Ratna Kapur

A Leap of Faith: The Construction of Hindu

Majoritarianism through Secular Law

​The amplified role of religion in the global public

arena has produced anxieties for those committed
to a secular liberal democratic state. In India reli-
gion has historically been intimately connected to
a broad array of political and economic agendas,
including the struggle for freedom against colo-
nial rule and its centrality to the articulation of a
national identity. Religion has been foregrounded
as a mark of India’s cultural distinction from the
West, and in the current neoliberal moment, it is
packaged and sold as the “Incredible India” brand
for global tourist consumption.
Although the presence of religion in the
public arena has long been a feature of Indian life,
during the past sixty years a new struggle has
emerged over the role of religion in law and its
implications for Indian secularism. The ascen-
dance of the Hindu Right in the political arena
during this period has successfully mobilized the
discourse of secularism to target religious minori-
ties in India, and it now posits the most serious
challenge to India’s long and cherished history of
religious pluralism. In this essay, I focus on the
famous Ayodhya property dispute, the subject of
a series of court cases in India, in order to ana-
lyze the shift the Hindu Right has effected in the

The South Atlantic Quarterly 113:1, Winter 2014

doi 10.1215/00382876-2390446  © 2014 Duke University Press

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 110  The South Atlantic Quarterly • Winter 2014

substantive meaning and practice of secularism and along with it the consti-
tutionally guaranteed right to religious liberty. This politically volatile dis-
pute centers on whether a temple or a mosque existed on a plot of land in
Ayodhya, a town in the northern Indian state of Uttar Pradesh, and its legal
outcome hinges on whether Muslims or Hindus possess the title to the land.
In this essay, I first describe competing models of secularism that have
been debated and contested in the Indian context. I focus on the constitu-
tional legal discourse and judicial pronouncements on the meaning of secu-
larism in India and on the increasing influence of the Hindu Right—a con-
servative and religious political movement seeking to set up India as a Hindu
state—on shaping the contours of secularism in contemporary law. Then I
discuss the background to the Ayodhya property dispute and the competing
claims of the respective parties. I next examine the reasoning and hold-
ings of each of the three judges in the consolidated decision of the Special
Full Bench Hearing of the Ayodhya property dispute, which consisted of five
suits, by the High Court of Allahabad in 2010.1 Finally, I discuss how the
right to freedom of religion has been used to establish and reinforce Hindu
majoritarianism through secular law in India in recent history.

Indian Secularism, the Supreme Court, and the Hindu Right

In India, there are two very different understandings of secularism that have
competed for ideological dominance (Bhargava 1998, 2006). The first is
based on the idea of the separation of religion from the state and state neu-
trality in the sphere of religion (sarva dharma nirpekshtha) that prohibits state
involvement in the sphere of religion. The second model is based on the idea
of equal treatment of all religions (sarva dharma sambhava) within both the
public and private spheres (Engineer 1995: 40). Both these models emanate
from a commitment to equality and nondiscrimination as well as to ensure
freedom of religion for all Indian citizens (see Smith 1964), values that are
also enshrined in the Indian Constitution. Although both these models have
competed for dominance in India, it is the second model of secularism that
has come to take root, propounded by Mahatma Gandhi, in Indian legal and
political thought. As Asghar Ali Engineer has pointed out, the model of state
neutrality or indifference toward religion has failed to take root in India.
“The concept of secularism in India emerged in the context of religious plu-
ralism as against religious authoritarianism in the west. . . . It was religious
community, rather than religious authority, which mattered in the Indian
context” (Engineer 1995: 40; see also, e.g., Gajendragadkar 1966: 4; Ganguly
2003: 11; T. N. Madan 1993: 667; Jacobsohn 2005).

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 Kapur • A Leap of Faith  111

Indian secularism is premised on a formal and substantive meaning

of equality: not only are the various religious communities to be treated as
equals, but the state provides for special protections extended to religious
minorities as a means of addressing their relative disadvantage in relation
to the majority religion. Some of these provisions include the right of reli-
gious minorities to establish and administer their own educational institu-
tions, 2 the right to personal status laws, and the special autonomous status
accorded to the Muslim-majority state of Kashmir.3
More recently, the struggle over the meaning of secularism and the
place of religion in politics has become highly contested in the legal arena.
Increasingly, the Hindu Right has sought to redefine the meaning and param-
eters of the various components of secularism to suit their majoritarian politi-
cal agenda. The Hindu Right refers primarily to the Bharatiya Janata Party
(BJP; Indian People’s Party), the political arm of the Right, in power at the
national level from 2001–2004; the Rashtriya Swayamsevak Sangh (RSS;
National Volunteer Organization), the main ideological wing of the Right;
and the Vishwa Hindu Parishad (VHP; World Hindu Council), proponents
of the Right’s religious doctrine. Other parties include the militant and viru-
lently anti-Muslim Shiv Sena (Foot Soldiers of Shiva). This movement has
been variously labeled and debated as, inter alia, Hindu fundamentalist,
Hindu fascist, and Hindu nationalist. I use the term Hindu Right to indicate
both the communal and highly conservative nature of the movement’s agenda.
These organizations collectively promote the ideology of Hindutva, which
posits Hinduism not simply as a religion but as a nation and a race that is
indigenous to India. Muslims and Christians are posited as outsiders to the
history of the nation because their faiths are said to have originated outside
of India. This logic has allowed the ideologues of the Hindu Right to con-
struct Muslims and Christians as foreigners, aliens, and invaders and their
religious presence in the country as a threat to the Hindu nation (Savarkar
1949: 3–4, 92; Golwalkar 1939, 1966).4
Perhaps most ironically, the Hindu Right has increasingly come to
cast itself as the true inheritor of Indian secularism. Members of the Hindu
Right argue that insomuch as secularism requires that all religious com-
munities be treated the same, the various laws that protect minority rights
are evidence of the “special treatment” the state accords them and therefore
constitute a violation of the constitutional mandate to treat all citizens equally.
Any protection of the rights of religious minorities is cast as “appeasement”
and a violation of the “true spirit” of secularism. The Hindu Right’s empha-
sis on the formal equality of all religions operates as an unmodified majori-
tarianism whereby the majority Hindu community becomes the norm

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 112  The South Atlantic Quarterly • Winter 2014

against which all others are to be judged and treated. Paradoxically, secu-
larism has become a central and powerful weapon in the Hindu Right’s
quest for political power (Balraj 1995; Kapur and Cossman 2001; Prakash
2006; Tejani 2008). Armed with the ideology of Hindutva, the Hindu Right
has argued that, unlike Christianity and Islam, Hinduism is the only reli-
gion in India that is committed to the value of religious tolerance because
it does not aim to proselytize or gain converts. According to this logic, then,
since secularism is about toleration and only Hindus are tolerant, then
only Hindus are truly secular. The secular principle of protecting minori-
ties that had long been part of the Indian model of secularism virtually
disappears in this logic.
The Supreme Court has been called on to adjudicate various claims for
and against secularism and to decide whether the strategies of the Hindu
Right violate previous interpretations of the much coveted ideal and model
of Indian secularism. A key site for this struggle has been in the northern
Indian town of Ayodhya, where a dispute over the legal title to a property
approximately 1,500 square yards in size has taken place. The site marks the
spot where a sixteenth-century mosque, the Babri Masjid, once stood; it was
destroyed by the Hindu Right in 1992. Hindu parties claim that this particu-
lar spot is the birthplace of the Hindu god Ram. Thus the title and posses-
sion of the site itself belong to Hindu deities, and Hindus have the sole right
to worship there. Muslims continue to assert that they have enjoyed exclu-
sive legal title to the property ever since the Babri mosque was constructed in
1528. Although there are no less than four million gods and goddesses who
live with Indians on the sidewalks and streets, and even travel with passen-
gers in taxicabs, Ram has been accorded the status of the übergod in the dis-
course of the Hindu Right. As a number of historians have argued, the claim
that Lord Ram is the central Hindu deity runs counter to the polytheist char-
acter of Hinduism, transforming its pluralist character that accords well
with a modernist and monotheist construction of religion (Thapar 1985;
Bhatt 2002: 60–61; Roy 2012).
Although I will discuss the specific details and outcome of the Ayod-
hya property dispute in the second part of the essay, here I want to highlight
the Supreme Court’s Bommai decision (S. R. Bommai v. Union of India [1994])
that upheld the declaration of presidential rule in four BJP-ruled states
shortly after the destruction of the Babri mosque.5 In the Bommai decision,
against the arguments of the Hindu Right, the court unanimously affirmed
the importance of secularism to the Indian Constitution and emphasized
the principle of equal treatment of all religions, issuing a strong condemna-

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 Kapur • A Leap of Faith  113

tion of those political forces committed to undermining more pluralistic

instantiations of this constitutional ideal. In Bommai, the Supreme Court’s
position on secularism differed substantially from that promoted by the
Hindu Right, and the case suggested that the court was committed to hold-
ing back the tides of intolerance and Hindu majoritarianism in the name of
secularism.
However, when the case came up again in front of the Supreme Court
also in 1994, the court’s judgment in Ismail Faruqui v. Union of India sug-
gests a substantial shift from its earlier position. 6 This case involved a chal-
lenge to the constitutional validity of the Central government’s acquisition of
the disputed site as well as the land surrounding the area where the mosque
once stood. Land acquisition is permissible by the government if it is for a
public purpose.7 The central government acquired the land with the purpose
of establishing two trusts for the construction of a Ram Temple, a mosque, a
library, and a museum as well as providing amenities for pilgrims. The peti-
tioner, a Muslim, claimed that the act was antisecular and slanted in favor of
the Hindu community since it sought to simply accept the demolition as a
fait accompli, instead of rebuilding the mosque that had been destroyed as a
result of a criminal act. The petitioner further argued that the acquisition of
the land including the disputed area interfered with the right to worship of
Muslims and was thus a violation of their right to freedom of religion. The
majority of the judges on the bench rejected the argument that the acquisi-
tion violated the constitutional principle of secularism. In the name of secu-
larism, Justice Sharan Verma, writing for the majority, praised the principle
of religious toleration found in Hindu scriptures and concluded that a
mosque is not an essential part of the practice of the religion of Islam and
prayer (namaz) by Muslims could be offered anywhere. As a result, the acqui-
sition of the disputed area as well as the surrounding land did not violate the
religious freedom of Muslims. In this case the court endorsed an under-
standing of secularism. The court’s rationale was derived primarily from
Hindu scriptures and accepted the claim that secularism existed in India
largely because of the religious toleration found in the Hindu scriptures. The
court also remarked that those responsible for the demolition of the Babri
mosque were miscreants and their acts of vandalism could not be treated
representing the Hindu community.
This shift in judicial approach to secularism is accentuated in the
Supreme Court’s unanimous 1995 decision in what came to be known as the
Hindutva cases. 8 These cases involved a series of challenges to the election
of several members of right-wing Hindutva parties to the state legislature on

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the grounds that they had appealed to religion in the course of their elec-
tion campaigns and incited religious enmity and hatred, in violation of the
provisions of the Representation of the People Act of 1951.9 Many candidates
had campaigned on the Hindutva platform and argued that the protections
afforded to Muslims under various legal provisions violated the constitu-
tional mandate of the equal treatment of all religions on which Indian secu-
larism is based. In particular, they called for the dissolution of Muslim fam-
ily law and the creation of a single uniform civil code to govern all family
matters in India. They also declared that any opposition to the proposed code
by the religious minorities, who feared that the uniform code would enshrine
majority Hindu values, was just another example of religious minorities fail-
ing to assimilate into the Indian nation. Some of the political campaign
speeches that were under challenge in this case included verbiage such as:
The result of these elections will not only depend on the solution to the prob-
lem of food and clothes . . . but also . . . whether in the state [of Maharashtra]
the flame of Hindutva will grow or will be extinguished. If in Maharashtra
the flame of Hinduism is extinguished, then antinational Muslims will be
powerful and they will convert Hindustan into Pakistan. If the flame of Hin-
dutva will grow, then in that flame the antinational Muslims will be reduced
to ashes. . . .
Rajiv Gandhi [then prime minister of India] speaking on Hindutva is
like a prostitute lecturing on fidelity. The country is again headed for parti-
tion. It is, therefore, necessary that in these circumstances and to keep the
flame of Hindutva alive, the alliance of BJP-Shiv Sena should be elected.10

Although several political party candidates were held to be guilty of

appealing to religion to gain votes, the court argued that an appeal to Hin-
dutva in an election campaign did not produce religious enmity and hatred
in violation of the provisions of the 1951 act but simply represented “a way
of life of people of the subcontinent rather than an attitude hostile to per-
sons practicing other religions or an appeal to religion.”11 The court stated
the following: “The term ‘Hindutva’ is related more to the way of life of the
people in the subcontinent. It is difficult to appreciate how . . . the term ‘Hin-
dutva’ or ‘Hinduism’ per se, in the abstract, can be assumed to mean and be
equated with narrow fundamentalist Hindu religious bigotry, or be con-
strued to fall within the prohibition in [section 123 (3) or (3A)].”12 The court
held that in fact the speeches the appellants challenged were used to “pro-
mote secularism or emphasize the way of life of the Indian people and the
Indian culture or ethos and to criticize the policy of [a] political party as dis-

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 Kapur • A Leap of Faith  115

criminatory or intolerant” and therefore were meant to challenge religious

discrimination rather than uphold it.13 As the speeches had a secular stance
and did not include an appeal to votes on the basis of a candidate’s reli-
gion, the court held they were in conformity with the fundamental right to
freedom of religion and did not constitute incitement to hatred against
non-Hindus.
The Supreme Court’s judgment was problematic on a number of
counts. First, the court erred in concluding that Hindutva constitutes a way
of life of the people of the subcontinent and that its deployment constituted
neither a violation of the prohibition on appeal to religion for political gain
nor a violation of the prohibition on promoting religious enmity and hatred.
In eliding the meaning of Hinduism with that of Hindutva, the court
ignored the historical and political context within which the concept of Hin-
dutva had acquired salience that cannot be separated from its assault on the
standing of religious minorities in the Indian polity. It failed to recognize
that the term has historically had a specific meaning associated with the
political philosophy of the Hindu Right, in particular its early ideologues
V. D. Savarkar and M. S. Golwalkar (Nauriya 1996; Qaiser 1995). The court
also assumed that Hinduism stood for Indianness, thereby leaving no room
for other non-Hindu ways of being Indian. The court uncritically assumed
that the norms of the majority could simply apply to all Indians, regardless of
their religious or cultural identity. “Indianization” was assumed to represent
the political and cultural aspirations of all Indians through the construction
of a uniform national culture that was Hindu in its essence.
Finally, the court erred in its acceptance of the characterization that the
speeches of the Hindu Right were secular. It failed to appreciate the broader
discursive and legal struggle over the meaning of secularism in India in
which the Hindu Right has been a protagonist and its manipulation of secu-
larism as a means to serve its own political ends. As discussed above, the
Hindu Right has hijacked the dominant understanding of Indian secular-
ism to promote its vision of Hindutva and its agenda of establishing a Hindu
state. In its hands, the concept of equal respect for all religions is a ruse for
attacking the rights of minority religious communities.
As a result of the Supreme Court’s ruling, the Hindu Right’s version
of secularism was formally sanctioned in Indian legal discourse. A petition
was subsequently filed in the Supreme Court to a larger bench of judges,
requesting the court to review its decision on the grounds that the Hindu-
tva judgment was inconsistent with the court’s ruling in the Bommai case.
The court rejected the petition on technical grounds but also observed that

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there was no inconsistency between its two decisions. In the court’s view
the Bommai case did not relate to the interpretation of the provisions of the
Representation of the People Act, 1951, and therefore there was nothing in
the Bommai decision to help construct the meaning and scope of these provi-
sions. At the same time, the court attempted to clarify its decision in the
Hindutva cases, stating that it was simply based on earlier decisions of the
Supreme Court.14 In dismissing the review petition, the court effectively vin-
dicated the prejudicial vision of secularism that the Hindu Right has long
been trying to promote in pursuing its ideological agenda.
The implications of these majoritarian norms in the Supreme Court’s
rulings in the Hindutva cases have had particularly devastating effects on
those minorities targeted by the Hindu Right. In the Ayodhya property dis-
pute, where suits were filed by a number of parties to determine who had
legal title to the disputed site, the Hindu Right turned its attention to the
meaning of the right to freedom of religion, a central component of Indian
secularism, to reproduce and reinforce Hindu majoritarianism (Sharma
2003, 2007; Jaffrelot 1998).

The Ayodhya Case and the Place where God Was Born
The history of the Hindu-Muslim conflict over the Babri mosque goes back
to 1855, when following a skirmish between a group of Muslims and Hindus,
a partition divided the disputed land into two equal parts. The inner portion
was allotted to the Muslims and the outer portion to the Hindus. In 1885,
the Hindu head priest sought permission from the district court to build a
temple over the portion allocated to Muslims, which the Muslims contested.
The government accepted the Hindu claim to the land but refused to grant
permission for the construction of the temple at the place of the mosque in
the interest of public order.
In 1934 Hindu-Muslim riots broke out again at the disputed site, caus-
ing severe damage to the mosque. This led some Hindus to claim that the
site ceased to serve as a place for Muslim worship, a claim that the Muslims
denied. In 1949 a fresh series of disturbances culminated in some Hindu
worshipers moving the idols from the outer area (designated for Hindus)
into the inner courtyard under the central dome of the mosque, claiming it
to be the spot where Ram was born. The local city magistrate immediately
seized the disputed property and handed over temporary possession to a
government-appointed receiver. Since December 23, 1949, Muslims have not

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 Kapur • A Leap of Faith  117

been able to offer prayers at the mosque whereas Hindu worship (pujas) is
permitted. The Muslims nevertheless have persisted in their claim that they
hold the legal title to the disputed property.
In 1959 another lawsuit was filed by Nirmohi Akhara (Group without
Attachment), which claims to be in charge of the maintenance and man-
agement of Ram’s birthplace. Nirmohi Akhara argued that a Hindu temple
dedicated to the infant Ram, Shri Ram Lalla, stood at the disputed spot ever
since the twelfth century, marking his birthplace, which the Muslim Moghul
emperor Babur had unsuccessfully tried to convert into a mosque in the
fifteenth century.15 The mosque portion of the site had fallen into disuse in
the 1930s, and Nirmohi Akhara argued that it was the sole and rightful
owner of the temple and idol. In 1961 a Muslim organization, the Sunni Cen-
tral Waqf Board, sought to secure a state declaration that the disputed struc-
ture was a mosque and possession of the mosque should be handed over to
the board. It argued that Muslims had been praying at the Babri mosque
since 1528, a practice that was halted after the idols were installed. The board
claimed that it had exclusive possession of the premises even though Hin-
dus had revived the practice of worship in the outer courtyard.
The last suit was filed in 1980 on behalf of the Ram idol as well as his
birthplace, a legal procedure that is permissible under Indian law. The peti-
tioner filed the suit as a “friend” of the deity, seeking title and possession of
the disputed property solely in favor of Ram. The petitioner also claimed that
both idol and birthplace are regarded as deities and thus as juristic entities
capable of holding land in their own name and of suing and being sued.16
The petitioner was a member of the VHP, the doctrinal wing of the Hindu
Right. The relevance of this suit lay partly in the fact that the VHP did not
trust the Nirmohi Akhara, whose interest seemed to be in asserting a reli-
gious claim and not in the broader political agenda of the Hindu Right. When
this suit was filed, the political climate in India had changed considerably,
since the BJP had launched a mass agitation to reconstruct the temple.
On September 30, 2010, a three-member bench of the Allahabad High
Court delivered a consolidated judgment on the Ayodhya property dispute,
covering all the suits, amid tight security. Several police and paramilitary
forces were deployed across the state and different parts of the country to
forestall religious riots and to protect the judges. Judge Sibghat Ullah Khan,
a Muslim, and Judge Sudhir Agarwal delivered the majority opinion, and
Judge Dharam Veer Sharma was the dissenting judge. The decisions ran a
staggering 8,189 pages in length; Judge Agarwal’s was the longest opinion

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at 5,238 pages. While there was no outbreak of public violence after the
decision was announced, all sides filed appeals in the Supreme Court,
reflecting considerable dissatisfaction over the ruling.
Judge Khan held that neither party was able to demonstrate exclu-
sive title to the disputed property. The available evidence indicated that by
the mid-eighteenth century a mosque existed at the site and by the mid-
nineteenth century Hindus were claiming that the site was the birthplace of
Ram. Since 1855, both parties appeared to be in joint possession of the site.
Khan decided to divide the disputed property into three equal parts: one part
was awarded to the Muslim parties; one part was given to the Hindu idols,
with the caveat that their part should include the land under the central
dome; and one part was handed over to the Nirmohi Akhara, with the caveat
that its part should include the outer courtyard previously in the hands of
Muslims. Khan based his decision on the issue of title and possession, rather
than on considerations of the right to freedom of religion, although he recog-
nized the significance of the site for Hindus.
His decision to divide the property into three parts is curious, and
there is no real explanation for altering the 1949 partition of the property
into two parts between the Hindu and Muslim communities. In permit-
ting the area under the central dome to be given over to the Hindu idols,
Khan’s decision ran contrary to the acknowledged fact that the idols had
been placed there illegally and recently, in 1949. His decision placed the
onus on the Muslim community to make all the necessary adjustments in
relation to the dispute.
Judge Agarwal accepted that there was an ancient non-Islamic struc-
ture that stood where the mosque had been built in the sixteenth century.17
While the earlier structure appeared to be a Hindu religious place, the ruins
could also be evidence of other non-Islamic traditions or practices. Agarwal
also accepted that there was evidence of persistent practice and a strong belief
on the part of Hindus that the disputed spot, particularly the spot under the
central dome, was the birthplace of Lord Ram. This faith was borne out by
ancient literature, which Agarwal stated should be accepted at face value
without any fiddling. He thus implied that such persistent practice and faith
were enough to deify the place and give it a juridical persona.
Judge Agarwal also asserted that the right to worship at the birth-
place of Ram constituted a core element of the Hindu faith. The judge treated
the deity as a minor, who has always resided or existed on the disputed prop-
erty. In this capacity, the deity Ram had rights to the site that could not be

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 Kapur • A Leap of Faith  119

annulled by the Muslim claim to the land based on their continual use of the
property. To allow such a claim of what is legally described as “adverse pos-
session” would annul a core feature of Hinduism and hence the religion
itself, and would be contrary to the fundamental right of freedom of religion
protected under articles 25 and 26 of the Indian Constitution.18
Agarwal also held that the statute of limitation, which bars a suit from
being filed after a specific period of time has passed (three years from the
date of the initial violation), did not apply in this case since it would violate
the fundamental rights of Hindus to worship at the site. The judge further
stated that the site under dispute was of unique significance to Hindus. If
the Hindus were denied the right to worship at the site through some proce-
dural rule or for any other reason, it would deny them their fundamental
right to practice their religion. The right to worship at the specific site under
dispute could not be replicated anywhere else, and hence a denial of this
right would permanently extinguish a core ingredient of the faith (Alla-
habad High Court 2010: vol. 11, p. 2616, para. 2722). Agarwal added that for
Muslims the acquisition of a mosque would not have the effect of depriving
them of their fundamental right to worship. “It is always open to them to
offer prayer at any other place . . ., but Hindus are not placed on similar foot-
ing. . . . Once this land is allowed to be lost due to the acts of persons other
than Hindus, the very right of this section of people, as protected by Arti-
cle 25, shall stand destroyed” (Allahabad High Court 2010: vol. 11, p. 2616,
para. 2724–25).
Referring to the Supreme Court decision in Ismail Faruqui, Agarwal
further stated:
A mosque is not an essential part of the practice of the religion of Islam and
namaz (prayer) by Muslims can be offered anywhere even in open. . . . Unless
the right to worship at a particular place is itself an integral part of that
right, i.e., the place is of a particular significance, its alienability cannot be
doubted. (Allahabad High Court 2010: vol. 18, p. 4412, para. 4053)

Implicit in Agarwal’s reasoning is that the history of Muslim performance of

prayer (namaz) is not as significant to their religion as is worship at the birth-
place of Ram for Hindus. The decision suggests that the individual right to
worship is an inferior right to the Hindus’ collective right to worship at the
site where god was ostensibly born. Agarwal’s reasoning reflects that what is
at stake is nothing less than the epistemological basis and competing truth
claims of different religious traditions.

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 120  The South Atlantic Quarterly • Winter 2014

According to Agarwal, the Muslim parties had not been able to prove
that the Moghul emperor Babur had title over the land, nor had they success-
fully challenged the argument that the construction of the mosque failed to
adhere to the principles of Islam. Hence, he declared that the structure was
not a legitimate mosque and that it was non est or nonexistent. He thus held
that the area where the dome once stood should be given to the idols, the
inner courtyard should be shared between Hindus and Muslims, and the
outer courtyard should be shared between the idols and the Nirmohi Akhara.
However, he also stated that the Muslim parties should be given at least a
third of what the other parties were being given, and he requested that the
government ensure that land was made available for such a purpose. This
last move was more an act of Solomonic justice than it was based on the facts
and legal questions raised in relation to the possession and title of the land.
In his 2,666-page dissenting opinion, Judge Sharma held that the
disputed site had long been believed to be the birthplace of the “Lord of
the Universe”—Shri Ram. On the basis of an Archaeological Survey of
India report that a temple existed before the mosque and parts of the tem-
ple were used in the construction of the mosque, Sharma concluded that a
temple marking the birthplace of Ram was destroyed in order to construct
the mosque. Finding that there was adequate historical proof that the dis-
puted area was the birthplace of Ram and that the deity was a perpetual
minor, he agreed with Agarwal that the property belonged to the deity. He
also agreed that to dispossess Hindus from the land through the legal
mechanism of adverse possession would be to go against a core element of
the Hindu religion.19 The fact that a large number of Hindus do not wor-
ship Ram or recognize him as a noted deity challenges this argument (Roy
2012; Menon 2011: 86–87). The judges set aside the plurality and diversity
of arguments within Hinduism over the status of various deities, instead
privileging one interpretation over others and essentially upholding an
ossified conception of Hinduism.
While the Ayodhya dispute has now shifted to the Indian Supreme
Court, which has agreed to consider appeals to the Allahabad decision by
all parties and has temporarily stopped the implementation of the Alla-
habad High Court decision, the broader discursive struggle over the mean-
ing of the freedom of religion and religion for the minority and majority
populations of India has implications for the constitutional status of secu-
larism in India. Majoritarian claims and the Hindu Right’s narrow inter-
pretation of Hinduism now constitute the most significant challenges to
the model of secularism extant in Indian politics and law.

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 Kapur • A Leap of Faith  121

The Right to Freedom of Religion:

Constructing Hindu Majoritarianism through Secular Law
The Ayodhya case assumed that worship at the disputed site was a core or
essential ingredient of the Hindu faith. In arriving at this determination,
Judges Agarwal and Sharma both drew on a line of Supreme Court deci-
sions that developed a test based on the “essential character of the religion”
in order to uphold the constitutional protection of the right to freedom of
religion. A brief survey of the Supreme Court decisions since its establish-
ment in 1950 reveals how the court gradually acquired a significant role in
determining what constitutes the core beliefs of a religious community.
This has led the court to construct a singular and unitary religion that has
inadvertently aligned with the agenda of the Hindu Right and reinforced
Hindu majoritarianism.
Through the practice of identifying foundational principles of a reli-
gion and distinguishing authoritative religious rituals and symbols from
less authoritative ones, the Indian Supreme Court has been engaged in the
reformation and modification of religion in the postcolonial period (Sen
2010; Padhy 2004; Rekhi 1993). For example, in relation to article 25 of the
Indian Constitution, which guarantees the right to freedom of religion, the
Supreme Court has defined Islam to be consubstantial with Koranic edicts
and injunctions, and Muslim religious practices that have no Quranic
standing are understood to lie outside of the purview of article 25, thereby
making large parts of the religion irrelevant to the protection this right
affords.
In the case of Hindus the shift is more dramatic and connected to the
way in which Hinduism was articulated by nineteenth- and twentieth-cen-
tury reformists who had anticolonial and nationalist agendas. Although
Hinduism does not have a single foundational scripture, as many historians
of modern religion have noted, during the colonial period Hinduism came
to acquire a form based on the Abrahamic monotheistic model, in particular
on Christianity. Lata Mani has argued that statist projects directed at regu-
lating religion since the colonial period have tended to essentialize religious
claims. In her work on the regulation of sati (the practice of widow burning)
under colonial rule, Mani shows how the British as much as the Indian
nationalist (primarily Bengali) elite reified “scripture” as the primal source
of religion, thereby homogenizing and essentializing the polyvocality of the
tradition (Mani 1988). As a result, sati came to be equated with Hindu scrip-
ture and the concept of an ideal Indian womanhood promoted by the nation-
alists that was disconnected from the reality of its actual practice. Similarly,

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 122  The South Atlantic Quarterly • Winter 2014

Mrinalini Sinha’s work illustrates how the contest over the scriptural basis of
a tradition was central to the legal reform of women’s rights (Sinha 1995:
138–80). The nineteenth-century colonial discourse on Hinduism has been
definitive in setting the limits of what constitutes as religion in the ongoing
life of Indian law.
In the postcolonial period, the Supreme Court initially tended to offer
a broader understanding of religion as including rituals and what were
deemed to be “superstitious practices.”20 Gradually, however, the court
whittled down the scope of what constitutes an authentic Hindu religion
by introducing a requirement that the practice must have a scriptural or
textual basis.21 In the process a juridically constructed “rational Hinduism”
has come to define the parameters of legitimate faith. In articulating a com-
mon Hindu culture and belief, the court has cast Hinduism in the frame-
work of Abrahamic traditions, all of which have foundational scriptures
and centralized doctrinal schools of interpretation.
It should be noted that the attempt by the secular state to define reli-
gion in defense of freedom of religion is a necessary and essential quality of
almost all adjudications in this area in the modern period regardless of the
historical context. The “essential practices” test finds expression in other
legal histories as well and is used to construct religion through law. As Win-
nifred Sullivan argues in the case of the adjudication of religious freedom in
US federal courts, when courts have to decide between competing religious
claims, they ultimately get involved in deciding whether a particular reli-
gious claim is true to the tradition. This means deciding what is properly
religious and what is deemed as inessential to the religion. As a result, the
idea of religious freedom is a fraught enterprise since the very definition of
religion comes to devolve on what a secular court determines it to be—an
ironic outcome given the secular state’s proclaimed neutrality toward all reli-
gions (Sullivan 2005). 22 The continuous adjudication in courts of what is
true religion from what is not points to the way in which most forms of secu-
larism entail substantive engagements with issues of religious doctrine,
often changing in the process its meaning, practice, and substance. (See
Mahmood and Danchin in this issue for an exposition of this point.)
The decisions of the Indian Supreme Court have converged with the
modern and singular construction of Hinduism pursued by the Hindu
Right. As discussed throughout this essay, the Hindu Right has recently
emerged as a significant player in determining the contours and parame-
ters of the right to freedom of religion and in turn how Hinduism itself is
to be defined. Initially surprisingly little emphasis was placed on the right

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 Kapur • A Leap of Faith  123

to freedom of religion in the Hindu Right’s struggle to pursue its under-

standing of Indian secularism. The Right referred primarily to “liberty of
faith” as a basic objective, but the phrase is not synonymous with the Indian
constitutional guarantees of freedom of religion (Bharatiya Janata Party
2012). In fact, “liberty of faith” privileges an individualized conception of
faith at the expense of the collective rights (of a religious community) that
are in fact guaranteed under article 30 of the Indian Constitution (such as
the right of religious minorities to set up and administer their own schools
and colleges with the support of state subsidies). It is precisely such collec-
tive rights that have been challenged by the BJP as violating the principle
of equality enshrined in the constitution.
A second move on the part of the Hindu Right parties is to claim that
Hinduism is the only truly tolerant tradition as there is no proselytization.
In this view, only the Hindus emerge as the rightful custodians of Indian
secularism. The Hindu Right has made the related argument that the right
to freedom of religion does not include the right to proselytize. Rather, the
propagation of religion, as authorized and required by Christian and Islamic
doctrine, is cast as a violation of toleration, and thereby these religions are
constructed as inherently intolerant. Over the past several years, this posi-
tion has translated directly into the enactment of anticonversion laws in a
number of states run by the BJP to curtail the conversions allegedly made by
force, fraud, or coercion. 23 One consequence of this is that in the name of
restricting the right to proselytization, the Hindu Right has in fact sought to
curtail conversion from Hinduism to other religions, a curtailment that
impinges on the exercise of religious liberty more broadly.
In the Ayodhya case the claims of the Hindu Right were based on a
more muscular and substantive notion of freedom of religion than had pre-
viously been pursued. They mobilized both an individualized and a col-
lective conception of religious liberty to serve different ends. The former was
used to push back against the constitutional protections and exemptions
accorded to religious minorities as a violation of the individual’s right to free-
dom of conscience, while the latter was used to claim places of worship (such
as the Babri mosque) in the interest of preserving the values and customs
of the Hindu community. Although the Indian Constitution has always
embraced a collective conception of religious liberty, it was devised as a
means of protecting minority traditions from being forced to assimilate to
majoritarian norms. Ironically, the Hindu Right’s deployment of religious
liberty as a collective right inverts the state’s long-standing interpretation of
it as enshrined in Indian law.

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 124  The South Atlantic Quarterly • Winter 2014

Conclusion
The Hindu Right’s interpretation of freedom of religion needs to be read
within the broader political context of its attempt to redefine equality and tol-
eration. The inroads of the Hindu Right have been primarily in relation to
these concepts. Within the Hindu Right’s understanding of formal equality,
any accommodation of religious difference—differences that require recog-
nition in accord with the constitutional commitment to minority rights,
including freedom of religion—constitutes a violation of the constitutional
guarantee of equality. Similarly, through the Hindu Right’s construction of
Hinduism as the truly tolerant religion, the right of religious minorities to
profess and propagate their “intolerant” religions is cast as a violation of free-
dom of religion. The Ayodhya case represents a strategic shift in the Hindu
Right’s approach to secularism, which is to pursue a more robust under-
standing of group rights in and through the right to freedom of religion than
the Right had previously done. This strategy depends on the Right’s con-
struction of the sociopolitical field as equally open for the majority and
minority populations of India; this is clearly not the case because of the ideo-
logical weight carried by majoritarian Hinduism in the nationalist project.
The Ayodhya case represents not only a shift in Indian legal discourse
but also in the popular political imagination in which the Muslim minority
has come to be regarded as foreign to national identity. The fact that the
Hindu Right has been able to co-opt the discourse of Indian constitutional-
ism and secularism has forced its advocates to critically examine the struc-
tural possibilities internal to Indian secularism that can provide for this
co-optation. Defending against the undemocratic and politically dangerous
encroachments of the Hindu Right involves nothing less than reversing the
growing domination of freedom of religion as defined in majoritarian terms
and chronicled in this essay. A redemocratized revision of freedom of reli-
gion will need to break its association with formal equality and religious tol-
eration, both of which disavow any recognition of religious/collective differ-
ence. Freedom of religion needs to be seriously addressed in India, especially
by scholars who may be loath to support such a claim, in order to counter the
forces of antidemocratic majoritarianism. These forces are increasingly stak-
ing a claim to define and determine the contours, features, and limits of the
legal and political management of religious difference through Indian law
and politics. It will be interesting to see if those who oppose such visions are
up to the challenge of arguing for a legal and political order that defends the
ways of life of Muslims and others who do not share the Hindu Right’s
majoritarian impulses.

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 Kapur • A Leap of Faith  125

Notes
Earlier versions of this essay were presented at the Politics of Religious Freedom Workshop,
organized by the Luce Foundation, Columbia University, in December 2011, Chiang Mai,
Jindal Global Law School, the NYU Gallatin School, and Yale Law School. My thanks to my
interlocutors on these different occasions. I am grateful for the advice, comments, and criti-
cisms of Elizabeth Shakman Hurd, Saba Mahmood, Vasuki Nesiah, Rajeswari Sunder
Rajan, and Winnifred Sullivan. Thanks to Mohsin Alam Bhatt, Aparna Chandra, Latika Vash-
ist, and Apurva Tripathi for their very able research assistance.
1 The high court is the highest juridical authority within each province or state. High
court decisions can be appealed in the Supreme Court of India. The cases before the
Allahabad High Court were as follows: Gopal Singh Visharad (deceased) survived by
Rajendra Singh v. Zahoor Ahmad and Others (Other Original Suit No. 1 of 1989; Regular
Suit No. 2 of 1950), Nirmohi Akhara and Others v. Babo Priya Datt Ram and Others (Other
Original Suit No. 3 of 1989; Regular Suit No. 26 of 1959), Sunni Central Board of Waqfs,
U. P. and Others v. Gopal Singh Visharad (since deceased) and Others (Original Suit No. 4
of 1989; Regular Suit No. 12 of 1961), and Bhagwan Sri Ram Lala Virajman and Others v.
Rajendra Singh and Others (Other Original Suit No. 5 of 1989; Regular Suit No. 236 of
1989). Judgment delivered in the High Court of Judicature at Allahabad (Lucknow
Bench), September 30, 2010 (hereinafter referred to as the Ayodhya decision).
2 Article 30(1) of the Constitution of India.
3 Article 370 of the Constitution of India.
4 V. D. Savarkar was the ideological leader of the Hindu nationalists during the strug-
gle for freedom from colonial rule. He later became leader of the Hindu Mahasabha,
a Hindu communalist party that was intensely involved in the independence strug-
gle. His writings on Hindutva continue to represent the ideological foundations of
the contemporary Hindu Right.
5 Under article 356 of the Indian Constitution, a state can be placed under direct federal
or central rule when the central government is of the view that there has been a failure
of the constitutional machinery in the state. In such a case the president acquires pow-
ers to rule the state through the governor, who is the official representative of the presi-
dent at the state level. A day after the destruction of the Babri Masjid and in light of the
resulting violence and tension produced by the act of vandalism, the governments of
four BJP-ruled states were dismissed, and presidential rule was imposed on all four
states.
6 Ismail Faruqui v. Union of India (1994) 6 S.C.C. 360.
7 The acquisition was implemented through the enactment of the Acquisition of Certain
Area at Ayodhya Act, 1993, which was the subject matter of the challenge. Under the
Indian Constitution, the government is allowed to acquire land for a public purpose.
8 There were eleven cases before the court, which were considered collectively. The
central case was Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte and
Ors. 1995 S.C.A.L.E. 1.
9 See section 123(3).
10 These passages are reproduced in Manohar Joshi v. Nitin Bhaurao Patil and Anr, A.I.R.
1996 S.C. 796, at para. 8, which is one of the eleven cases that collectively made up the
Hindutva cases. The Manohar Joshi case is often considered to be the main opinion and
the decision that is most often referred to on the Hindutva cases. However, the Prabhoo

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 126  The South Atlantic Quarterly • Winter 2014

decision provides the main opinion on the specific question of whether Hindutva con-
stitutes a violation of the Representation of the People Act. On this point, the opinion in
Manohar Joshi simply refers to the opinion in Prabhoo.
11 Prabhoo, at para. 22.
12 Ibid., p. 1130, para. 38.
13 Ibid.
14 See, for example, Mohammad Aslam v. Union of India A.I.R. 1996 S.C. 1611.
15 Although the Archaeological Survey of India reported in 2003 that its excavations
revealed that a temple once stood in the place where the mosque was constructed,
these findings remained disputed throughout the course of the proceedings by the
Sunni Central Waqf Board as well as various academics (Verma and Menon 2010).
16 Although the concept of idols as juristic persons originally developed in Roman law,
over the years, it has been developed by Indian courts as one based on the religious cus-
toms of the Hindus themselves: Pramatha Nath Mullick v. Pradyumna Kumar Mullick
and Ors. (52 I.A. 245) and Kalamaka Devi v. M. R. T. Nagji (A.I.R. 1970 S.C. 439), which
held that when “the property is given absolutely by a pious Hindu for the worship of an
idol, the property vests in the idol itself as a juristic person” (Kalamaka Devi v. M. R. T.
Nagji, 441).
17 For an analysis of the historical flaws in Agarwal’s decision see Aligarh Historian’s
Society (2010).
18 These constitutional guarantees contemplate both individual and collective rights to
the freedom of religion that extend well beyond the limited right to worship. Article 25
of the constitution enshrines the right to individual freedom of religion but also per-
mits the state to regulate the “economic, financial, political, or other secular activity
associated with religious practice” and to specifically intervene in Hindu religious
institutions. The right under article 26(a) is a group right and available to every reli-
gious denomination. Clause (b) of article 26 guarantees every religious denomina-
tion the right to manage its own affairs in matters of religion. The expression “matters
of religion” includes “religious practices, rites and ceremonies essential for the prac-
ticing of religion.” Articles 25 and 26 accord primacy to public interest over religious
claims and hence provide a wide margin of appreciation for the state to sponsor
reforms.
19 Both judges relied on the Supreme Court decision in Dr. M. Ismail Faruqui v. Union
of India ([1994] 6 S.C.C. 360, para. 82), where the court stated, “[w]hile offer of prayer
or worship is a religious practice, its offering at every location where such prayers can
be offered would not be an essential or integral part of such religious practice unless
the place has a particular significance for that religion so as to form an essential or
integral part thereof.”
20 See Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri
Shirur Mutt (1954) S.C.R. 1005. This is one of the first cases where a wide definition
was given to religion as including rituals and practices.
21 The emergence of the doctrine of essential practices is specifically articulated in the
rulings of the chief justice of the Indian Supreme Court, P. B. Gajendragadkar, in the
early 1960s. See Surgah Committee v. Hussain Ali A.I.R. 1961 S.C. 1402; and Shri Gov-
indlalji v. State of Rajasthan, A.I.R. 1963 S.C. 1638. Both of these cases involved uphold-
ing the right of the state to regulate religious institutions.

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22 Peter Danchin makes a similar point in relation to the European Court of Human
Rights’ jurisprudence about Muslim minority practices in Europe. See Danchin
2008, 2011.
23 Six states in India have enacted anticonversion laws, including one by the ruling Con-
gress Party. These “freedom of religion” laws restrict the religious freedoms of reli-
gious minorities, and paradoxically claim to derive their validity from article 25 of the
Indian Constitution. See Viswanathan 1998; Jenkins 2009.

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