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ARTICLES OF FAITH: Religion, Secularism, and the Indian Supreme Court by Ronojoy Sen. Oxford University Press, New Delhi, 2009.

THE intersection of law and religion in India makes for a fascinating study, not least because of the prevalence of personal laws. Although Duncan Derrettís work continues to be the most distinguished contribution in this area, recent scholarship has provided important insights. Brenda Cossman and Ratna Kapurís Secularismís Last Sigh served to highlight the Indian judiciaryís inability to restrain the Hindu Right, while Gary Jacobsohnís more comparative approach in The Wheel of Law depicted how democracies may embrace distinct models of secular constitutional design. Notwithstanding their important methodological divergences, both Cossman-Kapur and Jacobsohn emphasized the problematic Hindutva cases, and their uneasy coexistence with Bommai.

Ronojoy Senís Articles of Faith shares with these contributions a desire to grasp the Indian Supreme Courtís conceptualization of religious liberty, and acknowledges a distinct Indian model of secularism. But Senís goals are more ambitious than Cossman-Kapur and Jacobsohnís, and his effort is a genuine attempt to move beyond the Bommai/Hindutva case studies. Senís project is illuminating on many levels, and there are two central features of his argument. First, Sen posits that the Supreme Court has Ďfurthered the reformist agenda of the Indian state at the expense of religious freedom and neutralityí (p. xxxi). Second, he suggests that Ďthe Court has become an ally Ė inadvertently Ė of the Hindu nationalists in their aggressive demands for homogenization and uniformityí (p. xxxi).

Scholars of Indian law will notice that these two conclusions are not entirely novel; but Senís attempt at reaching them is impressive. Undertaking a detailed analysis of religious freedom under Indiaís constitutional framework, Sen reflects on minority educational institutions, the law on conversions, the essential practices test, the personal law debate, and even performs a serious study of Justice Gajendragadkarís judicial philosophy. The breadth of analysis undertaken is striking. On each of these issues, Sen provides a rich descriptive account of the Supreme Court, and manages to systematically organize the field of law and religion in a coherent and comprehensive fashion. It is difficult to determine the boundaries of the field of law and religion, but Senís work demonstrates the significance of many underappreciated areas such as the law on conversions, the rights of minority educational institutions, and so on.

Articles of Faithís close reading of judgments provides an important account of how religious freedom has been understood by the Supreme Court. For instance, in studying the doctrine of essential practices, we learn how the path to religious freedom has been paved through the interpretation of religious doctrine, rather than through holding that judges ought not to sit as pandits. On the subject of minority educational institutions, Sen shows us how the stateís passion for regulating educational institutions has permeated such institutions as well, often at the cost of their personal autonomy.

Senís chapter on Justice Gajendragadkar deserves special mention. Barring reflections on Justice Khanna and judges of the public interest litigation era, Indian legal scholarship hardly ever focuses on the judicial philosophy of independent judges. There are, admittedly, some legitimate institutional reasons for this Ė the tenure of a judge is typically too short to warrant serious analysis, and the Indian Supreme Court sits in separate courtrooms rather than as a full bench. But despite these factors, studying a judgeís interpretive attitude over a series of judgments can help us to better grasp the historical development of the courtís doctrine. Senís analysis of Justice Gajendragadkar makes this clear, and reveals how his judicial opinions reflected his complex views on religion, tradition, and modernity.

But although Sen provides an important and painstaking descriptive account of the Supreme Courtís engagement with religious matters, the book stops just short of asking what normative insights such an account may hold. For example, Senís chapter on the doctrine of essential practices makes it clear that in protecting religious freedom, the Supreme Court has found it necessary to construct a conception of religion. But the important question is whether this constitutes a necessary evil or irresponsible judicial behaviour. For religious freedom to be truly protected, must judges interpret religious doctrine or refrain from interpreting it? Similarly, while evaluating the Hindutva cases, one cannot simply consider the courtís interpretation of Hindutva and Hinduism or how its judgments came to further the cause of the Hindu Right. The more important question is whether democracies should regard the electoral space as a special arena and how the regulation of election speech impacts the right to political participation. Sen only brief considers this issue, leaving the reader disappointed (pp. 83-86).

Further, on certain important issues, Sen devotes too little space to the nature of constitutional interpretation. On Article 30 for instance, Senís carefully explains the differences between Justice Kirpal and Justice Ruma Pal in TMA Pai (pp. 100-102). He does not, however, probe further to ask how their divergent techniques may be situated within larger interpretive debates; how different constitutional provisions interact with one another, and the degree of legitimacy that must be granted to the different forms of textual analysis performed.

Like Cossman-Kapur and Jacobsohnís works, Articles of Faith does not help us to locate Indian Church-State relations within the broader framework of constitutional theory. But it does, unlike Secularismís Last Sigh and The Wheel of Law, do justice to the breadth and diversity of the Supreme Courtís engagement with religious matters. It gives us an insight into the complexity of this subject, and an indication of what issues we must confront. Ultimately this is what makes Senís work promising, and questions at the intersection of law and religion in India so powerful.

Madhav Khosla

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