INDIA'S COMMUNAL CONSTITUTION : law, religion, and the making of a people

India’s Communal Constitution This book speaks to debates on law, constitutionalism and the contested terrain of political identity in modern India. Set against the overwhelmingly liberal design of the Indian Constitution, the book demonstrates a tendency in the Constitution and its practice to identify the Indian people in parochial and especially in religious terms. Named India’s Communal Constitution, this tendency is illustrated by drawing on constitutional debates and practice as they address religious freedom, personal law, minority rights and the identification of caste groups. Thus, casting the Constitution and its practice as a field of contestation, the aspiration to define the Indian people as a community of individual citizens is brought face to face with one of its most significant antagonists – the tendency to cast the Indian people as an embodiment of religious communities, which this book examines and details as India’s Communal Constitution. Mathew John is Professor of Law at the Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana. This book grew out of his doctoral work at the London School of Economics on the role that law has played in managing and organising religious tensions in South Asia. He works and publishes on issues bearing on public law, constitutionalism, constitutional theory, pluralism and the legal history of modern India. Cover India’s Communal Constitution Title Copyright Contents Acknowledgements Introduction Outline of the Problem The Problem of Indian Constitutional Identity Religion and the Contours of the Communal Constitution Colonial Toleration Social Reform Communal Representation in Colonial India The Independence Constitution as a Communal Constitution Notes 1 The Communalisation of Religion in Indian Constitutional Law Outlines of the Constitutional Scheme Regulating Religion Adjudicating Religious Freedom in the Indian Constitution Toleration, Reform and the Regulation of Religion in Modern India What Kind of Toleration? Toleration as Truth Seeking Toleration and the Organisation of Social Reform Essential Religion as a Call to Politics The Ram Janmabhoomi–Babri Masjid Case The Ayodhya Case in Colonial Courts The Contours of the Contemporary Dispute Parochialising Rama, Communalising the Nation The Communal State and Its Alternatives The Sabarimala Decision Conclusion Notes 2 The Communal Image of the People in India’s Personal Laws The Background: Peoples and Their Laws Marking Out the Law of a Hindu People James Nelson and the Problem of Locality and Custom Reform, Personal Law and Indian Self-Expression Reform, Legislative Change and the Path to Indian Independence Incorporating Personal Laws into the Indian Constitution: The Assembly Debates Interpreting the Constitutional Compromise on Personal Laws The Narasu Appa Mali Case and Its Legacy Uniform Civil Code as a Jurisprudence of Exasperation Conclusion Notes 3 A Lurking Majoritarianism: A Communal Account of Minority Rights The Pedagogical Foundations of Indian Constitutionalism A New Conception of Minority Rights: National Unity and the Transformation of the Colonial Constitution Minority Rights in the Constitution of Independent India Outlines of the Constitutional Framework Two Ways of Framing Minority Rights The Majoritarian Background of Minority Rights Conclusion Notes 4 Sacralising Caste: The Hindu Resolution of Equal Citizenship The Background Resolving the Caste Problem for the New Constitution Scheduled Caste Identity and Caste Disability in the Courts Sacralisation of Caste in the identification of ‘Backward Classes’ Conclusion Notes Conclusion: Appraising the Communal Constitution The Liberal Background Evaluating the Communal Constitution Rethinking Community Plurality and the Indian People The Communal Constitution and Liberal Secular Ideals Notes Bibliography Index This book speaks to debates on law, constitutionalism, and the contested terrain of political identity in modern India. Set against the overwhelmingly liberal design of the Indian Constitution, the book demonstrates a tendency in the Constitution and its practice to identify the Indian people in parochial and communal terms. This tendency is identified as India's Communal Constitution and its imprint on contemporary constitutional practice is illustrated by drawing on the constitutional practice as it addresses religious freedom, personal law, minority rights and the identification of caste groups. Thus, casting the Constitution and its practice as a field of contest, the aspiration to define the Indian people as a community of individual citizens is brought face to face with its antagonists. The most significant of these antagonists is the tendency to cast the Indian people as a collection of communities which this book examines and details as India's Communal Constitution.