Administering Religious Institutions
One of the most significant ways in which the Indian state is involved in the religious lives of its citizens is through its control of Hindu religious institutions. The government does also engage with other religions; perhaps the most prominent example of such engagement is the Central Wakf Council, a statutory body that oversees state wakf boards and through them administers movable and immovable properties designated for Muslim religious purposes. Nevertheless, the government has no day-to-day control over the wakfs or over Christian institutions, and overall it does not relate to Muslims and Christians in any way that could be considered parallel or analogous to the depth of government involvement with Hindu temples, mutts (i.e., monasteries), and charitable institutions. Since such oversight is conducted at the state level (and is far more extensive in the southern states than in the north, though it does appear throughout the country), the central government's involvement is minimal. Nevertheless, arguments that “Indian secularism” is a kind of secularism despite such institutional regulation frequently expand on regional conventions to claim that, in India, ruling authorities have traditionally patronized religious institutions. I will return to this point later in this section.
State government regulation of religious institutions goes well beyond the establishment of tax exemptions or annual support and the work of ensuring that institutions do not violate core constitutional principles. Hindu temples are classified as either public (subject to government control and open, with some restrictions, to all Hindus) or private (owned and operated by private families or trusts and serving limited constituencies). In the four southern states (Tamil Nadu, Kerala, Andhra Pradesh, and Karnataka), temple boards or committees operate with differing levels of authority. In Andhra Pradesh, the Tirumala Tirupati Devasthanams govern the Vaishnavite temple at Tirupati, until recently India's richest religious institution,11 while Tamil Nadu and Kerala each have departments in their state governments devoted to the management of public Hindu religious institutions, which number thousands in each state. The specific scope and duties of such administrative bodies vary, but generally they administer temple lands and finances, appoint middle- and lower-level employees (and sometimes priests), and act as legal custodians of the temple. Temples and religious institutions elsewhere in India are usually administered by committees as well, but these are more often tied to families, sects, or trusts than in southern India, where temples are also generally larger, older, and more orthodox in ritual.
By way of illustration,12 in Kerala, five regionally demarcated boards administer all public temples in the state. The boards have between three and nine members each, appointed by the Hindu members in the Council of Ministers (state cabinet) and the Hindu members of the state Legislative Assembly for a period of two to four years. Collectively, the boards are the richest statutory body in Kerala, making board members extremely powerful in their interactions with the state government. Although some positions, like those of priests and special temple musicians, are hereditary, the vast majority of employees attached to any given temple are appointed by the relevant temple board; in addition, hereditary positions, if left vacant, revert to the board's discretion. The boards also issue contracts to vendors for the provision of ritual materials, operation of temple canteens, and repairs to temple properties.
The boards are far from autonomous, however. On the contrary, they must apply to the Kerala High Court for approval for even the smallest of these actions, thanks to judicial efforts since the 1980s that extended the Court's audit powers as a means of minimizing corruption in the boards. Now any work costing more than 100,000 rupees (approximately US$2,200) must gain approval from a court-appointed ombudsman, whereas requests for higher amounts require further inspection. For two days every week, a special bench of the High Court hears only temple-related matters, most of which involve requests for budgetary approval (in one memorable case, regarding a substitute chauffeur for a board president) but many of which involve petitions from devotees, religious associations, and (nonauthoritative) temple advisory committees. The Court also frequently issues suo motu (i.e., on its own initiative) opinions on matters that it deems important and forms special commissions to produce detailed reports on particular aspects of temple management.
Again, relative to other regions of India, government involvement with religious administration is far more extensive in the south. More specifically, I do not by any means intend to suggest that all temple administration in India is subject to the same executive influence and judicial control as in Kerala; nevertheless, across India, the administration of religious institutions in the absence of any pan-Hindu ecclesiastical structure is a complex and challenging affair. It is worth noting, though, that the complexity of governing large, free-standing institutions is not the only factor motivating state control of temples. In addition, public temples are increasingly powerful and dependable sources of income for state governments and for the officials appointed to positions of authority. Moreover, regulation enables the redistribution of funds among all the temples within a given region, thus supporting smaller or less frequently visited temples that would otherwise have to close.
The support of minor temples and the proper administration of religious institutions are both goals consonant with the state's mission to protect and reform religion. Ronojoy Sen (in his gloss on Dhavan) writes, for example, that: “Celebratory neutrality entails a state that assists, both financially and otherwise, in the celebration of all faiths. Reformatory justice involves regulating and reforming religious institutions and practices, setting aside some core elements that are beyond regulation” (Sen 2007, viii). More cautiously, Jacobsohn observes:
In India social reform must always be balanced against the demands of multiple cultures, whose resistance to changes threatening to their ways of life finds support in constitutional provisions that explicitly endorse cultural preservation. Such provisions are as much an expression of political reality as they are a measure of constitutional acquiescence. (Jacobsohn 2009, 155)
But if the management and patronage of religious institutions are both an essential aspect of the Indian Constitution and a practical necessity, then the resulting system is not secular, as it strongly violates the principle of noninterference.
It is true that the establishment of temple boards and ministries, along with court oversight of these bodies, does not constitute the establishment of religion and that both the central government and courts have gone to considerable lengths to ensure that nonestablishment remains a central tenet of the Indian polity. Jacobsohn, for instance, has written extensively on S. R. Bommai v. Union of India (AIR 1994 SC 1918), in which the Supreme Court affirmed secularism as part of the indestructible “basic structure” of the Constitution. In Bommai, several states that had elected BJP governments in the immediate aftermath of the destruction of the Babri Masjid were subjected to Article 356, commonly called President's Rule, whereby existing governments could be dismissed and states placed under direct rule by the central government. The argument of the dismissed governments, that invocations of Article 356 were legitimate only insofar as the governments in question failed to preserve the workings of the democratic process, was emphatically rejected by the Court. Instead, the Court reasoned that “the inability to fulfill a mandate is ultimately less problematic than the fulfillment of one that was anathema to the animating principles of the regime” (Jacobsohn 2008, 52). Bommai is thus widely perceived as reaffirming judicial commitment to secularism—that is, the nonestablishment of religion—as an integral part of India's political and legal identity.
But even if a case like Bommai represents a substantive commitment to nonestablishment (and I agree that it does), it does not constitute a similar commitment to the broader concept of secular governance because separation and nonestablishment are not coextensive. Nonestablishment represents a certain kind of separation of religion and state—that is, a refusal to tie the benefits of citizenship to a particular religion. However, there are other kinds of separation that may be absent in a state with no established religion. Despite its commitment to nonestablishment as demonstrated in Bommai, the Indian state engages in the reformation of religious law, the articulation of who constitutes a true believer, and the administration of religious institutions.
Likewise, evidence of strong antiestablishment sentiment does not negate the clear involvement of India's executive and judiciary branches in the administration of religious institutions, although contextualists seem to imply that it does when they claim that such administration is inescapable in India and should therefore be excused in light of the state's refusal to promote any one religion. In what follows, I will consider an element of this claim, namely, that the government of independent India is like governments in colonial and precolonial India in that it cannot escape regulating Hindu religious institutions because of the complexity and expense involved in doing so.
There are two prominent iterations of this claim, both of which hinge on the idea that rulers in India have never been able to avoid acting as patrons of religious institutions, especially Hindu temples and mutts. The first of these iterations looks back to pre-Islamic Hindu rulers and finds that they were responsible for the protection of religion, whether this role involved patronizing temples or upholding dharma by preventing behaviors (such as the mixing of castes) that endangered the people's spiritual well-being (Derrett 1968; Fuller 2003, 156). The literature on South Indian polities has especially stressed this connection of religion to state power, although Derrett has made the argument with regard to India more generally (Derrett 1968; Good 2004; Appadurai 2008, ch. 2). Indeed, as Derrett (1968, 512) himself stated, “neither Indian history in general nor Hinduism itself denies the validity of the state's jurisdiction.”13
Granville Austin has made a similar argument in his discussion of positive rights and the Directive Principles. In his first work on the Indian Constitution, Austin characterized the heavy involvement of the state in social matters, especially as it is articulated through the Directive Principles, as a legacy of prenationalist Indian history. In India, Austin stated, government—whether “a petty ruler, a Mogul emperor, or the British Raj”—had always been responsible for conceptualizing and implementing the means of social reform in India. The Constituent Assembly's revolutionary aspirations and its choice to vest the power (however hobbled) to fulfill those aspirations with the state was in keeping with Indian experience that “[w]hat the government did not do, or see done, usually was not done” (Austin 2008, 76). However, Austin also—and more frequently—argued that the positive rights of the Directive Principles represented the Assembly's response to the economic aspects of colonial domination, just as the negative rights of Section III of the Constitution addressed the lack of civil liberty under the colonial regime (Austin 2008, 60).
Although contemporary Indian governments perform many of the same duties as their precolonial counterparts—most significantly the redistribution of temple wealth and the arbitration of disputes that cannot be resolved locally—there are important distinctions between the two, as can be grasped by turning to one of the scholars most frequently cited in support of their similarity. Arjun Appadurai, in Worship and Conflict (2008, 63), presented four propositions regarding relationships between kings, religious sects, and temples in Tamil Nadu between 1350 and 1700.
Temples were ritually essential to the maintenance of kingship.
Dynamic sectarian leaders provided the links between kings and temples.
Although the day-to-day management of temples was left in the hands of local (generally sectarian) groups, the responsibility for solving temple conflicts that resisted local resolutions was vested clearly in the human sovereign.
In a particular ethnosociological sense, kingly action regarding temple conflict was not legislative, but administrative.
Note especially that “the day-to-day management of temples” was not the prerogative of the state and that “kingly action regarding temple conflict was not legislative but administrative.” By this last statement, Appadurai meant that kings were not deemed “constitutionally competent” (2008, 69) to issue pronouncements with general and permanent applicability in cases of temple conflict.14 That is, kings' “orders were context specific and context bound,” unlike the later legal systems of colonial and independent India in which case law applied rules formed in one instance to another situation.
It is worth noticing also that Appadurai acknowledges the ritual importance of temples in the maintenance of kingship. Because the modern Indian state considers its decrees binding, not contextually limited, and because the state does not claim to be authoritative on the basis of its involvement in religion, the analogy between it and pre-Islamic Hindu rulers seems decidedly weaker than at first glance. Precolonial kings were not and did not claim to be the heads of secular governments.
Other scholars attempt to bridge many of the chronological and cosmological gaps in this first version of the historical trajectories claim by proposing a second version that finds precedents in the structurally more familiar colonial state. In “Reason, Tradition, Authority,”Mehta (2005, 73) asserts that in the postcolonial context it “turned out to be obvious” that the authority to reform Hinduism would lie with the state, due in large part to the historical precedent set in this regard by colonial practice. Mehta is not the only scholar to have suggested that the state's interest in determining authentic religious practice and in reforming religion has its most significant precursor in the colonial era. Frykenberg (2000) showed that even during the strictly noninterference-oriented days of the East India Company, British governance in India actually involved substantial active support for native religions, often in the face of evangelical criticism back home. When the Company could no longer hide its involvement in native religion under the cloak of commercial necessity or liberal politics, it created a divide between ritual and administrative matters and claimed that the latter was a legitimate function of government. This step laid the groundwork for the various incarnations of the Hindu Religious and Charitable Endowments Department that would begin appearing toward the end of the colonial era, while the addition of Section 599 to the Madras Code of Civil Procedure enabled the courts to prescribe increasingly specific remedies for temple issues, thereby fostering the judicial regulation of religion. From the mid-nineteenth century onward, nationalists increasingly claimed that this ability to regulate religion was in fact a right, though they argued that it should belong to the nation rather than to the state bureaucracy.
This exposition of colonial practices is then used to affirm the modern Indian state's right to analyze and reinterpret religious doctrine via its judicial arm. Such a claim is intensely problematic, however, since it involves justifying contemporary governmental activity on the basis that similar actions were undertaken by the colonial government. Moreover, claiming a colonial activity as precedent becomes obviously untenable position if, as nationalists claimed, the right to reform religion lay with the nation and not with the colonial state. Mehta himself demonstrates the implausibility of this line of reasoning in his discussion of the Age of Consent Act. “The predominant motif in the opposition” to the Act, he says, “was not the substance of the reform itself but the fact that the British were enacting and initiating it” (Mehta 2005, 72, emphasis added). That is, in the latter half of the nineteenth century, nationalist support for the legal authority of the colonial state waned in favor of the moral authority of the national community—a shift with profound effects on the development of public discourse, sectarian affiliations, and the relations between the two.15
Internal versus External Regulation
Another important way in which religion-state relations in India depart from the secular norms of nonestablishment and separation is through the government's—primarily the judiciary's—internal regulation of religion. By “internal regulation” I mean rules, laws, judicial decisions, or other authoritative governmental pronouncements that measure the validity of religious beliefs or practices by religious rather than by secular or civil standards. For example, in the case of the Sati Regulation XVII of 1829, which first banned the immolation of widows, one of the stated reasons for prohibition was that
The practice of suttee, or of burning or burying alive the widows of Hindus . . . is nowhere enjoined by the religion of the Hindus as an imperative duty; on the contrary a life of purity and retirement on the part of the widow is more especially and preferably inculcated.16
Governor Bentinck certainly had other reasons for banning sati besides a desire to purify Hinduism. Still, the determination of—and, more importantly, the authority to determine—authentic cultural tradition was, as Lata Mani has argued, far more at issue in the debate on sati than was the actual burning of women (Mani 1998). Thus the 1829 document emphasized the appropriateness of the ban on sati in terms internal to Hinduism, even as it used the horrific violence of the act as another justification for colonial interference.
This approach to regulation has remained an important element of judicial decision making in independent India, as judges have frequently elaborated on everything from the nature of religion and the core principles of Hinduism to, more recently, what makes for a valid mosque. While it is true that US judges—indeed, judges adjudicating a right to freedom of religion anywhere—also have to construct minimal conceptions of religion, such forays into religious philosophy and scriptural exegesis are far less controversial in India than they would be in the United States. Moreover, the Indian judiciary is unusual in the specificity of its constructions. In this respect, Marc Galanter noted that Indian judges must go farther in defining religion than their US counterparts because so many branches of India law—including family, trust, penal, and electoral law—take seriously the religious identities of the parties involved (Galanter 1971, 468–69).
Among the half-dozen cases that inevitably come to mind as examples of Indian internal judicial regulation, perhaps the most significant is Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, Shirur (AIR 1954 SC 282), commonly referred to as the Shirur mutt case. In Shirur mutt, the Supreme Court decided that the freedom of religion guaranteed by Part III (Fundamental Rights) of the Constitution applied to freedom of both religious belief and practice. Even more importantly, the Court, speaking through Justice Mukherjea, stated that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself,” thus requiring (since all ascertaining is done by the court) considerable internal regulation (434). This “essential practices test” articulated in the Shirur mutt decision would become a cornerstone of Indian judicial thinking on religion, and not only with regard to Hinduism. In Mohd. Hanif Quareshi v. State of Bihar (AIR 1958 SC 731), a group of Muslims argued that a Bihar law prohibiting cow slaughter (consonant with the Directive Principles of the Constitution)17 violated their freedom of religion, as Muslims were compelled by their religion to sacrifice cows at Bakr-Id. The plaintiffs lost the case, in part because the court determined that the sacrificing of cows at Bakr-Id (as opposed to other animals) was not an essential practice for Muslims. Of course, had the court's investigation of Islamic belief and practice determined that Islam required the sacrificing of cows, the plaintiffs would have prevailed.
As C. J. Fuller (1988) has noted, the courts' reliance on religious texts such as the Bhagavad Gita, the Bible, the Vedas, and the Quran for the purposes of determining what are essential practices means that judges are likely to uphold beliefs and practices in keeping with authoritative scripture and commentary. Conversely, in situations where decisions are not consonant with such texts, the courts have reinterpreted the texts in order to close the gap. “This they will do so as to show that they are actually not contradicting the prescription, but are in reality upholding religious beliefs and practices for which there is textual authority” (Fuller 1988, 234). In Sri Venkataramana Devaru v. State of Mysore (1958 AIR 255), the court encountered a South Indian temple that had been ordered to permit the entry of dalits (untouchables) as per Article 17 of the Constitution. Trustees of the temple, which was administered on behalf of a community of Brahmins, claimed (1) that the temple was private and therefore beyond the scope of the constitutional injunction, and (2) that even if it was a public temple, the obligation to admit all Hindus violated the community's freedom to manage its own religious affairs under Article 26 of the Constitution.
The court quickly dispensed with the first argument, but based its extremely careful response to the Article 26 claim on an innovative reading of the Agamas, texts considered authoritative with respect to South Indian temple ritual. Specifically, the court ruled that the temple entry legislation was in fact only eliminating a discrepancy between Agamic injunctions and customary practice. Whereas the Agamas indicated that temple worship was for the good of all Hindus, the court stated, custom forbade dalits from entering the very temples whose rituals were ostensibly also for their benefit. In fact, as Fuller notes, the wording of the text was that the “actual participation [of dalits] in the worship was insignificant.” Although the Agamic text had customarily been interpreted to justify the exclusion of dalits from temple worship, the court in conducting its exegetical analysis subtly redefined dalit presence from being one of “exclusion” to being one of “insignificant participation,” thus paving the way for the dalits' entry into the physical space of the temple (Fuller 1988, 233). Ultimately, the decision in Devaru upheld the status of the Agamas as authoritative determinants of correct religious practice while indicating that, properly interpreted, they did not exclude dalits.
The most prominent instance in which Muslim personal law has been assessed in terms internal to Islam is the Shah Bano divorce case,18 although in that instance the executive branch, not the judiciary, was responsible (Narrain 2001, 23). Other instances include the long-awaited Babri Masjid case, decided in 2010 by the Allahabad High Court, in which Justice Sharma determined that the building destroyed by Hindu nationalists “was constructed by Babar, the year is not certain but it was built against the tenets of Islam. Thus it cannot have the character of a mosque” (Sharma, J. 2010, 2).
As the above examples show, although the majority of cases involving internal regulation have centered on Hinduism, it is by no means true that the judiciary exclusively interprets and reforms Hindu beliefs and practices. Indeed, when contextualists seek to explain this judicial willingness to engage with religious doctrine, they do so by referring to the intensity of religious feeling among all Indians. It is also not true that the Court has, over the years, been uniformly in support of internal regulation—see, for example, Sen's discussion of Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853)(Sen 2007, 21–22). However, as Sen himself argues, a series of decisions in the early 1960s “firmly established the principle that it was the Court's task to ascertain what constituted religious doctrine and practice” (2007, 22). In the final part of this section I will consider arguments explaining why the Indian government cannot avoid undertaking this internal regulation of religion.
Religious Indians, Indian Religions
Since its framers understood “deeply and intensely the religious psyche of the people of India,” the Constitution “follows the traditional approach in assuming that all citizens of India practice religion” (Bhagwati 2005, 38; Coward 2005, 65). Decades after securing independence, the Indian population still “seethes with . . . expressions of vibrant religiosity” because for it “religion is not something that is part of life, but that which gives meaning to all of life” (Madan 1987, 750; Baird 2005, 3). Consequently, in their efforts to free public spaces from this spiritual onslaught, “both the Indian state, and by implication Indian courts do not have the luxury of imposing external regulation on religions” (Mehta 2005, 66).
India, according to this varied group of experts, is intrinsically, almost uncontrollably religious. Crucially, however, Indians' religious fervor is only almost uncontrollable: with enough effort, the state can perform the “historic function of confining religion to its essential sphere” (Bhagwati 2005, 43). Moreover, the idea that “the social consequences of not intervening in religion can be monumental” (Mehta 2005, 66) is widely held, most prominently (though not exclusively) with respect to caste, as I will address in the last section of this article. For example, the framers of the Constitution
knew that, left to itself, religion could permit orthodox men to burn widows alive on the piers [sic] of their deceased husbands. It could encourage and in its own subtle ways, even coerce indulgence in social evils like child marriage or even crimes like human sacrifice or it could consign women to the perpetual fate of devadasis or relegate large sections of humanity to the sub-human status of untouchability and inferiority. (Bhagwati 2005, 43)19
If this kind of religiously inspired cruelty was to be eradicated instead of being merely criminalized, top-down enforcement would prove insufficient. Thus it is argued that the Indian state was forced to intervene and cleanse religion from the inside out, rather than outlaw it altogether—to cut off an arm to save a life, so to speak.
Although there can be no argument against the desire to eradicate inhumane and discriminatory practices, the idea that this can only or even best be done through the state's internal regulation of religion is problematic. When the state seeks to reform religion from within—to exert its precedence in both civil and religious jurisdictions—it (1) implicitly assumes that it will always be more progressive than the religious communities it seeks to shape and (2) implies that no aspect of citizens' lives lies outside the rightful purview of the state. However, due to the fundamentally different objectives undergirding the Indian Constitution, these two assumptions possessed, and perhaps continue to possess today, a reasonableness that they could not have in the US context.
This is not to say that the Indian state's approach to regulating religion is unproblematic within its own context. Assuming the state's superior progressive credentials at the time of framing is one thing; encoding this assumption within the very framework of the Constitution is another matter entirely because it presumes that religious communities will always be insufficiently progressive. Such a stance portrays religion in a dispiritingly poor light (something that the framers were at pains to avoid doing) and rides roughshod over those elements of religious practice, like marumakkathayam, that do accord with reformist goals.20 Moreover, by enshrining the state as the paramount agent of religious reform, the framers of the Constitution in effect assumed the inevitable failure of their social goals, in that citizen-believers are presumed incapable of functioning effectively as autonomous moral beings without the state's direction.
A more important caveat regarding the argument that religion is too dear to Indians for them to accept secular governance is that it seems to significantly underrate the prior influence of religion in places now governed by secular norms.21 That is, secularism is accepted as growing out of a uniquely Euro-American, Christian historical trajectory that includes (among other things) the aftermath of the Wars of Religion, the development of Enlightenment rationalism, and the US and French revolutions.22 According to this reasoning, though the Indian subcontinent also produced rationalist philosophies, wars of religion, and political revolutions, subcontinental history is fundamentally not Western history and therefore Indians cannot be governed like Americans or the French. But this reasoning glosses over the fact that the Euro-American development of secular government was by no means predicated on the kind of widespread religious apathy that now appears to characterize many Western nations. As philosopher Brian Barry noted, this model of secular liberal citizenship “was developed in response to the wars of religion that made much of Europe a living hell in the sixteenth and seventeenth centuries”—that is, as a result of religious fervor (Barry 2001, 21).
In the United States, meanwhile, secularism did not spring fully formed from the minds of the constitutional framers. Indeed, the erstwhile colonies of Connecticut and Massachusetts maintained established state churches even as they ratified the First Amendment of the US Constitution, and did not legislate disestablishment until 1818 and 1833, respectively (Amar 1998, 32–33). The intensity of religious belief in the United States, as in India, has also frequently been expressed in terms of violence, intimidation, and discrimination.23 Indeed, the pursuit of church-state separation in the United States, including the eventual development of the incorporation doctrine, has in great part been influenced by the pursuit of Catholics, Baptists, Jehovah's Witnesses, and other religious minorities to practice their religion in the face of intimidation or violence. Nor is the current US understanding of separation of such antiquity, as evidenced by the fact that a majority of the cases that are most influential in matters of public funding of religion,24 public religious displays,25 and school prayer26 have been decided since 1947. Admittedly, these recent cases have largely been brought forward by nonbelievers, but this does not alter the fact that in the United States, separation has historically appealed to both believers and nonbelievers.
My point is that the development of a jurisprudence that favored separation was made possible not because Americans or Europeans of the time were apathetic toward religion, but because they were religious. Separation was also not made possible because Americans specifically implemented strict separation beginning in 1787, but because for a number of reasons, religious communities in the United States found that the best way to ensure their ability to practice freely was to push for governmental noninterference in religious affairs.27
It is also difficult to wholly concede that similar political arrangements require similar historical trajectories, so that the populations in question may have been similarly prepared for new modes of governance. Liberal democratic governance has emerged with varying speed and success in parts of the world, including some areas that do not share Euro-American political histories and that were coping with the additional implications of colonial pasts. In addition, although most contextualists discuss the greater religiosity of Indians in the sense of how Indians are, the rationales they employ regarding Indian religiosity sometimes have more of the flavor of suggesting how Indians can be. However unintentionally, such arguments can be reminiscent of the colonial reasoning according to which naturally feudal and uncivilized natives were being prepared for the imported concept of self-government.
A second version of the argument that India's government must take responsibility to implement religious reforms and must do so internally to the religions involved (i.e., from within the tenets of religion itself) focuses on the issue of interreligious relations. For example, Bhargava states: “As [religious] practices are intrinsically social, any significance placed on them brings about a concomitant valorization of communities. Together these two features entail inter-community conflicts which are further exacerbated if fueled by competing conceptions of democracy and nationalism” (Bhargava 2005, 124). Because religion in India is public and practice oriented, in order to deal with interreligious conflict the state has had to find coping mechanisms that avoid both disaggregating (Bhargava's term) religious communities into individuals and de-legitimizing communitarian identities.28 Consequently, the Indian state responded to the potential of interreligious conflict by “somehow making [religions] more liberal and egalitarian” (Bhargava 2005, 125).
In this regard, although the Indian state has occasionally engaged in the internal regulation of other religions, its primary endeavor has been the ongoing reformation of Hinduism. The state is therefore not making all religions “more liberal and egalitarian”; on the contrary, in the rare cases where it has interfered with Islam or Christianity, it has tended to contribute to the further reification of these religions. There is both political sense and political opportunism behind this lopsidedness: on one hand, only Hinduism poses a real threat to the nonestablishment of religion, while, on the other hand, interfering with minority practices is detrimental to the political fortunes of anyone who undertakes to do so.
Bhargava anticipated criticism of this unequal involvement by arguing that his notion of “principled distance” allows for a state to “interfere in one religion more than in others, depending once again on the historical and social condition of all relevant religions” (Bhargava 2005, 117).29 He gives as examples of such community-specific reforms child marriage, devadasi dedication, and introduction of the right to divorce, all of which focused on the cultural practices of Hindus. “Similar laws for Muslims,” he says, “were simply redundant” (Bhargava 2005, 117). Though at first this logic might seem reasonable, it is nevertheless flawed in that it claims that this lack of shared practices actually accounts for the community-specific nature of most religious reforms. Practices otherwise deemed unacceptable (such as polygamy or women's inability to initiate divorce) are permitted among minority groups because doing so is politically expedient, even when the same practices have been prohibited for Hindus. When he elaborates by stating that “an act passed by the legislature cannot be attacked merely because it tackles only some of the evils in society and does not tackle other evils of the same or worse kind” (2005, 117), Bhargava begins to sound like nothing so much as an apologist for the Indian state. In his argument, reasons of expediency (community-specific practices) are piled on other reasons of expediency (the state need not tackle all social issues at once) in order to claim for the state a particular, nonexpedient good, secularism.
It is also worth noting that both defenses of internal regulation (greater religiosity and interreligious relations) presuppose the efficacy of this kind of engagement with religion. I cannot speak to the truth of this assumption; I do not know whether, when the courts declare that X is not a valid religious practice, X actually loses validity among believers at all and with what speed. Importantly, neither Fuller, Mehta, nor Bhargava has offered any means of confirming the reforming powers of internal regulation, even though all three have developed arguments that depend on its efficacy.
Conversely, Ronojoy Sen believes that internal regulation has in fact been counterproductive, saying that notwithstanding the “high modernist and rationalist thrust of the court” and especially of individual judges like the notably reformist Justice Gajendragadkar, efforts to systematize and rationalize Hinduism have only made it more vulnerable to Hindu nationalists (Sen 2010, 198). Sen attributes this slippage to the preoccupation of Nehruvians like Gajendragadkar with nation building, since the construction of a Hinduism in keeping with democratic ideals and transcending regional and sectarian divisions made Hinduism unitary and monotheistic in a way that was not necessarily progressive. Moreover, Sen argues that the Supreme Court has frequently acted in a way that undermined its own liberal-Nehruvian impulses—Gajendragadkar's “essential practices” doctrine, for example, violently clashed with Nehru's assumption that the public importance of religion would gradually disappear, since it instead obliged the state to continuously identify and reform Hindu practices (Sen 2010, 199–200).
Throughout this section I have examined two broad categories of action showing that the Indian state is not secular: the administration of religious institutions and the internal regulation of religion. I have also reviewed arguments that seek to explain these actions, concluding that such claims are usually problematic because they involve faulty analogies or questionable historical analysis. To some extent this was perhaps unnecessary, as many of these claims neglect to conclusively prove that secularism can have multiple meanings before they employ contextual information to argue that it should have any particular alternative meaning. In the final section of this article, I will consider two reasons why it is reasonable for the Indian state to administer and perhaps regulate religion.