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its 'religious' roots for politicai purposes. This is otjection:rble and counterproductive
because it tarnishes the globirl image of lndia, the largest dcrnocracy of the worid.
Er.'ide ntly, iu today's'uvorld, too, 'religion' and its relationship with'larv' ancl'poli-
tics' remains deeply cotltested. The recent Swiss refcrenclum against the construction
of minzrre ts, wl-rich has given rise to accusations of fscism as wel1, should ma.ke us even
rllore awrlre that one eroup's self:defence strategy is often another group's terrorism.
Tre syrnbolic and :rctual effects of assertic>ns of ethnic identity and religious'otherness'
'.lre certainlv in todav's interconnected world a hotly clebated subject. I see parallels
betwe en the Srviss refe rcndutn and Indian cfforts to manage religious diversity that of 1i!
Jil,
course have not bcen thought through yet, but would warn against selflscrving, shrill ui',
it!i
ii
labelling of certain'others'as terrorists or firscists and prefer to draw attention in such tiii
'iirll,
In this article, the author lirst enlarges the cliscussion on the compiexities of the i:
i]iii
sub.icct covered, including issues of minority protection in a vast composite n:rtion ,']i.,lir,
il :
such as India and then outlines specifically what the main disagreeable elements are ,flr
iitl
regarding Hindu fundamentalism ir-r India. We shall see that the Constitution of India 1l
ti
is awzrre of such risks and constitutes an intricate compromise. In the next section, the
uthor then addresses obfuscations about concepts of secularism as they apply to the fiiiii
resion. Finally, there will be some roorn fclr discussing counter:rcting positive develop- ,ii'
til
lxents ancl exploring the scope for further empowering developments be cause it is now i1,
;:r
so manifbstly clear for all to see that disrespect for diversity in thc various states of i:l
i+
South Asia leads to self:destruction. :,i
l)::
[i
#
II. THB CHnI.IENGES oF Covpr-nxrry ili
1l!
ril
ili'
Finding a national identity in postcolonial stares continues to be a fierce struggle in il,
ilr
r
many cases, all over South Asia. Although this process is certainlv relevant also iri
{l
"'isible ll
for states that we re never directly coionised, such as Nepal, the hanclling of diversity fi
.tx
oniy selected parties and not all participants in these intense struggles becomes rather
too easily an exercise in taking sides and, more dangerously, an arbitrary silencing
strategy thirt is itsclf clangerous and violence proclucing ancl, therefbre , counter-pro-
ductive.
In a global cotrtext, issues other than the lurking pernicious influence of Hinclu
firndarne ntalisn-r aiso arise ftrr debate, including Western-dominatecl, Christial-based
Islanric law, religion and culture, the distinction of ibatlat (relationship to God) and ntua-
rnalat (one's links with other people) is the relevant binary pair.
Orr tlris see Werncr Menski, ()ontparative law in a global context; The le.qal .rysterns of Asia
and AJi ica (Carnbridge University Press, Cambridge , ZOOO).
I or this concept and strategy, see T. T. Arvind ancl l,inclsay Srirron, "fixplaining the
receirtitrtr crf the Code N:tpoleon in Germany: a fuzzy-set quaiitative compaiative analy-
sis", 30(1) L,:,q'u/ Stu d i,:s (2010), 1-29.
31,1
ssessirtg Communal Conficts and Hintlu Fa.rcism i.n India
ctive post-Enlightenment claims to 'the truth' and their deeply questionable consecluences
l. and impacts in Asia, Africa, and eisewhere. lJpendra Baxi has shir.rply ch:rracterized
poli- such now often market-driven postcolonial manipulations as hep5emonic, drifting
ction toward'righticidal practice'.6 Various other forms of religiously-grounded fundamen-
even talisms cannot be left out of the equation either, in particular, the impact of global
rism. war on terror strategies on the region, especially in Afghanistan and Pakistan, and the
'ness' pernicious claims of radical or creeping (re-)Islamization in countries arouncl India
allels and in India.
ratof There is certainly much pressure on South Asia today to fall in line with purport-
;hrill edly global norms and, thus, to abandon certain ancient local patterns of managing
such various diversities. Such patterns :rre difficult to loc:rte and to convey because they
were docurnented in an ancient language, Sanskrit, that hardly 2lnyone today can firlly
,f the understand. They tend to be informal and, thus, less tangible than forrnal positive larvs
ation and their related processes, tend to be sidelinecl by members of supposedly educatecl
:s are elites that often do not value their heritage and are fi'equently more than a little resent-
lndia ful of being brown and ashamed of being Indian. As a legal realist, with one foot in
r, the the East and one foot in the West, the author has tended to focus as much on what he
o the now calls 'slumdog law',2 the legal scenarios ciirectly fced by India's mzrssive impover-
,.lop- ished population and resulting distribution problems,s as on formal declirrations about
; now humirn rights guarantees that are brought to the subcontinent in the fbrm of sugges-
.es of tions for bettering one's records.
Therefbre, the author highlightr^ prominently the wider context of the grave con-
tradictions of legal and socioeconomic reality and the fundamental rights cleclaration
in Article 1.4 of the Indian Constitution of 1950 on equality before the law, which
incidentally comes from the Irish Constitution.e Although no one can deny, therefbre,
;le in that India is a state faced with massive challenges over safeguarding bzrsic justice,
r also and is part of a deeply troubled region of the world, simply transplantins Western
:rsity models of thought and practice cannot quite be the right solution, despite much out-
ation ward Westernisation. India is not Switzerland or Singapore, it has had to develop
man- its own methods of governance and diversity managernent. This is why the Indian
: one Constitution of 1950 is marked by the une asy coexistence of rvell-sounding funda-
ming mental rights guarantees (Article 12 to 35) and a huge range of Directive Principle s of
ather State Policy (Articles 36-51A'). Originally tre ated as two separate e ntities, today, these
rcing sets of legal provisions :rre increasingly read together in constitutional interpretation.
-Pro- Apparently fiom the start, even the suggestion that Western models should or could
be followed and that South Asian 'traditional' concepts are defunct and irreleva.nt
lindu
rased
Llpendra Baxt, TheJirture o1f huntan rights (Oxfbrd Universitl'Press, New l)elhi,2002),I43.
777U- See Werner V[er-rski, "Slumciog law, colonial tummy rrc]re uncl the redefinition of fanrily
law in India. Ileviov Article", 30(I) South Asin Research (201Q),67-80.
f Asia tlnsurprisingly, the author has lbund that middle class Indians, in particr.rlirr, deeplv
resent this terrninology, reflecting thereby unrviliingness to aclmit thirf the t:otrntry hrrs
g the problems with hanciling thc distribution of eve n barsic necessities.
rnaly- Art. 14 provides: "-Ihe state shirll not deny to zrny person eqr-ralitv before tl-re larv or rhc
eciu:rl protection of the laws lvithin tire territory of India".
315
Werner MensAi
has beel deeply resetrtecl iu many ways and fbr Inany decades, first
in {ierce debates
between the iounding fathers of the nation and uow among successor generations'
It is eviclent thzri the ongoing internal struggles over basic justice and the Indian
otr the one
nation's identity have coutriilute,i to a strengthenilg of hinduttta.forces
hirnd, ..r1cl increasecl emphasis on Islamic iJentity on the other hand, with India's
elements in
p".,rli,,.r secularist ambitions squeezed in between. As counter-reactive
tL. 1".e., icleological and global battle, emphasis on Hinduness and Isl:rrnic iden-
level as well as
tit1,, y.ip.ctively, cre:rte poltially cleadly animosities at the national
an
i.'interperrorl"i rclation.s, while leaving iont,lbr harmonious coexistence-truly
rights
.*,..,o.ly complex, arnbiguous ancl ambi,ralent scenario. Many human iruthor.s
level'
overl.ok this anci ,.. n,riy grave tensions betrveen the national and the global
not to lose sight of
llaxi has noted explicitly itrr, t"t"-rn rishts re irlism ntttst be careful
of struggle for the
the fact that "ft]h in.ul, nor the global [...] remains the crucial site
enunciation, implenlentation, enioyment ancl exercise of hurnan rights"''"
I would go
fr as they
furt6er: at the end of the <lay, we need to ask why certain individuals go as
'ism' that they may not
clo in killing their neighbours in the name of an ideology or
ever] prop.riy ,-,,r,l.rsr;;ci, but a fbw clays later clo business with someone of the same
persu:rsion again.
Hindu fscism or fundamentalism to outsiders m?ly have many
W6at r4tpears as
orl,rer dimelsions than simply religious traditionalism and deadly desires
to extermi-
nate the religictus 'other'. is certainly partly concerned with protection of an iniag-
It
in
i'ecl and acrual motl-rerland against neighbouring others thirt clainied their territory
lrorrible struggle s of 1,947, atroubled memory that har'rnts India and Pakistan' It is
tlre
RSS activ-
certainly cosnect; to political manipulation of religious identities-many
of
ists are cduczrtccl rniclile-c1.rr, 1,.opi.. It coulcl also be about protection
intensely
and a siege men-
cr.wclecl space in physical realii1,, leadine to claustrophobic f-eelings f:i
tality rh21r erupt, fro- time to tirne in violence . It certainly also has to do with multi- Pli,
li,
crowded roads and ti,i'
i^ clelsciy populate,l localities, explorecl further in the following. The whole field of fli
specifi-
violencc, its emergence as much as its control, requires critical reexamination,
rllil
in India, IL:
fi
The Inclian Constitutin of 1950, above "11, do.t,*ents that neither the supposedly
$i;
abandonment
neat liirstic French-style segregation of law and religion, nor wholeszrle iii
tt
in the
of local ctiltures in favour Lf ,o*. cosmopoiitan pattern was a"dopted' Today,
lii;
i,,
i]i,
l-rybricl realities of posrmoclern India, *l^,ai precisely is the scoPe for the deveiopment li(
lli"
,traditio.' a^cl"rr","rg"merlts
'religiol-r' or insistence on local values hides the dilficult central lness2l$e
iu.
316
As.sessirtg Co'mntu.nrtl ConJlicts antl Hirtdu Ftrscisnt in Ini.lia
that pluralistic compromises have to be made all the time. Pluralism is, afier all, a firct
of life. 'Ihe risk in demanding uniformity of whatever description is tha.t everyone will
be unhappy and will lash out at'the others', fearful of losing identity and control over
even the most intimate spheres, accusing others of pushing fbr troLrblesome arr'.lnge-
ments which will never be satisfctory for all concerned. Blaming either side for the
lack of globally desirable standards of human rights prote ction is an irdversarial tech-
nique that is all too familiar to the 'new subalterns' of Asia ancl Africa.'' llhe i,ruthor
suggests, however, that the picture is much more complex than schoiars hirve been able
to verbalise.
12 See on this notion Gayatri Chakravarty Spivak, "l)iscussion: An afierword c>n the trcrv
subaltern". In Partha Chatterjee and Pradeep Jeganathan (eds.), Conuttttttity, gentltr und
violence. Subultern StudiesXL (Hurst and Cornpany, London, 2000),305-334.
13 'Ihe so-called Sachar Report, discussed further in the fbllowing, is probably todav the
most prominent document of Mr.rslim disadvantage in Inciia. See Rajindar Sachar, Sociu/,
econontic ani educationttl status oJ- thc fuIuslim comrtlurtity oJ'Inilia. A refiort. Ncw Delhi,
Prirne Minister's l{igh I-evel Comrnittee, Cabine,t Secretariat, Goverruttcnt of' Inclia,
2006.
14 Ilaiah, op.cit. n<;te L.
15 See, tor example, the views of the concluding obscrvations in CFlltI)/C/IND/CO/19 (5
May 2007) at ,http://www2.ohchr.ore/englisir/bodics/cercl/cerds70.httl>.
317
I4/erner Menski
:;li,
'1l
'
,i)i:
|,
:::
ilii
l;:
pluralistic interirctions betwe en personal laws and civil law in composite India", in Joel A.
ii,
Niclrols (ed.), Marriage and diaorce in a rnulticulturalcontext; Recon.ridering tbe bottndaries of
li.
',. : ciai/ /azu and religion (Cambridge llniversity Press, Carnbridge, 2010) [forthcorningl.
Li:,':
',i:, 18 See Sylvia Vatuk, "f)ivorce at the Wife's Initiirtive in Muslim Personal Law: What Are
ii,
:''
the Options and What Are Their Implications fbr Women's Welfre?", in Archana Par-
'l
'
aslrar irnd Amita Dhanda (eds,) RedeJining Family Lazu in India (Routledge, London,
2008), 200-235; Livia Hold en, Hittdu Divorce. A Legal Anthropology (Ashgate, Aldershot
and Burlington, Verrnont, 2008), also includes reference to an instructive documentary
filrn.
3iB
Assessittg Communal Conflict.r anrJ Hindu Fa.rci.rm in Intlia
Ilegarding caste issues, too, the first thing that comes to many minds when the
word'India'flashes up, there is not one singular story line either. Fo..*^r'ple, t6e cur-
rent ChiefJustice of India fbr several years now (ancl until May 2010) h",
b..,-, a Dalit,
who was strategically nurtured during the mid-1980s and proved his mettle,
of course
not without much opposition. Protective discrimination policies all over In6ia are
biting so hard that some observers are beginning to consider India as a Dalit country.
Certainly, many high-caste Hindus are feeling the pinch, for example, if t6eir chil-
dren cannot acce ss educational facilities becat,si of *idespread quota urrrnn.,r,ents
fbr
Scheduled Castes and Tribes and Other Backward Classes. Fuithermore, the
current
q:ve-rnment is again, to the surprise of many observers, a Congress-lecl coalitiol, with
I)r. Manmohan Singh, a Sikh, as the Prime Minister. The irlaln Hinclu nationalist
part\ the tsJP' continues to be in disarray and has not managecl to c2lpture a Hinclu
votebank. All of this points to a weakening of Hindu fascist teirdencies and
increasing
strength of, and commitment to, India's deliberate long-standing'secul:rr' strategy
t
include all Indians and not just high-caste Hinclus, althugh therc would
still be ^r"ry
statistics telling us that most judges are llrahmins or members of other
hicher .orr.,
and that most poor people belong to the Scheduled Castes and Scheclulecl
Tribes.
Remarkabiy, however, hardly anyone (not even most lawyers) seems
to know about
several deeply telling post-9/11 developments in Indian family law
rvhich have signifi-
cantly shifted the gender balance. This tells us also much more than
most peopie wish
to know about howpostmodern India seeks to achieve better.iustice
in a legai system
by continuing to value a personal law system rather than enfbrcing
a l/niform Civil
Code. India is manifestly not Europe; one often wonders whv this
even neecls to be
stressed.
Justice itself, of course, re mains ever)'where just within reach.,o Derricla farnously
told us the same- Although there is continuing evidence in India of fundamentalism-
drive_n violence against minorities, equally worrying topics should be the militzrncy
of Islamic terrorist activities and widespreaci l"iu1 N"*alite uprisinss which
reflect
interlinked economic and political problems rather than religiot,, i,i.ologv
or firn-
damentalism. In acldition, there are continu.ing atrocious hu-an rights
vioiations by
all parties in the onp;oing Kashmir conflict, .omplex
-ith reverb.rotiorn whicli now
extend into British cities.'o Growing levels of violence ihroughout the whole
of South
Asia cannot simply be put down to any single factor. Much hat.,l aggression
is c2usecl
by anger and multiple fiustrations^ orr., .rnrutisfctory and often aJ.pfy
i'hurnan life
conditions, including additional unredressed state violence, rather than retigious
ftrn-
damentalisnis. Millions of citizens, technically deprived of property righrc
because
the ferther-mother state claims to own everything, Lave to live pr..orio*ly
in public
spaces and use facilities they do not own, whether they be streets anci parks fbr clefcca-
19 .See Grrrjeet Singh, Cortsttmer l>rote ction in Intliu;Justice witbin reach (Dcepancl I)eep,
Ner,v
I)elhi, 1996).
20 Britain is only just beginning to realize, rvith much reluctance, that most pirkistani"^
in
Britain are ilctually Kirshmiris. Ongoing litigation has une:rrthecl eviclcnce
thirt pakista.r
htrs, since 1973, silently oft-ered its citizenship to all Indian Kashmiris
so thirr milnv.paki-
stanis' in Britain arc in fact Indian Muslirns, whercas many'Indizrns'
irctually trace their
roots to pre-1947 areas o1-British Inclia that are now in pakist",-,.
319
I,l/erner Menski
tion or forests for basic cornmodities and food. When they then face police atrocities
as encroachers, fundamental rights and concepts like 'unity in diversity' are shown
to be .iust unfirlfilled promises and nice slosans. If for example in a road rage sce-
nario a Hindu and a Muslim driver have a violent clash, is this a religious issue, given
the tense competition of competing claims over too much space being taken up by
'others'?" Where cloes religious fundamentalism or communalism begin and how do
we distinguish this from bare-bones survivai of the fittest?
Most Europeans cannot even irnagine the levels of poverty and deprivation sufl
fbred by rnillions of Indians because our realities of life are fortunately very different.
Of course, one could ciaim that having to live in such circurnstances is in itself a
human rights violation. However, that does not address the key issue that this arti-
cle addresses, namely the assertion that Hinduisrn or Hindu culture is to blame for
the ills and injustices of India. Ivory tower elitists belittle and even romanticise such
struggles fclr sun,ival and prefer to philosophize over principles of human rights. They
might lecture on international conventions, but none of this fbeds or educates hungry
children or create s clean drinking water, critically important issues which some Indian
activists are seeking to address by suggesting that the right to life guarantees in Article
21. of tl-re Indiar-r Constitution should be strengthened through adding additional ele-
2I 'Ihis reverberate s rather closcly with current Eunrpean sentirnents over too m?lny irnrni-
grilnts ttltd ttew 'others' who are thcn routinelv blamed fbr changes to the established
lanclscapes irnd towtrscapes of 'our' territories. What shirre of such sentiments accolrnts
frrr plain Islarnopl-robia or relartes to a desire to preserve traditional identities is notoriously,
dillicuit to ascertain.
22 See "Comtnissioners to the Supreme Court on the rieht to fbod: A brief introduction"
(Cerrtre fbr Equity Studies, New Delhi ,2009).
23 An alnazingly audacior:s cxample is Rajeshwari Sunder Rajan, 'Ihe scandal oJ'the state.
Womart, lazu and citiz,enship itt postcolonial India (Duke tJniversity Prcss, I)urham ancl
London, 2003), a political mirnifesto rather than factually reliable legal analysis.
24 Orr tire pitfalls of cloing so, see firr Hindu law, Werner Menski, "I{indu Law as a 'Rcli-
gitrtts' System", in Andrcw liuxley (ed.), Retigion, Lazo and Tluditiort. Comf>ar.ati,uc Studies
irt Religious Lou (Routledge Curzon, London, 2002),1,09-1,26.
25 Even practicing lawyers firll into such traps of ignorance, which is truly umirzing.
2(t Jlre rather confused and often clishonest literature on the Shah Bano case of 19U5 ancl its
aftermrrth, cliscussed further in the fbllowine, is a case in point.
320 l:t
i
r;l
ii
.ll
Assessing Cornntuna/ Corficts and llindtt Fuscisrtt in India
Overall, I observe as a South Asian area specialist that the level of analytical coverage
of the complexities of themes like secularism, communalism, and rninority rights in
the South Asian region remains rather low and often seriously deficient. Simply citing
international conventions as desirable tools for development in the region leads of
course to critical conclusions and generates further frustrations over matters that are
virtually'iost in translation'. Many Indian judges are telling me thzrt they get increas-
ingly irritated about 'foreign' interventions in their legal system's management. They
are not, I think, speaking as Flindu fundamentalists; they are putting their finger
on deficiencies in cross-culturzrl communication when it comes to value judgments
about matters such zrs human rights. Intercultural communication is not a skill that
lawyers, whether they are more domestically oriented or internationallv fbcused, hzlve
cultivated well.
Protection of minority rights, thus, remains one of the most deeply contested
issues in South Asia and a complex subject of study, not only because it involves emo-
tional engagement in human methods of coexistence, but also be cause it is so intensely
political. In India, with its scenario of persistent )^carcity, it is also often linked to
resource allocation, particularly concerning places to study certain subjects, secLlr-
ing government jobs, and other fcilities. Although the general market situation htrs
certainly become much better since the 1990s, severe bottlenecks remain, driving now
in the new millennium several new agenda, such as privatization of higher education,
which Inay then manifest in the public space as communal conflict scenarios.
Managing such a messy nation and its many problems requires, first of 2111, a good
dose of deep respect for the right of 'other"'-variously defined-ro exist r1s part of a
composite whole. In that regard, well before Indian independence in 1917, voctfer-
ous demands for recognition of various group rights were already well-rehearsed. The
new Indian state could, therefore, not behave in 1947 as though all its new citizens
would just be of one kind, or as though they were hencefbrth autonomous individuals.
Most Indian leaders realized during rhe 1940s that Indian legal methods of manage-
ment would require continued reliance on connectivity and interpersonal solidarity to
manage at least a basic social welfare systern that avoiis mass starvation and clisastrous
levels of misery below the ofcial poverty line. This is why the Indian Clonstitution
was drafted in such away that manyyears af-ter its prornulgation, more precisely after
the Emergency of 1975-77, a significant shift toward 'public interest' could be imple-
mented by the much-underrated Indian judge-clriven phenomenon of 'public inrere sr
litigation'.'z The critically relevant words 'by appropriate proceedings'were zrlready in
the Constitution itself, but were not implementcd and taken seriously until the early
1980s.'8 Then it was held that even a postcard from jail by sorne one whose fundarnental
27 See on tlris S. P. Sathe, Judicial activism in India. Tlans,gressing borders and etfbrcing /intits
(Oxfbrd Univer"^ity Press, New l)elhi,2002).
28 "Ihc clearest example is found in Art. 32(1) of the Indiirn Constitution which provicles:
"The right to move the Supreme Court by appropriate proceedings firr the enforcement of
the rights conf-erred by this Part is guaranteed".
321.
Wenter Menski
rights had been violated would constitute appropriate proceedings and should
trigger
the suo motu .iurisdicti'n of the highest corrri of Inciia:,
That this focus on 'public interest' has gone too fr for rnany liighly politicized
observers is a diff-erent ntatter altogether. It iurther obfuscates n,-,utyri,
uiigf,ty rig-
nificant achievements in Indian law in this field. Such constitutional .ierretop.n,
which are fr Inore radical than human rights activists without regional .*p.rtise ,eal-
ize, 'a,re m:rtched by equally radical recent developmenrs in Indiair fmily i"*r, which
.t
even lndian specialists are refusing to debate because they go against
.'1'
the grain ofwhat
activists hzrve wanted to achieve in terms of female autonoLy.5u.h d.u.Lp*.nts,
for
example granting divorced Indian wives post-clivorce mainterlance rights frorn
their
ex-husband for many years to come (:rn<l, th,,r, in the eyes of feminists
aking women
continuously dependent on men rather than granting ih".n independe.rt
,iehtr), .,r.n
if the wornan has financial resources of 1.., oi"r, link closety wiih the srrategy
of the
Indian state to construct a welfre state that relies on selFelp and familiai'support
structures rather than state-spoltsored support systems.ro
It was clear from the start that India couid never be a Western welfare state or a
state.iust fbr Hindus. India, as the Preamble of the Indian Constitution
indicares,r,is
openly'secular', in the sense that it stipulates that the state shouicl be 'equidistant'from
all religions. Pakistart, conversely, after some initiai lip service to secuiar
plurality, has
with increasing visour declared itself to be an Islamic Republic and, thus, from this
perspective, has become a legitirnate home only fbr Vluslims, in fact, only
for some
rypes of l\4uslims.r'
That
suclrterrorplaysintothehandsofHindufascistsisincreasing1yobvious.Thisidenti-
fies a rather unholy alliance of fundzrmentalisms, which l"ii; struggles
to combat
Notably, an increasingly alert Indian electorate seems to understrnd tf,i,
,
ancl, contrary l
to many predictions, India did not vote the BJP back inro power ar the Centre
durlng
thelastParliamentarye1ections.WheretheBJPisp,.,..'i1yirrpowerat1ocallevelf
contintring corruption and upheavais demonstrate for all to see that Hindu
funda- .
mentalists are not better qualified to govern India than the more secular-orie'tecl
;
322
Assessittg Contmuna/ Corficts and Hindu Fascism in Inrlirt
It is now an accepted jurisprudence and practice that the concept of equality before
the law and the prohibition of certain kinds of discrimination do not require identi-
.Ihe
cal treatment. equalitv rneilns the relative equality, narnely the principle to treat
equalli, what are eclual and unequally what are unequal. To treat unequals diIl'erently
rccording to their ineclu;rlity is not only perrnitted but reciuired.
35 The Shah Bano cuse is fbund rc Mohd. Ahnzerl Khan v. Shah Bano Begutz, AIR 1985 SC
945.'Ihe critical arnendment in statute law refers to the introduction of section 725 rn
tlre restructured Criminal Procedure Code o{7973, replacing the old, inellective section
488 of the i898 Criminal Procedure Code. This section redefined'wife'under Indian law
firr rrll citizens as inciuding a divorced rvif-e, so that a divorcing husband of any rclieion
became now legally liable to maintain his ex-wife until death or remarriage. One can
clearly interpret this provision as a human rights instrument, seeking to address a struc-
tural problcm in a deeply patriarchal society.
36 For details, see Werncr Menski, "Bc1,sn,i E,urope", in Esin rc and Dtivid Nelken
(eds.), Coml>artttive /aw. A httndltook (Hart Publishing, Portland, Oregon, 2007),I89-216;
id.,"The Llnifbrm Civil Code l)cbate in Indian [,aw: New Developments and C]hanging
Agenda" 9(3) Gennan Lazu .lournal (2008), 211-250 at <http://www.i{ermnlawjournal.
cr>m/slrbmissions.pirp>; lzl., "Indian Seculr Pluralism and Its Relevance for Europe", in
Ralph Grillo et al. (cds.), Lega/ Practice antJ CulturalDiaersit.y (Ashgate, Aldershot,2009),
31-48.
324
1lsses-rirtg Conzttzuna/ Conficts atttl Hittdtr Fa,rcisTt in Inclin
325
Werner Mensrti
elite rather than impoverished slum dwellers. In such pieces of rather realistic ficrion,
poor people appear not only as knowledgeable and thinking individu:rls, but are also
shown in a morally better light because tlley are often quite dependent on solidarity
with the people next door or under the neighbouring plastic sheet. Also in South Asia,
then, privileged persons can evidently rely more easily on arguments of individualized
autonomy and can then exploit their privileges to achieve further unfair advantages.
This is precisely what the Indian Ernergency sought to curtail and what the power-
ful Indian Constitution seeks to prevent when it tells the state as well as privileged
individuals to become more concerned about public interest rzrther than private gain or
enjoyment of political power. Nevertheless, justice, as l)errida famously saicl, is alwavs
" verlir", "in the making".
3; ;,,;;J;t .itrru u.. ir tria.rgular image, c'mposecl of naturirl larv (corner 1), social .orms
(corner 2) and state-ce ntric positive law (corncr 3), se e Wer ner Menski, Cantfittnrtirte l,rrtu
in a Globsl Context:Ihc Legal Systcnrs oJ-Asin und A/rica (Cambridge Universitl,Press,
Cambridge,2006),612. More recently, this model has been rnodificd into a kirc-shaped
structure by including 'new natural ltrw' in corner 4, namelv internationa.l lrrw, humirn
rights norms, rrnd elobalizing pressures.
JZ/
I4/erner Me n.rfri
of the neeri r
;nl';*:;'*[T:1"*#tl#],;T:,[Tr,11't;i*:$lt;,.',.mn
ve wi rr
4;
Ii
h t
ei cac o th
;:.:.:;'..n;il:,ffi ::.":ill,_X
or any particular religion
bioodshed in Bangairr.,
sharing of water
" thr solep""pr"'iii,
*rr"r"a.
or .";;;
.-.i
l**
-or1 factor. r,, ,ir. case of serious
:_fh ru
other *r, ,t.-uurning
.oth",,i.,,,il;.':::??:iTllff issue of the
Tf JlifiT,,ii,l::::i:l
::::;: i,,,,,u.,',.,,
*u||:; tfl : #'i,or tt protect * u, .h. r,,a;,i,te w
:T'
assrebsio's
rggreb^siors. At such m.,,,rah+^ ^r :gt its pluralis-
such mon,.n,,'"i.liu,,,inl.:,,..,.:.i:i{1:iiii:lffi,ry::,m::*
r n cer-
,.
i i
ii
";;;;:;,.r^h-^-^-
'1|i*,.#,:
;:, i':|Tffi *;:*,,,.T:ffi 1"1,,,r, -, ;
"
;;.; .l, er le ss o n, on ry,
'.,,"1f;:il"d:::'"1"i1T.'tTili'l15f;#{fij;#J:,.;,,;
still hears loud calts
ri,. *rt;#:T
:':i1,lo_L,h'".1.rb* years aso. one
fi,il:;:: :H,# ;* *;n';!i.":'j
1 Tii:* * trif
T y.
self i'to ,Tj
a cjccprFplural, t"a*a lo-porii", I'air.,
,1fro.d#:rl;:r:Jlfrffi
ff il ffi::t *
m:
"|;"ffidil*: il*,: n:t,;lr il1, ".,,y,,, r i,"'
;lji; HXn;.:It j;#:l,,Xy",io ut r D
"r
i u J trib ar .,;;;;;e s Among the
cornposite presence
a'd does ,r", ::l: "]tjority dl"r,fu1, a wish ," nl't. with India,s
p a r te rn s o* ci e'
ti *r rr one
il ;;i,': ::l.T:::ty
328
^t*;: f .. *t: fi*{: ,,il
Assessittg Communa/ Conficts
antl Hindu Foscisnt in hztlitt
continue life in a plural set-up.
There.are-imp,rtant ressons
a religiously plural here zrbout coexistence
tultt'trally hybria ,.i"r.io thar i'
acknowledge' seeing"'d only one dime.rsion J;'.;^prex
we in Europe have failecl
to
pict.,re, ,J,..-, of highlight_
;:o anti-Musri- ;"s;;;;,""".
:::"f*:3::l:': compromises a'd
roir,to u,,i.,,,u.,d that secular
a solid dose of altruism
where ,u.n-toutles frorn^all pzrrticipants.
e,,o, r,. u il :fi:,Tffij iX *t * :ffi :,#
i
",13
to assist in future ?,ff n-'.':,'$.,1 : 1;.fl
protection ninu^r, .ig;;.;.
Befbre we.sit in judgment
on h.- r;;;;ns govern their
and how they handrt tr'e hugery complex counrry
stresses of religiou, Jna
ing with remarkable success' other ;j;;;t;;.r, broadry
we should t .] .uuriou, to *utih s'eak_
minorities in Europe' In legal our treatment of etrrnic
practice, the author continues
to
methods of sovernzrnce at
lirri hu.,d: ;;;ce which see totalry unacceptabre
ment of European experience-whi.f, 4 has influ.nced rris assess_
,,
",rip.ri,i,...*,Although European efforts ro
jT: :ff l1T :1'il l.*il *: Lffi tii:*# : # ;,. d u b,., *
" "; ;;
vI. Tne Larnrvr Rrsx o'Hr*ou FuxoavnNTAr.rsM rru I*ora
so how does one assess
the risks that Hindu fundamentarism
saw that Hindus fbrm
a clefinite demographic
and fascism poser we
a say in the running
majority in India u,-,d thu,
expect to
of the country. H*',r"r,
permit the country to slide into ,r.Ji"ai"" c""rrriio' rtr.tr*ourdhave
a position of becoming not
as many Hindus still a Hindu ,rurinn (Hindu
dream' Alti,ot,gh. even u ra.rhtra),
sible because th, pr".rr. def ition oi,iuinau,is
impos_
th i s wi de ;;;._"
ffi::[ : ?il' :#
ry, l: ;i:H* m :::f
bypasses scholars who
think out,to*
ut in
tr *:iTil il*:
not believe that there is a ""J;;i;;
real ,irk thar r{indu
brack boxes. frre
tuTu*..,rutrsm wirl one crav
a,thor does
India' fe comrrosite nature take ovcr
of the nation is so firmry or,.ho..J
thatjust the religious elemen, i; .r;'-o,ry plurarities
ir.r.u.rgoing to be the sole <Jeterminator.
fhere are other big issues
ttrrt r,Jo.t"Hindu fu'do^.r,ioh;;"
nation that it is the rigt persuade trre
orientation,.fbr.g.*r_ntng
has often been argutd ihut over a biili'n diverse peopre. It
fbr the-realirntio,r
of h,,a' rights witrr universar
tion' the feelins of universal applica-
brotherhood rr,i'li-rf.rrrout..
universal Dttl"otion of Humu.r Notabry, Article 1 of the
Righr, of !94gJJ.tur., th:rt ,,[a]ll
born fiee and equal in dignity hu-un beings
and should act towarcrr ,rn. ""J
ri*i,,
Th.y r;;;;"*ecr with reason are
ancr conscience
,rrort..ir-,
a spirii nf t,-tt.rhoocr,,.
on every individual to accePt
others ro, ihot tt
rlr, .urr, an obligation
look carefully' we see that'r" p.,,rJumental ro respect diversity. If we
Duties "y'"r.,r"a
earlieridentified in paragraph 51-A(e) of the Indian onstitution
as cited
th.
pet from the Indian crtit,.tio.,, "1.*";;;;.",r*on
itr"r., ,r.ut .r l
brotherhood. Thi.s snip-
appeal for abstinence fiorn -"r31y grounded state_sanctione d
'eligio;, fundamen;^r;;. However, such regar pr.visions^
a y-;rt;;;
36(11) D + (i De1,e,.pn,en,
iffilhiTili'll;iii#'il%:""ion",
irrakzeptabre Exklusio";r
sofrj ,r.z nr,*tiiir,r;',,,iTi)*:;,';i;;f,:t;t;i
lif]:""'
329
Werner A.{ensLi
ri I
;lI
[,i
l;,:r:ri
F;riit'"t*'i|';tr1$f"t'niT.T4 ,-,*nt1*:;
ii i{
iF xi:r: ru:;* l", #iTt
:
;i # r,fr', {*:i*trgt lild f#
: li;
l,ril
',i
i'i
riii
;*itfo; 't'u'tv r" 'r* .rri.o i"*"*. ;" rnost recenr *,i,fl.tiu
-_". rvr\.rl- wnngs
,r'inini
On glObal
:li.', Thi"-r.,^^ ^,
global hu mrl, rights
i"f,rr"r.'i. .,',;.;;:.",
rnerely a {ct .rf;ta'rrr,'..,"rtiitause it is not ot'ly in srrr. rll tirat ,.rigron is not
pi e's Ii ve s ro th e excl u s io n ;r;iilff #fff ,,,Jrff
:fi** ;.:"j
n *,
i;;l!l:::"T#:fi "til;
:,,'"""iu"Jl,i,i,."i;*,.";;,.;:.*;lir$.f,j#
,'l;:,',ii;rfu #*#"jJL*"f ,rlffiT,':I:?ra*i;:*;;;ili*:
r e o,
eav
ti,.,. r,f ;
n
Africa toav "b"
p u.
# ;: ffirtr,,$1 ;:3 : :x r*5:;, 5r
[xll:l:tr'"'"1r'triinT*?:;##Ll;l,{iTs::i*i!k:::*.ff :i
rjs::XIilT.ffi f tfi'#li1ir,*s'.:.':i;:?ffi*:Xf:*ffi :;
colonia.l rnincls o
*,i*'-'*'#*#l{"#*:*$tHjl*t*'-ilt$
:i[i'ffi i:i;l]!ilf .i;;?::;i::i*:'Ji.*" jd'i."Tf il:'i1iT#fi ;3
:li: i
pop e,
e I * *,, ffi , -,, ;:
I, T-t:^----
:cr d e ad, :?: :,::#Til:[ lill*I ]
"'. l""L:".: :!:: ;h ff
u ai nss a nd oth er h ory
geri'g onr1.ir."'iu,'r.in ,r,.
3
lllT:'ffi;
i..'r, engrainecr eTr;j
sr tc s cre a rly
_**"li.iT:tflHil#,**;:il
41 See now ar lt
some input frorn Africa
t'gnt *orr-rast in new rvriting on
state
globar human rights:
I4/ben
42 11'',. ,,i,i,"!!(,f,:;;:;r:outs' '";;;;-';,;;n*"rni,in;;;i::,'cir o' hurnan
Werncr Menski, ,,Ilindu
law, hu
IndianJour,,r jurisprudence
and justice in rndia
43 Sarhe, op.cit.
"17,,;)i;:;;;;:i}|j;,*lt' roctay,,, 1
n<>te 27.
44 fhe
"^ame coulcl be saicl for the
4s:ff va
gxi*'r*;;l;i';,:;",')f,ii"i;!;:; j,I".:;il":,':;;il',,T;,,,
J-t( ,,
Assessing Conlrnunal Conficts anrJ lIindu Fascisnt in Indio
all over South Asia. That does not excuse what happened in Ayodhl'a or in Gujarat in
the rece't past but seeks to explain that speaking immediately of Hindu firscism might
be too ,,ro.rg ancl might in fait be counterproductive because it ieaves no room
for the
despicable Hindu'other' to regain acceptability.
Significantly, events since 1992 concerning this particular religious structure in
Ayodhya indicate that the Indian state has learned to remain zrs neutral as possible in
such hotly contested circumstances. The mosque was not rebuilt, but neither was a
Hindu temple built in the same place. The stalemate scenario, with court cases pend-
ing for decades, is not unusual in South Asia whe n there are deeply contested nation-
ally relevant issues.+u The stalemate scenario may go on for a long time. One sees here
that when faced with monstrous threats like Flindu fundamentalism, the Indian legal
system may indeed turn a blind eye to the various competing positions and simply
hope that tempers will cool. The Indian state, probably more than others, is deeply
conscious of the limits of law.
That particular explanation was, however, far less convincing when there were
mass murders in the Gujarat riots of 2002.I remain agnostic about the truth of why
this anti-Muslim pogrom started, but was pleased when the Supreme Court reminded
Narendra Modi of rajadharma, the Hindu ruler's duty to rule properly, thus, turning
the hindutva rhetoric against a clearly deficient office holder. These are rare pieces of
evidence of the Indian higher judiciary shedding its reluctance to address religious
issues. Qrite apart from religion and hindtttrta, what became clear is that the stzrte
government, the central government and the judiciary have all colluded in not fully
addressing the serious legal questions concerning a mass-murder scenario that should
have been acldressed. This is undoubtedly a huge blot on the hr-rrnan rights record of
India. There zrre other serious blots that need to be addressed, such as the treatment of
local Muslims in Kashmir by Indian security fclrces and the handling ofvarious atroci-
ties against Christians in several parts of India.
The author, however, is not satisfied that it is entirely correct to view such atroci-
ties as a result just of Hindu fundamentalism or Hindu nationalist excesses. Mirny
Hindus express resentment of being blamed as a faith community for the atrocities
that were committed. Sel{:defence is not acceptable in most cases as a convincing
arJument, but the sense of being victimized in one's country and being made to feel
that certain 'others' have better rights than oneself reflects observations made in the
aforementioned about intense competitions over resources, space, claims to specific
entitlements, or simply aspirations for one's future that seem to be ruined by too manv
'others'and a {lood of competing claims that never stoPs.
That this does not justify mass killings is clear. However, it is amazing that days
after the atrocities, peopie of different communities were ap;ain engaged in business
and other relationships in Gujarat. If the hatre d of 'the other' is really so strong as to
lead to killing that'other' at certain times, but not at others, I fail to see how the blame
46 Thus, the Indian Supreme Court took 15 years, between 1986 and the strlrtegic momerlts
of September 2001, to pronounce its decision in the case of Dtnial['otlf v. (Jnian of Irtdio,
AIR 2001 SC 3958 and 2001(7) Supreme Court Cases 740, which establisheci that it rvirs
acceptirble to retain separate Muslim personal law in India and, thus, put zr further nail
in the coffitr of the much-desirecl LIniform C-'ivil C'ocle.
aa1
JJI
Werner Men.rfri
c:an
-iust be pur<>n Hindu fundirmentalism,
let alor
*llt*:;,:::#,*:,*;i_:p:;,*lm*Ai*hlu,#."*:r
cerr.in
:rr rirnes, and.co'rin*
;;:.T:;lfj: --7 .'refe are pogroms
Hindus themserves at others.
have or1,.*ttr"rce
.;.x'::ll:':,
trffi :h:'-{ ;i_ *:'il..1,'l:tilil::';l:;:""'o t. o srea,
i'yilii;,d'ffi jiffi'.4;;;H:::.:,,:l#::l,;t1,";il::?J,i::ilH
,';:*Tfi*::':i"*r:**1*l*f*ffi
they are Hindus
"n,i .rorr.{^.r;."rru uy q"i,. ,. * obr.r".r;;;:,;rferior
ll1iii,{',':i,n,*l
are a"prv .da"Ji'll;'thut
L:,',X?r';rnrese "o; human
,J,, human rishts
";;'0.,i;
VII. SrictJLARrsM axo EeuAlrry
India, being a sip;natory
to rnost rna.ior i"nternz
ir'. ,,i,,'g,io,..q-rnu"i
ffi:jt lT;fr., for gove*ance-
Howev"r,
"";;;;.,tt,i"^moder "r,"aJ?auariry, equarjty, and
uiu,", ,h. .''urrrint rr,,g.
i n, e r, i n k e o,?l
ffi : J i J l#:tH:T.J ;
"rrr'Ltro ,kirtlrry
l* *I Iffi :;ij*$;;
;lll'
",
"ir",p_
i[i::**:*:':fT"*"#:*'li',".-;,;,;ii',"x'i:J1;iff '.1,::j
J*ll; ;;;:;f
n "ft
;ifi ':','#*::: ;' " a,,.,,. i".t,
.
,T;;: :::' #I;;,
i! I'::! t;il
ot,'ru*i,;; not wiped out a 'tradition' roud;r;;;.T:;Tffl:
a;;;;';;;i,ffi'J,';t;:n: back ro ,hJ;;;..,1"",,, wrrich ,,ry,",.disciplinary .|]
:i,,:,
il
rll
i;
4_5.
l'
iil
s32 iil
jt;
''i
,t:
i
Ji
ll
il
As'es'ing communrtl conficts
untJ Hirttlu,Fasci.rrn itt India
of the afierlifeT:r[1:;:':;
upp..r, yg be that everyone and
. everythins,
r,
.
;?;:'*' ?:::*,1 :::: [ *: fi tr
individual
indiviclual beings.
;
p
;iil::,t;x;il:i.::1;l::'::::1,:l:':',",$'-"'urv !"k;; ," .i.*r,rring crse r,,, j,
# ff .:::l :il: L: i.,,T:: ; ;
some suprahuman eniity an.J
beines.I{ence everybody,
ever.,,h,,J- r .rr.r,
a,r^.--.:-- -, '*ttt
, ffi:.I:ffi:?:ilrffTi:lrT::
oni,,,r;;,
ui"a1, .,. vegetarians But as one sees,
ffi::?.1il:f"Tilr:,.jr;r:.:. :l,I
rhese-reff:::t::Tll*:_,,t.,ot h.,itut"i,l,ri:",i::;'il'l,i:JJj,.:_f,::
'rs of stress.
evcn
i so there are other ,'u'ul inputs
than purely 'relieion' that a"n.r.
boundaries of what is pcrceptions ancl
good ,r,ri whut is aci ti, n-aur,
ultr,',ltely whether evil-
tifc, trowe,,.. J,,^g,eeable_m.y be
;ir;l;*f :::::,::i:lT,-:f p e rc eive d . counterect even
. but l*
il,-;ialso deliberations over-"11.
"l,T:::,''*,:T:: one,s uty to ,r.. "". r : ff
"?,;; :,
*r,#rjfiTtJ:#::;: ::H:':i,, J
i a,.i"i.a-u;;. :?:::?
lf;i?Jl;::]1,,::::T1 ";;
dutv and virtual hands-on responsibility grey_bearded olci man rndivid,rar
ror one'sitil"r"#;X 1
: epitomized in that famou' tpiro.i. TiiiJ.j,#*,1
t":ir. gh-g."ragittr when r-".J Krishna
fint-hearted warrior Arjuna
that it is his dhar'nticduty to kill tells the
Thtts' there are moments in which his reiatives.
Hind's may jlel a duty to kill ro prore*
is perceive d to bea higher good' whether o,r, ,t,outd w6at
conclusion as evidence of llinau classify the possibility of such
lascism ..-ui,r., ,erio,sly albutrnt.. Although
ternatic genocide would be svs-
impermissible and a criminal ofrence, Indian
to argue that there is no authors like
contri.tin., between notions of equal
a fundamental element inh.r.rr, dignity, such
of concepts of human righis, ancl
',,od"rn Hindu
microcosmic interlinkedness.
Th. *.rtho, urgu., tl.ut th.r. is actually concepts of
perception in Hindu cultural an altern:rtive
patterns, trnother overlapping consensus,
all individuals and other beings namery that
are actually different and, thus,
equal' It also matters ot' *hor. ultirnately we are arl
terms or,d i'whose conceptual
fhe conversation. If western language we conciuct
hurnan rights discourse bans talk
of diff
creates curturar barriers in the o.,u?u:li';LlTlJ
;::XJ;:f.Tffi:11-fltr1i?;this
41.
J.)J
Wrner MensLi
VIIL Coruclusroiv
Preciseiy under wliat circumstances
one srroulcr then be alrowed
clusion that so'reotre deserves to reach the con-
to die will ,.-rin open for
hitve culttrre-spccific clebate. Hi'dus
answers to su;h ,rouurinf clearry
between tol"t''"tt of the 'other'ancl l1,r"rrionr. Finding the right
self:preseirii"l bara'ce
one of the mosr dirficult in any.urtur contexr is surery
predicamenrs oihurnan
excuse the frenzied wa'ton rife. Triu.\ ;;;;;;.rre, norhing
killings that have ,rr.." place can
HiJ"."11,":, ;;;;;;'h:il;""i i,, irrdia i' the name
orprotecting Hinduism, the ,."..,-,ity
preserved under the rubric
of 'cosrnic order'ir-, ,i. _,*n, wish to see
evidence of Islamic terrorism, I.rji"r, ,rur.. ilo.,ever, worrdwide
*iti.rr has hit i'd* particularry harcr, demands
ill*;l' ##]j
some
::.,i,;' :;1nruX ;
ii gh,,,r i,.n
u.,l ii, k, .o., t,i b u ti n g
It may be asked' finally'
conrpetine ch:illenget'o'Il -htiht, secularism is a suitabre technique to handle sucrr
clearly deprc'ds ;;;;.;ean
denial of the relevattce. of by that concept. The blatanr
religio'.in toclay', ;"ri; is
does not match the cultur"i outdated-and, ,p.cificalry,
rat'er co14v developed o
tltlirl", of nn-Euron""r,'ow
parrs of the worrd. India
has
-"'rroJ
religious and value pluralisrn 1i;qi;:t.nceprual srrains and srresses of
of secuinrrism as equiciistartt "rJ.,f.o.t-ial rr,-"gi, ir, *Jl-.veloped policy
connection of trr.
'J* post-modern srate with a// reri-
+s o'; titi' tu"tft,
'"t(1.'.^ldJarnes Larso. (ed.),
"U',,""r.',u Re/igion ttntrper.ronr/ lazu
/o -luilsttt.tr (r'rri*na irtscct.rlar"In,ria.
frr'riir'r'l
rl.r.,'u,"o,,,,;,,grnn.an.r Lr,rl,rnirporis,
Iri'ois, 1l;
r
li
ilt
334 ill
A.rsessirtg (lomnt,n,/ cottficts a,d Hintlu Fa.rcism irt httlia
335