmetry: if coffee is an alternative to tea, then tea is an alternative to coffee. Under today’s asymmetry, however, it is perfectly reasonable to suggest that India should follow modern Western culture but it seems absurd to argue that Europe should emulate Indian culture.15 Considering the currently dominant images of India, this would be like saying that Europe should implement the caste system, untouchability, dowry, arranged marriages, and political corruption—perhaps with a sprinkling of spirituality on the side. Part of the problem is that the currently dominant descriptions of Asian cultures are those developed in Europe over the last three or four centuries. Since Edward Said’s Orientalism (1978), we have reason to suspect that this body of descriptions is problematic: Western conceptions of Asian cultures tend to transform the latter into deficient variants of Western culture.16 Balagangadhara characterizes this problem as follows: this body of descriptions reflects the Western cultural experience of other cultures. That is, the descriptions describe how one particular form of life has experienced other forms of life. 15 ibid., pp. 72-3. 16 Said (1978). For an overview of the debate concerning Orientalism, see Macfie (2000). For important criticism of Said’s work, see Irwin (2007). 12 Now, the experience that one culture has of another does not correspond to an objective factual description. Like any experience, it is structured by a background of prior attitudes and patterns of action and thought. As a body of descriptions, Orientalism describes such a structured cultural experience and not just the empirical realities of Asia. It is the product of a systematic attempt of European minds to make sense of their experiences of Asian cultures. Significantly, this reflection takes the form of apparent descriptions of other cultures. Yet these orientalist descriptions are shaped through and through by cognitive constraints and a conceptual apparatus characteristic of the Western form of life.17 Consequently, a cultural asymmetry lies at the heart of this body of descriptions. These conceptualize alternative forms of life from within a dominant cultural framework that reflects the reference points of one particular form of life. How can we surmount this obstacle and restore symmetry between cultures, when all we have to go by are the descriptions produced by one form of life, namely, modern Western culture? To appreciate the significance of this question, let us turn back to the theme of this study, namely, the limits of liberal secularism and its solutions to religious diversity. In the twenty-first century, a major task of political theorists will be to examine how Asian cultures offer potential resources for alternative solutions to such problems. The problem of diversity is particularly promising as a case in point. For centuries, Asian societies accommodated a diversity of religious, ethnic, and cultural groups much greater than that of Europe at any point during its history. In India, a variety of Hindu, Buddhist, Jain, and Sikh traditions have lived side by side with Zoroastrian Parsis and different kinds of Jews, Christians, and Muslims for more than a millennium. Over the years, there were occasional conflicts between groups, more systematic clashes at times, and even decades of repression of certain traditions. Nevertheless, it is worth noting the following minimal fact: Indian society never disintegrated in spite of this diversity. Therefore, it must have known successful 17 Balagangadhara (2012), pp. 34-60. 13 practices, heuristics, and mechanisms of co-existence between these groups. We need not romanticize this as pristine harmony but there is certainly a need to investigate these forms of co-existence and find out how they work. Once we gain insight into these forms of co-existence, these can then serve as conceptual resources for developing a new political theory of pluralism, which explicitly presents itself as an alternative to the liberal model. Ideally, this is how a comparative political theory would go about its task, were it not for the obstacle of cultural asymmetry.18 In this context, this obstacle takes a particular form. The liberal model is part of a larger normative framework. It is intertwined with other values like equality, freedom, and human dignity, and also with clusters of commonplace ideas about the nature of the human self and society. This framework crystallized in early modern Europe from the sixteenth century onwards. In this same period, European travellers and orientalists began to systematically describe the societies and cultures of Asia. Through a process of selection and theorizing, a fairly coherent set of dominant descriptions of Indian culture came into being in Western Europe. All of this happened within the confines of a particular descriptive framework and its theoretical terms. That is to say, European descriptions of India as the land of ‘Hindu religion’ and ‘the caste system’ did not come into being independently of the development of the liberal secular framework. The concepts of ‘religion’, ‘freedom’, ‘equality’, ‘tyranny’… informing modern Western conceptions of Indian religion and the caste system were embedded in this emerging framework. Over the last two centuries, the resulting descriptions have gained dominance and they continue to shape the study of India.19 If this is the case, the difficulty must be obvious: when trying to study Indian culture and its traditions of co-existence as potential alternatives to the liberal model, the descriptions one starts out 18 On the idea of a comparative political theory, see Parel (1992); Dallmayr (2004); March (2009); Thomas (2010). 19 See: Bloch et al. (2010); Dirks (2001); Inden (1990); King (1999). 14 with inevitably prevent one from succeeding. The inevitability is caused by the fact that the available descriptions presuppose the liberal secular framework and frame Indian culture in terms of its concepts and values. In other words, the outer cognitive limits of the dominant political theorizing concerning toleration and secularism overlap with those of our ‘knowledge’ about India. Consequently, our current knowledge of India cannot possibly offer the conceptual resources necessary to build an alternative to the liberal model. The playing field where cultures meet as alternative forms of life is fundamentally skewed. A Different Route Should we therefore simply ignore the liberal secular model while looking for alternatives? Such a radical step would be unwise and its success improbable. On one hand, whatever may be its flaws, the liberal model is a product of centuries of human experience and reasonable reflection. Rejecting it out of hand would be folly, for this would mean losing access to a rich tradition of reasoning that shaped many of our implicit and explicit ideas about the question of toleration. We would also lose the potential benefits of this model such as its more successful policies of impartiality and intellectual freedom. On the other hand, discarding the liberal model is impossible, because its normative framework has structured the available descriptions of Asian cultures. We would not be able to access alternative forms of co-existence in these cultures without falling back into the very framework we intend to leave behind. Moreover, if we ignore the liberal model, what would the alternatives be alternatives to? We could not begin to demonstrate how such forms of co-existence have anything valuable to offer that is not already present in liberal secularism. The route explored in this book is different. It shall take the constraints of the liberal model of religious toleration and the secular state as the focal point of its inquiry. The liberal secular framework of the modern West is subject to culture-specific cognitive limits that have also structured Western descriptions of Asian cultures. To be able to discover potential alternatives to the liberal model in Asia, 15 we simultaneously need to develop alternative descriptions of such cultural forms of co-existence. The reason should be clear: we can only move beyond the cognitive limits of one by also going beyond those of the other. But before we can do so, we need to have clarity on the nature and causes of these limits. Therefore, this book shall examine how the normative model of liberal secularism crystallized in modern Europe and how it determined the European understanding of another culture, namely, India. Its focus will be on taking this first step: identifying the cultural constraints common to the liberal secular model and the Western understanding of India. The different chapters will not have much to say about what an alternative model of pluralism and tolerance should look like. To take this next step, certain preconditions would have to be met: a different kind of research concerning Indian culture, society, and politics is needed, which is still in its infancy today. Currently, an international research group guided by Balagangadhara is in the process of developing the required type of hypotheses and descriptions. Within the confines of this book, I can only offer a promissory note by saying that these research results will be made available over the coming years. The reader will find an outline of the book at the end of the second chapter, after the theoretical framework guiding this study has been explained. Therefore, I have chosen not to summarize its seven chapters here. Before arriving at this outline, however, chapter one reveals a fundamental problem at the heart of the liberal model of secularism and religious toleration and shows the practical implications of this problem in contemporary Europe and India. This problem points to some of the cultural limits of liberal secularism that will form the focus of this study. Next, chapter two reviews the different theoretical frameworks available for writing the story of liberal secularism and its cultural limits before it turns to sketching the research programme of which this book aims to be a part. 16 Chapter 1 Limits of Liberal Secularism Mysticism, when transposed from the warm twilight of myth and fiction to the cold searchlight of fact and reason, has usually little left to recommend itself. Its language, unless resounding within its own magic and mystic circle, will often appear poor and even slightly foolish ... Political mysticism in particular is exposed to the danger of losing its spell or becoming quite meaningless when taken out of its native surroundings, its time and its space.20 With these words Ernst Kantorowicz opened his celebrated study of medieval political theology. Written more than five centuries after the fact, they make one wonder how future generations will look back on the political mysticisms of our time. Much like the theory that attributed two bodies to the king, liberal secularism may face the danger of losing its spell or becoming quite meaningless when taken out of its native surroundings, its time, and its space. Fortunately, in the twenty-first century, we do not have to wait another half millennium to find out if this is the case. Today’s meeting of cultures compels us to examine how this political model fares outside its own circle well before future historians take up this task. Is there any such thing as a liberal model of secularism? Modern nation-states are home to different arrangements between the state and religion. France’s laïcité guarantees freedom of religious belief and exercise, but it also involves militant banning of religion from the public sphere. In the United States, the first constitutional amendment bars establishment of any state religion and protects free exercise so as to prevent the state from interfering in religion. In contrast, the Church of England remains officially established in the United Kingdom. The monarch is the head of the state and the church, while some bishops hold reserved seats in Parliament as Lords Spiritual. In India, state 20 Kantorowicz (1997), p. 3. 17 secularism has involved far-reaching intervention in certain traditions, such as state management of temples and the reform of Hindu law. From a postmodern perspective, there are multiple ‘secularisms’ rather than one standard form.21 Yet, from the variety alone, one cannot draw the conclusion that there is no such thing as liberal secularism.22 These are variations on a model defined by a common set of norms and concepts such as the distinction between politics and religion. This model prescribes a particular relationship between the state and religion: the principle of separation says that the authority of each ought to remain confined to its own realm; that of equality demands that followers of all religions be treated equally; that of freedom states that citizens should be free to profess and practice their religion. Critics may object that some ‘secularisms’ do not share these properties: in the UK, the state lacks neutrality because of its ties to the church; French laïcité is so anti-religious that it violates the principles of religious freedom; the Indian state regularly intervenes in religious affairs. Such criticism plays on another crucial property of the liberal model: its normativity. Because it is normative, it relates to factual instances in a peculiar way. For any nation-state that counts as an instance of liberal secularism, one can always note that it is not really secular because it violates some of the relevant norms. Many differences among secular states in Europe and elsewhere have their roots in the interplay between two distinct tendencies. The first emerges from the concern to ban all expressions of religion from the public sphere, politics, and education. This goes together with a general suspicion towards the different forms of ‘organized religion’: all of these are considered as potential threats to 21 See the introduction and several essays in Cady and Shakman Hurd (2010) and Jakobsen and Pellegrini (2008). Also see Asad (2003), pp. 5-6; Burchardt et al. (2013); Khilnani (2007), p. 43; Tejani (2008), pp. 4-6. 22 In fact, as Rainer Forst argues with regard to the concept of toleration, speaking about different conceptions or varieties of secularism presupposes a shared core meaning of the term ‘secularism’ and this core is the concept of secularism. See Forst (2013), p. 17. 18 the public order. The second tendency is inspired by the conviction that the state should never interfere in religion unless public order is at stake. The state should then allow all religious communities in society to live by their own values and beliefs. In the Anglo-Saxon world the second tendency is dominant, while the first tendency has shaped French laïcité. Yet, fundamental to all such manifestations of the secular state are certain conceptual problems. This chapter will uncover one such problem and trace its implications in various contexts. The first section characterizes the puzzle of the two spheres: how can we distinguish between the public political sphere and the private sphere of religion? This puzzle takes different forms in the Western world, all of which jeopardize the clarity and coherence of the liberal model. The second section travels to India and examines the forms taken by the puzzle in this part of the world. The distinction between the religious and the secular turns out to be even more problematic here. 1.1. The Puzzle of the Two Spheres Liberal political theory may not attribute two bodies to the head of state but it does postulate the existence of two spheres in social life. It suggests that societies are divided into a public political sphere, governed by the state, and another sphere, where we ought to be free to live according to our own religious beliefs and values. The sphere of state coercion should be secular. And as long as the rule of law is respected, the liberal state should refrain from interfering in the realm of religion and tolerate all religions.23 Recently, state neutrality has replaced individual autonomy as the essential liberal value.24 This shift resulted from the late twentieth-century liberal-communitarian debate. Liberalism demands that citizens confine their substantive conceptions of the good to their private lives, whereas the political community is governed in terms of a formal conception of justice. This is problematic, said 23 Williams (1996), p. 22. 24 De Marneffe (1990), pp. 253-274; Dworkin (1985), pp. 191-204; Larmore (1990), pp. 339-60; Rawls (1996). 19 critics, because many do not experience their ideas about the good life in this manner. They do not conceive of themselves as ‘unencumbered selves’ or ‘autonomous individuals’ but as members of a community sharing basic goals and values. These cannot be confined to the private sphere but should be taken into account in public political institutions. Besides, the liberal conception of the person does impose a substantive value: it compels citizens to become autonomous individuals, disposing of their commitment to community.25 In reply, liberal thinkers like John Rawls argued that individual autonomy was no longer constitutive of their project. Political liberalism does not deny the value of community but merely outlines its boundaries given the fact of reasonable pluralism in modern democracies. Citizens can continue to cherish the substantive conceptions of the good they share with others. However, the plurality of these conceptions compels them to reach consensus on a political conception of justice that governs the state and its legal apparatus. This conception determines the basic structure of the society where various communities live and should therefore be impartial towards all substantive values, including individual autonomy.26 Political liberalism retains the twofold structure of earlier forms of liberalism: it still depends on dividing human existence into a personal sphere, where our comprehensive doctrines shape our lives and guide our actions, and a public sphere governed in terms of a freestanding political conception of justice. As human beings, we live in these two spheres and suffer from a corresponding split of identity: as ‘citizens’ we are subject to state coercion; as ‘private persons’ we are free. This generates a basic problem: how should we identify the two spheres? Generally, this question has been understood as that of determining where to draw the boundary between the two spheres normatively: what should be the limit or scope of religious 25 See Buchanan (1989) and Sandel (1998). 26 Larmore (1990) and (1999), pp. 599-625; Rawls (1996), pp. 1-207. 20 toleration and freedom?27 Criminal behaviour such as murder, torture, or child abuse ought never to be tolerated but there are ambiguous cases also, from pornography to public smoking. While the question as to why one should obey the laws of the state is central to liberalism, the basic problem of liberal toleration is the following: How far into our lives can these laws reach? What criterion determines the scope of toleration? Where does the sphere of freedom end and that of coercion begin? The Harm Principle A major criterion used to delimit the sphere of state coercion from that of individual freedom is the harm principle: only practices that do not cause harm to others ought to be tolerated. This principle informs the widespread legal restrictions on religious freedom in the interest of public safety, health, and order. Individual freedom ends where harm to others begins. Famously, John Stuart Mill introduced the harm principle in his On Liberty (1859). There, he intended to establish the limits of the power that could be legitimately exercised by society over the individual. He came up with ‘one very simple principle’ that should govern the state in its compulsion and control of individuals. The only end for which coercive authority can be exercised over the individual is self-protection and the prevention of harm to others. ‘The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign’.28 This principle was to save democratic society from the tyranny of the majority. Since the nineteenth century, liberal politics and jurisprudence have invoked it as the standard to determine the scope of toleration.29 27 Forst (2013), p. 23; McClure (1990), pp. 361-91; Mendus (1989), pp. 9-11; Warnock (1987). 28 Mill (1987), p. 59, pp. 68-9. 29 Dworkin (1985), pp. 335-72; Dyzenhaus (1992), pp. 534-51; Harcourt (1999), pp. 109-95; Skipper (1993), pp. 726-30. For critical analysis, see Vernon (1996), pp. 621-32. 21 But there is a hitch to the harm principle: for its basic functioning, the question how we know whether our actions harm others becomes vital. If the principle comprised of physical harm alone, it would not help to fix the boundary between the spheres of freedom and coercion. Moreover, it is difficult to prove that even flagrant violations of liberty such as slavery cause direct physical harm as long as the slaves are ‘treated well’. However, once we go beyond physical harm, the ambiguity of the harm principle surfaces. It is often impossible to tell whether an action of ours harms others. Severe criticism that hurts a person’s ego may be seen as an attempt to ruin her psychological health or as an effort to help her become happier. This problem of indeterminacy threatens the harm principle since no viable criteria exist to determine when our conduct is harmful to others.30 The harm principle is useful as a heuristic for deciding where the state can legitimately intervene. On a case-by-case basis, this has proven to be effective: say, when parents refuse inoculation against diseases for their children on religious grounds, the state intervenes because this constitutes a significant risk of harm to these children. However, the principle cannot function as a general theoretical standard for distinguishing the sphere of personal freedom from that of state coercion, since we possess no clear and cogent theory of what constitutes psychological harm and harmful conduct. Consequently, the border between the two spheres becomes subjective. Depending upon our metaphysical beliefs about harm, the human psyche, and the integrity of human existence, we distinguish between the two spheres differently. At the normative level, it becomes impossible to separate them in any consistent and consensual manner. A Split of Identity What, then, is the status of the twofold structure of the liberal model? How can we clarify the distinction between the sphere of political coercion and that of religious freedom? If we want to explain the liberal model of secularism to the non-modern, non-liberal, and non-western world, we cannot 30 Dworkin (1985), pp. 336-7; Gray (1983), p. 49; Smith (2010), pp. 70-106. 22 just assume that human lives have a ‘natural’ dual structure. We have to show how these two spheres can be retrieved in actual experience. The challenge is to provide a criterion that allows us to identify the two spheres at the empirical level. How to do so? The political sphere is the domain of the state and its legal apparatus, whereas the private sphere of religion consists of what is left over. However, this does not allow us to identify the spheres, since any domain of our lives is subject to state laws at some point, while being free from them at other points. Our bedrooms may seem the most private spaces we can imagine, but if a husband abuses his wife in that space, the state is welcome to interfere. Many theorists argue that ‘the distinction between the public and the private … is a slippery one, incapable of being established in a way that accords either with an adequate empirical description of the major institutions of modern society or with satisfactory normative justifications’ and conclude that it concerns ‘a shifting and uncertain boundary’.31 Such remarks could be multiplied indefinitely.32 However, to say that the boundary is ‘constantly being renegotiated’ or that it is ‘an essentially contested distinction’ evades the issue. The difficulty does not revolve around where the line is drawn between the spheres. Consider the case of a country and its borders. The renegotiation of the borders does not make the country unidentifiable. Rather, the problem is to describe what lies within the borders. Even if its borders change, France remains recognizable as a distinct nation-state. In the same way, the puzzle of the two spheres is not about the precise location of the boundaries. To make sense of the distinction, we should be able to recognize at least one of the two spheres. Either we possess a criterion to identify the private sphere of religion and distinguish it from its public political counterpart, or vice versa. This criterion should describe the characteristic properties of at least one of the spheres. 31 Wolfe (1997), p. 195. 32 Bailey (2002), p. 15; Casanova (1992), p. 17; Steinberger (1997), p. 293; Weintraub (1997), p. 2. 23 Even where we suggest that the spheres are fluid and overlapping, it does not make much sense to speak of a public political and private religious sphere when we cannot distinguish between them. Liberal theories presuppose the validity of this distinction without being able to explicate it. This may be fine as long as such distinctions are confined to popular discourse but that ceases to be the case when they buttress a political theory. Perhaps we could argue that this distinction belongs to the basic intuitive ideas of Western societies and, consequently, there is no problem in implementing the liberal model here. This manoeuvre fails: not only have Western societies become home to communities that do not share the same cultural intuitions, but the model of liberal secularism has also been exported to non-western societies. This point is important in the context of claims about the freestanding position of liberalism. Political liberalism claims to have disavowed all controversial metaphysical doctrines. As Rawls put it, ‘we apply the principle of toleration to philosophy itself: the public conception of justice is to be political, not metaphysical’. This political conception ‘tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretation’.33 Or in Charles Larmore’s words, liberalism should today be seen as ‘strictly a political doctrine and not a general “philosophy of man,” not a “comprehensive moral ideal”’. Yet, the liberal ideal ‘relies on our being able to abandon “the cult of wholeness” and to embrace a certain differentiation between our role as citizens, free of status and ascription, and our other roles where we may be engaged with others in the pursuit of substantial ideals of the good life’. In that sense, Larmore continues, there is some point to talking of a ‘liberal conception of the person’, since the distinction between these two dimensions of human social life is largely confined to modern Western democracies.34 33 Rawls (1985), pp. 223-4. 34 Larmore (1990), p. 345, p. 351. 24 Larmore’s reference to the lack of a liberal conception of the person in non-western societies allows me to restate the puzzle of the two spheres in a stronger form. Contemporary liberalism conceives of itself as a normative political model: its conception of justice tells us how the basic structure of society ought to be arranged. Perhaps we could confine its scope to the modern West. Even then, this model should remain intelligible and accessible to different groups living there. If not, they could never reach consensus on the political conception of justice. Even where the aim of liberalism is not to present ‘a conception of justice that is true, but one that can serve as a basis for informed and willing political agreement between citizens viewed as free and equal persons’, the minimal precondition is that this conception is intelligible and accessible to all reasonably intelligent citizens.35 Most non-western cultures are ignorant of the liberal conception of the ‘person’. To learn about its virtues, they should be able to make sense of this conception and its public-private distinction. That is, liberals need to explain how it is the case that each human lives in two spheres— one where we are citizens subject to coercive state laws and another where we are private persons free to live by our substantive conceptions of the good. The first step should demonstrate how to identify these spheres in human society. But, as already discussed, there are no widely shared and generally accessible criteria allowing us to recognize the spheres, let alone demonstrate their existence. So either liberal secularism is a viable political model and it should solve this problem; or the liberal conception of the ‘person’ is a piece of occult anthropology and then we can safely add liberal secularism to the political mysticisms of our time. Symbols of the Secular The puzzle of the two spheres is not a piece of sophistry without practical implications. Wherever liberal secular states grant religious freedom to their citizens and strive to keep religion out of politics, 35 Rawls (1985), p. 230. 25 they need to determine the scope of religion. That is, states and courts of law require criteria to recognize practices or beliefs as religious. For instance, where secularism entails that religious symbols should be removed from public institutions, states first need to decide which modes of dress, jewellery, and objects count as religious symbols. Take the recent debates about the headscarf or hijab in several European countries. In the name of secularism, some argued that the headscarf is a religious symbol and that Muslim women should not wear it in state schools or when they work as civil servants. What rational grounds are available for deciding that the headscarf is a religious symbol? A symbol is always a symbol to some individual or group of people. The symbolic function of some object is never the same to all. To whom does the headscarf count as a religious symbol? Not to Grace Kelly when she popularized the fashion accessory. Something is a religious symbol only to followers of the religion that identifies it as such. It is a specific interpretation of Islamic doctrine that transforms the headscarf from a piece of clothing into a religious symbol. To those who are not members of this religion or do not accept this particular interpretation of the Quran, the headscarf remains a piece of clothing. To some it symbolizes the submission of women or Islamic attempts to take over public space in Europe; others respect it as a traditional practice of some communities.36 But what is a symbol to one is not so to the other. Many view the headscarf as a piece of clothing—no more and no less. If such symbolism depends on individual points of view, how could a neutral secular state ever accept that the headscarf is a religious symbol, to be banned from public institutions? Advocates of secularism could argue that the headscarf counts as a religious symbol to Muslim women who wear it. To them, the headscarf expresses certain religious beliefs; therefore, state representatives should view it in this way. This is dubious: how does wearing a headscarf demonstrate 36 Freedman (2004), pp. 11-16. 26 that the woman in question holds specific beliefs? She may as well wear it because the headscarf has become part of a struggle of Muslim minorities for equality and emancipation in European societies, because she feels more comfortable, or because her husband or parents prefer this.37 Generally, the argument that a symbol becomes religious when so considered by followers of a religion would work only if one is consistent: one should view all symbols of all religions as religious symbols and ban these from public institutions. How could the secular state then determine what objects count as religious symbols? In 2004, the French National Assembly enacted a law prohibiting the wearing of overt insignia and outfits whereby pupils express a religious affiliation in school.38 The author of the law, French education minister and philosopher Luc Ferry, called for clear criteria to determine when headscarves, bandannas, or beards become religious symbols.39 Indeed, when is a beard a religious symbol? When Muslims sport it? Preventing only Muslim men from growing beards would amount to discrimination. We could perhaps suggest that beards should be barred in cases where their wearers view them as religious symbols. But how can the state determine a man’s motive for growing a beard? How can it distinguish between beards that grow for aesthetic reasons and those that are religiously inspired?40 The state could prevent all employees and pupils from growing beards but this policy goes against democratic freedoms. The only way out is to decide that beards of a particular shape and length count as religious symbols. No bureaucrat or pupil may have such a beard. Then the state faces the 37 Killian (2003), pp. 567-90. 38 For explanations of this law and the French attitude towards headscarves, see Thomas (2006), pp. 237-59 and Bowen (2007). 39 40 ‘Laïcité: bandanas et barbes interdits’, Le Nouvel Observateur, 22-01-2004. Similar problems concerning beards are now cropping up in British schools. See this URL: <http://www.theguardian.com/world/2013/oct/03/muslim-boys-beards-breach-school-rules>; last consulted 4 October 2013. 27 embarrassing difficulty of demonstrating that a beard suddenly becomes a religious symbol on the day the relevant collection of hairs reaches a particular length. This reveals the absurdity of the problem: it is impossible for states to determine from a neutral perspective when some object is a religious symbol. This is the case because there are no secular criteria to decide on the religiosity of symbols. Only specific religious teachings can transform objects into religious symbols. In this regard, the headscarf is similar to the beard. The Secular Crucifix So is the crucifix. This symbol stood at the heart of the landmark case of Lautsi v. Italy, which came before the European Court of Human Rights in 2009 and 2011.41 Soile Lautsi, an Italian mother of Finnish descent whose two sons attended a state school in Italy, contested the school’s refusal to remove the crucifixes fixed to the walls of its classrooms. She filed a complaint before a regional administrative court, arguing that the school crucifixes constituted an infringement of the principle of secularism according to the relevant articles of the Italian Constitution. The Court, however, held that the presence of crucifixes in classrooms violated neither the principle of the secular state nor the religious freedom of the complainant’s children.42 The crucifix, the Court argued, was indeed a Christian religious symbol but it had also become a historical cultural symbol in Italy. It represents the identity of the Italian people. According to the Court, key elements of the Enlightenment like the secular state, freedom, and equal rights derive from Christian teachings. There is a clear affinity between the ‘hard core’ of Christianity and the ‘hard core’ of the republican Constitution. Consequently, the crucifix is ‘a symbol of a value system: liberty, 41 42 Case of Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights, No. 30814/06. For background information on the Lautsi case, see Andreescu and Andreescu (2010); Puppinck (2012); Temperman (2012). 28 equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution’.43 The Court admitted that various interpretations could be given to the sign of the cross, including a strictly religious meaning. All such viewpoints were respectable but irrelevant in this case. The meeting of cultures in Italian state schools made it indispensable to reaffirm Italian identity, ‘even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity’. Christianity, the judge claimed, is the sole religion that does not exclude the unbeliever, for it puts charity above all other values. As a Christian symbol, the crucifix cannot exclude anyone without denying itself; ‘it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold’.44 When Lautsi appealed to the Consiglio di Stato, this supreme administrative court agreed that in Italy the crucifix symbolized the religious origin of values like tolerance, mutual respect, and freedom of conscience. In the Italian Constitution, the court said, ‘laicità’ or ‘secularism’ is not proclaimed in express terms but derived from certain constitutional articles that deal with the inviolable rights of the person (Art. 2), equality before the law (Art. 3), the mutual independence of the state and the Catholic Church (Art. 7), and the religious freedom of denominations and individuals (Art. 8, 19, and 20). To function within this legal framework, secularism had to take form under certain operating conditions, such as the Italian nation’s cultural traditions and customs. The meanings and purposes of the crucifix, the court pointed out, differ according to the place where it is displayed – ‘one can even deny its symbolic value and make it a simple trinket having artistic 43 Lautsi v. Italy, paragraph 15. 44 ibid. 29 value at the most’. 45 In a nonreligious context like a school, this symbol does not discriminate if it is capable of representing values of civil society. In Italy, the crucifix symbolically expresses the transcendent origin of constitutional values. It does not take anything away from the particular ‘secular’ nature of the Constitution, for these values may be endorsed ‘secularly’ by all. On 3 November 2009, the Lautsi case came before the Chamber of the European Court of Human Rights. The Chamber rejected the Italian judges’ reasoning and concluded that the displaying of crucifixes in state schools constitutes a violation of state neutrality. The religious meaning of the crucifix is predominant, it said, and associated with the majority religion in Italy. The state should refrain from imposing any beliefs, even indirectly, in places where persons depend on it. Any state has a duty to retain confessional neutrality in public education. The visible presence of crucifixes in state schools, the Chamber concluded, clashed with secular convictions and was ‘incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education’.46 Hailed by some as a victory for state neutrality47, this judgement provoked uproar in Italian and European public opinion.48 By insisting that the crucifix was the symbol of a particular faith, the Chamber had entered the debate about its true meaning. The Italian Government, joined by third parties including twenty European countries, objected to this interpretation and argued that the sign of the cross was a ‘passive symbol’ lacking the impact of active conduct. It could be perceived not only as a religious symbol but also as a cultural symbol standing for the founding principles of Western civilization and democracy. 45 Lautsi v. Italy, paragraph 16. 46 Lautsi v. Italy, paragraphs 31-2. 47 Andreescu and Andreescu (2010), p. 65. 48 Puppinck (2010). 30 The presence of crucifixes in classrooms was nothing more than ‘a legitimate contribution to enabling children to understand the national community in which they were expected to integrate’.49 In response, the applicants argued that ‘the crucifix was without a shadow of a doubt a religious symbol and trying to attribute a cultural value to it savoured of an attempt to maintain a hopeless last-ditch defence’. The principle of secularism requires state neutrality and a neutral space where everyone could live freely according to his own beliefs: ‘By imposing religious symbols, namely crucifixes, in classrooms, the Italian State was doing the opposite’.50 In the end, the Grand Chamber of the European Court of Human Rights argued that the Lautsi case did not require it to rule on the compatibility between principles of secularism and the presence of crucifixes in state-school classrooms. Its task was more limited: to assess whether the school crucifixes conflicted with certain articles of the European Convention on Human Rights. The judges called on the principle of the margin of appreciation, saying that latitude should be left to each EU member state in determining whether crucifixes are permitted in public schools. Reversing the earlier judgment, the Grand Chamber decided that the Convention had not been violated. Yet, to reach this conclusion, the judges again assessed the status of the crucifix as a religious symbol and concluded that it was essentially a passive symbol that did not actively indoctrinate or impose any particular religious views.51 In the Lautsi case, we see the logic of liberal secularism at work: secular states need to establish a neutral public space cleansed of religious symbols. But the scope of religion and the features that distinguish it are anything but clear. From a neutral perspective, the state cannot even determine 49 Lautsi v. Italy, paragraphs 36-40. 50 Lautsi v. Italy, paragraphs 42-3. 51 Lautsi v. Italy, paragraphs 71-2. For comments on the Grand Chamber’s judgment, see de Been (2011), pp. 231- 5; Evans (2011), pp. 237-44; Fish (2011); Ronchi (2011), pp. 287-97. 31 which objects count as religious symbols. Consequently, in order to create such a space stripped of religion, the need emerges to enter the religious realm and take the theological position that certain objects are religious symbols conveying a particular message. This case brings to the surface the paradox of a secular court of law deciding on the religiosity of a symbol. Secularism is not an abstract model that appeared from nowhere, the Italian judges reasoned, but it had emerged from centuries of development within European Christendom. Shaped by the religious world where it crystallized, Italian secularism is a Christian secularism, which can be represented symbolically by the crucifix. To reach this conclusion, the judges had to engage in some heavy-duty theologizing. First, the regional Court offered a theology of religions that explained how Christianity differs from other religions in that it cannot exclude unbelievers because it puts charity above faith. The Consiglio di Stato did not go quite that far but it did give interpretations of Christian teachings in order to argue that these correspond to the values constitutive of the secular state. In this way, secular courts of law participated in theological debates about the true message of a religion. The judges were right in saying that an object like the crucifix is a symbol only according to the views of its beholder. It is a religious symbol only to those who know the theology of the cross. Take a Hindu onlooker. Unaware of the importance of theology to Christianity and its doctrines about the atoning death of Christ, he sees Jesus Christ as another swami or spiritual teacher, of which there are thousands in India. To him, Jesus attained the deepest meditative trance on the cross and could withstand pain and appear dead; his resurrection reflects the fact that Jesus returned from this state – all events fairly common in India.52 When this Hindu looks at the cross, he sees it not as a religious 52 This Hindu view of Jesus Christ is not fictional; see the observations of the Russian thinker and indologist Alexander Piatigorsky (1985), p. 211. Classical pagans like Celsus similarly viewed Jesus as a magician of some skill; see Chadwick (1953), I: p. 6, p. 10 and I: pp. 28-9. 32 symbol conveying certain doctrines but simply as the sign of another swami. Hence, whether the crucifix is ‘obviously’ a religious symbol depends on its viewer. Lautsi v. Italy was not the first case where judges had to decide on similar issues but only the latest in a string of cases in European countries.53 Wherever the secular state is called on to decide on the religiosity of symbols, it embarks on a journey that ends up within the realm of religion. Delimiting Religion in Law Consider the following objection: admittedly, there are no neutral secular criteria to identify religion; yet most citizens in the Western world share some understanding of what counts as religion. Even without clear criteria, judges and administrators have been able to distinguish between the two spheres in reasonable ways by relying on this consensus. Only philosophers are disturbed by the lack of watertight principles to separate the political from the religious. This objection points to an important truth. Courts often determine what counts as religion. However, judges cannot be expected to develop some scientific theory that identifies and delimits the realm of religion. Instead, they express a consensus prevalent in society as to the scope of religion. To the best of their judgement, they should give reasonable answers to this question. These answers will be context-sensitive: they may differ depending on the society in question or religious communities involved in the case. This is well illustrated by the Lautsi case. The Grand Chamber reversed the original decision and called on the principle of the margin of appreciation to suggest that the Italian public opinion should be taken into account. The absence of any European consensus on the question of religious 53 Andreescu and Andreescu (2010), pp. 55-7. 33 symbols in state schools speaks in favour of that approach.54 Thus we see how judges come to judgements relying upon a local consensus about religion. In this sense, one could argue, there is no need for any standard to delimit the realm of religion. However, this route involves several difficulties. First, it may lead to a tyranny of the majority. Any society’s views regarding religion are shaped by the majority religion that has historically dominated that society. A practice not considered properly religious by the majority view will fall outside the scope of religious freedom. Or, similarly, a symbol or practice considered cultural rather than religious (because it belongs to the religion that shaped local culture) will be allowed entrance into state institutions. In this way, beliefs and practices of minority religions shall be marginalized. Considering that the principles of secularism mean to protect minorities, this would undermine the liberal model’s very purpose. Second, perhaps this modus operandi was effective as long as Western societies were relatively homogeneous in terms of religion. Then, some consensus could emerge among religious majorities like Protestants and Catholics and a few minorities like Jews and Muslims. In their reasoning concerning religious freedom, jurists could then express this consensus. Contemporary Western societies, however, have become more diverse than ever. In addition to the groups just mentioned, they are home to Buddhists, Hindus, Jains, Sikhs, neo-pagans, atheists … . The chances of reaching a consensus on the scope of religion among these groups are slim. Several of these traditions do not even possess a conception of religion and its scope. Under these conditions, courts will end up 54 Lautsi v. Italy, paragraph 70. The Court also referred to other cases supporting this judgment: the Folgerø case concerning the religion syllabus in Norwegian schools and cases about the place of Islam in ‘religious culture and ethics’ classes in Turkish school. 34 privileging conceptions of religion shared by dominant groups and excluding alien views. Again, this undercuts the very purpose of state neutrality and religious freedom.55 A third difficulty arises if one insists that the state should leave the question as to what counts as religion to the religious communities. Judges can call on authorities or experts of the religions under consideration in order to determine whether some practice, belief, or symbol is indeed religious.56 In this way, secular courts of law avoid theologizing and express the consensus within this community. Or do they? Again, there are several obstacles: in order to appoint experts and authorities, judges have to decide that some form of life is indeed an instance of religion. Which criteria will allow them to do so, if they cannot decide what counts as religion? In the relevant community, there will be disagreement between different factions or experts. It will then be difficult for judges to find a consensus. Moreover, the step of appointing authorities that speak for a religion presupposes the structure of religions like Christianity, where such authorities exist. This approach compels any group to agree on certain beliefs and practices essential to its identity and appoint persons with the authority to represent these. Many communities and traditions do not share this structure. In principle, none of these problems is unsolvable. It may be possible for a society and its legal system to develop ways of reaching consensus among a variety of groups concerning the identity and scope of religion. After all, courts are not asked to express an infallible consensus. In specific cases, their judgments should propose solutions to this problem equitable towards the parties involved. This shows that practical solutions might be worked out for the puzzle of the two spheres. However, such solutions will inevitably be limited in reach: any consensus about the scope of religion is valid only for a specific society during a specific period. 55 For an argument to this effect, see Smith (1995), p. 68. 56 For illustrations of this practice in American courts, see Sullivan (2007). 35 Take the case of the United State of America. No other nation possesses so rich and refined a body of jurisprudence on religious freedom and state neutrality. The First Amendment of the U.S. Constitution goes as follows: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. To assess whether some law or policy constitutes a violation of the establishment clause or a burden on the free exercise of religion, judges require a minimal understanding of what practices and beliefs are religious. For centuries, courts presupposed a Protestant consensus view in their judgments concerning religious freedom and non-establishment.57 Considering the booming religious diversity of American society in the twentieth century, this approach could not last. American legal theorists recognize the lack of clear criteria to determine what counts as religion as a major difficulty in interpreting the religion clauses.58 This has been especially troubling for granting exemptions from generally applicable laws in the name of religious freedom. When some individual invokes his religious beliefs to request exemption from some law, the state cannot accept all such claims at face value. To do so, as the Supreme Court noted in one of its landmark judgments, ‘would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself’.59 In such cases, therefore, courts need to circumscribe religion to find out whether a law implies a burden on free exercise.60 57 Beneke (2006); Sehat (2011). 58 From the vast body of literature on the religion clauses, see: Eisgruber and Sager (2007), pp. 22-50; Greenawalt (1984), pp. 753-816 and (2006), pp. 124-56; Smith (1995) and (2011), pp. 107-50. 59 Reynolds v. United States, 98 U.S. 145 (1879), 5; cited in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), 879. 60 Gedicks (2006), p. 481. 36 Many thinkers argue that the criteria used by American courts to do so have been incoherent, ad hoc, and biased in favour of majority religions.61 Others suggest that judges have developed a number of balancing tests and doctrines to delimit the scope of religion in reasonable ways.62 Wherever the truth lies, this debate yet again demonstrates that the puzzle of the two spheres poses fundamental difficulties to the interpretation of liberal principles of secularism and religious freedom. If the liberal model keeps running into such difficulties within the Western world, one can only begin to imagine the troubles it encountered once it migrated to other cultures. 1.2. The Troubled Dream of Indian Secularism Ever since the 1947 Independence Act and its partition of India and Pakistan, the question of secularism has been at the centre of the subcontinent’s political struggles. The dream of India’s first Prime Minister, Jawaharlal Nehru, was to transform the country into a secular nation-state. Communal bloodshed during partition only increased the confidence that secularism was the single viable option for India. With the rise of Hindu nationalism in recent decades, this issue has once again become as urgent as it was then. Religious conflict appears to have intensified from the 1992 destruction of the Babri Mosque in Ayodhya to the massacre of Muslims in Gujarat ten years later. Therefore, India needs secularism. At least, that is what the secularists tell us. Indian society is characterized by its religious diversity, they claim, and therefore the state should be impartial towards all religions. In this view, the problem with the Sangh Parivar is that it strives to transform India into a religious nation-state.63 If this were to happen, the state would consistently take the side of the Hindu majority in conflicts and would 61 Eisgruber and Sager (2007), p. 29; for similar statements on the religion clauses in general, see Mansfield (1984), pp. 847-907, 848; Smith (2007), pp. 109-10. 62 63 This is the position of Kent Greenawalt’s multi-valued approach; see his (2006), pp. 124-56. The family of Hindu nationalist organizations including the Vishwa Hindu Parishad (VHP), the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP). 37 no longer be able to curb violence as an impartial arbiter. In short, the fear of India’s secularists is that the country will disintegrate if politics is not separated from religion: ‘Secularism, for India, is not simply a point of view, it is a question of survival’.64 When such importance is attached to the idea of secularism, one would expect its content to be more or less clear. However, whenever Indian intellectuals attempt to pinpoint what secularism is, they end up in obscurity and confusion. In the 1970s, one author made the following remark: ‘For the last two decades Indians have been talking of secularism, yet the term remains vague and ambiguous. One may, therefore, be justified in asking: what does secularism really mean – especially in the Indian context?’65 Twenty years later, another author articulated a similar concern: ‘Such a commonplace concept as secularism, with which the man in the street is so familiar and so used to, tends to acquire the character of a riddle, a puzzle, an enigma amongst intelligentsia’.66 Some point out ‘the curious absence, the startling and significant vacuity of the notion “secularism” itself’, and go so far as to claim that the notion has become ‘a sort of mantra, a quasireligious incantation’.67 Others put it mildly and say there is a tendency among Indian intellectuals to interpret the concept in their own subjective manner,68 or they use more pointed terms: ‘Like liberal Hindu gods who can take different forms and give a chance to the devotees to worship in any form they like, in India the concept of secularism has acquired so many interpretations and it now means different things to different groups of people’.69 64 Rushdie (1990), p. 19; see Chatterji (1995) for similar statements. 65 Mushir-Ul-Haq (1972), p. 6. 66 Sankhdher (1995), pp. 1-2. 67 Rai (1989), pp. 2770-73. 68 Khan (1994), pp. 370-83. 69 Srikanth (1994), p. 39. 38 The situation is no different in the courts. Confusion about the term ‘secularism’ surfaced in the 1994 Supreme Court Bommai judgment, where seven judges explained their views on secularism, each giving a different account. One judge concluded that ‘the term “Secular” has advisedly not been defined presumably because it is a very elastic term not capable of precise definition and perhaps left best undefined’.70 Whether Muslim or Hindu, rightist or leftist, these thinkers all agree that the term ‘secularism’ has acquired so many different meanings in India that it appears to have lost all meaning. This section will argue that the semantic confusion surrounding the term ‘secularism’ masks a more fundamental problem in the Indian debate. Instead of being embedded in a well-structured theoretical framework, the notions of ‘secularism’ consist of a number of isolated normative propositions proclaimed as though these are self-illuminating. But the principles of the liberal secular state lack coherence and intelligibility in the Indian context. The puzzle of the two spheres takes an acute form, because the conceptual background necessary for making sense of the liberal principles of secularism and religious freedom is missing. A Distinctive Secularism? Over the last two decades, the Indian debate has focused on diagnosing the crisis of secularism.71 Some authors conclude that factors internal to the secular state are to blame. Even though the Indian state professes to be secular, they suggest, it has not been impartial towards religion. The state intervened in the affairs of some religious communities while leaving others alone and used a tit-for-tat approach 70 71 S.R. Bommai vs Union of India, 1994 AIR 1918 at 29; cited in Sen (2010), pp. xxviii-xxix. Madan (1997); Pantham (1997); Bhargava (1998a); Ganguly (2003); Needham and Rajan (2007); Balagangadhara and De Roover (2007); Rao (2006). 39 in dealing with the different communities.72 Others argue that secularism has failed to take root in India, because it was imposed on a deeply religious population by alienated Westernized elites.73 In response, it is argued that such critics presuppose one normative or ‘transhistorical’ model of secularism—an idealized version of the Western separation of church and state. Instead, this response continues, a specifically Indian form of secularism has come into being because of the historical conditions under which it emerged.74 Secularism is a universal doctrine, Rajeev Bhargava asserts, since its basic constituents are constant, namely, ‘a separation of organized religion from organized political power inspired by a specific set of values’. But these elements can be interpreted in several ways. Therefore, secularism has no fixed content, but ‘multiple interpretations which change over time’.75 Indian secularism is distinct from Western secularism, such authors claim, for it was transformed in the process of responding to problems like caste discrimination and extreme religious diversity.76 India is supposed to be home to a different form and concept of secularism. So far we have characterized the liberal model of secularism in terms of a number of central concepts and principles and a basic problem that dogs this model. If secularism changed substantially in the Indian context, then the problem at the heart of its conceptual structure may no longer be relevant. In that case, Indian secularism should not face the difficulty of distinguishing between the public political sphere and the 72 Brass (1999), pp. 370-75; Chatterjee (1998), pp. 353-66; Rao (2006), pp. 48-9; Tambiah (1998), p. 427. This assessment is shared by Hindu nationalists who accuse the Congress party and the Indian secularists of being ‘pseudo-secularists’ because of their failure to be impartial between Hindus and Muslims. 73 Madan (1998); Nandy (1985), (1998), and (2007). 74 Chandhoke (1999), p. 42; Pantham (1997); Tejani (2008), pp. 4-6. 75 Bhargava (2007), pp. 21-2. See Mahajan (2002). 76 Gary Jacobsohn (2003, pp. 49-50) calls the result ‘the ameliorative model’, which ‘embraces the social reform impulse of Indian nationalism in the context of the nation’s deeply rooted religious diversity and stratification’. 40 sphere of religion. Yet it does. The distinction between the religious and the political plays as central a role in the Indian debate as it does in the Western debates. The same set of problems returns in a stronger form here. For one, the relevant article of the Indian Constitution relies on the religious-secular distinction. Article 25 grants ‘freedom of conscience and the right freely to profess, practice and propagate religion’ but restricts this right by allowing the state to make laws ‘regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice’. Moreover, some Indian secularists provide definitions that leave no doubt as to the meaning of the term. Secularism calls for ‘the demarcation of two realms of existence, the separation of church from state, of the sacred from the secular’; it requires the separation of the state from religion in general, from all faiths, or from any particular religious order; or it stands for the separation of religious and non-religious institutions.77 These are typical formulae of liberal secularism that generate the puzzle of the two spheres. If the separation of politics and religion is necessary, then one should be able to determine what properties distinguish the religious domain from the secular political domain in India. If there is no clarity on what makes some phenomena in society into religious phenomena or some institutions into religious institutions, then there is no point in stating that the religious ought to be separated (or equidistant) from the political. The Constituent Assembly Debates The foundations of the Indian secular state are located in the debates of the Constituent Assembly, the body that drafted the Constitution of India between 1946 and 1949.78 Since most Assembly 77 The quote is from Chatterji (1995), p. x. The other formulations can be found in Gopal (1993), p. 13; Sen (1996), p. 13; Bhargava (1998), p. 488. 78 Bhargava (2008), p. 12; Chiriyankandath (2000); Jha (2002), pp. 3175-80. 41 members agreed that India should become a secular democracy, they reproduced standard formulations of religious freedom and the secular state.79 Yet, the trouble in interpreting these surfaced whenever there was disagreement about their implications. The most striking instance was the dispute about the question whether the secular state requires a uniform civil code.80 This started when Mohamed Ismail, a Muslim representative, proposed to add the following proviso to Article 35, which said that the state would secure for its citizens a uniform civil code throughout the territory of India: ‘Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law’. Ismail defended his proviso as follows: Now the right to follow personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture. If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people.81 Several Muslim representatives agreed that the secular state could not touch personal law because it ought not to interfere in matters of religion. When others rejected this proviso as a direct negation of Article 35, the dispute turned to the correct interpretation of ‘the secular state’. Another representative insisted that Indians seemed to have ‘very strange ideas’ about the secular state: ‘People seem to think that under a secular State, there must be a common law observed by its citizens in all matters, including matters of their daily life, their 79 See Constituent Assembly Debates (CAD), Official Report, third reprint (New Delhi: Lok Sabha Secretariat, 1999), vol. 3, p. 488 and vol. 7, pp. 815-6. 80 These debates continue today along the same lines, see Larson (ed.) (2001). 81 CAD, vol. 7, pp. 540-41. 42 language, their culture, their personal laws’. This is incorrect, he added, because, in a secular state, ‘citizens belonging to different communities must have the freedom to practice their own religion, observe their own life and their personal laws should be applied to them’.82 At the time of this debate, the idea that the same set of laws and rights should apply to all citizens, irrespective of religious affiliation, was not a ‘very strange idea’ but a central principle of the liberal secular state. If the state ought not to interfere with the ways of life of people, then legal uniformity would become impossible.83 Indeed, such reasoning led Muslim representatives to rejecting the attempt ‘to have uniformity of law to be imposed upon the whole people’ concerning civil matters as ‘a tyrannous provision which ought not to be tolerated’. In response, the lawyer K. M. Munshi remarked that democracies in the West had uniformity of law and were hardly tyrannies. Munshi also denied that personal law was part of religion. Expectedly, the dispute now took the form of disagreement about the scope of the term ‘religion’. Munshi argued that ‘religion’ should be restricted to spheres that legitimately appertain to it, while the rest of life can be regulated by law.84 The state was welcome to interfere in the secular affairs of any religion. But, as Ismail retorted, each community also disagrees on what was religious and secular: ‘It is a question of difference of opinion as to what a religion should do or should not. People differ and people holding different views on this matter must tolerate the other view’.85 In this debate, Muslim representatives treated the principle that ‘the state ought not to interfere in religion’ as an isolated normative proposition and made use of a commonplace from Islamic theology to interpret it—the belief that the Shar’iah has been ordained by Allah, and not by human agency, and that humans should never modify it. Since religion covered all of God’s revelation, they 82 ibid., p. 544. 83 The rise of multiculturalism from the 1960s turned this into a contested idea, see Barry (2001). 84 CAD, vol. 7, p. 548. 85 ibid., pp. 721-2. 43 suggested, a secular state should not interfere in Muslim personal law.86 Confronted by this interpretation, secularists in the Assembly could not draw upon any conception of religion that clarified the properties determining the religiousness of a practice or belief. They had to take recourse to other commonplaces to interpret this principle. B.R. Ambedkar, the chief architect of the Constitution and advocate of social reform, borrowed the cliché from European orientalists that religion in India covers all aspects of life from birth to death: ‘There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill’. He offered an alternative to seeing everything as religion: ‘There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious’.87 Ambedkar’s proposal, however, generated a vicious circle, since his definition of ‘religion’ included the term to be defined. Without consensus on what religion was, there would also be disagreement on what was essentially religious. Judging Hinduism The puzzle of the two spheres wreaks havoc in India, because it is even less clear here than elsewhere how the religious and the secular are to be identified. The ‘majority religion’ of India is supposed to be Hinduism, but there is no clarity as to what Hinduism is, whether it is a religion or not, or even whether it exists or not.88 In 1946, Nehru noted the following: ‘Hinduism, as a faith, is vague, amorphous, many-sided, all things to all men. It is hardly possible to define it, or indeed to say whether it is a religion or not in the usual sense of the word’.89 It must be extremely difficult, if not impossible, 86 The same argument surfaced in the infamous Shah Bano case of the 1980s. See Bajpai (2002). 87 CAD, vol. 7, pp. 781-2. 88 There has been an extensive debate on these issues during the past three decades: see Balagangadhara (2005a); Bloch et al. (2010); Dubuisson (2003); King (1999); Llewellyn (2005). 89 Nehru (1988a), p. 75. 44 to identify something that is indefinable, vague, amorphous, many-sided, and all things to all men. But when one does not succeed in identifying Hindu religion, how can one even dream of separating it from the state? This constitutes a serious problem. Scholars agree there is no particular set of dogmas, beliefs, or practices that defines the Hindu religion.90 Basically, the conclusion is that this religion does not have any properties (common beliefs, institutions, or practices) allowing one to recognize it. If Hinduism does not have such properties, how shall we determine when this religion intrudes into the political domain? When does a state become Hindu as opposed to secular? When the government publicly cites Rama as the prototype of the ethical king? Or when it consults an astrologer before making a political decision? When a puja ritual is done in parliament or when a puranic story is told by state officials? Any answer to such questions will derive from the properties that distinguish the class of things Hindu from that of things secular. Since there is no consensus on this, one can fix this standard as one chooses. Accordingly, one can give one’s own interpretation as to what it means for India to be a secular state. Perhaps the consequences are best illustrated when the Indian judiciary invokes a number of definitions of ‘Hinduism’ and ‘religion’ to interpret laws related to religion. In 1952, the Bombay High Court had to interpret the constitutional religious freedom articles in the case of Ratilal Panachand Gandhi vs State of Bombay. Two petitioners had challenged the constitutionality of certain provisions of the Bombay Public Trusts Act of 1950, which allowed the state to regulate the administration of public religious and charitable trusts. They argued that Jain temples, which also fell under the scope of this 90 For some typical claims from the study of religion, see Dandekar (1971), p. 237; Flood (1996), p. 6; Michaels (2004), pp. 3-5; Sharma (2003), pp. 1-19; Zaehner (1969), p. 2. For typical claims by Indian judges, see Sen (2010), pp. 15-6. 45 trust, could only be used for specific purposes according to the tenets of Jain religion. Therefore, the Bombay Act contravened the constitutional articles of religious freedom. The judge pointed out that the religious freedom granted by Articles 25 and 26 was restricted: ‘It is not every aspect of religion that has been safeguarded, nor has the Constitution provided that every religious activity cannot be interfered with’. Drawing on a specific etymology of the term ‘religion’ – originally proposed by the Christian church father Lactantius – the judge suggested that this term should be understood in its strict etymological sense as ‘that which binds a man with his Creator’. However, the petitioner’s lawyer argued, Jains do not believe in any Creator and, therefore, the distinction could not apply to them. The judge responded as follows: But even where you have a religion which does not believe in a Creator, every religion must believe in a conscience and it must believe in ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution. A religion may have many secular activities, it may have secular aspects, but these secular activities and aspects do not constitute religion as understood by the Constitution.91 If religion is constituted by the conscience and its moral precepts, then one cannot consistently argue that it does not encompass activities such as the administration of temples. Otherwise, one would have to allow that managing the finances of a temple, including potential embezzlement of its wealth, are actions outside the domain of morality and the conscience. But this does not make sense: according to any follower of a religion or tradition, such actions do belong in that domain. Consequently, since this judge argued that religion is constituted by ‘whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men’, such ‘secular’ activities would have to come under the realm of religion. 91 Ratilal Panachand Gandhi vs State of Bombay, 12 September, 1952, AIR 1953 Bom 242 at 4. 46 Still, interpreting religion in the ‘strict constitutional’ sense made the judge conclude that the administration of property (including temples) was not religious but a secular activity regulated by the state. Drawing on some definition of religion, the judge here determined for the followers of a tradition which aspects of that tradition were essentially religious and secular. In another similar case, the same Court had stated that even the authority of a religious body in relation to its members had nothing to do with religion.92 When Ratilal and similar cases came before the Supreme Court of India, the bench rejected this interpretation of Article 25. A religion, it argued, ‘is not merely an opinion, doctrine or belief’ but ‘has outward expression in acts as well’.93 In the important Shirur Mutt case, the Supreme Court explicitly raised the issue: ‘The question is, where is the line to be drawn between what are matters of religion and what are not?’94 Drawing on a definition borrowed from an Australian court, the judges suggested that a religion may not only prescribe an ethical code, but also ‘rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observance might extend even to matters of food and dress’. The Court then attempted to provide a way out of the definitional quandary by arguing that ‘what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself’.95 This step shifts the problem to even more difficult questions: Which are the religions of India? Is ‘Hinduism’ one of them? ‘Hinduism’ consists of a range of traditions, all of which prefer different narratives, draw on different teachers, and emphasize different texts and customs. Which of these contains the doctrine that determines the essential part of Hindu religion? Perhaps one could propose 92 Smith (1998), pp. 197-8. 93 Ratilal Panachand Gandhi vs State of Bombay and Ors., 18 March 1954, 1954 AIR 388 at 1064. 94 The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar, 1954 AIR 282 at 1022. 95 1954 AIR 282 at 1025. 47 that there are many different Hindu religions.96 However, given the absence of fixed scriptures or doctrinal systems distinguishing these from each other, where will we find the doctrines about the essential parts of these religions? Given the nonexistence of established ecclesiastical authorities, who will decide about this doctrine? That these issues remain unresolved became clear in later cases, where the Court argued that demonstrating that some practice was truly Hindu required that one produce its scriptural foundations. The next step was inevitable: judges claimed that certain practices that appeared to belong to some religion did not really constitute an essential and integral part. A community’s claim could not always be accepted, for the ‘essentially religious’ might well be founded on superstition, ignorance, and misunderstanding of the true teachings of Hindu religion. As Ronojoy Sen shows in his work on religion in the Indian Supreme Court, Indian courts now took upon themselves the task of reforming Hinduism back to scriptural purity and discarding all ‘superstitious accretions’ added to its original core.97 To conclude, Indian judges have decided what religion is, what is secular and essentially religious about certain practices, and what is truly religious as opposed to superstitious. At its most disquieting, this modus operandi takes the form of the so-called ‘doctrine of essential practices’, which allows the Supreme Court to reform religions and dispose of all ‘non-essential’ practices according to a normative picture of rational religion.98 As many have noted, the criteria used to settle these issues are deeply flawed, even though they bestow upon Indian judges a religious authority greater than that of any high priest.99 96 Stietencron (2001). 97 See Sen (2010), pp. 49-67. 98 ibid., 40-72. 99 Mehta (2008), pp. 65-88; Chatterjee (1998), pp. 359-60; Derrett (1968), p. 447, p. 534; Dhavan and Nariman (2000), p. 259; Galanter (1971), pp. 467-87; Smith (1998), pp. 196-201. 48 At this point, we can come back to the confusion surrounding the idea of secularism in India. Fundamentally, this is caused by the lack of theoretical clarity in the religious-secular distinction. Moreover, the term ‘secularism’ has grown to be a keyword in Indian political discourse to refer to any kind of situation where different groups of people co-exist: if they get along well, this is because of secularism; if they fight and kill each other, they are in need of the antidote of secularism. Anything that allows different kinds of people to live together can be called ‘secularism’. The notion has become as vague as it possibly could: it is defined as ‘a state of mind, almost an instinctive feeling, such as existed, by and large, for many centuries in India, when Hindus, Muslims, Christians, Parsis and followers of other faiths lived side by side in general harmony’100 or as ‘a respect for differences cutting across class, caste, community, and gender, in which religion is a component in the shaping of identity but not the determining criterion’.101 Instead of examining and theorizing the ways in which different communities have succeeded or failed to live together peacefully in India, one takes recourse to the obscure language of secularism. Consequently, the discourse of liberal secularism prevents one from understanding the problems of pluralism in India, instead of helping to solve them. The urgency of these problems today makes it all the more painful that some continue to believe that they can be resolved by endlessly repeating the mantra that ‘the political’ should be separated from ‘the religious’. 1.3. Conclusion This chapter has revealed a problem at the heart of the liberal model of secularism and religious toleration, namely that of identifying the sphere of religion and distinguishing it from the public political sphere. This split between two spheres—one of political coercion and the other of religious freedom—is essential to the liberal model. Yet political theorists and jurists take it as a pre-theoretical 100 Gopal (1993), pp. 19-20. 101 Bharucha (1998), p. 6. 49 given requiring no explanation, even though the distinction between the two spheres is anything but clear. The idea of secularism, both its advocates and opponents acknowledge, emerged in the modern West.102 This fact leads secularists and anti-secularists in India to very different conclusions. The latter argue that secularism has become a sterile concept in India because of its alien origins.103 The former disagree. Charles Taylor writes: ‘The Christian origins of the idea are undeniable, but this does not have to mean that it has no application elsewhere’.104 Mushirul Hasan agrees: ‘The central issue is not the Western provenance of an idea but its place and relevance in a plural society’.105 The sociologist Andre Beteille has similar reservations: ‘Surely, the test of an idea or an institution should be its capacity to meet our present needs and not its provenance’ and ‘geography can never be a decisive test of the social value of an idea or institution’.106 It would indeed be problematic to argue that the Western origins of liberal secularism rule out its relevance in India. Not only does this type of argument commit the genetic fallacy, we also know from human history that ideas are rarely the exclusive property of one culture. The liberal model emerged as a solution to certain problems that people faced in living together. Given its apparent success in Europe, there was good reason for other plural societies to adopt it. Consequently, the fact that an idea migrated from one culture to another cannot in itself constitute a problem. 102 Madan (1998), p. 754; Mahajan (2002), p. 35; Nijwahan (1995), pp. 183-8; Smith (1963), p. 22; Taylor (1998), p. 37; Vanaik (1997), p. 29. 103 This point of view is taken by Gandhian anti-secularists like Madan and Nandy, and shared by some Hindu nationalists: Madhok (1995), pp. 110-22; Nijwahan (1995), pp. 183-8. 104 Taylor (1998), p. 37. 105 Hasan (1996), p. 202. 106 Beteille (1994), p. 560. 50 However, the issue raised by the anti-secularists does not concern the origins of secularism but its spectacular failure in India. To paraphrase Kantorowicz, they suggest that the language of liberal secularism, unless resounding within its own magic and mystic circle, often appears poor and even slightly foolish. That is, the liberal model seems to lose its spell and become quite meaningless when taken out of its native surroundings, its time, and its space. These critics suggest that the reason for this failure lies in the close ties between this model and the cultural and religious context where it originated. This suggestion is certainly worth examining. 51