Hinduism, Secularism and the Indian Judiciary,' Philosophy East and West 21:467-87 (1971)
Abstract
One of the most striking developments in independent India is the successful emergence of an avowedly secular state encompassing the bulk of the world's Hindus.^ There is disagreement about what this secular state implies'whether it implies a severe aloofness from religion, a benign impartiality toward religion, a corrective oversight of it, or a fond and equal indulgence of all religions. But there seems to be a general agreement that public life is not to be guided by religious doctrines or institutions. There is a widespread commitment to a larger secular order of public life within which religions enjoy freedom, respect, and perhaps support but do not command obedience or provide goals for policy. At the same time Hinduism is undergoing a vast reformulation and transformation. In fact, these processes are closely interlinked. The nature of the emerging secular order is dependent upon prevalent conceptions of religion, and the reformulation of religion is powerfully affected by secular institutions and ideas. This paper discusses some aspects of India's legal system as a link or hinge between the secular public order and religion. The modern legal system has transformed the way in which the interests and concerns of the component groups within Indian society are accommodated and find expression.* In traditional India, many groups (castes, guilds, villages, sects) enjoyed a broad sphere of legal autonomy, and where disputes involving them came before public authorities, the latter were obliged to apply the rules of that group. That is, groups generated and carried their own law and enjoyed some assurance that it would be applied to thepi. In modern India, we find a new dispensation'the component groups within society have lost their former autonomy and isolation. Now groups find expression by influence on the making of general rules made at centers of power'by representation and influence in the political sphere, by putting forth claims in terms of general rules applicable to the whole society. The legal system, then, provides a forum in which the aspirations of India's governing modernized Western-educated elite confront the ambitions and concerns of the component groups in Indian society. In this forum the law as a living tradition of normative learning encounters and monitors other traditions of prescriptive learning and normative practice. We shall be concerned with India's secularism both as a program for the relation of law to religion and as an instance of the general problem of the relation between law and other traditions of normative learning.
