Skip to main content Accessibility help
×
Hostname: page-component-78c5997874-94fs2 Total loading time: 0 Render date: 2024-11-05T04:34:08.426Z Has data issue: false hasContentIssue false

11 - The Polarizing Face of Law

Religious Conversion Judgments and Political Discourse in India

from Part IV - Discrimination

Published online by Cambridge University Press:  19 August 2019

Gerald N. Rosenberg
Affiliation:
University of Chicago
Sudhir Krishnaswamy
Affiliation:
Azim Premji University, Bangalore
Shishir Bail
Affiliation:
Azim Premji University, Bangalore
Get access

Summary

The chapter examines the relationship between India’s higher judiciary judgments on affirmative action benefits and the response of the Hindu Right to religious conversion. It makes three arguments: First, progressive court interventions can be impeded by restrictive constitutional provisions. India’s judges are hamstrung by the embedded contradiction in the law, which, in its pursuit of one constitutional goal (social justice) has undermined another (religious freedom). Second, even if judges aspire to implement the spirit of the law, and try to provide an equitable result to these groups, their efforts need not produce positive social change. Third, contrary to the view that apex courts produce moderating effects in the arena of religious freedom, judgments have unintended and deleterious impact on religious toleration and may deepen polarization. The empirical analysis highlights this argument by examining the impact on the access of religious converts from Scheduled Caste and Scheduled Tribe groups to affirmative action benefits in 80 religious conversion cases from 1950-2006 in India's higher judiciary. It scrutinizes the Hindu Right's historical and contemporary responses (in parliamentary debates, newschapter reports, and interviews), to these judgments and highlights the unintended consequences of the courts' decisions, namely religious polarization.

Type
Chapter
Information
A Qualified Hope
The Indian Supreme Court and Progressive Social Change
, pp. 295 - 318
Publisher: Cambridge University Press
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Adcock, Cassie. 2013. The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom. London: Oxford University Press.Google Scholar
Advani, L. K.. 1999. Secularism – Rooted in India’s Culture and Traditions. Bharatiya Janata Party Publication No. E/3/99.Google Scholar
Anwar, Tarique. 2015. “SC Ruling on Reconversion: A Stamp of Approval for Ghar Wapasi, says VHP.” Firstpost, February 28, 2015.Google Scholar
Barua, Ankur. 2015. Debating Conversion in Hinduism and Christianity. London: Routledge.CrossRefGoogle Scholar
Cossman, Brenda and Kapur, Ratna. 1996. Secularism: Benchmarked by the Hindu Right. Economic and Political Weekly, Vol. 31, No. 38.Google Scholar
Dahl, Robert A.. 1957. Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker. Journal of Public Law, vol. 6, p. 279.Google Scholar
Derrett, J. D. M.. 1999. Religion Law and the State in India. New Delhi: Oxford University Press.Google Scholar
Deshpande, Ashwini. 2006. Affirmative Action in India and the United States, Equity and Development. World Development Report 2006, Background Papers.Google Scholar
Epstein, Lee and Knight, Jack 1997. The Choices Justices Make. Washington D.C. CQ Press.Google Scholar
Goel, Sita Ram. 1998. Pseudo Secularism, Christian Missions and Hindu Resistance. New Delhi: Voice of India.Google Scholar
Gurumurthy, S.. 2014. Is the Stage Set for Mother of All Debates. The New Indian Express, December 15.Google Scholar
Hardgrave, Robert. 1969. The Nadars of Tamil Nadu: The Political Culture of a Community in Change. Berkeley: University of California Press.Google Scholar
Hirschl, Ran. 2010. Constitutional Theocracy. Cambridge, MA: Harvard University Press.Google Scholar
Jaffrelot, Christophe. 2007. Hindu Nationalism: A Reader. Princeton: Princeton University Press.Google Scholar
Jenkins, Laura Dudley. 2001. “Personal Law and Reservations.” In Gerald Larson (ed.) Religion and Personal Law in Secular India: A Call to Judgment. Bloomington: Indiana University Press.Google Scholar
Malkani, K. R. and Mathur, J. P.. 1997. BJS to BJP: Two Essays on Ideology in Action, Bharatiya Janata Party publication No. E/6/97.Google Scholar
Robinson, Rowena. 2014. “Minority versus Caste Claims: Indian Christians and Predicaments of Law.” Economic and Political Weekly, April 5, Vol. 49, No. 14.Google Scholar
Rosenberg, Gerald. 2008. The Hollow Hope: Can Courts Bring about Social Change. Chicago: University of Chicago Press.Google Scholar
Savarkar, V. D.. 1923. Who Is a Hindu? Bombay: S.S. Savarkar publications.Google Scholar
Schonthal, Benjamin, Moustafa, Tamir, Nelson, Matthew and Shankar, Shylashri. 2016. “Is the Rule of Law and Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom.” American Behavioral Scientist, Vol. 60, pp. 966986.Google Scholar
Shankar, Shylashri. 2009. Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights. New Delhi: Oxford University Press.Google Scholar
Shankar, Shylashri. 2018. “Secularism and Hinduism’s Imaginaries in India.” In Kunkler, Mirjam, Madeley, John and Shankar, Shylashri (eds.) A Secular Age Beyond the West: Law, Religion and the State in Asia, the Middle East and North Africa. Cambridge: Cambridge University Press, pp. 128151.Google Scholar
Shankar, Shylashri. (with Gaiha, Raghav. 2013. Battling Corruption: Has NREGA Reached India’s Rural Poor. New Delhi: Oxford University Press.Google Scholar
Swamy, Subramaniam, Ban on Induced Religious Conversion Is Constitutional: Himachal Freedom of Religion Act, Organizer, 2012. http://organiser.org//Encyc/2012/9/11/-b-Ban-on-Induced-Religious-Conversion-is-Constitutional--b-.aspx?NB=&lang=3&m1=&m2=&p1=&p2=&p3=&p4=.Google Scholar
Vilhena, E. Oscar, Upendra Baxi, and Viljoen, Frans (eds.) 2013. Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa. Pretoria: Pretoria University Law Press.Google Scholar
Viswanathan, Gauri. 2007. “Literacy and Conversion in the Discourse of Hindu Nationalism.” In Dingwaney Needham, Anuradha and Rajan, Rajeswari Sunder (eds.), The Crisis of Secularism in India, Durham, NC: Duke University Press, pp. 333355.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×