Saturday, May 23, 2009

Shri T. L. Venkatarama Aiyar, ch. 5 “Fundamental Rights—The Seven Freedoms and Religious Establishment”

Shri T. L. Venkatarama Aiyar, ch. 5 “Fundamental Rights—The Seven Freedoms and Religious Establishment” in The Evolution of the Indian Constitution, 87-108. Bombay: University of Bombay, 1970.

SUMMARY: Essay looks at “the evolution of the Fundamental Rights in the Constitution of India, and to make a comparative study of the law of them in America and India” (87). He describe how rights are approached in the British system (88), in America’s (88-89), the forming of rights in making India’s Constitution (90-91), and the rights created for it (91-92). He then compares India’s rights to the US’ (93-95), how the US has defined “due process” (95-96), the US’ understanding of “police powers” (97-98), and then Aiyar summarizes the effects of the US’ constitution (98). Then goes on to explain the differences between India’s and the US’ constitution: India does have “due process” (99), but in the end both their substances are the same in relation to “due process” (99-100). He says the second clause of the US’ first Amendment is in India’s constitution (100-101), but not the first clause (101-103), and goes on to list India’s provisions for religion (103-104). Gives examples of freedom of religion in the US (104) and India. Presents the Indian Supreme Court’s definition of religion (105), and how the rights of religion are limited because they cannot conflict with other laws (105-106), those these limit themselves have been contended as being discriminatory (106-107), and Article 19 (1) (f) was contended as well. Aiyar ends by summarizing the 3 main points he’s made concerning India’s constitution (107-108).

87-essay looks at “the evolution of the Fundamental Rights in the Constitution of India, and to make a comparative study of the law of them in America and India.”, in the Constitution Fundamental Rights are “rights which are…inviolable and unalterable except by a process of amendment as provided therein. It is the incorporation of these rights in Part III, that constitutes the most notable feature of our Constitution.”

88-in the British system, the “Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty…in the constitution of this country, there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved” [direct quote from British Supreme court case Liverside v Anderson, 1941]

-“In America…It is not the Legislature that is supreme but the Constitution, and the three organs derive their authority from it and are subordinate to it…Now what the Constitution has done is firstly, to divide the field of legislation between the Congress and the States,…and secondly, to impose both on the Congress and on the States, certain limitations in the exercise of their legislative power even in their fields. It is this that we are now concerned with. It is enacted in Article I of their First (89) Amendment that the ‘Congress shall …[he writes out the first Amendment]’”, then he writes out Article IV (against search and seizure), Article V (against double jeopardy and self incrimination, upholds due process and compensation), Article XIV (applies due process to the states, plus equal protection for all people); add that none of these were in the original Constitution of 1787, adding articles I, IV, and V in 1791 and XIV in 1868; “The policy behind these provisions is clearly to place the exercise of rights specified therein above party politics, and to secure the rights of the minorities against ‘a despotism of the majority.’ In W Virginia State Board v Barnett know as the flag-saluting case, striking down a law requiring students in a school compulsorily to salute the national flag, as repugnant to the 14th Amendment…”

90-The Indian Constitution has “preferred” the American model; “The question of incorporating Fundamental Rights in a Statute had been under consideration in this country for a long time. In the report of the Nehru Committee which was appointed in the All-Parties Conference in 1928, it is stated: ‘Certain safeguards and guarantees are necessary to create and establish a sense of security among those who looked upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the constitution.’ A proposal was put forward before the Simon Commission for including Fundamental Rights in the proposed Constitution but that was rejected because the Commission was of the opinion that ‘abstract declarations are useless unless there exist the will and the means to make them effective.’ (91) The Joint Parliamentary Committee which endorsed this opinion observed that the effects of enacting Fundamental Rights would ‘be to impose an embarrassing restriction on the powers of the legislature and to create a grave risk that a large number of laws may be declared invalid by the Courts because inconsistent with one or other of the rights so declared.’”

91-however Section 299 (I) was the single exception to this, it “provided that no person shall be deprived of his property save by an authority of law, and this has been incorporated in Article 31 of the Constitution. Then when the question of enacting Fundamental Rights came up before the Constituent Assembly, a decision to incorporate them in the Constitution was unanimously adopted and they have been set out in Part III.”

-“…the provisions in Part III…included practically all the rights guaranteed in the American Constitution, and some more necessitated by the conditions in India, such as the right of access to public places under Article 15 (2) or the abolition of untouchability under Article 17. Some rights are available only to citizens, as for example the seven freedoms under Article 19, while others such as deprivation of life or liberty under Article 21 can be claimed by all persons within the State. Then again, while some Articles are directed against the State, and impose obligations on it, as for example, Article 14 that ‘the State whall not deny to any person equality before the law or the equal protection of the laws within the territory (92) of India’ [direct quote from Article 14], others, like Article 19 (I) simply declare the rights of persons. But this difference does not make any difference in the quality or extent of the rights under the two categories of Articles as [sic] they all of them embody Fundamental Rights, and the law is well0suited both in America and in India that Fundamental Rights are enforceable only against the State and not against private individuals apart from State action.”, e.g. this is articulated in Shamdasani v Central Bank of India (1952)

93-Article 19 of India’s Constitution provides similar rights to US’ (free speech, assembly, association/unions, move freely and resettle, acquire property, and to practice any profession/occupation), but (94) the Article 19 also states (in clauses 2-6) that none of these rights can effect existing laws or can prevent the state from making a future law limiting that right; (95) “While the American Constitution imposes no limitations on the exercise of these rights”; “Ex facie, therefore it might appear that the scope of these rights as guaranteed by the Indian Constitution is much more limited. But…in the actual working of the provisions, the results are not dissimilar.”

95- important for this is the expression “due process of law”; “ ‘Few phrases in the law’, observed the Court in Twinning v New Jersey, ‘are so elusive of exact apprehension as this. The Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise.’ [direct quote] The expression ‘due process of law’ has been traced to the words ‘per legem terre’, ‘law of the land’, occurring in the Magna Carta. The theory was at one time held by lawyers in England that the ‘law of the land’ (96) would prevail even as against a law enacted by Parliament and so Lord Coke observed in Dr. Bonham’s case ‘the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common rights and reasons.’ This theory has long ago been exploded in England and the supremacy of Parliament established, but it would appear to have found a new home in America. Law was held to mean something more than ‘law’ in the Austinian sense. ‘It is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.’ [direct quote from Twinning v NJ] Acting on this introduction of the phrase ‘due process of law’, the Supreme Court struck down all statues and all executive and judicial orders, if they were satisfied that there had been observance of ‘due process of law’. At first the application of this clause was limited to errors of procedure as for example when rules of natural justice were violated. But later on it came to be held that even substantive laws such as labour laws and measures of social legislation, could be struck down if in the opinion of the Court they interfered with the rights of individuals. More recently, however, the trend has been to leave the decision on the substantive law and policy on social and economic questions to the decision of the legislature, and to interfere only when there is procedural violation of rules of natural justice.”

97-the US Supreme Court also recognized “the power of the Legislature to enact laws in exercise of what were called ‘police powers’” which is “the governmental power of self-protection and permits reasonable restrictions of rights and property in particulars essential to the preservation of the community from injury” [direct quote from Penhandle Pipeline v State Highway Commission]; The police powers have been used to protect health, morals and safety and recently also “to protect the well being and tranquility of a community” [direct quote from Kovacez v Cooper]; when (98) there is violation by police powers of “due process” “the Court can and must interfere. But what amounts to violation of this clause is a question on which opinion has varied from time to time and from Judge to Judge.”; the act must show “direct and substantial relation to its object” and given recent trends that say due process only refers to procedural violations, if the act is not directly related to the object it is more likely to be struck down

98-Summarizing the 14th Amendment “in the light of the ‘due process’ clause and the ‘police powers’ of the State”: “(1) The power of review under the ‘Due Process’ clause is of the widest amplitude, and extends to violation of not mercy law in the Austinian sense but also of all rules of justice, equity and good conscience. (2) The State has the power to enact regulations imposing restrictions on the exercise of Fundamental Rights, in the interests of the general public. (3) The Court has the power to interfere with the regulations made in the exercise of ‘public power,’ but it will in general accept the decision of the legislative, unless the regulation has no direct and substantial relation to the object thereof or there has been a procedural defect amounting to a denial of natural justice.”

99-India’s law, “as enacted in Article 19,” differs from US’ in 2 ways: 1) “It has not adopted the ‘due process’ clause. It must be mention that the draft contained such a clause but as the result of a full dressed debate, it was dropped by the Constituent Assembly. It is this decision that is embodied in Article 12, and under that provision ‘Law’ is to mean only positive law and not rules or natural justice…That has also been held by the Supreme Court in Gopalan v The State of Madras [1950].”

-2) “As regards ‘police powers,’ while the American law leaves it to the Legislature to decide what is for the benefit of the public and to the Court to pronounce on its validity, Article 19 (2) to (6) define the limits within which and the conditions under which the Legislature could enact a law in exercise of the ‘police powers’. The law will be valid only, if it satisfies the conditions laid down in the article. It is for the Court to decide whether it does so. Thus, it will be seen that in substance the law is the same in America and in India, only the processes by which the result is obtained differ in the two countries. The freedoms mentioned in Article 19 are guaranteed both in America and in India. And in neither country are they absolute. They are subject to reasonable restrictions made in the interests of the public. And the Court is the final arbiter whether the restrictions are reasonable or not. The true positions is clearly brought out by Mookherjee, J., as he then was.” In Gopalan v Madras: “There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that (100) would lead to anarchy and disorder. The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson v Massachusetts, are subject to such reasonable conditions, as may be deemed by the governing authority of the country…In some cases, restrictions have to be placed upon the free exercise of individual rights to safeguard the interests of the society…What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.” [direct quote]

100-For the US, “The Fourteenth Amendment consists of two clauses [concerning religion]. The first is directed against legislation respecting ‘an establishment of religion’, and the second against a law prohibiting the free exercise of religion. The former is not concerned with the religious beliefs and practices of individuals, while the latter is not concerned with ‘establishment of religion’ by States.”, While the Indian constitution’s Article 25 (1) says (101) “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” [direct quote], “This corresponds to the second clause in the Fourteenth Amendment.”; and Article 26 “extends to religious groups the freedom of religion which Article 25 confers on individuals. This is also in accordance with the law as laid down by the Supreme Court of United States [Watson v James and US v Ballard]. Thus, so far as the second clause of the First Amendment concerned the law in India is the same as that in America.” [Article 26 gives “religious denominations right (with exception for public order) to have own institutions, manage selves, own property and administer that property]

101-“When we turn to the first clause of the First Amendment, the position is somewhat different. There is nothing corresponding to it in the Indian Constitution.”; “The theory that dominated political thought in Europe at that time [of the creation of the First Amendment] was that religion was an affair of the State. So every (102) State had its established Church and allegiance to it was equated with loyalty to the sovereign. With the growth of religious freedom, divisions based on community of religion began to develop in all countries. This was the condition in America at the time of its Independence. As the institution of a State-established Church would tend to impair the unity of the nation, the Constitution Makers decided to dissociate the State from the Church, and the first clause was enacted for that purpose. But, as now interpreted, it has been given a wide sweep and held to prohibit the association of the State, however remotely, with any religious activities. In McCollum v Board of Education, religious teachers belonging to different denominations were permitted to give religious instructions to the students in a public school, during ‘release hours’.” at a public school building and the Supreme Court said this conflicted with separation of church and state; “In Zorab v Calusson, the facts were the same except that religious instruction was given to students during the ‘release hours’, outside the school. It was held that this did not offend the First Amendment. It must be mentioned that in (103) there were dissidents. Some Judges took the view that having regard to its historical setting and to its language, the First Amendment only prohibited the establishment of Church by the State and that it did not require the State to be hostile to religion, while others held that the clause intended to set up an impregnable wall of separation between the Church and the State.”; “There being no question of an established Church in India, there was no need for such a clause in the Constitution.”

103-“But there are specific provisions dealing with certain problems. Article 28 deals with religious instructions in educational institutions. Article 28 (1) enacts that ‘no religious instruction shall be provided in any educational institution wholly maintained out of State funds.’ This is in line with the American decision. But if the institution is state-aided, and not state maintained, Article 28 (3) provides that no person attending it should be required to take part in religious instruction. Article 28 (2) further provides that Article 28 (1) has no application where the State takes over and administers an educational institution which has been ‘established under any endowment or trust which requires that religious instruction shall be imparted in such institution.’ Then there is Article 30. While Article 30 (1) recognizes the right of religious minorities to establish and maintain their own educational institutions, Article 30 (2) enjoins that ‘the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority based on religion.’ There is one other provision that must be referred to in this connection Article 27 enacts that ‘no person shall e compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious (104) denomination. ‘This Article in effect, prohibits discrimination in favour of any particular religion or religious establishment.[‘] But it does not bar the State from conferring benefits on all religions or religious denominations without distinction. Thus under the Indian Constitution, there is not that rigid dissociation of the state from religion, which we find in America.”

104-“it has been held in America…[that the] First Amendment…includes on the one hand freedom from compulsion to do what is prohibited by the articles of one’s religious faith and on the other freedom to preach the tenets of one’s own creed. The question has often come up for consideration in connection with the activities of a religious sect known as Jehovah’s witnesses. In the Board of Education v Barnette, the authorities of a school in West Virginia made it compulsory for every student to salute the national flag as part of the daily exercise. Some students belonging to the sect of Jehovah’s witnesses, who refused to do so on the ground that it was against their religious tenets were expelled. The Supreme Court of United States held that the order of expulsion was unconstitutional, as the compulsion to salute the flag was an interference with the free exercise of religion by the students.”, and Jehovah’s witnesses could distribute literature in public places (Lovell v Griffin) and go house to house (Cantwell v Connecticut). “The law would be the same in India under Article 25 (1) and Article 19 (1) (a).”

105-“what is the meaning of the word ‘religion’ in Articles 25 and 26? The Supreme Court has held that it means and includes not only matters of belief but also all rituals and ceremonies which are regarded by the community as essential and integral parts of the practice of religion [in Commissioner of Hindu Religious and Charitable Endowments v State of Bombay 1962].” [also Vankataramana Devaru v State of Mysore 1958, and Durgah Committee v Hussain Ali 1962]

-India’s rights under Article 25 and 26 are not absolute, and are “subject to public order, morality and health”, The US supreme court says, similarly, rights under first Amendemnt don’t include “the right to do what is immoral or criminal though that may be sanctioned by religion” and so this is why a conviction of a polygamist Mormon was upheld in Reynolds v United States; and in India this would be the same under Article 25 (2) (a) , but (106) “It has been held by the [Indian] Supreme Court that the true scope of Article 25 (2) (b) is only to lift the ban on entry into the Temple of certain sections of society, like the Harijans, but not to do away with the rules of the Temple relating to the entry into Garbhagraha, or the sanctum sanctorum, by members of the public generally.” [Venkataramana Devaru v State of Mysore 1958]; plus “the right under Article 25 is subject ‘to the other provisions of this Part,’ that is, it is subject to the Fundamental Rights declared in Part III.”

106-“on the basis of this provision, contentions have been put forward in several cases that certain laws with respect to religious endowments are bad as being in contravention of Fundamental Rights. Thus it has been contended that a law which is limited in its operation to Hindu Religious Endowments is discriminatory and hit by Article 14. This contention has been rejected on the ground that Article 14 does not forbid classification and that a law relating only to Hindu Religious Endowments is based on a valid classification [Moti Das v S. P. Sahi 1959; State of Bihar v Bhahpriyananda 1959; Narayana v State of Mdras 1954]. Indeed it has been held that even a law dealing with a single temple will be constitutional, if it occupies a unique position, and can be considered to be a class by itself, as for example (107) the Mathdwara Temple in Rajasthan [Tilakaval Sri Govindlalji v State of Rajasthan 1963] or the Jagannathswami Temple in Orissa [Bira Kishore Deb v State of Orissa 1964].”

107-“Questions have also been raised under Article 19 (1) (f) challenging the validity of provisions in a decree in a scheme suit relating to a Mutt, providing the management of its properties. The contention has been that the Mohant of the Mutt has under the law power to manage its properties by virtue of his office, that the right to the office is property and therefore to deprive him of his rights to manage the properties as Mohant is to infringe his right to hold property, under Article 19 (1) (f). It has been held by the Supreme Court in Commissioner of Hindu Religious and Charitable Endowments v Lakshmindra supra that the right to the office of Mohand it itself property and that therefore he is entitled to the protection of Article 19 (1) (f) but that if the impugned provisions were merely calculated to ensure efficient management of the properties and did not interfere with the work of the Mohant as the spiritual head of the institution, they would fall within the saving of Article 19 (5). It has since been uniformly laid down that provisions in a law or in a scheme which have reference solely to the secular duties of a Mohant or Shebait are not hit either by Article 19 (1) (f) or Article 25 or Article 26.”

-summarizes: “(1) The Indian Constitution recognises as does the First Amendment is America the right of individuals and of religious denominations to freely profess, practise and propagate religion subject only to interference by the State on the (108) grounds of public order, morality or health; and religion includes not merely articles of faith and belief, but also essential rites and ceremonies. (2) The Indian Constitution does not recognise any established Church but there is not the same wall of separation between Religion and State in India, as in America. (3) The Indian Constitution recognises the right of heads of Mutts and other religious institutions to manage their own affairs in matters of religion without interference by the State, but they can claim no such immunity as regards secular matters such as management of properties belonging to the institution.”

Saturday, May 9, 2009

Sudipta Kaviraj. “Religion, Politics and Modernity,”

Sudipta Kaviraj. “Religion, Politics and Modernity,” in Upendra Baxi and Bhikhu Parekh, eds., Crisis and Change in Contemporary India, 295-316. New Delhi: Sage Publications, 1995

SUMMARY: Main thesis is that Indian communalism is the result of modernism and the state’s failure to reach all areas of India. He criticizes the fact that political scientists and historians haven’t looked at communalism in the right way (295). He describes the identities that modernity makes (296-297), traditional identity (297-298), how modern/Western education imposed English as the valued language (298), and notes that identity changed because of the implementation of the census (299-300). He examines if precolonial India was secular (300-304), the impact of majority/minority identity (304-306), and how this affected the creation of communalism (306-309). He explains the relation of the colonial and then nationalist state to other institutions (310-312), but that the state didn’t reach rural areas (313-314), and the subsequent political and religious reactions (314). He ends by pointing out that there are disagreements within the communalist groups.

295-looks at the relationship between religion and political processes in India through the form of historical sociology; criticizes how “the disciplines of politics and history…have actually gone about their analysis [of communalism]”: “Political scientists usually put the problem beyond any possibility of explanation by avoiding a historical perspective. Historians do usually bring in a longer term perspective, but fail often to disentangle this from anachronistic and present assumptions. The most common procedure is to speak of religious communities unworriedly in a language of majorities and minorities. This is misleading because, I shall argue, before the coming of modern cognitive processes, to speak of this language is inappropriate, and it does not respect the identity of the past to be different.”

296-“An essential part of this story is to find the logic of modernity’s reconstitution of identity. This logic consists of two distinct parts or processes. Modernity, as is well known, brings in a new logic of self-determination, which means in this context literally, determination of the self, choosing what one would be. But again there are two sides to this act of self-determination. First, there are wholly new types of belonging which modernity renders possible. Identities like modern national ones were not available in a world that existed before. But it also makes possible, often even obligatory, people’s ‘having’ their earlier identities in an altogether different way. Thus the meaning of ‘being a Muslim’ or a Hindu might change fundamentally, though the persistence of the phrase as a description of practical being produces a misleading impression of continuity…people were not Muslim …(297) the same way; or rather, the significance of their being Muslim was not the same, precisely because it was a social world which lacked this accent on being something.”, and Kaviraj questions whether the idea of (cognitive philosophical) reflexivity can even be applied at all to the non-modern world

297-“the introduction of Western rationalist education in India bifurcated the society’s commonsense and divided Indian culture in a radically different and unprecedented fashion. Indian culture had traditionally been marked by great internal inequality and distance: between the literate and the unlettered, between the practical users of literacy and its ritual users, between different castes because their ways of acquiring and using literacy were different. Despite the various inflections and articulations by divergent groups, it was identifiably a single common sense, held together within the confines of a common discourse or conceptual alphabet which groups used opportunistically for their particular aims.”, (298) groups understood the practice of others, though not the exact manners

298-“Introduction of Western education decisively shattered this integral single common sense of traditional culture by inducting a new kind of common sense based on rationalist premises common in nineteenth century Europe. It created two separate discourses about the social and political worlds. This was reinforced by the symbolic association of these two conceptual languages with the natural languages of English and Indian vernaculars, respectively. English was regarded by the first modernizers as the indispensable language of science, legality, administration, and generally of the historically unfamiliar ‘public life’ which British administration had brought with itself. Bengali babus, for instance, warmly welcomed its unfamiliar principles, and imposed them on a society going through rapid and unclear transformation to disallow access to women and lower classes. This created a strange dichotomy of inside and outside, of the home and the world, of the rationalist world of politics and the sentimental one of domesticity created essentially by generalising upon the experience of the middle class. English was regarded as the language of the outside, the public space, of control, of easy and effortless domination of the upper orders against the vernacular muteness of the women and the lowly. The first Bengali babus spoke Bengali at home, increasingly apologetically. In the public contexts of their office, or in public discussions they discoursed in English, which in any case was also necessary for career advancement in the colonial bureaucracy subsequently, in Bengali and other languages of India, there were distinguished and determined attempts to break down this barrier and to make the vernacular perform those exalted functions which modernists had reserved for English. Bankimchandra and Rabindranath both wrote about science in Bengali and gradually created a syntax more suited to modern discursive reasoning,” which showed that “’modern’ and ‘English speaking’ were not necessarily equivalents. Yet in institutional terms, this fatal connection between modernity and Westernism and English language remained.”

299-“colonial modernity brought along a more silent but no less fundamental process of change. I have called it one of enumeration: the transformation of a small, approximate, tentative conception of the social universe into the typical modern image of mapped and counted identities.”, identities of majority/minority created through censuses, giving the majority a sense of “permanent menace” and minorities “permanent helplessness” –what Bernard Cohn calls the “process of objectification of communities”, and it “had incalculably far reaching consequences for the making and remaking of political identity, including religious ones.”; peoples’ communities used to be “fuzzy and enumerated” with unclear boundaries of space and geographical distribution, and with unclear numbers of people (and so modern collective political action wasn’t possible (300) which is “an essential feature of modern politics”), and unclear boundaries for language dialects, and “Political conflicts are likely to bless intense, in any case, when the boundary between the self and the other is unclear.”

300-the criticisms of communalist ideas usually comes from “unexamined nationalist positions” which ties rise of communal politics to British colonial policy, though there are different versions of this: A. it can be seen as a British conspiracy to divide people, B. or “as an inevitable part of the modernist reconstitution of identity which colonial rulers used to their benefit”, and with this (301) they usually paint a “flattering picture of the precolonial past”, and “sometimes come close to asserting that precolonial India had developed strong traditions of secular political authority.” Under Amir Khusro and the Mughals which are said to have fostered a “composite culture” where religions’ boundaries blend and people were allowed to practice their religion without trouble, and that “this was disrupted by malicious colonial practice”; though Kaviraj says “there was no prior public space and secularism for colonialism to destroy” because in reality precolonial India’s social organization gave the state less centrality than European practice, and so (302) “secularism” was the result of Muslims entering the caste system, and (303) the need for Muslims and Hindus to have amenable relations for economic stability, but this was not a modern-style “secularism”, plus the religions didn’t really merge that much, (304) plus was helped by the fuzziness of groups

304-colonialsm brought rationalistic logic with the census and mapping; originally used to help administrators accurately gauge the place they were dealing with, (305) but the result is it gave the “statistical majority a vital principle of advantage”, something that wasn’t a factor when Muslims ruled; and it is “deeply misleading” to suggest that “there were majorities and minorities before the colonial enumeration process”, but after this process began it started to have an effect on peoples’ identities as people offer proposals “to restructure Hinduism into a more organised single religion”, “Initially the practical point of this proposal was to oppose Christianity and the pressures of cultural colonialism, but at the centre of such proposals lay a clear appreciation of the logic of modernist politics…Formerly, religious groups rarely spoke in the language of a collective interest; now they speak no other language except the collective advantage of the collective self.”, and this new kind of “social cognition” had a profound impact on the lower classes because, though it was not a homegrown change, “precisely because they were not equipped with the techniques by which dissenting individuals could critically reflect (306) on its political effects.” And they were subject to its consequences; friction between groups brought on various colonial policies and electorates—driving minorities to think they could only secure themselves “in a state of their own, that is, only if they have turned themselves into a majority.”

306-the religious changes in India are “often seen as a rise of fundamentalism” (the term is used interchangeably with communalism in Indian political debates), and is seen as a retreat from modernity into “more comprehensible doctrines of tradition”, “But this description does not fit communal politics in India, where it is clearly a strategy to get more secure advantages within the arrangements of modern electoral politics. Thus modern communal politics in India presupposes the existence of parliamentary electoral arrangements, or at least of the numerical biases of the modern state.”

-“traditional secularist theory worked on a simplistic, dualist picture of the historical process of depletion of religious beliefs often implying that rationalisation leads directly into a secular, atheistic view of the world. Clearly, this model does (307) not fit even Western secularisation and denies the complexities and interruptions of the rationalisation process…what happens is a historical process of slow depletion of values” and practices making local practices less distinct from one another; (308) eg in some ceremonies, while invocation of the sacred is still essential, its demands are diluted, rituals simplified, and metaphysical ideals are seen with detachment or as “wholly dispensable”, images of deities are mass-produced and/or put on modern mundane inventions (eg modern vehicles) and worship time is now centered around modern living and done in a “perfunctory” way (and not at “times of transition (sandhi)”), and (309) a re-imagining of gods’ personalities and attitudes (eg the BJP’s appropriation of Rama as a vengeful god which goes against the traditional idea, according to Kaviraj, that Rama is peaceful)

310-“During the national movement, the colonial state was the primary target of political attack; but after achieving freedom nationalist states have not proposed a return to the earlier, traditional equilibrium of a distant, limited, non-interfering state and a largely segmented, self-determining society. Indeed, the most significant feature of this transition to modernity is the relationship of the state to the other institutions of society, the struggling appearance of something resembling sovereignty through the expanding claims of the colonial state. In India, this idea of sovereignty of the state meant of course that other states could not interfere with its internal process of political decision-making. Sociologically, however, the more problematic element was the establishment of sovereignty over the ‘lower’ institutions in society…In the West, this process of crucial subordination of all other temporal authority to the rule of the modern state was accomplished by the struggles of absolutism against feudal authority. India experienced nothing comparable to that decisive historical process. Given the architecture of social institutions, the descriptions ‘high’ and ‘low’ became misleading in the Indian context. The state could not, by explicit legislation, reorder the structure of castes, the arrangement simultaneously of production and ritual status; thus its authority, though despotic in one sense, was not absolute. But after initial resistance during the colonial period, society resigned itself, in large measure, to the new relationship between the state and other social organisations, to its sovereignty, its right to legislate changes in the fundamental productive and distributive order…As a consequence, all types of social exchanges which happened earlier in the non0state realms, have now to be mediated through the apparatuses of the state.” And (311) so social groups have to deal with this state and they do so “by deploying their available repertoire of social actions and identifications”

311-“The constitutional system in India therefore was…inconsistent with the self-understanding of social groups. The national state simply assumed that citizens would act as liberal individuals, but failed to set in motion a cultural process which could provide the great masses of people the means of acquiring such self-understanding.” And new identities were formed, eg “intermediate castes” and modern “Hinduism” ((312) which was “proposed originally by nationalists” to counter Christian evangelism); and these groups enables these people “to propose the establishment of large coalitions” though, at least for Hinduism, some have to make concessions to get this unity

313-But the reason communalism didn’t appear until 40 years after Independence was because “ordinary people” had to grasp “the great significance of numbers in electoral politics.”, Lower level “politicians had no direct access to the knowledge of Western parliamentary styles of governance, they simply translated these unfamiliar, and in any case abstract, principles into terms more comprehensible to rural India. Since the sixties, Indian politics has seen a massive alteration in style, language, modes of behaviour, reflecting far more the actual cultural understandings of rural Indian society rather than the Westernist cultivation of the elite which inherited power in the Nehru years…[which] not merely failed to create conditions for a common sense in Indian politics,…its neglect of cultural (314) institutions like primary education contributed to a further division between a Westernist English-using social aristocracy and a disadvantaged vernacular culture condemned to backwardness and self-deprecation.”

314-“Ironically, the material benefits of modernity were gathered in so exclusively by the inhabitants of the English circles of discourse that it gave rise to two wholly understandable reactions in the rest of society. First, of course, it set off a great movement of emulation, through the enormous extension of English medium schools. But the number of those who couldn’t benefit from these changes was bound to be quite small, and that merely added to the intense resentment of others. Since the benefits of development were so unequally and unjustly distributed, it prepared ground for two types of political discontent—an economic critique of class and an indigenist critique of modernist cultural privilege. The second kind of resentment, naturally, has predominantly found cultural expression through regionalist and communal politics, through the politics of Hindi and Hinduism.”, The secular intelligentsia has abdicated “the vernacular discourse,…[it has shown] excessive reliance on the state and its increasingly less accountable bureaucracy, and their withdrawal from the dialogic stance of conversation into a more arrogant attitude of peremptory command has created a situation in which forces of Hindu majoritariansim can claim the dignity of cultural self-assertion against a dispensation in which individuals are penalised for speaking their mother tongue or evincing interest in their own culture.”, this has “only accentuated this association of modernity with exclusivism”

315-However, “Quite obviously, communal politics suffers from an acute indetermination of the ends and the means: Is capturing of government a means of building the Rama temple, or is the slogan of the temple the means to securing victories in elections?” and there are frictions within the groups over this, because, as some see it, once a new temple is constructed the movement will lose its vigor/purpose and so urged to have more of an influence on the government, and some therefore sought alliances with the government and modernity

Friday, May 1, 2009

Partha Chatterjee, “On Civil and Political Society in Postcolonial Democracies,”

Partha Chatterjee, “On Civil and Political Society in Postcolonial Democracies,” in Civil Society: History and Possibilities, ed. Sudipta Kaviraj and Sunil Khilnani, 165-178. (Cambridge: Cambridge University Press, 2001).

SUMMARY: Article looks at the development of civil society in modern India. It begins with the controversy of Nabinchandra Sen refusing to come to Bankimchandra Chattopadyay’s condolence meeting, and how it ultimately is a debate over the use of civil society (165-170). He defines civil society (172), and shows how it is problematic in postcolonial countries (172-173). He then offers that his idea of political society can help resolve this problem (173), but first explains how the idea of “family” and “population” developed (173) and the response to it by different kinds of nationalists (174-175), and many use the political society, which is describe (176-178).

165-paper looks at “the reasons for Nabinchandra Sen’s refusal to come to Bankim’s memorial meeting”; Bankimchandra Chattopadyay: “the most renowned modernist literary figure in nineteenth century Bengal, died on 8 April 1894.”; Nabinchandra: “one of the most respected senior figures on Bengal’s literary scene and a younger contemporary of Bankim in the civil service,” he was (166) “known to have been close to Bankim and, although he did not often share what he thought were the latter’s excessively Westernized literary tastes, he clearly deferred to his superior’s erudition, intellect, and public standing. The reasons for Nabinchandra’s refusal had nothing to do with Bankim. Nabinchandra objected to the very idea of a public condolence meeting.”; “’Imitating the English, we have now begun organizing “condolence meetings”,’ Nabinchandra wrote. ‘As a Hindu, I do not understand how one can call a public meeting to express ones grief.’…’Our’ grief, he claimed, was ‘sacred’; it drove one into seclusion…A meeting in a public auditorium could only create, he thought, the atmosphere of a public entertainment; this was not ‘our way of mourning for the dead’.[direct quotes]”

166-in response to this criticism, “Rabindranath Tagore wrote an essay in the journal Sadhana.” And admitted that it was a new practice, “But, like it or not, because of our European contacts, both external conditions and subjective feelings were undergoing a change. New social needs were arising, and new ways would have to be found to fulfill them…But merely because they were European in origin was not a good reason for rejecting them outright.” [Chatterjee’s paraphrasing]

-“The main point of objection to the idea of a public condolence meeting seems to have been its krtrimata, artificiality…sometimes it indicated a ‘mere’ form, empty within; sometimes it could even describe behaviour that is insincere, false…The krtrim form of a public meeting was inappropriate, he [Nabinchandra] must have said, for expressing an emotion as intense and intimate as grief at death of a loved one.”

-Rabindranath wrote that “A certain krtrimata was unavoidable if social (167) norms were to be followed…Surely, not everything could be left to individual taste and feeling. Artificiality could be said to be a defect in matters which were strictly internal to the self, where individual feelings reigned supreme. But society being a complex entity, it was not always easy to determine the boundary between the domain of the individual and that of society. In matters pertaining to society, certain universally recognized rules had to be followed if social relations were not to degenerate into anarchy…society deems it necessary to regulate and order these aspects of life in a way that is beneficial for all of society.” [a paraphrase], and says that “The specific forms of social regulation in India reflect this domestic character [which rested on the authority of householder parents and elders] of traditional society. But this was now changing.” Whith the emergence of new concepts: “public” and “private” and with them, new responsibilities, and so new public responsibility was for publicly mourning death which was as “’artificial’ as before, but it was a new form in which not just the members of the household but members of the public were required to participate.” [a paraphrase], and added (168) that he thought that the public is “not yet a proper public” and needs to be educated on their role—this is a restatement of the “nationalist project of modernity under Colonial conditions”; and Rabin goes on to say the India’s “social life is seriously incomplete” because it doesn’t have a place for women, a literary society, and instead of loving their great men as real people, they worship them (and the public memorial service would solve this last issue because it humanizes people)

169-What Rabin was calling for was a “new conception of personhood where the private and the intimate are, as it were, always oriented towards a public.”; a lot of literary activity and civil social institutions

-later in his life, Nabinchandra wrote he thought that literary groups were wasteful because they were just places for idle talk, and that traditional religious rituals and pilgrimages for great poets should be restarted, and that European-style gatherings (including Christian churches) were merely done for show and to impress people, and (170) does not think that celebrations help to humanize greatness

170-these opposing view bring to light the question of does modernity require adopting a Western style civil society?

-today in India, memorial services occur without debate, and are done similarly to the Western style (wreaths, moment of silence, speeches), though adds a few Indian touches (incense, garlanding portraits)—the practice is seen as secular though it has Christian roots—and when they are state-run, there is an attempt made to have people representing India’s religions to present a recitation, prayer, etc.

171-Chatterjee offers that the idea of political society is helpful “to think of a domain of mediating institutions between civil society and the state.”

72-civil society: “those characteristic institutions of modern associational life originating in Western societies which are based on equality, autonomy, freedom of entry and exits, contract, deliberative procedures of decision-making, recognized rights and duties of members, and other such principles.”, this is the classical sense, though there have been revisions (cf Cohen and Arato Civil Society and Political Theory)

-but in “countries such as India”, civil society is only used by a small section of its “citizens”, though the legal apparatus of the state has been able to…reach as the target of many of its activities virtually all of the population…”; “This hiatus is extremely significant because it is the mark of non-Western modernity as an always incomplete project of ‘modernization’ and of the role of an enlightened elite engaged in a pedagogical mission in relation to the rest of society.”

-“The common approach [to conceptualizing the rest of society that does not have civil society] has been to use a traditional/modern dichotomy. One difficulty with this trap, not at all easy to avoid, [sic] of dehistoricizing and essentializing ‘tradition’. The related difficulty is one of denying the possibility that this other domain, relegated to the zone of the traditional, could find ways of (173) coping with the modern that might not conform to the (Western bourgeois, secularized Christian) principles of modern civil society.”

173-“I think a notion of political society lying between civil society and the state could help us see some of these historical possibilities.”, “By political society, I mean a domain of institutions and activities, where several mediations are carried out. In the classical theory, the family is the elementary unit of social organization: by the nineteenth century, this is widely assumed to mean the nuclear family of modern bourgeois patriarchy…([which] by the late nineteenth century, the contractually formed family becomes the normative model of most social theorizing in the West as well as of reformed laws of marriage, property, inheritance, and personal taxation. Indeed, the family becomes a product of contractual arrangements between individuals and are the primary units of society.) In countries such as India, it would be completely unrealistic to assume this definition as obtaining universally. In fact, what is significant is that in formulating its policies and laws that must reach the greater part of the population, even the state does not make this assumption”

-“The conceptual move that seems to have been made very widely, even if somewhat imperceptibly, is from the idea of society as constituted by the elementary units of homogeneous families to that of a population, differentiated but classifiable, describable and enumerable.” [cf Foucault History of Sexuality], helped also by “colonial anthropology and colonial administrative theories.”; “population, then, constitutes the material of society. Unlike the family in classical theory, the concept of population is descriptive and empirical, not normative. Indeed, population is assumed to contain large elements of ‘naturalness’ and ‘primordiality’; the internal principles of the constitution of particular population groups is not expected to be rationally explicable since they are not the products of rational contractual association but are, as it were, pre-rational.”, it just makes populations “a set of rationally manipulable instruments for reaching large sections of the inhabitants of a country as the targets of ‘policy’.”

174-“Civil societies, on the other hand, if they are to conform to the normative model presented by Western modernity, must necessarily exclude from its scope the vast mass of the population”, “Civil societies in such countries is best used to describe those institutions of modern associational life set up by nationalist elite in the era of colonial modernity, though often part of their anti-colonial struggle. These institutions embody the desire of this elite to replicate in its own society the forms as well as the substance of Western modernity. We can see this desire working quite clearly in the arguments of Rabindranath…It is indeed a desire for a new ethical life in society, one that is in conformity with the virtues of the Enlightenment and of bourgeois freedom and whose known cultural forms are those of secularized Western Christianity…It is well recognized in that argument [of Rabincranath] that the new domain of civil society will long remain an exclusive domain of the elite, that the actual ‘public’ will not match up to the standards required by civil society and that the function of civil social institutions in relation to the public at large will be one of pedagogy rather than of free association.”, most of India’s colonial civil societies “survive to this day, not a s quaint remnants of colonial modernity but often as serious protagonists of a project of cultural modernization still to be completed. However, in more recent times, they seem to have come under siege.”

-“It is often said, not unjustifiably, that the reason why liberal democratic institutions have performed more creditably in India than in many other parts of the formerly colonial world is the strength of (175) its civil social institutions which are relatively independent of the political domain of the state. But one needs to be more careful about the precise relationships involved here.”; “Before the rise of mass nationalist movements in the early twentieth century, nationalist politics in India was largely confined to the same circle of elites which was then busy setting up the new institutions of ‘national’ civil society. These elites were thoroughly wedded to the normative principles of modern associational public life and criticized the colonial state precisely for not living up to the standards of a liberal constitutional state. In talking about this part of the history of nationalist modernity, we do not need to bring in the notion of a political society mediating between civil society and the state.”, “…even as the associational principles of secular bourgeois civil institutions were adopted in the new civil society of the nationalist elite, the possibility of a different mediation between the population and the state was already being imagined [cf Chatterjee Nation and its Fragments], one that would not ground itself on a modernized civil society.” , “It had to do with the fact that the governmental technologies of the colonial state were already seeking to bring within its reach large sections of the population as the targets of its policies. Nationalist politics had to find an adequate strategic response if it were not to remain immobilized within the confines of the ‘properly constituted’ civil society of the urban elites. The cultural politics of nationalism supplied this answer, by which it could mediate politically between the population and the nation-state of the future.”—this was Nabinchandra’s argument and Gandhi’s maneouvre

176-this mediation “takes place on the site of a new political society”, uses “Modern political associations such as parties” though these were sites of “strategic maneouvres, resistance, and appropriation by different groups and classes…[they] are not always consistent with the principles of association in civil society.”; “The major instrumental form here in the post-colonial period is that if the developmental state which seeks to relate to different sections of the population through the governmental function of welfare correspondingly, if we have to give a name to the major form of mobilization by which political society (parties, movements, [etc.]…) tries to channel and order popular demands on the developmental state, we should call it democracy. The institutional forms of this emergent political society are still unclear. Just as there is a continuing attempt to order these institutions in the prescribed forms of liberal civil society, there is politically an even stronger tendency to strive for what are perceived to be democratic rights and entitlements by violating these institutional norms…the uncertain institutionalization of this domain of political society can be traced to the absence of a sufficiently differentiated and flexible notion of community in the theoretical conception of the modern state. In any case, there is much churning in political society in the countries of the post-colonial world, not all of which are worthy of approval, which nevertheless can be seen as an attempt to find new democratic forms of the modern (177) state that were not thought out by the post-Enlightenment social consensus of the secularized Christian world.”

177-“There are at least four features of political society in post-colonial democracies which need to be noted. [1] First, many of the mobilization sin political society which make demands on the state are founded on a violation of the law. They may be associations of squatters, encroachers on public property, ticketless travelers on public transport, habitual defaulters of civic taxes, unauthorized users of electricity, water, or other public utilities, and other such violators of the law…the very collective form in which they appear before the state authorities implies that they are not proper citizens but rather population groups who survive by sidestepping the law. [2] Second, even as they appear before the state as violators of the law, they demand governmental welfare as a matter of ‘right’. There is a clear transformation that has occurred here from ‘traditional’ notions of the paternalistic function of rulers. Even as we may look for specific genealogies of the ‘pastoral function’ in non-Western societies, the rhetoric of rights is without doubt a very recent mass phenomenon in these countries and can only be regarded as the effect of a process of globalization of modern governmental technologies along with the language of democratization. [3] Third, even as welfare functions are demanded as a right, these rights are seen to be collective rights. They are demanded on behalf not of individual citizens (since this position is, in any case, unavailable to violators of the law) but of a ‘community’, even if this community is only the product of a recent coming together through the illegal occupation of a particular piece of public land or the collective illegal consumption of a public utility. Individual rights have no standing when the individuals are known violators of the law; collective rights can mean something when an older ethic of subsistence is married to a new rhetoric of democratization. [4] Finally, the agencies of the state and of non-governmental organizations deal with these people not as bodies of citizens belonging to a lawfully constituted civil society, but as population groups deserving welfare. The degree to which they will be so recognized depends entirely on the pressure they are able to exert on those state and non-state agencies through their strategic manoeuvres in political society—by making connections with other marginal groups, with more dominant groups, with political parties and leaders, etc. The effect of these strategic moves within political society is only conjunctural, and may increase or decrease or even vanish entirely if the strategic configuration of (usually) local political forces change. But that is the ground on which these relations between population groups and governmental agencies will (178) operate within political society. This is very different from the well-structured, principled and constitutionally sanctioned relationships between the state and individual members of society.”, cf Chatterjee “Community in the East” Economic and Political Weekly 32, 6

178-offers 3 “these that might be pursued further”: “1. The most significant site of transformations in the colonial period is that of civil society; the most significant transformations occurring in the post-colonial period are in political society. 2. The question that frames the debate over social transformation in the colonial period is that of modernity. In political society of the post-colonial period, the framing question is that of democracy. 3. In the context of the latest phase of the globalization of capital, we may well be witnessing an emerging opposition between modernity and democracy, i.e. between civil society and political society.”

-also notes that after Rabinchandra died, he, more than any other writer, has been deified and his grave has become a pilgrimage site.

Monday, April 27, 2009

Robert D. Baird, “Religion and Law in India: Adjusting to the Sacred as Secular,”

Robert D. Baird, “Religion and Law in India: Adjusting to the Sacred as Secular,” in Religion and Law in Independent India 2nd ed., Robert D. Baird, ed., 7-34 (New Delhi: Manohar, 2005).

SUMMARY: The goal of this paper is to look at the place of law and religion, examines “traditional views that frequently come into conflict with The Constitution of India and the laws that are enacted by Parliament intending to implement that Constitution. Discusses the historical use of Manusmriti (8-12), the difference between that and India’s Constitution (15-16), the Constitution’s conflict with religion—that they are both opposing ideologies (18-19). Looks at legal developments in Parliament’s legislation: the Hindu Code Bill (19), the implications of Article 44 (19-20), the different schools of religious law in 1947 (20), the Constituent Assembly debate over Article 44 (20-22), the history of the Hindu Law Committee (22-23), and the arguments for the Hindu Code (23-24). Looks at legal decisions in the courts: the problem with the definition of religion versus secular (24-26), ending the idea that gods can own (26-27), their rulings on archakas (27-28), on excommunication (28-30), their “reification” of religions (30-32), how it deals with the inherent contradictions in the Constitution (32-34). Baird concludes by saying that the Indian government uses “religion” to interpret other “religions” (34).

7-“In traditional societies such as India, what we term religion is not seen so much as one aspect of society, but rather basic to all of society.”

-“The Constitution of India is less a consensus document than a document that was forged by an educated elite, strongly influenced by the ideology of the Enlightenment, and guided by influential spokespersons such as B.R. Ambedkar and Jawaharlal Nehru. More traditional voices were heard, but with notable exceptions, it was the voice of the Enlightenment that emerged victorious. This voice sought to protect minority points of view and diverse religious traditions. But inherent in that attempt at protection was the need to compel traditional points of view to give up parts of their traditions in order to provide opportunities for previously disenfranchised people.”

-AIM: to look at the place of law and religion, examines “traditional views that frequently come into conflict with The Constitution of India and the (8) laws that are enacted by Parliament intending to implement that Constitution.”, and so “we will deal with some basic principles of Manusmrti, or The Laws of Manu, as it is commonly known.”

-Manusmriti: “It is unlikely that this text was ever implemented in its entirety. In fact, it contains principles, and then offers alternatives when those principles are violated. That is an acknowledgement that it was not fully implemented…Furthermore, Manusmriti embodies an attempt on the part of the Brahmans…to capture power from the kshatriyas…for themselves by making them the authority for legal and moral issues.”, and W. Doniger [in The Laws of Manu] says that “other ancient legal texts were more widely used in legal circles.”, but Derret and Lingat [Religion, Law and the State] “hold that during the British period, Manusmriti, in conjunction with the commentaries, was widely used by jurists.”, and Doniger says in colonial India, “’Hindu Law’, or dharma shastra, was applied to nearly 80 per cent of the population of colonial India in matters of marriage and divorce, legitimacy, guardianship, adoption, inheritance, religious endowments, and so on. And in present-day India, Manu remains the basis of the Hindu marriage code, as it defines itself vis-à-vis Muslim or secular (governmental) marriage law.” [Direct quote from Doniger]

9-according to the Manusmriti it is divinely sanctioned (as opposed to sanctioned through experience or discussion), and laws are “eternally binding upon humankind”, and so in it “religion and law are inextricably bound together”, and so the law is also divinely sanctioned—“In modern times this has been the primary obstacle to forming a uniform Civil Code as called for in Article 44 of The Constitution of India.”
10-in it, “justice is served when every person or group does his or her duty and is treated appropriately in the light of the way the universe inherently is. Manu’s universe is not one in which everyone is created with equal abilities or opportunities. Moreover, it is a universe that speaks to duties rather than rights [for each group]…When these duties are realized, justice is achieved.”

-“The four classes (varnas) emerge from the body of God, and are therefore part of the creative act and part of the world as it comes from the Creator.” [PROB: not, like medieval Xnty], (11) “Each person’s duty is matched with his or her creative nature and…If they fail to do so and if punishment is require, that also is applied unequally.”

12-“The doctrines of karma and rebirth permeate the history of Indian religion.” And so they are “connected to legal materials. They do not widely modify law and punishment, but they do supplement such matters by holding that punishments from one life to another argument punishments that kings are expected to impose for crimes committed.” [PROB: not, diff than xnty]

14-looks at legal developments in independent India in terms of the Constitution (enacted by the Constituent Assembly in 1949); (15) in it, “India maintained its intent to be a secular state and Muslims who remained in India were represented in the Assembly. Indian Muslims today constitute the second largest body of Muslims in the world, second only to Indonesia.”, in the Constitution, there is no prohibition on conversion though there was debate over it in the Assembly, because Muslims and Christians argued that it was part of what it meant to be Muslim and Christian [cf Smith India as a Secular State ch. 6]

15-“B.R. Ambedkar, a former untouchable, who was educated at Columbia University (U.S.), chaired the Assembly and exerted considerable influence over it. The Constitution of India is, with few exceptions, a modern human rights document…unlike Manusmriti, constitutional [sic] this justice is based on the principle of equality. This equality extends to all men irrespective of caste, and to women in the same way as to men…[and] makes special provisions for those who have been the objects of past discrimination in order to seek a level playing field for all Indians. Article 17 abolishes untouchability and Article 16 (4) provides for the possible reservation of positions for persons in ‘backward classes.’”; and “in contrast with Manusmriti, seeks justice in this life. The doctrines of karma and rebirth are not denied, nor are they affirmed…Moreover, whatever retribution is enacted for those who violate these principles has to be enacted by a duly elected Parliament and is not left to one’s karma for punishment.”, and “While Manusmriti dealt with dharma or duty, the Constitution deals with rights. One member of the Constituent Assembly pointed this out and suggested that in addition to a section of ‘Fundamental Rights” there be a section of “Fundamental Duties.” That was never included. Moreover, (16) while Manusmriti claims the divine for its authority, The Constitiution…does not mention that realm. Elsewhere, I identified the ultimate values whereby Jawaharlal Nehru legitimated his notion of the secular state. Those values were that his view was rational and scientific, Indian, and modern. [cf Baird Essays in the History of Religions v.11, p.133]…These principles were basic for Nehru in that they were not in need of justification, but rather were used to justify other decisions. In his speech moving the Objectives Resolution at the Constituent Assembly, he stated ‘…we adhere to certain fundamental propositions which are laid down in this Declaration. These fundamental propositions, I submit, are not controversial in any real sense of the word. Nobody challenges them in India and nobody ought to challenge them, well, we shall accept that challenge and hold our position.’ [direct quote from Nehru Independence and After, emphasis added by Baird]”; plus “The modern human rights orientation is asserted in the preamble to the Constitution.” --Eg: “We, the people of India…resolved…to secure all its citizens: justice…liberty…fraternity…”

18-the fact that there are “restrictions on the otherwise free exercise of ‘religion’ constitute an admission that a conflict exists. It suggests that the Constitution may well be in conflict with traditional religious practices…In cases where a conflict…arises, religious change becomes a necessity for religious survival. But survival can only be partial can only be partial, as the conflicting tradition is modified so as to ease the grounds for conflict.”; “one of the devices for handling religious conflict is through the categories of ‘religion’ and the ‘secular.’ According to the Constitution, life can be divided into these two all-encompassing categories. It is the category of ‘religion’ that is granted freedom. But over against ‘religion’ is the ‘secular’ for which the same degree of freedom is not provided. Sometimes the realms of ‘religion’ and the ‘secular’ are closely related or even overlap, but it is the view of the Constitution that they ought not be confused. The very used of these categories is strikingly modern, and it is modernity that necessitates religious change.” And neither Hindu nor Muslim traditions considered “’religion’ as a segment of existence. Even the Supreme Court recognizes this to have been the case…’Sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character.’ [direct quote from Shri Govindlalji v. State of Rajasthan 1963]

19-“Since the Constitution and the more traditional ways of looking at life are ideologies that involve ultimate values, they are both to that extent religious. [cf Baird Category Formation and the History of Religions] These categories, then, are not only a means for handling religious conflict and religious change, but are at the same time part of the religious system whose survival is constitutionally assured. Hence it is determined that religious conflict is handled through categories contained in one of the two conflicting ideologies. The categories of ‘religion’ and the ‘secular’ have become axiomatic, so that neither side of litigation is able to deny or question the categories themselves. The categories are given sanction as part of the ideology of the Constitution. Once the legitimacy of these two categories is no longer questioned, certain activities can be relegated to the ‘secular,’ thereby being cut off from the constitutional provisions for ‘religious’ freedom.”; “Law for the modern Indian state, then, departs rather significantly from Indian traditional thought. That departure is embodied in the Constitution. While the Constitution has been amended on numerous occasions by Parliament, it is that Constitution enacted into law and understood by the Supreme Court that is basic to understanding religion and law in independent India.”

-looks at legal developments in terms of “legislation by Parliament”; “During the years 1955-56, Parliament passed a number of laws that are referred to as the ‘Hindu Code Bill.’ The scope of this legislative endeavor as well as the discussion that surrounded it demonstrated that the overriding issue was the secularization of law. The religious sanction of personal law which is found in Manusmriti continues into the modern period. This results in the claim that personal laws are part of religious traditions, whether one is considering the majority Hindu tradition(s) or the India Muslim tradition(s).”

-“Article 44 of the Constitution reads: ‘The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.’ This article is included in Part IV of the Constitution titled ‘Directive Principles of State Policy.’ The articles in this Part are advisory for Parliament, but if not fulfilled, are not judiciable. Article 44 is based on the assumption that the Indian (20) secular state requires the secularization of law—that civil law should be the same for all Indians in order that nation building can continue and that all persons can be welded together equally into a modern Indian state. This requires that traditional religious expressions become modified so that they are more and more a matter of personal faith, and that the state mold a modern civil code based on justice in terms of equality…If Articles 25 and 26 secularized social reform, economics and politics, Article 44 necessitates the secularization of law.”

20-in 1947, laws in India concerning “marriage and divorce, inheritance, and join property” varied between religions and within Hindusim; “The Dhayabhaga School was dominant in Bengal and Assam, and the Mitakshara school, along with its four subdivisions prevailed throughout the rest of India. Likewise, Muslim law operated under irreconcilable diversity.” [cf Mahmood An Indian Civil Code and Islamic Law]

-All the 5 Muslims that spoke at the Constituent Assembly concerning Article 44 opposed it, that (21) these matters are religious and “must be regulated with the consent of the religious groups to which they apply” and though one of them acknowledged that for Muslims marriage is a contract and not a sacrament, it is still a religious tradition; but “K.M. Munshi finally spoke for the article and it was his point of view that carried the day. He reminded Muslim speakers that Articles 25 and 26 already regulated the secular activities associated with religious practice and made room for social welfare and reform. As he saw it, Article 44 merely adds the proposition that the personal law of the country should be united at such a time as Parliament thinks proper. As for the protection of minority rights, he throws back at the Muslim speakers the case of the khojas and Cuichi Memons. When the Shariat Act (1937) was passed, they followed certain ‘Hindu’ customs. But since they were Muslims, they were forced to abide by Shariat according to the will of the majority of the Muslims. Such codes, now as then, have to ask what is in the interest of the whole community, and a small segment cannot reasonably stand in the way of that. Singhvi continues by affirming that the intent of Article 44 is the separation of law from ‘religion.’ ‘We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession.” He holds that it is necessary to legislate in matters of personal law without actually interfering with ‘religion,’ even if that means a re-definition of ‘religion.’ [PROB: not, the implication of this is that ‘religion’ is no longer what secularism is not, it is only what secularism says it is] We are at a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so constructed as to cover the whole field of life, we have reached a point where we must put our (22) foot down and say that these matters are not religion, that they are purely matters for secular legislation. This is what is emphasized by this article.’”; but Muslim law has never been changed by Parliament, while “hindu” law has

22-“On January 2, 1944, the government appointed a Hindu Law Committee under the chairmanship of B.N. Rau ‘for the purpose of formulating a code of Hindu law which should be complete as far as possible.’ The Committee of four, including Dr. Dwarkanath Mitler, a former judge of the Calcutta High Court, formulated a Draft Code, and on the basis of this they traveled to the major population centers of India to hear witnesses both for and against the proposed code. To their surprise, most of the witnesses were opposed to the Code on the grounds that it interfered with Hindu religion, i.e. involved the secularization of personal aw.”; Nevertheless, “the draft Hindu Code Bill was introduced into the Old Central Assembly in 1947 prior to the partition of India, but received such opposition that it was temporarily dropped. The bill was again debated on the floor of the Constituent (23) Assembly (legislative), but again, as a result of intense reaction, was dropped in September of 1951. But a new Parliament in 1955 and 1956 passed the substance of the Code in the form of four separate bills: Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill, and Hindu Adoptions and Maintenance Bill. The debate that took place on these bills did not center on the secularization of law. By this time those who were opposed to codification because of the secularization of law saw that codification was inevitable so they attempted to effect what were to them desirable changes. As I argue in more detail elsewhere [“Gender Implications for a…” in Personal Laws in Modern India], most of the issues are issues that revolve around gender. They have to do with divorce, polygamy, the rights of widows to remarry, and the rights of women to inherit property. Throughout, the argument was offered that such changes in Hindu law merely gives to women the same rights that men already have.” And it outlawed polygamy

23-“The Hindu Code proposed to deal with all Hindus equally apart from caste. The division of society into four varnas, is in modern times ‘totally obsolete’ and highly objectionable. This was so obvious that no argument seemed necessary on its behalf. Law must be based on equality. Questions of monogamy, divorce, inheritance are treated as secular matters to be determined by the legislature in keeping with the principles of rationality, science, and social utility. While this is in principle true for Muslim law as well, political issues have forced Parliament to desist. Parliament has indicated it is open to codifying and reforming personal law for minority communities as well if it is asked to do so.”

-“It should come as no surprise to learn that these secular principles are affirmed by P.B. Gajendragadkar, a former chief justice of the Supreme Court of India. According to Gajendragadkar, the secular state aims at the implementation of Article 44, the introduction of a uniform civil code throughout all of India. The Hindu Code was merely a step in that direction, while the government prepared Muslim public opinion for the acceptance of the secularization of Muslim family law as well.”, (24) Gajendragadkar said these family matters are “’secular’ in character and are outside the legitimate domain of ‘religion’ as contemplated by Articles 25 and 26 of the Constitution” [direct quote from Gajendragadkar Secularism and the Constitution of India]

24-“in an earlier article, I showed that Nehru legitimated his view of the secular state on the unquestionable ground that [sic] is was modern, rational, scientific, and Indian. [cf “Religion and the Legitimation..” in Religion and the Legitimation of…] This is a continuation of the norms that appeared in the work of Hindu Law Committee. These values are also found in the ground for Gajendragadkar’s decision. The day is gone when one can appeal to ancient texts to settle legal matters. ‘It would be totally unscientific and unreasonable to go back to these ancient texts to find out how we should regulate our daily life today.’ [direct quote from Gajendragadkar The Hindu Code Bill]”; Gajendragadkar argues that the Hindu Code Bill should only be based on principles from the Constitution.; “In the end, then, the Hindu Code Bill was more than a systematic organization of Hindu law for all Hindus. It was also a reconfiguration of Hindu law on the principles of modernity.”

-looks at legal decisions in terms of Supreme Court decisions; (25) the definition is not in the Constitution and so “has been left to the courts, particularly the Supreme Court…if the Court says a certain practice is religious, then it is. Sometimes the ‘religious’ and the ‘secular’ are entwined as in the case of Mahant who by virtue of being the spiritual leader of a community exercises wide powers of property management. But here the Court did not hesitate to say that the administration of property is not religious but secular and therefore falls under potential government control.”

25-“The Supreme Court acknowledged that defining religion would be difficult if not impossible. [cf Commissioner, Hindu Religious Endowments, Madras V. Sirur Mutt, The Supreme Court Journal (S.C.J.) v. XXVI, 1954] But it was clear that the definition offered by the American Supreme Court in Davis v. Benson (13 U.S. 333@342) which centered on a Creator and the obligations that Creator imposed on his creation would not help in the Indian arena. To define ‘religion’ in a theistic manner would define Buddhists and Jains out of existence. Moreover, ‘religion’ is more than mere belief. ‘A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.’ [Direct quote from Madras v. Sirur Mutt]” ; in the Madras v. Sirur case, “the concept of ‘essentiality’ was introduced. The Court held that what was essential to a religion was to be determined ‘with reference to the doctrines of that religion itself.’ [direct quote] At first the Court seemed to say that it was the believers of a religion that would determine what was essential. Later it acknowledged that religions (26) are not usually monolithic and that the Court would have to make the determination. In the end the Court was unable to offer a definition of ‘religion’ and contended itself with determining whether specifications were religious as the circumstances demanded.”

26-“Although these categories have never been defined by the Courts, they are nevertheless used to resolve conflict. Sometimes a practice is considered unessential to a religion, while on other occasions the Court seems to act on its own advice in Panachand Gandhi v. State of Bombay [1954] that in difficult cases the ‘court should take a commonsense view and be actuated by considerations of practical necessity.’ [direct quote]”

-in Madras v. Sirur “it was held that the determination of what rituals were necessary in a temple was a ‘religious’ matter, but that the scale of expenses for the rituals was a ‘secular’ matter and could legitimately exist under governmental control.” [cf Digyadarshan R.R. Varu v. State of A.P. 1970], and when Sikhs contested this in Sardar Sarup Singh v. State of Punjab 1959] the Court upheld their view

-“In Bira Kishore Deb v. State of Orissa [1964], it was argued that the Shri Jajannath Temple Act of 1954 deprived the Raja of Puri of his personal property…The Court…maintained that the Act in no way limited the Raja in his ‘religious’ functions but only intended to regulate the ‘secular’ affairs of the temple. Section 15 (1) of the Act required that an appointed committee provide for the proper maintenance of worship in accord with the Record of Rights. The Court pointed out that there were two aspects to sevapuja. The one aspect has to do with the provision of the proper materials for the puja and (27) this is a ‘secular’ matter.”; “It seems clear that it is the committee that decides what is demanded by the Record of Rights and not the prest or servant…since this is intended as guarantee of ‘religious’ integrity, held the Court, it cannot be an interference with ‘religion.’ But what the adya sevak is left with is the performance of duties mandatory upon him as determined by the committee in the light of the Record of Rights. Hence the determination of duties which are ‘religious’ in accord with the Record of Rights is not itself a ‘religious’ determination…So the ‘secular’ management of the temple includes not only the financial matters but also the determination of the ‘religious’ rites demanded by the Record of Rights.”

27-“Several petitions representing Vaishnava and Saivite temples in Tamil Nadu contend that the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act (1970) infringed upon their ‘relgiious’ rights in doin away with the hereditary rights of succession to the office of archaka (pujari-priest) in their temples.” [cf Seshammal and others v. State of Tamil Nadu (1972)], they said it violated Article 26(b), and that hereditary succession was essential to their religion; the Court reviewed the Agamas and agreed that having someone from another denomination would defile the image, but the Court rejected the (28) idea that hereditary succession was essential. What was essential was that the image not be polluted.” And that the hereditary principle was not “religious,” but “common usage”, plus this was supported for the Court by the fact that “any lay founder of a temple can appoint a priest”, so even though “what the archaka did in the temple in his function as pujari was ‘religious,’ the appointment of archaka and the matter in which it was done was a ‘secular matter…”

28-in Saifuddin Saheb v. State of Bombay (1962), “The issue at stake was whether the Bombay Prevention of Excommunication Act (1949) was in conflict with Articles 25 and 26 of the Constitution…An earlier case [from 1948] had determined that it was within the power of the Dai [a Shia leader] to excommunicate. The petitioner argued that the practice of excommunication was essential, for without it the purity and continuity of the denomination could not be safeguarded by removing persons unsuitable for membership.”, (29) but some in the Court said it wasn’t essential, that it was “secular” and affected people’s civil rights; “In his minority judgment, Sinha, C.J., interprets the Act as the culmination of the history of social reform which began with provisions of the Bengal Code which were later incorporated in the Caste Disabilities Act of 1850…[He also] introduced a slightly different category. Instead of merely speaking of ‘religion’ and the ‘secular,’ he referred to excommunication as not being ‘purely religious’ or ‘wholly religious.’…When an Act is not ‘purely religious’ this means that there are civil consequences to the activity under consideration, not was he interested in distinguishing what they might be. He was responsible for making a judgment about actions touching on the civil rights of members of the community. Since excommunication treated the excommunicated much as a pariah, and since the Constitution abolished untouchability, the Act is valid.”, But even though this kept with the ideology of the Constitution, the Constitution also grants communities the right “to regulate themselves in matters of ‘religion.’ It was for this reason that the majority of the Court judged the Act unconstitutional.” And said excommunication was essential, and (30) one judge who has this view ignores the “civil rights” issu—“They are secondary and not his concern”—so both sides had to ignore the other side; the categories of “religious” and “secular” are “inadequate”

30-“one device used when the categories are inadequate to handle the conflict without assistance is what might be called reification. Reification is the treatment of an historical process characterized by diversity and change as a single objective entity. In the study of religion it is the treatment of ‘Hinduism,’ ‘Buddhism,’ and the like, as units of thought and practice. [cf Baird Category Formation and the History…] Where there exists a conflict between the religious claims of a community and the Constitutional ideology, the Court has used reification in aid of ‘religion’ and the ‘secular.’ This method is apparent in M.H. Quareshi v. State of Bihar [1958] contesting the constitutionality of three acts for the prevention of cow slaughter, the petitioners argued that their fundamental rights under Article 25 of the Constitution were abridged…The petitioners claimed that this was enjoined in the Holy Qur’an, but the Court contended that the verse referred to merely stipulated that people should pray and offer sacrifice. Operating under a reified concept of (31) Islam, the Court made a search for a scriptural statement making the sacrifice of a cow obligatory. A lack of obligatoriness would suggest that the practice was not essential to Muslim faith…their custom was not sufficient. By treating Islam as a reified entity and considering the petitioners as Muslims, their specific contemporary practices could be ignored…and since it was not essential it was not protected under Article 26 of the Constitution.”

31-“Another concept which takes the Court beyond the categories of ‘religion’ and ‘secular’ is superstition. Gajendragadkar, J., used this concept in Durgah Committee v. Hussain Ali [1961]. There he stated that an historical community might sincerely believe that a practice is essential to their religion when it is merely a superstitious accretion. In Yagnapurushdasji v. Muldas [1966], this concept plays a more decisive role in his decision. The issue was whether the temples of the Swaminarayan Sampradaya sect come under the Bombay Hindu Places of Public Worship Act (1956), since the appellants contended that they were not Hindus but a separate religion. At the end of a lengthy consideration of the nature of Hinduism and the tenets of the Swarminaryan Sampradaya sect it was concluded that they were Hindus. Of some importance was the fact that the sect had not objected to being so classified in Census reports… Gajendragadkar, J., held that although the contention of the sect began in sincerity, it was founded on…(33)’superstition, ignorance, and complete misunderstanding of the true teaching of Hindu religion and of the real significance of the tenets and philosophy thought by Swaminarayan himself.’[Direct quote]” –this was reification: “First, there was a determination of the essential tenets of Hinduism. Since the appellants contended they were not Hindus, it was also necessary to find out what the Swaminarayan sect ought to believe if it were true to its founder. The result of the Court’s research was that, although the appellants were sincere in their contention, they did not properly understand their own faith.” And this was equated with superstition and ignorance

32-“In Venkataramana Dvaru v. State of Mysore [1958], the Gowda Saraswat Brahman sect contended that the Madras Temple Entry Authrization Act (1947)…was a violation of Article 26(b)…They hel that who was entitled to participate in temple worship was a matter of ‘religion.’ Admitting the precedent that ‘religion’ includes practices as well as beliefs, the Court proceeded to determine whether exclusion of a person from a temple was a matter of ‘religion’ according to ‘Hindu ceremonial law.’ The Court observed that along with the growth of temple worship, there also grew up a body of literature called Agamas…One such text includes degrees of participation”, and (33) based on that text, the Court at first thought that this meant low castes could be within viewing distance, but it was brought up that “In a 1908 case, Sangkarakinga Nadam v. Raja Rajeswara Dorai, it was agreed by the Privy Council that trustees who agreed to admit persons into the temple whom the Agamas did not permit were guilty of breach of trust. The Court agreed that temple entry was a matter of ‘religion.’” But then the Court admitted this conflicted with Article 25(2)(b) (opening all Hindu institutions to all classes), “Appeal was made to the ‘rule of harmonious construction’ whereby two conflicting provisions are interpreted in such a manner as to give effect to both. The Court then agreed to the opening of the temple to all classes of Hindus. The right of the denomination to exclude members of the public from worshipping in the temple, although protected under Article 26(b), must give way to Article 25(2)(b). This does not mean that anyone can go into any part of the temple at anytime. Hence the denomination was permitted the right to exclude the general public from certain religious services. The Court felt that it had given effect to both provisions in as much as even after the exclusions from certain religious services, ‘What is left to the public of the right of worship is something substantial and not merely the husk of it.’ [direct quote”, (34) “The judgment said, in effect, that traditional practices could not be maintained in their entirety because Article 25(2)(b) denied such practices….This case, then, admits the existence of a conflict between tradition and the new ideology, and it implements religious change.”

34-“I have called this ideology which distinguishes ‘religion’ and the ‘secular’ a ‘New Great Tradition.’ [cf “Uniform Civil Code…” in Essays in the History of Religion] It is enshrined in the Constitution, embodied in legislation passed by Parliament, and enforced in the courts. Since independence there has been occasional opposition to it, none perhaps more threatening than the present opposition from the Hindu right. This segment of India is presently in power politically (2001), and some have called for a revision of the present Constitution. That proposal has itself been the object of considerable discussion. The argument is that under the existing Constitution, minorities have been favored over the majority community and that must charge.”—this is a “religious conflict” because “it is a conflict over the ultimate way one perceives the world.”, some see sacred as encompassing everything and some “seek to distinguish between ‘religion,’ and the ‘secular’ realms of the economy, society, politics, and law.”

Sunday, April 19, 2009

Raminder Kaur, “Spectacles of Nationalism in the Ganapati Ustav of Maharashtra”

Raminder Kaur, “Spectacles of Nationalism in the Ganapati Ustav of Maharashtra” in Picturing the Nation: Iconographies of Modern India, Richard H. Davis ed. (New Delhi: Orient Longman, 2007), 206-241

SUMMARY: Article looks at the nationalist representations in mandap at the annual Ganapati festival in Mumbai and Pune. Categorizes the mandap (208), gives a history of the festival (209-211), describes the 6 kinds of nationalist (rashriya) displays (211-213). The rest of the essay is spent describing the 7 tropes used in the tableaux (214): first explains the use of religious themes in the tableaux (215-218); heroes (218-220); events (221-223); space (223-225); gender (225-228); the Other (228-230); progress (232-235); and anicononic emblems (236-238). The author ends by saying these types or “imagining” are different than the media’s type (239-241).

208-“This chapter considers the main features of…nationalist displays and performances.”, like those at the Mumbai Ganapati Ustav (festival) celebrating India’s independence anniversary, “Indigenously described as rashtriya (nationalist), such displays deal directly with issues to do with the nation—its history, present constituencies, crises, celebrations, and its hope for future prosperity and well-being. The tableaux can be presented in the form of a single vignette or, as…a masala display. Masala narratives invoke religious stories embroidered with the historical, social or topical, and then channeled into a nationalist narrative. For purposes of analysis—an act not removed from festival participants themselves—rashtriya displays can be segregated further into different kinds of nationalism, such as Hindu chauvinistic, “secular” and regionalist. Hindu chauvinist tableaux tend to prioritize the holiness and integrity of the nation and the Hindu religion. “Secular” ones tend to have the Congress predilection. They emphasize the brotherhood between all national religions, primarily, Hinduism, Islam, Sikhism, Zoroastrianism and Christianity, although they posit external threats intent on breaking this bhai-bhai (brotherhood) situation. And regionalist displays refer specifically to a Maharastrian sense of heritage and cohesion. These versions of nationalism lie on a continuum where imagery and concepts to do with particular versions of nationalism seep into one another.”

209-in preparation for the festival, many various members of the community participate in constructing the pandal (canvass to protect visitors from monsoon rains) and the mandap (shrine) for Ganish/Ganapati, many local mandal (organizations) are also involved

-“The deity, Ganapati, is considered vighnaharta (the remover of obstacles), sukhakarta (one who makes happiness and peace), and dukhaharta (one who removes pain and sadness). The scribe of the Mahabharata embodies both wisdom and mischief. He is considered fearful and warrior-like yet benign and beneficent. Effectively, he is an ambivalent god, Ganapati’s devotees see him as lying on the threshold of the divine and mundane realms—a teller of mythical tales, but also a feature of much more earthly tales as shown by the elaborate festive tableaux. In several cases, as we shall see below, Ganapati’s characteristic as a remover of obstacles is vividly re-enacted in terms of his role in ‘removing’ evil from Indian society—whether it is in the form of colonialism, political shenanigans or other social ills.”

210-“The public (sarvajanik) festival was indeed the outcome of an emergent nationalist consciousness. From the 1890s, Bal Gangadhar Tilak and a number of other key community leaders, such as the Ayurvedic doctor Bhausaheb Rangari, were instrumental in politicizing the Ganapati ustav. When the British took over the Peshwa’s rule in western India in 1818, the festival was primarily a religious occasion confined to households and mandirs. From the 1890s, the celebrations were conducted on a grand public scale over a period of eleven days, along with ceremonies, lectures and debates on current issues. British colonial laws against political gatherings were circumvented with the use of a religious festival to publicly disseminate views against the ills of society—including colonialism.”

-“In recent years, nationalism has undergone catalytic change. Anti-colonial struggles embedded in the history of the sarvajanik Ganapati utsava have predisposed the festival to revivalism of nationalist ideals as well as it being part of a campaign for ‘public awakening’ (lokjagriti). The public circuits of media networks and collective gatherings provided a performative occasion to disseminate messages that were probably motivated but often veiled in religious allegories.”

-some have complained about the “’vulgarization’ of the festival—namely, the excessive commercialism, racketeering, and ‘obscene’ behaviour and dances during immersion processions. This was largely a middle-class response to what was seen as the increasing plebeianization of a religious festival. In 1986, newspaper-oriented competitions began to encourage festivals based on religiously and socially progressive grounds. Of these, the Girnar-Loksatta Ganeshotsava competition is one of the longest running, having been established in 1987. Organizers here advocated the principle of national integration through festival praxis, a theme that was adapted by other festival competitions. Centennial celebrations since 1992 recalled the festival’s glorious past during colonial times, when it was seen as having a progressive role to play without undermining its religious purpose to unite people with each other and with god.” Cf Kaur Performative Politics

-“Such project have been coterminous with the political agenda of the Hindutva brigade, particularly since the 1980s…(211)the festival was increasingly used to propagate ideas conducive to the Hindutva project. Topical matters were often filtered through Hinduitva-influenced narratives in mandap tableaux”, Therefore, “versions of the nation are played out in several ways in the festival context”, plus “contradictions and contestatory opinion unsettle overriding conclusions as to the festival’s character…the repertoire of images and themes is shared, but it is given a twist in accord with self- or group-interests. Tehre is a fine line between rashritya (nationalist) and rajnaitik (political) conduct. However, their ethical associations are distinct and, in the end, subject to partialities: to be seen as rashtriya is to be seen as selfless devotion to the nation, where as rajnaitik conduct is seen as self-interest and manipulative.”

-rashriya displays “are a significant component of a wide range of displays”, lists 6 kinds: 1) “religious or mythological” that depict stories of gods and goddesses, usually from the Mahabharata or Ramayana, (212) and Ganapati is sometimes palced in it; 2) historical (aitihasik)—recent historical events (Shivaji, Pshwa’s Court, British, etc); 3) “topical or ‘latest’”, current news; 4) “social” (samajik)—“public good or health-related themes”, environmental awareness, vaccinations, education, need for jobs, water conservation; 5) “theme-based”: Ajanta caves, Nine Planets, etc; 6) “Entertaining” or “commercial”, circus, dancers, etc

-sometimes they are combined; and if you look at cultural representations as indicating nationalism, then they all could be seen as nationalistic and therefore also (213) political, but “rashriya tableaux are still indigenously perceived as distinct from dharmik ones: the former clearly about the nation, the latter ostensibly about religious subject matter. Thus I do not directly consider tableaux depicting solely religious themes around the figure of Ganapati here, only so much as to acknowledge their potency in fueling an already ‘spiritualized culture’ of nationalism. [cf Kapferer Legends of People] The relevance of dharmik tableaux for nationalism in the contemporary festival is implicit due to the (re) constructions of the nation as a Hindu site. Re-presentations of versions of a more inclusive nation, although still articulated in the folds of a Hindu festival, correspond to festival participants’ notion of rashtriya tableaux. In the process, views of the nation are fetishized and eternalized; sacrifices for and veneration of the nation are encouraged and consistently maintained.”

213-“Nationalist ideas appear to be ubiquitous in contemporary India, as increased economic liberalization, media connections and international polity have led to the emergence of greater self-awareness and identity politics.” Which existed in colonial times but increased with growing media economic, and political networks [cf Kothari “Globalisation and Revival of Tradition”], and “narratives of modernity” are mixed with older images to adapt with the Indian context

214-“tropes through which the nation is visualized are premised on several interrelated themes”: 1) people idealized as heroes in struggle for sovereignty and democracy; 2) important events for national consciousness; 3) “representations of gender”; 4) “constructions of the Other”; 5) “presentations of space, nature and territory”; 6) “indices of national progress and modernization”; and 7) “aniconic emblems that evoke the national ideal”

215-“The majority of Hindu festival participants acquiesce with the hegemonic schema, particularly as representations of the nation, and indeed of Ganapati, tend to represent moral universes, and are believed to lie beyond contestation.”, though there are still different kinds of representations/interpretations [cf Richman “Epic and State: Contesting…” and Monkekar “Television Tales”] but there is a “’bounded’ range of innovations and negotiations” and none are copies of another; and even for a single display the creators (from the mandal president to the art director) have different ideas of its meaning, and human agency

216-and since the political ideas are mixed with ethics and other values, “the political can be sanctified” in colonial times nationalistic ideas had to be hidden but now nationalistic themes are free to be and are promoted, but political views are subsumed to the people appear as though they are putting society before self interest

-Ganapati is highly revered, seen as the “guarantor of justice” and “has come to symbolize the nation itself for festival participants>’, “Conversely, the nation—with its constellation of heroes and heroines, particular histories, achievements, heritage and perceived vulnerability inb the face of outside (217) threats—is considered as sacred and ineffable as the deity.” And is thus the “object of devotion” [direct quote from Kapferer], and the mandaps are then combined with “entertainment idioms” which also (218) give pleasure to the viewer

218-the heroic figures displayed include martyrs, freedom fighters, social workers and even sports and cultural icons “as they are deemed to contribute to the glory of the Indian nation on an international scale”; “As national status lends an air of divinity to the protagonists, their personal and political allegiances are leveled out so that they appear as ‘personalities without personalities’…they are essentially types without psychological individuality, hypostasized icons rather than realistic portraits.”, and while realistic portraits cause viewer to identify with the person, the icon status of these mandal doesn’t

219-and “historical figures” are used even if the user has different political allegiances (eg Shiv Sena and its mandal idolize Gandhi); but “there is perpetual cultural contestation” over these figures (eg some Hindutva groups praise Nathuram Bodse, Gandhi’s assassin) so there is a hierarchy of national icons

-and the figures have “valorized the notion of sacrifice”, the (220) “renouncer-in-the-world”; and people also represent ideals like “unity in diversity” and “soldier, farmer, scientist” (eg mother Theresa and Tilak, respectively)

221-iconic events are portrayed to show a place has a historical lineage (often pre-dating 1947) to create national identity; assassinations play important roles; (222) some religious tableaux show stories of a halcyon national past that becomes corrupted and is redeemed through events—and so this idealizes certain activities to help the nation succeed in its struggle against tyranny, (223) it’s an “invented golden age”; and contemporary issues are also included; (223)-also there are representatives of India’s land and landscape, with (224) the image of the state often anthropomorphosized and scarred or crying over various problems (Kashmir, famine)—(225) representations of nature are linked to “the sanctity of the country”

225-there are common gender prepresentations, “reinforced by latter-day Hindutva”, they show most often “masculine fighters” and “upstanding” females, though there are some exceptions; and men are shown as the products of tilling, (226) “the sons of soil” and women are shown as the tillers and sacred cow—opposed to the androgynous idea adopted by Gandhi “to defeat colonial dichotomies”—men are also associated with Ram, women with Sita—a testament to Chatterjee’s idea (in The Nation and its Fragments) that the inner/home spirituality is extended to make the homeland a sacred space; (227) plus women’s issues are put into the idea that the nation is deteriorating; and women are held up to the sati ideal and (228) therefore are increasingly domesticated

228-representations of the Other are “required” for nationalist discourse, and they vary in rashriya tableaux—British, Muslim, etc; “The Other acts as (229) a foil against which national identity is further crystallized”, Hansen showed that there was a “demise of the Ganapati Utsav as a national vehicle in the 1950s and 1960s when nationalism was seen to have reached its goal and the Other in the form of colonialism was officially expelled in 1947”, but wars with Pakistan (’48, ’64, ’71, ’99) and China (’62) caused an increased feeling of national identity; and now Muslims are “stereotyped as the over-sexed, deceitful, disloyal aggressor” [cf Chakravarty “Towards a Genesis…” in Communalism in India], and frequently Muslims/Pakistanis are shown as non-human beasts or (hindu) demons and disrupting “the harmonious fabric (230) of society”; (230) “internal cleavages of caste and class are to varying degrees mitigated” , and sometimes people of all religions are shown as living together in harmony

232-citing Anderson, says: “Looking forwards, going upwards, advancing forth, gliding into a ‘limitless future,’ are all metaphors which are implicated in nationalist representations.”, and mountains are seen as epitomizing that height; and technological devices (eg planes, satellites, computers) are also often displayed to represent India’s advancement, (233) but these advancements are only considered good if they are useful for the common man, (234) though early on technology was seen as representative of greedy capitalists (235) threatening traditional ways of life, but now this has changed and “This is where the modernist pantheon of ‘farmers, soldiers and scientists’ resides in the national imaginary.”

236-nationalist iconographies are also common and get embedded with “emotional attributes”, eg the tricolor flag is seen as immortal [cf Singh Our National Flag], though there is contestation because Hindutvas promote the saffron flag, but (237) since 1971 it has been illegal to desecrate the tricolor flag as well as national historic sites and the national bird, the peacock, though there was once a Ganapati murti with the tricolors; they have also used a lot of images of light (alluding to darkness of anti-national forces)—though Dyer in White (1997) showed how “light is a fundamental quality of European Christian imagery, which correlates with an ethic of racialized whiteness.”—but fire also connotes purity/sacrifices; plus there’s the internationally popular torch of freedom; so heroic figures are bathed in light in the sound and light shows, and evil figures are in darkness; (238) darkness is also associated with colonialism and self-interest

234-the media allows for the nation’s imagining, but performative events are another kind—not just (240) “projections of the mind, but also the physicality of presence amongst like people. To be in the same place at the same time is not necessarily to say that we make face-to-face encounters but the knowledge and experience of being there in spirit and in mind enables other vectors of national imagining.”, and “The representation of space in the compositions of mandap tableaux, and the territorial use of space, and in the public spread of the mandap, and the public processions to immersion sites are crucial to the national project in envisioning, activating and asserting territorial control and prosperity.”

240-due to the festival’s timing, it becomes an “experience of history in present”, (241) children dress up as national heroes, and so history is also re-lived

241-and because the ideas presented are fluid and can be downplayed or emphasized, through their complex relationships, this is “propagation of cultural, or quite literally, spectacular nationalism”