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.