Summary: In this two-part piece, we present the final review in this book discussion on Prof. Mathew John’s latest book, India’s Communal Constitution: Law, Religion and the Making of a People. Following the reviews by Alok Prasanna Kumar, and Talha Abdul Rahman, Prof. Rinku Lamba shares her insightful, method-driven analysis of the book. Part I of this review can be found here.
As stated earlier in Part I of this review, I approached John’s book by keeping in mind his focus on theorisation oriented toward diagnosis. Some questions arose whilst approaching the book in this spirit, and I will spell them out in what follows.
I On the terms ‘colonial’ and ‘toleration’
First, why does the author wish to pay attention to a policy of toleration and its colonial vintage? Because, says the author, the colonial state’s policy of ‘toleration’ was one that “sharpened communal identities by identifying vast swathes of local practice with clearly defined doctrinal truths or axiomatically applicable religious laws.” (7) This produced an orientation about “Indian social division,” including “minority rights” and a “communally divided nature of Indian society as an inescapable condition.” (77) John claims that the “colonial prism of minority rights continues to influence contemporary constitutional practice.” (94) So: The communal shadow in the Indian Constitution is of colonial vintage. Colonial state practice plays a key role in how John sets out a framework for diagnosing the India’s communal constitution.
But why note the policy of toleration and its colonial vintage? Because, says the author, the colonial state’s policy of ‘toleration’ was one that “sharpened communal identities by identifying vast swathes of local practice with clearly defined doctrinal truths or axiomatically applicable religious laws.” (7) This produced an orientation about “Indian social division,” including “minority rights” and a “communally divided nature of Indian society as an inescapable condition.” (77) John claims that the “colonial prism of minority rights continues to influence contemporary constitutional practice.” (94) So: The communal shadow in the Indian Constitution is of colonial vintage.
However, my first comment for this discussion is that, unfortunately, the author’s signalling of the analytical relevance of the colonial vintage of toleration policies as a key point for diagnosing India’s communal constitution needs more clarity. The attempt to claim that something analytically important results from probing convergences in colonial and postcolonial state engagements with religious claims becomes frustrated by an incompletely descriptive use of the term “colonial.” As a result, the analytical purchase of the alleged convergence in colonial and postcolonial approaches to religious identification in India stays implicit.
Let me elaborate.
What is the meaning of colonial in colonial toleration? Does coloniality refer to a way of regulating heterogeneity following what Partha Chatterjee calls the “rule of difference,” whereby that which is different is ruled in ways inferiorise that which becomes the object in a kind of subject-object dualism internal to the “coloniality of power” that Anibal Quijano highlights? In other words, is there something distinctive about how ‘modern’ regimes regulate heterogeneity and enact subjugation that highlights the analytical meaning of colonialism, whereby colonialism is not simply reducible to an epoch such as that associated with historical euro-centred colonialism? More sharply, with respect to John’s discussion in Communal Constitution, does Henry Nelson’s attention to custom and interrogation of who is a Hindu — seen by John as indicative of a possibly desirable road not taken by British colonial power — constitute a non-colonial or a differently colonial stance (possibly a curatorial and/or magisterial one, to use Amartya Sen’s terms)? (John 8;50; 51)
Unless there is clarity on the stakes attached to ‘colonial’ enactments of power, John’s statements about alleged toleration-related convergences in ‘colonial’ and independent India will remain at the level of incomplete description, and an observation at best.
But why is the description incomplete? Reflecting on John’s use of the term toleration might illustrate that, and I turn to that next.
Rainer Forst underscores that toleration, historically, “has been many things: An exercise of love for the other who errs, a strategy of preserving power by offering some form of freedom to minorities, a term for the peaceful coexistence of different faiths who share a common core, another word for the respect for individual liberty, a postulate of practical reason, or the ethical promise of a productive pluralistic society.” Forst’s statement reveals the possibility of a range of principled as well as strategic forms that toleration can take.
However, and importantly, Forst underscores that toleration is a “normatively dependent concept.” What does this mean? It means that toleration, “by itself,” cannot provide “substantive reasons for objection, acceptance, and rejection” of particular actions or practices. For it to be “regarded as something good at all” toleration “needs further, independent normative resources in order to have a certain substance, content and limits.” “In itself, therefore, toleration is not a virtue or value; it can only be a value if backed by the right normative reasons.”
But how is all this relevant with reference to a discussion of Communal Constitution?
If toleration has historically had many different senses, and if it is a normatively dependent concept, what do we make of “colonial toleration” in the way John describes it? Accordingly, first, what is colonial toleration? John understands this phenomenon in two diametrically opposed ways. Following SN Balgangadhara and Jakob De Roover, he claims that British colonial policies with respect to Indian socio-religious practices can be understood as influenced by a “normative dimension of the European practice of toleration that regarded toleration as a civic duty exhorting forbearance for practices that were found abhorrent,” and obliged a state to “be even-handed or neutral when confronted with divisive religious questions.” (6) But John does not explain why it should be “understandable that a similarly normatively driven toleration formed the primary governmental response of the colonial state” when “faced with the religious diversity in India.” (6) John’s reasons for endorsing and prioritising this account of “European toleration,” over and above the range of accounts of European toleration that could be given (in light of the variety of things that toleration has meant even in Europe itself), remains implicit at best. Were there no other practices of “toleration” on the subcontinent? Was religious diversity absent in the Mughal empire, and were people not divided as communities even then? Might there have been a mutation of forms of toleration underway?
The journey toward even-handedness on the part of the state with respect to religion in Europe was a chequered one. As such, not accounting for the different senses of the concept of toleration, and not attending to the kind of values these forms of toleration were normatively dependent upon (or separable from), considerably weakens John’s first basis for comprehending and classifying what is called “colonial toleration.” To put it differently, John’s claim that colonial toleration was inspired by a “normative dimension of the European practice” that yielded a “civic duty of forbearance” is a far too compressed explanation of processes related to toleration debates in European practice as well as to the British stances with respect to Sati in India. The discussion is not supported by a coherent use of the term toleration for denoting the colonial disposition with respect to religious questions on the subcontinent.
A second and diametrically opposed explanation that John offers for using the term “colonial toleration” for classifying responses to religion-based matters is that colonial power had “good pragmatic reasons to tolerate Indian diversity to maintain social stability and avoid costly confrontation.” (6; 24) At another point in the book, John refers to these pragmatic responses not as colonial toleration but as “colonial realpolitik.” (77) And colonial realpolitik played a role in entrenching a communal lens for identifying the Indian people. As John puts it, “Indian backwardness was concretely identified as the problem of irreconcilable social division and the consequent inability to express a unified political will;” it was colonial realpolitik that “accentuated schisms between different classes and sections of Indians.” (77) But the reader gets no reasons for distinguishing between colonial realpolitik and colonial toleration with respect to the inauguration of a communal slant in the way group-based identification came to be. Is the former a version of the latter in its “pragmatic reasons” avatar, and if so, in what sense?
More broadly, then, the two bases for colonial toleration that John works with — “normative high ground” and “pragmatic reasons” — sit uneasily with each other, and no explanation is provided for how they can together help comprehend and classify the phenomenon at hand as a form of toleration, which John claims was expressed via an “impulse to seek truth.” (6) To be fair, John does notice a vexatious issue here, but he leaves the discussion open-ended by simply stating that the pragmatic basis for toleration does not capture its normative dimension. (24)
However, was the “impulse to seek truth” — which according to John came to the fore in colonial India as and when “toleration became the state policy in India” (and exemplified in the Sati debates) — impelled by normatively high-minded toleration or by toleration grounded in colonial realpolitik or both? (6) If in both, then is there something analytically significant about the way some practices of toleration anywhere will be tied to truth-seeking of the kind expressed in the search for scriptural bases of customs and traditions in the debates over Sati in the subcontinent in the first half of the nineteenth century, or in the shifts for discerning essential aspects of religions in the ways associated with the “Gajendragadkar Supreme Court?” (29)
The reason for belabouring the need to address the points above is that, for John, the phenomena of colonial toleration and its link with processes of social reform in colonial India possess crucial explanatory relevance for the main arguments of the book. Those arguments hold that there is some link between colonial toleration, social reform and postcolonial doctrines such as the essential religious practices test and the way all of this imparts a “communal” slant to independent India’s constitution. But the absence of clarity about terms like colonial and toleration pose a problem that only gets compounded when they are employed to describe convergences in approaches to religious diversity in British India’s policies and independent India’s constitutional politics. In what sense is independent India’s commitment to toleration linked with the colonial interpretation of that stance?
More fundamentally, can toleration by itself become the ground for the conceptual structure liberal-secular imagination of independent India (or elsewhere)? Both Judith Shklar and Rajeev Bhargava offer different and persuasive grounds to disconnect tolerance-talk from the analytical core of doctrines like political liberalism and political secularism, respectively. For John: “Toleration is the root model through which modern liberal democracies organise state power to govern religious and cultural division.” (23) But Judith Shklar and Rajeev Bhargava disagree — liberalism and secularism for both these theorists respectively, cannot be exhausted by a commitment to toleration, as both view toleration as a normatively dependent value, along the lines mentioned by Forst as discussed above. For Skhlar, “it would be wrong to think of principled toleration as equivalent to political liberalism…”
Even if there are “taint”-ridden similarities between pre-independence India and independent India, with respect to averments or signs of toleration (something the book claims but does not demonstrate), it remains to be asked how crucial or indispensable something like a normatively-dependent concept of toleration can be for the architecture of constitutionalised liberal-secular institutional arrangements. (22)
II Modernity and the communal question in India
The next point I wish to make with regard to pre-independence India and some of the claims of Communal Constitution is about question of legal pluralism and the religious-community-based identification that can go with it. John wants to emphasise how legal pluralism in matters of family law in independent India has a “colonial” genealogy, at least with respect to how communities projected themselves as majorities and minorities, as well as how Hindus were projected as the default majority against which claims of groups for ‘minority’ status had to cohere. But there is little analytical engagement with the “plural legal order of the Mughal empire” that pre-dated British rule in the subcontinent.
What is my point here? It is to note that the period that John’s book discusses as colonial is also one in which the consolidation of the modern in India was undergoing catalysis, not least because of the encounter with the west via colonialism. Sudipta Kaviraj has described the mutation from “fuzzy” to “enumerated” communities that characterised this period. Consider this: “The religious community is reconceived—from being primarily a community of worshippers, it is viewed, and views itself increasingly as a community of collective actors. The enumeration process inaugurates what is a new ontology of religious communities, not just a new epistemic for the social world.” This, alongside the ascendance of the nation-state model, and the promise of representative government inspired a truly heady mix of nation, state, majorities and minorities.
My point is that the consolidation of the processes of modernity in a deeply diverse polity like India was rife with notions of majority and minority. As such, a theoretical framework that highlights prioritises only ‘colonial’ policy and/or phenomena like the ERP doctrine for understanding and explaining what John calls a “communal slant” in the Indian constitution in disjunction with highly relevant, and changing, contextual considerations cannot suffice for descriptive or explanatory purposes. The fact that modern people perceive themselves as members of disproportionately powerful groups, both historically and in the present, is irreducible solely to colonial governmentality or to doctrines that courts evolve. The discussion in the book inexplicably leaves out engagement with the processes of modernity and democracy India, and thus offers only a partial description of how questions of group-membership and group-based diversity acquired salience in India.
No doubt there is the constant danger of a “lurking majoritarianism” in these modernity-constituting social and political processes too, and the fear that they may fuel a majority-minority ‘syndrome.’ (93) But to tether hopes, instead, on some notion of a “broader civilisational pluralism” for bypassing a syndrome — a syndrome resulting from a communal outlook whereby “communally organised identities have shaped minority identities as also the broader identity of the Indian people” — without reckoning with how processes related to modernity in general, and to democracy and nationalism in particular, produce and shape notions of group relations can lead only to partial explanations of a phenomenon such as a communal constitution. (93; see also John’s reflections on the notion of a “broader social plurality” at 86)
Under conditions of modernity, and especially because of the currency of nationalism, any non-relativistic commitment to even pluralism will have to be expressed through a framework that acknowledges the presence of majorities and minorities, to avoid the kind of syndrome that John highlights in the book. Even the debates over a uniform civil code in independent India testify to this. Many Indian feminists now endorse legal pluralism in matters of family law and resist a singular insistence on a uniform civil code. They are able to do so in ways that question a majority-minority syndrome without neglecting to highlight the need for a majority-minority framework for navigating relations among groups. Thus, it cannot suffice to stress the ‘colonial’ genealogies of community-based demographics as though they alone remain determinately pertinent for addressing the justice-based demands around legal pluralism in the here and now, where the compulsions of democratic politics have made new articulations along group lines more urgent and salient. It is not that the case that the discussion in the book prevents reckoning with the point here, nor is it the case that John joins any opposition to legal pluralism in matters of family law. But an express focus on the ‘colonial’ genealogy of communal sensibilities around religious grouping, and the putative re-entrenchment of those by the essential religious practices test, ends up highlighting only some and not all relevant questions about the modern and political origins of these sensibilities. Such partial highlighting bears the burden of not accounting for the way such sensibilities continue to breathe life into justice-based claims for the accommodation of group-based rights, which in turn have altered vitally the reasoning behind pleas for maintaining community-specific ways for mapping the people of India.
Conclusion
I found it extremely rewarding to read India’s Communal Constitution because it allows a discussion of critical issues of colonialism, secularism and modernity, which are issues of method. I hope I can persuade the reader too that John’s book is a significant scholarly contribution because it enables engagement with matters of method — matters that should be of interest to any scholar involved in the description and analysis of historical and/or social and/or political and/or philosophical and/or legal conundrums.
References
Balagangadhara, S. N., and Jakob De Roover. “The Dark Hour of Secularism: Hindu Fundamentalism and Colonial Liberalism in India.” In Making Sense of the Secular. Routledge, 2013.
Corinne Lefèvre. “Beyond diversity Mughal legal ideology and politics”. Thomas Ertl; Gijs Kruijtzer. Law Addressing Diversity. Pre-Modern Europe and India in Comparison (13th to 18th Centuries), De Gruyter, pp.116-141, 2017.
Judith N.Shklar. “The Liberalism of Fear.” In Nancy Rosenblum (ed.) Liberalism and the moral life (pp. 21-38). Harvard University Press,1989.
L Benton. “Historical perspectives on legal pluralism”. Hague Journal of the Rule of Law, 3 (1), pp 57-69, 2011.
N Chatterjee. “Reflections on religious difference and permissive inclusion in Mughal law.” Journal of Law and Religion, 29 (3), pp 396-415, 2014.
Partha Chatterjee. The Nation and Its Fragments. Princeton University Press, 1993.
Quijano, Aníbal. “Coloniality and Modernity/Rationality.” Cultural Studies 21, no. 2–3 (March 2007): 168–78.
Rainer Forst. Toleration in Conflict: Past and Present. Ideas in Context. Cambridge: Cambridge University Press, 2013.
Rajeev Bhargava “Are there alternative modernities?” In NN Vohra (ed.) Culture, Democracy, and Development in South Asia, pp.9-26, Shipra Publications, 2001.
Rajeev Bhargava, “The majority-minority syndrome and Muslim personal law in India” in Michel Seymour (ed.) The Fate of the Nation State, McGill-Queen’s University Press, 2004.
Sudipta Kaviraj, “Modernity, State and Toleration in Indian History” in Alfred Stepan and Charles Taylor (eds.) The Boundaries of Toleration, Columbia University Press, 2014.
Sudipta Kaviraj, “The Imaginary Institution of India” Columbia University Press, 2010.
Dr Rinku Lamba teaches political theory at the National Law School of India University, Bangalore.
[Ed Note: This Book Discussion was coordinated and edited by Archita Satish and posted by Baibhav Mishra from the technical team of the Student Editorial Board]
