A conservative friend and I spotted the Onion’s headline “Activist Judge Cancels Christmas,” and — unsurprisingly for all of you who have put up with my ranting on this subject — proceeded to have a disagreement. He predicted that there would be an instance of “life imitating art,” and I found the notion of a judge’s interfering with non-governmental celebration of Christmas as ridiculous as the Onion did. (The parody is not about state-sponsored Nativity scenes, which are likely to be found unconstitutional.) I said that I wouldn’t want the government to attempt to represent Hinduism, as they’d probably make as much a muck of it as non-Hindu retailers do, and continued to be puzzled as to why Christians and the occasional Jew did. He replied that this was only because I was living in a country where the government was unlikely to do such a thing, and that I’d be less likely to protest it in India.
My understanding was that India’s Constitution had requirements similar to those of the U.S. First Amendment, requiring that the government neither establish religion nor constrain the exercise of it. But a closer look shows that in this, as with so many things, the American Founders valued brevity over the locquacious explanation dear to desi hearts, and I hope that some Mutineers can help me understand how the difference works out in practice.The First Amendment says simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and with that simplicity leaves room for scores of Supreme Court decisions and hundreds of books to try to figure out what those few words mean. To caricature somewhat, we thereby get the originalists, who say that this means what the Founders probably meant, that Congress could not prefer a particular Christian denomination; the textualists, who say that it means Congress can’t pass a law actually establishing a religion as the official state religion; and the “activist judges,” who say that this means all governmental entities must keep away from religion and religion must keep away from them, because such are the demands of a religiously diverse country.
In the example of government vouchers for religious schools, the originalists and textualists would OK them (and the originalists quite possibly permit discrimination against a school of a non-monotheistic religion) and an activist judge would nix them.
The Indian Constitution is far more explicit, and I pity the poor judges left with so little room to be activists. Article 15 prohibits discrimination on the basis of religion; Article 16 prohibits such discrimination in public employment; Article 25 guarantees freedom of conscience; Article 26, freedom for religious institutions; Article 27, freedom from paying taxes specifically marked for a particular religion. Article 28 is very detailed: it says that an educational institution supported wholly by the State cannot provide religious instruction, except for institutions administered by the State but established by a trust that requires such instruction; it also says that no State-recognized or even -partly funded institution can require attendance at religious instruction or worship. Article 30 applies Article 15’s non-discrimination to establishing educational institutions and receiving state aid for them; Article 325 applies it to being on an election roll.
There are plenty of “Nothing in this article shall”s to allow the government all sorts of interference with religion. Article 16 says there can be a “law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.” Article 25 allows the government to interfere with Hindu institutions: “the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
In short — too late! — I was wrong in thinking that India’s situation regarding church and state is much comparable to that of the U.S., notwithstanding this excellent article that attempts to draw parallels. India has a system much more like the one that conservatives prefer, in which government and religion are frequently “entangled,” to use the terminology of exactly what is not supposed to happen in the U.S.
However, India also provides an excellent example of what happens when such entanglement is permitted. A single Google of “India government temple” turned up a 1983 Hinduism Today article about the Tamil Nadu State Department of Hindus’ Religious and Charitable Endowments Commission’s plan to assume the administration of the Chidambaram Nataraja temple. Nor does this appear to have been an isolated instance of interference; a couple of years ago, the government attempted to ban animal sacrifices at the same temple, and Tamil Nadu government continues to interfere with the language and practice of religion at temples under its oversight. Not to trash TN alone, my home state of Andhra Pradesh has engaged in various shady transactions involving temple lands, to the point that the courts now have to become active, if not activist.
I doubt that those who claim to desire more “religion in the public square” would want to have the public square in their religion. While funding can be quite nice, restrictions and takeover rarely is so welcome. Religious groups of all types in the U.S. already balk at having generally applicable laws applied to them (hence the RFRA and RLUIPA), so having the government make rules specifically intended to govern religious practice would be anathema.
I think India gives far more rights to minorities than does USA. For instance, while use of religion as a basis to form political parties is not allowed, we see Muslim League in Kerala; we also see the govt. doling out subsidies for Muslims performing their Hajj, forming committees to preserve Urdu, Unani etc.. One can’t even dream of similar things happening in USA.
I think India gives far more rights to minorities than does USA. For instance, while use of religion as a basis to form political parties is not allowed, we see Muslim League in Kerala; we also see the govt. doling out subsidies for Muslims performing their Hajj, forming committees to preserve Urdu, Unani etc.. One can’t even dream of similar things happening in USA.
Maybe its compensation for this.
The Axess article is filled with the usual leftist cliches. For a comparison of the American and US systems, what better source than a (Indian) Supreme Court petition?
Shameless plug: I have blogged about the topic in four parts: here, here, here, and here. An excellent source of scholarly info are Arun Shourie’s essays and books.
An excellent source of scholarly info are Arun Shourie’s essays and books.
I thought everybody got the memo that Nazism went out of style after the defeat of the Nazis.
You may be interested in Judge Reinhardt’s reaction to the Onion article.
Al Mujahid,
Ah, the creative name-calling game?
Reincarnation School of Argument: Final Contingency Plan (see Compare your opponent to Adolf Hitler)
Reincarnation, Your entry is damn funny. And yes, the check is in the mail for the fee which I accrued by using your play book.
Quizman, Sue me.
The Indian system is exactly the opposite of what conservatives in the U.S. want.
Example: Article 30 provides state aid to minority religions to establish educational institutions with a religious cirriculm , but no state aid is given to the majority hegemonic religion.
This allows (* if properly implemented) minority religions a chance to preserve their culture and religion.
The assimilationist Christian conservatives in America definately don’t want that.
I reckon that the Christian Fascists in America would like a system similar to what the Hindu Facists want in India where one religion is given precedence over others. And not the multireligious mosaic ideal described in Indian law.
.
Agreed.
Lumping all conservatives together in this analysis is faulty.
The Indian constitution and law are far too dense/complex for it’s own good. It’s total micro management, and for such a large country (population,size,diversity), it only serves to retard national maturity.
“Maybe its compensation for this”
An example of historical revisionism? The subsidizing of haj etc all were there for decades. much before the gujarat riots.
The point about the indian constitution is it treats hindus as second class citizens compared to religious minorities, while the u.s. constitution does not discriminate on the basis of religion.
Political parties in India have been courting minorities for decades, as vote banks. Its got nothing to do with the Gujarat riots.
Caste politics is where all the supposed “compensation” is going on.
Hindus hold the economic, and cultural power in India. Muslims are treated as second class citizens by the Hindu elites and non-elites alike on a regular basis.
The Indian constitution seeks to level the playing field by helping minorities.
It’s similar to but more pervasive and comprehensive than affirmative action in America.
I don’t see why it’s a bad thing.
I agree there is a lot of vote banking and caste politics involved here, but there is just as much vote banking on the other side that plays upon the irrational Islamophobia of the hindus.
Pankaj Agarwal writes: >>Hindus hold the economic, and cultural power in India.
…despite third class treatment from successive governments, and articles 28, 29 and 30 of the Constitution.
A matter of opinion, not a fact.
The Indian constitution seeks to level the playing field by helping minorities.
The job of the Constitution/Government is to provide justice and equal rights for all, not to do social engineering.
M. Nam
It was the OPPOSITE situation just a mere 300 years ago. US on the other hand never had such a situation.
Hindus hold the economic, and cultural power in India. Muslims are treated as second class citizens by the Hindu elites and non-elites alike on a regular basis.
Considering that the constitution was written at a time when a religious minority decided to carve out a separate state on the basis of ideological superiority, it is remarkable that the framers of the constitution went out of their way to pander minorities. Ironically, this salse notion of secularism has led to greater fissures among Indians.
typo salse = false pander = pander to
Mr. Agarwal:
Your ex post justification of the differential govt. treatment accorded to religious communities is ahistorical. While I wouldn’t call the attempt to cater to non-Hindu communities ‘pandering’, I suspect that those provisions of the Indian Constitution were written in an attempt to contain the effects of India’s communal fragmentation: Not so much an attempt to create ‘mosaics’ (gorgeous or otherwise), but an attempt to stave off chaos.
The terrible irony, of course, is that in effecting ‘remedies’ which discriminate against one religious community, India is even farther from being a ‘mosaic’ (of any sort whatever). Instead, this attempt has resulted in an even greater fragmentation of Indian society.
So, here’s a balance sheet: A govt. that openly discriminates against one religion–in some matters–in the name of secularism and tolerance and lovely mosaics. And what do we have in India? No mosaics, but communities ever more isolated from each other. I don’t think the ends (mosaic etc) justifies the means (discrimination against one community, in some matters) even in principle; but for those who do, the current state of affairs in India ought to force a re-examination of such ideas.
Kumar
Moor Nam,
The job of the Constitution/Government is to provide justice and equal rights for all, not to do social engineering.
Another difference I noticed between the U.S. and Indian Constitutions: the latter begins with, “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political”
Social and economic justice seem to require some amount of “social engineering.”
PG,
Going by the way you interpret things, anything could be made to “seem to require some amount of” anything.
PG,
The term “SOCIALIST” was not in the original preamble. It was added by Indira Gandhi during her dictatorship (the emergency). She had the audacity to change the preamble of the constitution.
Incidentally, I love reading the transcripts of the constituent assembly debates which are available on the Parliament of India website. Sadly, it lacks a good search mechanism.
Quizman,
Thanks for the info. I’m surprised that it hasn’t been changed back.
observer,
The U.S. Constitution says nothing about economic or social justice, so saying that it requires the government to secure either takes a significant leap. The Indian Constitution, on the other hand, seems a lot more oriented toward reshaping society — hence the provision for forcing Hindu temples to accept all people and for affirmative action.
PG
No. Indian govt’s interference in temple affairs is not due to the constitution. It’s because the govt “administers” the temples. Historically kings used to patronize temples and pay for their maintenance but after British took over from them and Indian govt from British, it’s come into its purview. Of course, it doesn’t do much except benefit from temple revenues, but I digress…
Honestly, this sounds particularly whiny and completely ignores the benefits that many Hindus receive as the majority religion. The Indian Constitution protects religious minorities because people were scared of joining a federation that wasn’t going to protect minority rights. Can you imagine living through the violence of colonization, independence, and later Partition and not wanting some kind of self-protection to ensure that you, too, wouldn’t be targeted and annihilated in this new project? And I’m not saying this to be extreme – nearly every religious community in India under one empire or another was treated cruelly. I think states entered the formation of Indian democracy with a lot of hope that the rhetoric of justice and equality would be upheld.
Why not have an egalitarian system where you have equality under the law and individual rights similar to America (sans affirmative action) ?
Also worth noting that the majority muslim parts of India (with the exception of the Kashmir valley) at the time of the partition formed their own countries where Islam is priviledged over all other religions.
And I’m not saying this to be extreme – nearly every religious community in India under one empire or another was treated cruelly
No, they were not. Hindus and Sikhs faced extraordinary official persecution while people of other religions did not.