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Secularism's Last Sigh?: The Hindu Right, the Courts, and India's Struggle for Democracy

Harvard International Law Journal, Vol. 38, No. 1, p. 113, 1997

58 Pages Posted: 4 Oct 2008  

Brenda Cossman

University of Toronto - Faculty of Law

Ratna Kapur

School of Law, Queen Mary University of London

Date Written: October 1, 2008

Abstract

The struggle to secure the constitutional and political protection of secularism in India has been long and difficult. Recently, the Hindu Right- a nationalist and right wing political movement devoted to creating a Hindu State- has hijacked the dominant understanding of secularism as the equal respect of all religions in order to promote its vision of Hindutva and its agenda of establishing a Hindu State. Its' emphasis on the formal equal-treatment of all religions operates as an unmodified majoritarianism whereby the dominant Hindu community becomes the norm against which all others are to be judged- threatening the rights of minority religious communities.

In Manohar Joshi v. Nitin Bbaurao Patil and eleven other cases (collectively known as the "Hindurva" cases), the Supreme Court of India delivered a mixed message to the cause of secularism. In this Article, we examine two deeply problematic aspects of the Supreme Court's judgment: (1) its conclusion that hindutva constitutes neither a violation of the prohibition on appealing to religion to gain votes nor a violation of the prohibition on promoting religious enmity and hatred and (2) its conclusion on the secular character of the speeches of the Hindu Right- effectively vindicating the profoundly anti-secular vision of secularism that the Hindu Right has long been trying to promote.

In the final section, we turn to consider the crisis of secularism in India. After briefly reviewing some of the debates on secularism's future, we suggest a strategy for reappropriating the dominant discourse of secularism from the Hindu Right, and reshaping this discourse in a way that may better capture and promote a democratic political vision.

Suggested Citation

Cossman, Brenda and Kapur, Ratna, Secularism's Last Sigh?: The Hindu Right, the Courts, and India's Struggle for Democracy (October 1, 2008). Harvard International Law Journal, Vol. 38, No. 1, p. 113, 1997. Available at SSRN: https://ssrn.com/abstract=1276427

Brenda Cossman (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-6658 (Phone)

Ratna Kapur

School of Law, Queen Mary University of London ( email )

Mile End Road
London, E1 4NS
United Kingdom

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