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Werner Menski *

Assessing communal conflicts and Hindu F'ascism in India

I. lr.rrnooucrroN:'fHe pnosLEM oF Ser.ncr.rvE BRRNnTNc


Although Hindu funclilmcntalism, also ref-errecl
to as Hinclu natio'aiis nt or /tirtrlut,tLtt
('Hinduness'), remzrins a somewhat
.threatening and violent element, it is probabll,
today no l''ger the.most centrally relevant
isr,.re'fb, cliscussion of rninority prote
issues and htrman rights in south ctior.r
Asia. Hindu fascism is today a bit clatecl
and is probably le ss relevant in as a label
2010 for unclerstancling minority conflicts
Asian region than many schol;rrs and activirtr, i' tlie south
i;.l..ling prominenr anti-Bra6rni'ical
polemicists, like to allege.,
I am saying this not to excLlse l{inclu nationalist
fscisrn, which certainly co.-
tinues to raise its ugly heacl in so.th
Asia ancl in thc south Asian cliasporas lvorlcl-
wide' br-rt it is not a rising movement,
irlthor-rgh the main nationalist bocly,
(Rashtriya svayamsevak Sangl"t) thc RSS
might like t. irri,rt r>rherwise. Th.s, ir is neccssary
put this particular issue immediateiy i'to tc)
the wider perspective of an ongoinp; global
debate and a not:tble battlc of several
fscisms, rrrraol.,rtalisrns, and cornpeting
visions of globaliszrtion.'I am conscious
of the risk that in effbrts ro ensage in g-iobal
debates about such hotly contesred issues, Ern..r,tri.
ers all too easily t"9 ;;-,;i,;;;.;rr."r
bra-ncling all Hindus as lscists ancl all
orrserv_
:p
The serious methocloloeical .r.n', committecl
vlJslirns as rerrorisrs.
by this approach is to take everythi'e
'Hindu'or'Muslirn'^s ieligious, although
it is a fct that since ancie't tirnes religi.us
and cultural traditio"s lta,'. known the Joexistence
ancl connecteclness of the reliqi<>us
and the secular'r Hi^du funclamentalism as it exists toclay clerrrly
misuses ir'cl cjistorts

* Pr.fbssor of so'th Asian Larvs ar the Scrro'r


of La.w, soAS, l,ni'errsir],of Lo.tro'.
1 see prominenrly Kancha lraiah, post-fIinrl,
Lrrl;o (sage,-N;;il,n,, rr)
2 17' Patrick (ilenn, I'egaltratlitiorts
oJ'tht:'tuot'/t/; sustttittrble t{iversity irt
sity Prcss, oxford, 2004),51: notei that 'fgilobalizario., lu.u,(oxfbrct l';,niver-
or world dorninarion, is rrsurlly,
bur wr]rns trr:*'r]rere are a numbe. orerob;rJ;i.;;,;',,;;;;
:l]l'i:[:ii,il:r;i;:cess',
3 IIi'clu law, religion itncl cr-tlturc, the relevant key
Ftrr
concepts are the much underrateci
distinction of religi'us/invisibie ll"ruth (rita)
arLd thJ ,".ulor/visible Tr.tl.r {)f .irrl1,4. p,1,.
European Yearbook of Minority Jssucs
Vcrl_g-, , tst:u g7g go oJ r9.i2r g,.lr.l-.1.J.1.
a zorr Konirt/r/ili.e Ilt ir/ :r'r. pritttttr in Tht Netht:r/aril.s.
looo
IVerner Menski.

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,

scen'lrios to the nccessary exarnination of rnind-boggling complexities. 'iirrl

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

management appears to be a particularly critical element in the huge Indian narion


'lll
state. Evidently, there r.vill never be tot:rl agreement on techniques of plurality man- Ii:
ll
agen-Ient or the l'randling of such rnultiple diversities. Irrespective of whether one ,r;'
I
iir
chooses to use a discourse of legal pluralism,o or of fuzziness and diversitls blarning li

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'

clirnensional competition over fesources and even physical space on yll

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

cally when it cotnes to South Asia'" $ii,

in India, IL:

Consiciering the complexity of the past and present struggles specifically


there is no rcalir,i., ,.np. ior simple transplant dr."*, of 'Western'or global modeis' tr;

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"

oi lo.,alized rcmains deeply contested in every respect. Simply blaming I'ii'


{il

,traditio.' a^cl"rr","rg"merlts
'religiol-r' or insistence on local values hides the dilficult central lness2l$e
iu.

10 Bl-xt, o1t.cit. note 6.


11 See Vecna Das (ed.), Mirrors of'ttiolence. Communitit:s, r'iots and
sttraiuors in South Asia
(Oxfirrd l]niversity'Pr.rr, Deihi, 1990). This study broueht out that comtnuualistn,
acquired space in thc political:ent:c.stage and called
i.clr-rding political llinclr"rism, hacl
to secularisln. It also highlighted the role of 'diabolical myths'
for a positive comrnitmenr
(P' 6+)'

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.

III. Tnn GeNsnnl lVftNonlrv RlcHrs StruRrIoN


The minority rights scenario in the region as a wirole has been continuously chirngir-rg,
rather rapidly in recent years, but often unnoticed by members of the scl-rolarl1' and
activist communities. Various human rights violations continue to exist of course, like
almost everywhere on the globe. Reeardine South Asia, however, certzrin rernarkable
stereotypes continue to cloud the official and dominant perceptions. Largely based on
older sources, with fr too f-ew scholars able and ready to provide up-to-date assess-
ments on recent trends, there is still fr too rnuch prejudiced talk ancl teaching about
(hi)stories of the Hindu caste system, violent abuses l\ke sati practices and exclusion of
low-caste people. In a remarkable synergy, secularist or modernist trends of opposine
religion ?e?' se, and thus of blacklisting anything 'Hindu', have been combined with
the increasingly powerful agenda of drrlitization in India. Additionally, Muslims as
a disadvilntaged minority in a Hindu-dominated state have addcd their r''oice to the
chorus of criticisms of the Indian state and its handling of-diversity.'t The notable result
of this synergy has been an almost vitriolic badrnouthing of 'I{indu' cultural elements,
even a denial of Hindu roots as some oddly constructed ancl entirely negative heritage
thar many lndians today seem to reject.'4 Althotigh this kincl of ideological position-
ing is certainly consistent with the basic approaches irdopted by human rights bodies,
wirich also have an increasing presence in'India, eround realities are often much more
complex than these many critical voices indicate. Substantial criticism and insieht on
violations of rights of minorities, indigenous peoples, and women have been notecl and
recorded in abundance.'5 There are, conversely, deliberate silences and an increasingly
stubborn refusal on the part of feminists and activists to deb:rte significant advances in

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

Indian diversity management which go against the grain of modernist prescriptions.'6


Clearly, a. lot remains deeply unsatisfactory when it comes to assessing what actually
foes on in the fieid of human rights in India.
Of course there is no absolute objectivity and there are many biases that continue
to interfere. However, it seerns intellectuallydishonest to pickup onlyone side of the
anciellt stick of debates, fbr example, that birth among Hindus determines a person's
place in society fbrever, or that women always have to be dependent on men. fhe other
perspective is always also found in the same scriptural sollrces that are cited to us all
the time, but one often does not present a balance because that complicates the argu-
ment; it is simpler to allege that things are just as stated by one side. Persistent use of
such one-sided rhetoric causes serious damage to globai scholarship, given that there
were always other perspectives, often a cultural subtext of some kind of subalternity
that analysts, whether from the region or not, ignore at their peril. Pluralism and
diversity is not a postmodern phenomenon, it has ancient roots in the most distant
layers of Indian cultures.'7
Although Hindus (if we include the Schedules Castes and Tribes) remain a large
demographic majority of Indians (between B0-850/o), especially the general suppression
of fernales constitutes a thorny issue for human rights lawyers. But here, too, there is
much more th:rn meets the eye because recent fieldwork-based research has begun
to find that many women, Hindus, Muslims, and others can and do access divorce
procedures, fbr example, and may be adept at managing their lives in situations of
adversity.'s Of course, highlighting such findings here cannot and does not deny the
serious and unacceptable violations which especially women fiom Scheduled Castes
and Tribcs continually face in India. Few observers realize, however, that all over
South Asia, women leader figures are not unusual, and even female Dalit leader fig-
ures are now increasingly prominent. In India, apart frorn past and present leaders by
the name of Mrs. Gandhi (a heavily loaded name itself), India presently has a low-key
but apparently not entirely ineffective female President who is more than a decora-
tive figurehead in the Indian constitutional set-up. Although this is also true of other
South Asian countries, for exampie, Pakistan and Bangladesh, it does of course not
:rlter tl-re reality of substantial and systematic discrimination against women. I{owever,
the picture is never zrs one-sided and simple as much human rights critique indicates.

:;li,
'1l
'
,i)i:
|,
:::
ilii

16 Jlris is clearll,obviotts in Archirnir Par:rshar and Arnita l)handa (eds.), Redellning/nmi/y


ii,.
il', latu irt India. Essays in honour of B.Siiaaratnayya (Routledgc, l,ondon,2008).
:i
T7 See Werner Menski, 'Ancient boundary crossings and defective memories: Lessons from
I

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-

ments, such as a right to food.',


Focusing on the supposedly bad elements of 'tradition', 'religion', and 'culture'
as evils,let alone Hinduism and Is1am, certain relevant-looking studies tell us lnore
about the predilections of the author than about developrnents in the region that one
purports to clisctrss.ti Instead of ofl-ering practical and realistic advice, scholars still
often e ngase in shadow boxing,labelling everything'Hindu'or'Muslim'as religious,,o
whereas many Indians presume that the ollicial death of Hindu law occurred during
the 1950s.'5 Much academic coverage of South Asian 'problems', often breathlessly
and sornewhat desperately, tries to keep track of new signal events, paying insufcient
attention to deeper analysis and monitoring of subsequent developments.'(;

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

IV. ColapLEXrrrES oF'rlrE Sunyncr Mar.'rnn rN Te nvrs or.


Hnruor-rNc I)rvnnsrrrE,s

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'

- Consequentll', India's deep recognition of interlinkedness and divers ity at many


levels irks Pakistan, upsets its Islamic fundamentalists and motivates
them to cause
instability in India through a series of terror attacks of increasing sophistication. i

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
;

C-onsress and its allies.

29 Sec 5'. P. GuJ>ta a. Prcsident aJ'India,


AIR 19g2 SC 149.
30 In thissPecific context, the much-rnisun<lerstood Shah Bano aftirir, follorving
the case of
Mohd' Ahrned Kht,t v' Sh,h Bano Begt.rnr, AIR 1985 SC 945, is highly
signilicait becirr:se it
has led to factuallywrong assertioni that the Inclian state has a.iitr.ruy failed ro prorecr
Mrrslim divorced wivcs. The oppositc is true :After the importanr decision
of the Supr"-.
Court in Danial I'atif zt. fJnion oJ'Intlia, AIR 2001 SC:gSg, scholars shoulcl
know that
these carlicr argunrenrs were poliiicizcd {iction rather than
legal fact.
31 Since 1976 tl-re wording has been that Inclia is a "sovereign Socialist
Secular I)emocrirtic
Republic".
32 'lhe f.ther of the natiou, Nfohammacl
Ali Jinnah, in a famous spe ech, tried to lay down
this guidance but he died too soon to herve any further impact ,rn
st,bs"qrent policy ticvel-
opmcnts.

322
Assessittg Contmuna/ Corficts and Hindu Fascism in Inrlirt

'Ihe secular Grundnorm of India as a nation


is amply clocumentecl in t6e
Constitution of 1950 and has been made more explicit in its ;;"y subsequent j
amend- t.,
ments' Management of diversities in a plural nation dernancls th:rt the claims l,
of iirl
t,,
majorities of whatever description are restrained and tempered by circumspect \::
recon- fr
i.i
sideration of the needs of all others, including various reiigious inorities.l
fhe fun- ll'!;
irl
damental riE;hts guarantees of the Indian Conititution are indeed like a :i,'l',:

giant net with


many holes. It is important to be aware that the se fundirmental rights ar!.th.oretically
justiciable' so one can claim them in a court of law. However, tat hunclreds
of rnil-
lions of citizens were not going to be able to allord accessing such rights and
claimilg
such guarantees as existed on paper became more eviclent in i"a.pclent
Inclia. lh;
growing predicarnent led ultimately to the Emergenc v of 1975-77,'a d.eeply
politicized
period over whose assessment there is no uE;r.".rrt at all, but which iror'h^.1
many
cirthartic effects in terms of protecting basic rights.
At least mentioning the Emergency h.re is relevant to the present cliscussion
because, whatever else Mrs. Gandhi did as an obviously mthless dictirtor
citrring this
time, she implanted new provisions into the Indian legal system that strengtened
the nation's commitment to pltrrality, flagging up explicit ention of secul2rism
in
the reworded Prenmble of the Constitution in the 42nd amendmenr i' 1976.;u
It is
discussed below in more detail that this wclrd, in L-rclian law, cloes 1ot
actually mean
separation of law and religion, but exactly the opposite, namely conne crtedne
si of law
and religion while seeking to achieve equidistance of the state from all religions.
It is
important to understand this ideal of a closely monitorecl linkage of law ancl religion
h-ere' All religions are to be taken ?rccolult of, ideally on eclual teinrs.
Obviously, tir.,.,
Hindus as the demographic majority would be uncler even stronger obligations than
before to account for the presence of 'others' in the new rlation. Thi, ,tr.irng.
cle arly
got stronger through the Emergency. It also clearlv counteracrs Hindu f.rn,lrrrlerrtnl
ism.
India's revised legal regime, thus, explicitly reinstated anci clemancled fbrrns of
altruism that were earlier built into the highly ph.rral and quite idealistic trirclitio'al
South Asian legal and soci:rl structures that appealed so strongly to informal selFcon-
trolled ordering through key concepts strch as tlharma and ,oia'rara, situation-specific
appropriate behaviour. These methods are informal techniques of settlins .,6,.rfli.,r,
which standard human rights analyses based on equality-fbcused opp.ou.h.s mieht
rashly vilify as 'traditional' ir"nd deeply discriminatorv. Respect fo. .lifttence
is fi,;*
such a perspective seen as a positive thing, not as a violationof humir.n rights as
we lre
taught today. Indeecl, traditional Indic normative systems not only respeltecl plurality
and diversity, but also emphasised interlinkeclness rarher than inclivi.lualiti o.
p.rl
sonal autonomy, cluties rather than rights, and eqLrity r:ather than ccluirlity.
Of .n,.rr.,
people zilso killecl each other in the name of different'isms', but India is hrirclly ,rri.1.,.
that respect' All of this idealizing of pluralist coexistencc, however, especially ip
f1
Hinduism as ir relision (which is why marly scholars arglre that it is not a propcr

tt i;;". Christians, Parsis, andJervs, alth.ueh Buclclhists,Jainzrs, ancl Sikhs


'JiM,,rli;ts,
werc soon subsurned under the 'Flindu'category.
34 it provided that India would be ir Sr>vereisn Democratic RePr_rblic, rvhereas ils r>f 3
-Earlicr
Jantrary 1977, the worcling wAS 'sor.ereign Socialist Secular I)cmociatic Rcpublic'.
Werner Menski

religion) diametrically contradicts the meth<>dology of modern human rights juris-


prudence. Typicaliy, debates about equity versus equality as ideal eiements of justice
delivery have remained contested and quite inconclusive and cannot be avoided today.
At the sarne time, the Indian Supreme Court has clearly found itself endorsing such
Indian methodologies. Obviously, rnuch more could be said about that topic here; one
exzrmple must suifice. In 5.r. Stephen's College a. Uni,uersity oJ-Delhi, AIR 1992 SC 1630,
x7662, it was held:

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.

Furthermore, already during the pre-Emergency period, highly significant changes


had been made to gencler relations; howevr, this did not strike most people until the
mid-1980s, when the highly politicized Shah Bano affair, aforementioned, exploded
into communal riots affrong Muslims.r's Much has happened since, but an embarrassed
and somewhat indignant silence now shrouds such recent developments because they
apparently neither please N4uslims nor human rights activists, modernists, or feminist
scholars.r"
The basic claim to pluralist coexistence as an inevitable element of hurnan life
that Indian law so evidently endorses is thus being challenged by powerful globalizing
forces that w:rnt to see every human being as equal and have declared so on paper. The
result is frequently seriously bad press for India and for South Asitrn laws generally.
However, against this strong tide of globalizing pressure, as Indian law seems to real-
ise, a Grundnorrn of equality soon runs into deeply troubling turbulences. Considering
that various realities are so manifbstly plural, denial of pluralism is probably not a
healtliy approach. lt also almost automatically creates deep probiems over racial
supremilcy agenda, which in principle (as Dalit activists are always quick to point out)
support Brahmin claims to superior status by birth. However, Dalits also make signi{:

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

icant distinctions among themselves ancl, thus, are gJuilty


of the same types of racisrn
and fascism ofwhich they accuse their high-caste uppo'.n,s.
Specificaliy in Indiir, one
fincls-many types of Hindu nationalism iaising trt.ir he
ads, deficient in
I plurality-consciousness and deliberately denying space for 'the"*rr "iirrem
gther'.
I Such exampies must suffice here to shoJ'that diversity management
in plural
scenarios cannot be simply based on the basic principle
of equatity, but shoulcl still be
anchored to equity' It needs to cultivate some fo...' oi-rol..unl.
of ir,.rr. opinions and
interpretations, which may need to become much more
tha' reluctant tolerance but
tlp]gt recognition of a basic right of 'the other' ro exis^rence right nexr cioor ro
one-
self' The Indian Constitution is evidently deeply aware
of such ierent conrradictions
and conflicts and the Indian courts evidently know this
predicament well, but do not
i always manage to rise above factional politics.
. see ,Arguing from the outside, gtobai human rights activists might indeed pref-er to
' the world through their eyes and may wish'io have their ,r,J,,"
,yrr",,pprt.
every"vhere' But what if non-Western others-and these
are billions of fellow hurnan
maverick radicals-do not It is quite evident that reg:rrding
*ff:':::i ry
Indian developments, ]Bre.e?
the rnodalities of any pluralist
rv6Grurrr5
,rrung.*ents macle or proposccl
will inevitably cause disagreements becaui"-*.
' researchers or observers is, therefore, often do not all think alike. The elTort of
directed toward
I along the line"^ of their preferences^ nd values. This becomes influencing the debate
almost inevitabie .nless
one remains constantly and consciclusly agnostic.
It also becomes extremely dillicult tc>
let facts speak r themselves because interpreration
of these fcts is so closely linkei1 to
::?.r::::,*: j:il::]:Tf
a1d conficting assessme,,ts. An increasinsly targe
ql,es_
' tion for regional experts like the author is tecorning the reason *.';;:'i.;:;iil
to the voices of the.South on their terms, whywe
::11:t* of management insist that our values ancl
techniques
" should arso be appried by nih.rr.
i nat all such scenarios of diversity hrrr the potential to
; kinds is simply an integral part,of human life eiperience. Itcreate violence of various
does .;.t;';;;;
, *::,:t:'"'j'::"11::::"",,."i'Tqf
People' :1" 9..':e thal there ,ho,lJ t.'p.,-".,enr pezlce
as more or less selfish indivicluals, ofren t;o- that renou".d;;;;;..;.rfi:
, bt desirable, but.as.sertin6; one's position seems frequently preferable, even if it is rec-
I ognized as selfish because balance is always ,n,rr.ihing ututlte and
ambivale't an6
not asserting oneself may lead to subjugation. Finding
balance in such volatile lifb sce-
nanos ts ?1 constant struegle that will evidently
never end. Straneely, lawyers, probably
pr;cli]ectio,,, o.,J positivist brainwashins, constantly
*::'::^",:":T:^ij.:3::::9
need to be reminded that'living law'is always u .o-pro-ise.
rrr.rrrS), LUrI) LztllLly
Challenges arise wher-
*-r...,plurality and are not-prosrammect to cc,nstanrty
:;::ffi1:*"t^yt1.1l:
shut dillbrence out' A not so minor iliness .uil.d
*yopiu alflicts many tr,,;;..;;ffi
modernist observers when it comes to accepting
th" p.rrp..ti,res of despicable .others',
, among whom one often finds Hindus in n proir,..rt plu... v lrlwl iI

current national constructs in the South Asian region


.-^^^,3e_various reflect some
. possible prominent combinations of uncomfortable ."."tr,"r.;.
ffi;;';;;;'-
of British India in 1947 into Hindu-clominated Inclia and Muslim-clorninatecl
l Pakista'did
Ylil not simply result in ethnically pure, new nario'r-stzrtes
without *ino.il
ties' Ilather, this violent rearrangement
ffzrve rise to interesting new debate s antl clcvc]-

325
Werner Mensrti

opments'r; Ir also-laici f.trndatilns for s^ubsequent


religious' cultural, a'd lesal
urgent agend,a of rnanaging et.hnic,
elite ratl
diversities i" ; ;p".ih. poiirical
forrned contexts of recently
suJr pluralist tensions oJd ,h. resulting, often poor pe(
'ation-states'
compromises continr.;e to challenge troublesome,
acadernic observers who approach shown ir
a specilic sul-r-iect-bascd angle' the sub.ject from
H.L't*r, rights .nluri.. ur. po. in understanding with the
diversities 'on the ground'nd look ro, such then, pri
q'-,i.t -i"1:.-..ii.r. :lo unclersrand
tentlv asscss Sotrth Asi;rn rninority issues, and compe- autonorn
it is certainly not sufficie't to have studied
international conventions, human ,ighr, This is p
law, or sp.cili. national iegal systems.
deeply anchored interclisciplinary Rather, ful India
area studies exiertise is required,
to obt.in' I{olvever, if we,,r. and thi"^ is diificult
of such limitations, whydo we continue individur
such big clairns about the higher "*"r.status to make enjoymer
of our perceptio's? conversely, south
specialists of certain^local sub.iect Asia' (( \
o aenxr
matters (inciuding Hindu fundamentalists) .

lack understa'ding of thc wicter perspective often


or of interdisciplinary challeng;es
anv commentator on ruitrority issues posed to
in south Asia. Th. ,up. ,
ages in pluralist alnalysis t'emains
erormous.
ftr"ls and block-
severe pro1"-, of mirro.ity protec-
ti.n have indeed traumatized the region andY*y harr createcl much negative publicity
For outsir
Flindu-dominated India. But Hind.i, for sive corrt
also victims in other scenarios, specilically
i' Banglaciesh,rs in Burddhist-dominate<l "r.sri So how d
Lanka, and in Islarnic pakistan. In addil
tion' I{indu fundarnenlalists 2irgue that Hindu, violence r
hrrr. become victirnised in India, too.
India's massive and increati.tgly sophisticated of overcr,
electorate, however, as rece't elec-
tion results indicate' to,the surprise of th. the tensic
outside world, has lear'ed that violent
munalisrn is not a good founclation for. com- cultures z
a composit" .r*tio,, and that hinclutaacloes
ofi-er ar Hindu paradise, not in South
but may actuzrlly b. u ,..ife for clisaster
ment efforts' such messages ur. ,,ot new if it impairs develop- suggestec
lrnd *.r. .u".r in some cases written
national constitutional docume nts. The into know wh,
Indian c.-rtitution in Article 51-A contains
list of F'undamental l)uties that co,nter crommunalism a tually ner
ancl Hindu nationalis*. Thus,
it is provided that it sharl be the duty of ever,y standings
citizen of I'dia:
interpreta
(") to promote harmonv and the spirit of common other'is d
brotherhood am'ngst all the
people of Inclia, transccnditrg religious, linguistic ancl credibilitl
regio'al or sectional
diversiti how do w
(f) ro va,u e ::il::::i:::;,:liIT:,ffru;l J:.,fi ::il':ilil:*."' Sout
had to ad
As i'dicrr"ted' however, the temptation to a number
grab unfair advantages remains strong
where' south Asians, every- conceptua
h.,-nn as other p.oplr, ur. nft.r, driven bv
",
deprivations' sometimes,iusti&i.g the poverty and grave remains o
,iesire to seek instant advantage where
appear to be available. As world_Fo*ou, literary it might many diffi
productq including Aravind Adiga,s
2008 novel' 77te I4/hite'I'iger,and the award-winni,rg or in the n
so brilliantly, deviou,
fit- slumrtog Milliotzaireillustrate
ut. of cruel and exp1oi,.,i".-pr"ctices t"rr, to although i
be made by the

37 These t'" .r1-',,,-r..a i' a richly docume nted


the 1950s, ".*
study of Indo-pakista'i debate s during
Yazira F'az_ila-yac.obali Ztmind.ar, 39
n,
southAsia' Relugecs, hotttttlrr,ies, histories(colurnbia
iong lrortition artcl the ntaking of rnodern Onar
university press, New york, 2009). (corne
38 lior horrible exilrnples' see it now outdatecl conf-erence irta(
report by wer'er Menski ancr
Bisr'vaiit C'handa, cartcer oJ'cxtrentisnt Camb
irt Bangladesl. vv/
SoAStr' rrnd
steerir-rg ccl.trriittc", L,r,.r.r,r, 2005. '1riu ,rrHlit'(
Banglaclesh conference
struct
rights
326
ssassing Contmunal CorySicts ttnd Hindu F'ascLnn in India

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".

V THs I)rrrrcur-Ty oF AssnssrNc rHn "OIHE,R"


For outsiders, it is immensely dillicult to m:rke sensible assessments, and there are rnas-
sive corruptions of the entire system, with much justification for being decply critical.
So how do we assess issues such as Hindu fascisrn in their wider context? Are growing
violence on Indian streets and rising eviclence of simple road rage ominous indicators
of overcrowding, reflections of human rights violations created by scarcities making
the tensions of day-to-day survival explode into violent protest? Or can we blame local
cultures and particular religious traditions for the human-rights violations rhat orrcur
in South Asian societies, ofien allegedly in the nrrme of culture and religion? Is the
suggested abolition of such inbuilt elements realistic, especially if we clo not really
know what they would be replaced with and particularly if we cannot imagine conc:ep-
tually neutral voids in the sites of 'religion', 'tradition', and'culture'? Grave misunder-
standings continue, whereas whole branches of knowledge are marred by 'convenient'
interpretations that defy rationality but rely on just that concept to arsue that 'the
other' is deficient in human rights credibility. Whose values, whose rationality, whose
credibility are we actually concerned with? How do we rank competing expemarions,
how do we make choices in the various pluralist fields of iife?
South Asia as a region has aiways been full of contradictions ancl surprises. It has
had to address such tricky questions for millennizr and has always been the home of
a number of coexisting cultures, whether we imagine them as historical layers or as
conceptually interlinked elements of a triangular shape.;r, lJnsurprisingly, South Asia
remains one of the most complex areas of the world to rcsearch becatrse therc are so
many different states and societies and so many historical records in di{hcult languages
or in the minds of the people. Because development has been fhst rather than stagnanr,
although it may not look like this from the outside, even researchers who are conscious

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

fce enormous chailenges


plcxitics ;itf"T;ilr:"td in catcrring up with
rhe corn-
I{indut, as a slogan
device ,iru"r""r'o
ot:u-: a tool of governance
in India and an erectoral
quite .r r.* uot!
,:'*
the narion
::J:,:tj:Je
Nu,.,,d."ruria,,*h;;;:;,JTHifJ$il;1:r,,frfi
terrorist attacks on
by Muslims clearly
Mumb"t
d;#;ose
r" zo ivJ".l"uJ.
,";lJ.'jf
)ot
.rmi*
,..rorirm
who *irrr to .utrrr,rr" created
tinue to motil i;;, age'da and con_

,l'Jffi l:l;H::11T;l;t*:;,f :i;H#Xt*u;il;T;:x


'Ihe auth,
290?""0IJffi:.,"',",T;,.,rd*il,,,:ffi
#:J:j,l,T.:"::t.'r.r"i'*: ft* y.^., .j,i,., ,ini:fi ;,;:"g#lTjJ;
," Bangarore-i.,*..n
Hincrus or

;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

cornrnunities res T:[:il.J;ru;aT,,ffi:;]tfr


..lis1n1r, ,d;,;;;:t"o
to killing, scarce,.ro,rr..,
were r.s,.r""^l*r. trL{
than matters of
Hindu (ovlr)rcactions
asserrions
to M attempts ar religiousiy'roti
rn.t.'ri"r.il.l i lY:slim,
"t'
G u a *, I i rl "'?-
1;
i
: : ::'l
;ff
that "
occurrecl. H,
2002",.r*r,f ;i:'JJ:,',i::;;::".1;ff
f{,,.:,j
f**ff
ffi *: *11#.,.# 5*:
r,-,

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

are not known


and appreciated
sc h o ot i s tau
outside India, even
gh t. a b :;J
o
i ;]'.,',, M"; .;s;;:: rifi::
:fiff,1fi",,':Hi
on. .
.^0.."", TJ;"" .,:f, ffi ;:r;:,1 :,7
with such clarity?"It ff:I*,"
,..;';;;;e
bei'gs .,";';; one
not trust 'others' ro reacr,^
rnean f,urin.rr-*hen
such
they say so

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:,ff :;l*1il,$#.f ".,H,:ffi :l;:,T;trJ:"fi


' :H?Tli.policies)'
-"'v urrLrrrrllnatlon
As inclicated, India and
has cre'oln^^r
o,tYttoped a-' powerful
sh.'ld ^
modern constirution,
""r'rtn-'pristically ;;; but one

j:i:: H j ::t lfr


j r,,,u rj,r,,, r, n [T
-i:,ii'xx': :' : i
{ fi*;n': :
j,*:
: *i
int ro d u c e
of Indian law
or bv t"ot"" i.i.i;:il:X
',,
;;;: il?: * f ."0:: ;n,.?::1,J;?yo*fui:,.
ilil,".*o' 't" 'ou,'i" l" ;J";;;]'.,,n., by the British
j1,T:r"';;;"",'T::,*iffiT.*:1;H,*"ffi
ifJl:,*
.,,. -,,,, ;;-',Hl:J#
*:: ffi l;.J*'tri1::f 'Hi:ml,
ii::.'Ji',TT:;::til'tl**:f
"a,
i i;.;
'religion,. *ii.j;ffi i::*rn3#L*:ylJtr
The ourwald
,- ,
image of the legal
system of the r

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

17 t\lenski, o) ,it rir>re


r
,11

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

' Recycling relevant clements of the Hindu experience anci cornbining


it
,r,.^l;;;., are able to a,ccept ,rerigion, witrr
,:ffJ;lj|n:1"i,::j,ln:,.1:,?",al constr;ff#rI";'"'lj;,:n':ill:
ingredient in such a mix, as An
, '"rf'*.n be a
better than mutual accusations
of terrorism. pluralityl.orrlr* human
' ,,y
reasoning,
o, rerip;ious system, does not accen,
[1' :'*:,.::1.:::'::qTtj
the monopolv ^,y,,"".;j;;,o,
over thelruth of u.,i u.'. t"at"to".i,
:'"J:iiil;1,,?ji i?.:Hij
People as individuals or members
;' uf .o-;.;;;ies carl succeed i' identifying their
respective normative orders
i't and value ryrr.-.r rtth the
ancient values of human rights, ".;tfb;;ulated but probabiy
it will be possibre to carry on constructive convers.-
' tions-about such
basic rights.
i
."",*ii:Ti;.'.',1.?::i:'*::::j:T:t::"::ll"'.
i conscious conversations or negotiations.
comprcterv through prurarity-
For..;;J;'ii":::?'1il,Hf,tT::1..',,,1;
|
. equitable
ilfft?;.:'X*::lT:;if :n:lllti;;, ;" emphasises connecti,,ity anci trrus
:rlignments of i'dividuul, *ho ,.. ,..rr]""'fir:il:T::',.fiil',i.',1
,:11.-.:;;:';, whore r have arready rererred
'
I
'i
.j:1,;;JlT.:::::1,:il1.:^"f
ff*','"'l::li;::,;::.:";:i:
ments
one's
o::",11.;;!';";;'.i,,'"ii;'"iff'i:I-il::il::,::
"
in Indian culture. Jhere are clifierent'visions
actiotrs' but the to*-o.r,element
to

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

one rnischief suffereci by


Hinduism as a whoie and
ticipants in debates is that
.,lJ dir:;;l;; mareriar is Hindus as individual oar-
observers address contested hightighted whe' w.r,t"rn
i*u., about India-. on. .1o..-;;:;;r,
nor even \^/esrern writer
u,, H,tnqr .;;;;:Arthough trre Hindu ,other,,
natural-law thinker' when li;;r;.;, is rrailed as a grear
an,Indian .;;:t;j;r,
expresses the sarne ideas
in dilrer-
:J:H::',1:n'1.,1,1,::.f,::o ",'a.o,'t1iJt,..l-i",,ory evidence is highrightecr. rhe
Enrighten_",,,icreorogy,r;_T::lip:11:T:litr:,ff1;:fl
the universe' I' Indic iraditionr,
:rn exclusively separate
not-iust i' Hinduism, *:,f,
an inaluiaurr does not have
m
existence like an atom,
man is the highest creation, isolatecl from the
an invisible rink i, b.ri"r,.d
of creatio'in the u'iverse'
ltho,rgh w*r.lrrlruman -;;#::r;ir1il*f;
rights disc.urse seeks to secure
rights for indivicluar humanr,
Indi. .or;;;;;;;g"rt thai'order
can be maintained' a'd in the cosmic universe
indiviclual righ;.r';;;"f.
eiement of this universe oror..ted, onry if every consriruenr
to,.,.ibur.: i;:p;;r" rrr",,r,J..r;,',n.n,
the preference for thinking also highriehts
ubnu, duties ,rrir.r- thu,,
the key concept of ,ighrr, uni a, of this flows
To be aitrrrrii"-r1,. ,.,-'rr.ate into
need not relinquish '/ha'na'
their religion, merely because of human rights, Hindus
to modern secular n.tio's of accusationl-rirr, this is
of lqualit y or'of,rut"-or.tr*,._They opposite
equity' provided they leave can work on the basis
of
'oo
fo.ith. rhat ,rrr.r, ,..k, to destroy
higher order' In thai"t"o'io, "in;;"ress
i, appears, killing is systemically.iustifiable the
for Flindus.

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

gions' Although this allows no one religion to dominate


rhe entire fielcl ar-rd clemands
of Hindus, as the rnajority, to step bn.l fro- nationalistic
claims, the South Asian
region as a whole seems to learn gradually that tolerance
of plurulirrrr, also when it
comes to religion, is a_better recipe fbr national cohesion
than complete denial of the
existence of various religious and additional'others'.
Clearly, not-everything that is 'Hindu'or'Muslim'is religious;
the ancient Vedic
people realized this thousands of years ago and, therefore,
made terrninologic:rl dis-
tinctions between two types of Truth. the global phobia about succumbing to
J{ence,
religious diktats by taking account of Hindu o'd o.,. voices in South Asia represents
a dangerous obfuscation with ulterior
motives that should not be acceptable to ir global
human rights discourse. By now, we shoulcl be able
to clistinguish what is a properly
religious argument, anchored in belief and convictions,
anci r.virat is a man-rnacle and
politicized construct of expectations about how we shor-rlcl
trcat each other. Not eve n
the Islamic religious systeln' once we exnmine the
conce 1'tt of jiharl carefully, claims
that all nonbelievers deserve to die. Flinduism, as is
kno*.,, i, i ,r.ry lifi-.r.,,,, type of
religion from monotheistic fiths ancl has inbuilt safety
mechanisr,'r that actua IIy try
to preclude Hindu fascism. Hindu fascism is, thus,
not a religious phenomenon b't ir
dangerous political dagger that must be controlrecr.
Although there- is certainly no room for rose-tinted total optimism, there
rrre
encouraging signs of growing recognition, in global
scholarship as well as local man-
ageme-nt techniques in the region of South
Asia, that no n,'r" p.rrpective crirn ever
prevail to the exclusion of other competing expectations zrnd
ng..,ur. Thus, r'ore
efforts in finding plurality-conscious compromises ancl
urrr.rg.^.nts for coexistence
would recommend themselves as a suitable way forward.
For South Asians zrs members
of specific communities, that realization .l"orly requires
cleep tolerance of ,others, zrs
]ndian cocitizens. At the same time, various outside 'others',
international observers,
human rights activists, and international lawyers in
particr-rlar, have to learn ro respect
that the people of this region actually hurr. mill.r,ni^
uf .*perience in handling diver-
sity and are quite familiar with piuralist coexistence.
That selfishness irnd ,shark rule,
get the better of people remains a constant risk of
human existence anywherc. Simply
argtring for global uniformity, seeking t deny ancl intellectuallv
,ubbirL the various
culturaf religious, political and, in n *i,l.r r.r., ethnic clairns
of specific communi-
ties in South Asia means depriving the people of this region of
crucial elements of
their most intimate identity markers. tris aeslre clenies
them the right to be what they
want to be and amounts to violation of their humtrn rights
in the n.*l. of a suppor.dly
higher global standard.
As outside observers, we cAnnot expect that our values an<l
presuppositio's are
necessarily the correct ones. Such neocolonialist approaches
d..ply derogatory to
the people of South.Asia wh9 may not even notice "r.
that this i, hupp.,rins to t6ern
because they are taught to moclel thernselves 'the
on West'. Such complexities of analy-
sis have to be brought out into the open if
one wishes to en1lage in a globally valicl
debate on human rights and minoritlrights in
South Asia toaf. Si-pty crying wolf
over religious or nationalistic fundamentalisms
such as l{indu fiis.,ismis no longer an
adequate strategy to understand this part of the
world and its intern:rl complexities.

335