The LAOT Team is delighted to bring our readers a book discussion on Prof. Mathew John’s latest book, India’s Communal Constitution: Law, Religion and the Making of a People. Over the next few weeks, we have invited scholars and practitioners to review the book, which will be followed by a response to the same by Prof. John. To kick of the book discussion, Alok Prasanna Kumar has written this introductory post and will also later contribute his own review as part of the discussion. We are extremely grateful to Prof. John for collaborating with us on this project. 

One would think that the events of January 22, 2024 would make the task of reviewing Mathew John’s “India’s Communal Constitution: Law, Religion and the Making of a People” (“Communal Constitution”) the easiest exercise ever. The “Pran Pratisthan” ceremony of the Ram Lalla idol was conducted by the Prime Minister of India with the full backing and support of the Indian state. The temple itself was built on the site where the Babri Masjid was destroyed by a mob and the site was handed over to the temple trust by a judgement of a five-judge bench of the Supreme Court. This “Hindu first” approach did not require a large-scale amendment of the Constitution or complete re-tooling of the Indian state. All this seems to reaffirm that the Constitution’s professed commitment to secularism or at least the equal treatment of religions and religious belief was always paper-thin and has never stood in the way of turning India into a “Hindu Rashtra”.

Or is it?

Such a reading of Mathew John’s work would be simplistic and reductionist. The Communal Constitution covers how India’s Constitution, as it was framed, tended to box individuals into religious identities. These religious identities themselves were broad colonial constructs putting together disparate communities under one bracket. What John argues in the Communal Constitution is that the Constitution of India was not a decisive break with the colonial categorisation of India’s people along “religious” lines but a continuation of the same, along with the way in which the colonial State interacted with such peoples.

In the context of India, “religion” is a difficult word to define entirely clearly and even harder to use as a marker of identity. The focus of John’s book is not clearly defining the categories of “Hindu” and “Muslim” or, for that matter, what “religion” or “religious identity” really means so the Communal Constitution prefers to use the term “axiomatically and doctrinally organised communities”. This is perhaps also necessitated by the enormous diversity in actual religious practice that makes the categorisation much harder to draw up in concrete terms – something even colonial administrators had to deal with. It is also an acknowledgement of how colonial administrators attempted to categorise India’s people by reference to their scriptures and found more contradictions and confusions in the terms “Hindus” and “Muslims” than they imagined.

Two illustrations would suffice to show the imprecise nature of these categorisations.

One, on the question of “Who is a Hindu?”, Lingayats in the areas that are now Karnataka and Maharashtra claimed, even back in the 19^th century, that they were not part of the Hindu caste system and demanded to be enumerated separately. While the Mysore census of 1871 records them separately, in later censuses, they are put in the category of “shudra” Hindus – categorisation vigorously contested today and linked to the demand of being treated as a separate religion.

Two, as the census report for 1931 notes, there is sufficient heterodoxy in religious practices that it is not always possible to determine who is a Hindu, Muslim, Christian, etc., with certainty. Even on matters such as personal law, there were wide variations. The Khojas and Dawoodi Bohras, for instance, followed a mix of Islamic and Hindu personal law, the latter more so in the context of succession. The Shariat Act, 1937 recognises this heterodoxy by having a provision where a person can come forward and declare that they are a Muslim and wish to have the applied to them and their families implying that not all persons who are “Muslim” necessarily want or follow Sharia law.

Yet, as Mathew John persuasively argues in the Communal Constitution, these colonial categorisations have informed the way in which the Constitution’s guarantee of secular government and equal treatment of religious beliefs have played out in post-independence India. This, John identifies, as the central problem that his book seeks to deal with – to understand how the constitution’s boxing in of Indians to their religious identities tends to drag down the larger goal of creating a liberal and secular polity.

A book such as the Communal Constitution requires detailed and in-depth discussion, and to this end, I’m breaking up the review into two more or less equal parts. This, the first part of the review, will broadly outline the various parts of the book and the steps that John follows in making his argument. In the second part of the review, I propose to go in-depth and respond to some of the key points made in the book.

I may point out here that the Communal Constitution is a book whose primary audience seems to be academics. In this part of the review, I have simplified some of the terminology and language of the book, keeping in mind that the readers of the blog are a more general audience. Any nuance I might miss as a result is purely my own error and may not necessarily reflect what the Communal Constitution says. 

In the Introduction to the book, John argues that the Indian Constitution contains continuities from the colonial approach to religion, especially in matters of tolerance of religious practices, support for Hindu social reform and seeing communities as being defined by their religious identities, especially in the context of political representation. He lays out the basis on which he makes his argument in the book, specifically looking at religious freedom, personal law, minority rights and identification of caste groups. John’s choice of these four aspects, he admits, is ad hoc, but he argues that they better reveal the communal identity in the Constitution.

These are four “live issues” in India today, and one can’t quibble with John’s choices on this front. Whether in courts (the hijab case, the minority status of Aligarh Muslim University), in legislation (the Uttarakhand Uniform Civil Code) or in political debates (the inclusion of Muslim and Christian Dalits in the Scheduled Castes category), these are constitutional and political issues bearing on India’s secular character. In that sense, topically, John’s book is timely and could provide us with ways to think about these issues as well.

Each of these has been divided into a chapter as discussed below.

In the first chapter relating to religious freedoms, John takes on the thorny problem of “essential religious practices” (“ERP”) test. First laid down in Commissioner Hindu Religious Endowments v Lakshmindra Thirtha Swamiar (Shirur Mutt case, 1954) to draw a boundary around what religious practices would be constitutionally protected against state infringement, this test has proved more and more problematic over the years to apply in different contexts. As a result, it has been a subject matter of criticism, though no one has been able to come up with any alternative. John traces the history of this test to not only the Shirur Mutt case but also highlights its antecedents in the colonial era.

John does not say that the test is, per se, problematic. Rather, he traces the history of Shirur Mutt and uncovers the key moment in its judicial history that gave it problematic contours – the judgement of the Supreme Court in Sastri Yajnapurushdasji v MuldasBrudardas Vaishya (1963). John agrees with other scholars who have pointed out that this particular switch in the test (which he attributes to the “reform-minded and statist” outlook of CJI Gajendragadkar) has meant that the ERP test has gone from a survey of what the community believes is an essential religious practice to what a judge believes is an ERP.

The first chapter traces the evolution of the ERP test over the years and concludes with the Sabarimala judgement and the introduction of the constitutional morality test into the ERP test by the judgement of CJI Chandrachud. While John is hopeful this path might reduce the “communal imprint” in the ERP test, he argues in subsequent chapters that this doesn’t diminish the communal boxing of Indians by the Constitution.

In the second chapter, John covers how the continued applicability of personal laws communalises the Indian people into the religious community. He traces the now well-known history of the evolution of “Hindu law” (or, more appropriately, Anglo-Hindu law) during British rule, which was an attempt by the colonial administration to put some sort of a larger framework to a completely bewildering array of practices, customs and beliefs that governed personal laws across the vast country. It was also necessary to draw some boundaries that would delineate this body of “Hindu law” from Islamic law (which some argue was also Anglo-Islamic law) and Christian law.

While this particular narrative is well known and covered in a number of other works, what is interesting about John’s approach in this particular chapter is the emphasis he lays on the rejection of the views of the (now nearly forgotten) James Nelson. Nelson, a judge in the Madras judicial service, thought it “absurd” that Hindu law was being applied to a population who were barely aware of it and didn’t follow it anyway. Nelson argued that it was only Brahmins who cared or followed the dharmasastras anyway, and it was effectively an imposition on the rest of the population. Nelson, as John points out, was in the minority of one on this point in the colonial administration, and the colonial establishment first refuted and then ignored Nelson.

Nelson’s argument is not just about the law but who is a Hindu, and the argument with the colonial regimes was not just one about the right law which governs Hindus but who is a Hindu. As John points out, it was the colonial regime’s belief that a Hindu was a religious identity as was “Muslim”. This identification and classification of communities on their religious beliefs

Moving on from this role of personal in constituting the communities of “Hindus” and “Muslims”, John argues that the movements of social reform, both Hindu and Muslim played a crucial role in the identification and reform of the communities which led to Indian independence. This is an interesting account of the role of social reform in the consolidation of the respective communities as “Hindu” and “Muslim”, and, as John shows, influences how the reform of Hindu and Muslim personal law continues to be thought of up to the present day.

This chapter of the Communal Constitution also addresses the complicated and sometimes contradictory ways in which Indian courts have dealt with the issue of personal laws in the post-independence period. John notes that the persistence of State of Bombay v Narasu Appa Mali (1951) as good law despite judges seemingly uncomfortable with the idea of different personal laws for different communities has also resulted in a “jurisprudence of exasperation” that has found expression in judicial calls for a uniform civil code. As I’ve argued elsewhere, this demand is essentially inchoate and uninformed by any real understanding of the difficulties of making uniform personal laws. However, John makes this an important link to the larger argument about the communal categorisation of the Indian people by the Constitution. Even though the Constitution attempted to reform personal laws through the lens of civil rights, John argues that their persistence is reflective of the Constitution’s communal categorisation of the Indian people.

The third chapter deals with minority rights and their evolution from pre-independence times to the present day. John’s account of this starts from the communal representation of Muslims during the British Raj, the Partition and the constitutional guarantee of minority rights for minority religious communities. The identification of who is a minority for the purposes of constitutional protection (especially in the context of educational institutions) still retains traces of how the colonial regime categorised Hindus and Muslims. As John points out, the challenge to this comes from Hindu sects and groups which claim to be minorities for the purposes of Article 30.

The fourth chapter takes off organically from the end of the third chapter, which relates to the interplay between caste and religion. In the previous chapter, John notes the somewhat contradictory approach of the Constitution in giving political reservations to Scheduled Castes but seeing the grant of political reservations to Muslims as being against national unity. In this chapter, John makes the argument the communal framing of India’s peoples has essentially made caste a “Hindu problem”, and this has influenced the way that debates over the identification of backward classes for the purposes of reservation have taken place. This “sacralisation” of caste, the Communal Constitution argues, has impacted the way Scheduled Castes have been identified for the purposes of the reservations and due protection. Even though untouchability is practised across religions in India, the Constitution’s protections against the same are premised on the belief that it is purely a “Hindu problem” and courts and the government seem to have taken the view that conversion simply erases caste and untouchability.

In the concluding chapter, the Communal Constitution ties these various threads together to make his larger point about the Constitution and the communal identification of the Indian peoples within it.

As John makes it clear, the title of the book is deliberately provocative with a view to get the reader to think more deeply about our understanding of “secularism”, religion and the Constitution. One does not get the sense that it is John’s argument in any way that either the Constitution or the Constitution framers intended to privilege one religion over the other or that they viewed Indians only or primarily through the lens of religion. What John’s book does is give us an important perspective on understanding some of the most contentious and complicated issues of law, religion and the State in post-independence India. It invites us to think about liberal constitutionalism and the alternative ideas of who “the people” are in the Constitution and how they ought to be constituted. While John does not provide a definite answer (and that is certainly not the intent of the book), in the conclusion, he hints towards the possibilities that may have been left unexplored.

In the next part of the review, I intend to go in-depth into some of John’s claims and give my views on them.

Alok Prasanna Kumar graduated with a B.A. LL.B. (Hons) from the NALSAR University in 2008 and obtained the BCL from the University of Oxford in 2009. He is the Co-Founder and Lead, Vidhi Karnataka. His areas of research include judicial reforms, Constitutional law, urban development, and law and technology. 

This Book Discussion has been coordinated by Archita Satish, edited by Apoorv Vats and published by Harshitha Adari from the Student Editorial Team.