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Juridical Construction of Community

A Question of Community: Religious Groups and Colonial Law by Amrita Shodhan; Samya, Kolkata, 2001; pp 222, Rs 350.

Once we accept ‘imagined communities’ as an analytical category, then we must accept that there will be as many ways of constructing community as there are of imagining it. But any such construction will be an interplay of three underlying dimensions in varying degrees of emphasis: an objective foundation in its existential reality; a subjective construction of this in terms of meanings and values, sentiments and motivation; and a contextual recognition of this by various constituencies in the social matrix in which the community exists. One may privilege one or the other dimension, but one cannot ignore any of the three without falling into a reductionist explanation. 

In the colonial context groups were constructed in various ways that marked a transition precipitated by the colonial state. Thus Bernard “Cohn describes community in India as fluid in the non-colonial context, as opposed to being objectified and fixed in the colonial context. Kaviraj describes the difference as being one between a ‘fuzzy’ community and an enumerated community. Galanter describes group membership as varying between the pragmatic/empirical and the formal/fictional community. In these studies, fluid, fuzzy or pragmatic communities consist of individuals whose membership is blurred and overlapping between groups, whereas, in the latter types of community – objectified, enumerated or formal – group membership is seen as exclusive and hierarchically compartmentalised” (p 23).

In each of these instances there is an external agency that precipitates a contextual recognition or rather at times a ‘mis-recognition’, which then precipitates a subjective construction of the community from within and without. This in turn must eventually affect internal and external community relations in their existential social context. Some of these agencies have been explored at much length and depth, and though several explanations have been forthcoming each with its own explanatory power specific to the particular situation and context, as yet the question of a more general and decisive social theory of community construction still eludes us.

The book under review makes no pretence to such a theory, but explores with keen insight one neglected aspect of community construction in colonial India. Indeed the question that Shodhan addresses is of particular relevance today: “how was it that the numerous and often antagonistic religious groups and separately organised collectives were represented in the single category of either Hindu or Muslim?” (p 38). More particularly she examines with the help of two interesting and rich case studies how the colonial judiciary redefined local religious communities by emphasising state sovereignty over local self-governance in resolving the internal disputes of the community and then with the help of experts referring to a more generalised textual religious tradition on which personal law was first premised and later privileged over customary law. This further enforced homogeneity and dependence on the state government that undermined the ability of religious communities to resolve internal conflicts and evolve needed reforms for itself from within.

Prior to the codification of laws by Henry Maine in 1862-69, British judicial practice in the Bombay presidency treated caste and religious groups as polities, i e, as self-constituted entities ‘ruled by majority decision (majority of adult male members)’ (p 74). Thus caste and small religious groups were self-governing collectivities through which the local population was governed. When a case fell within the definition of the caste question it was dismissed and referred back to the caste authorities. There was no reference to an original community form. But once the court recognised such an ‘original community’ and individual rights within that, then this was no longer feasible. For now it was the state that would be the protector of individual rights, which were to be delimited within the context of the original form of community as actually articulated with the help of experts.

 

Debate and Dissension

Earlier in 1848 and 1851, the court had referred such cases back to the khoja community thus treating it as a self-governing ‘polity’, and contenting itself to set the parameters within which the disputes could be internally settled. However, in the 1866 judgment of the court defined the Khoja religion as a Shia Imami Ismaili sect, and considered the dissenting members as no longer belonging to the sect and therefore dismissed their claims against the Aga Khan.

The Aga Khan had in fact come to India in a settlement the British had worked out with Iran. After a brief stay in Bombay in 1845 he was sent to Calcutta and then returned again in 1848. He then proceeded to take charge of the khoja community here, its charitable trusts and common properties and also to intervene in its traditional practices, many of which he considered heretical. The court judgment in favour of the Aga Khan against the reformist plaintiffs thus established the relationship between the khojas and the Aga Khan as its legitimate head, within the context of an Ismailism. Any group that broke away would have changed its faith and could make no further claims on the community.

The case of the Vallabhacharya Vaishnavas who were followers of the Pushtimargis Sampradaya is somewhat more complicated. In 1861, their religious leader, the ‘maharaja’, had charged the reformers with libel in the supreme court of Bombay for their attacks on him and their religious tradition in the press. The bhatia caste leaders from within the sampradaya, held a caste meeting on September 6 when efforts were made to settle the matter internally and stop members from giving evidence against the maharaja in court. The criminal sessions of the supreme court however convicted the leaders of conspiracy since it saw this as a challenge to its own supreme sovereignty. But it did, however, take up the charge of libel. The court was thus negating any self-governing authority internal to the caste structure. This now became a secular trial in which a religious leader had submitted himself to the authority of the court, where the criteria for judgment was the court’s notions of morality and Hinduism.

The question of orthodoxy or heresy of the reformers was left to internal debate within the sampradaya. But the court had de-legitimised and disempowered self-governance within the religious sect. When the court found the maharaja guilty of immorality the reformers celebrated this as a victory, while on the other hand a movement to reform the sampradaya was triggered by the judgment. The sect now sought to emphasise its Hindu characteristics as an actively reconstituted and the self-consciously reformed Vaishnava sampradaya. In fact this is the first public criticism of a religious authority and it set the terms for a self-reflective debate within Hinduism.

However, ‘the true Hinduism’ or ‘Islam’ of such reinterpretation and reform was strongly influenced by the Orientalism of the time. To start with neither the khojas nor the pushtimargis were self-consciously Muslims or Hindus prior to the court judgments. But these precipitated a redefinition that reconstituted these communities within a larger more distant tradition. Thus in disjunction with their earlier practice, the court in the later part of the 19th century stymied the local self-governance of these communities and their effectiveness in settling their own internal disputes, and thus further undermined the capacity of these groups for internal reform. For now matters of community change were referred to a larger more universal religious tradition that was in fact external and somewhat alien to the sect.

This led to a further concentration of power in the state, and opened up possibilities for the construction of a more universal and homogenised religious tradition into which the smaller jatis, jamats and sampradayas could be absorbed. Thus the narrative of community was not used to strengthen local communities, but rather to undermine their civic potential and importance. Indeed, with the construction of community in terms of a more universal traditon to the negation of the local one, such a consolidation of the community into a larger homogeneous entity cannot but eventually destroy the rich cultural and religious diversity of this country.

 

Hegemony of the Few

This absorption of local community identities into a more trans-local and countrywide tradition would inevitably have grave consequences for the commu nal division in this country. Surely the political mobilisation that consolidated and demarcated such identities in hostile and conflictual terms had much to do with the politicisation of religious and caste identities that had already begun in the colonial period. The attempt to absorb the dalits into the sanathani dharmic fold with the ‘Poona Pact’ is one of the high points of such a process! Electoral politics has only exacerbated the pace in post-colonial times. But the role of the courts in 19th century undermining local self-governance in these communities, and later constructing a personal law code that redefined these religious identities, was surely one of the crucial contributions to this process.

Amrita Shodhan has done well to highlight this neglected process with much rich detailed and incisive discussion. She points out that the biggest losers were precisely the communities that lost their status as local self-governing polities, and with this, their potential for internal reform under the overall control of the constituted authorities of king or state. The colonial juridical processes by constituting these as closed groups in terms of a fixed tradition externally defined left them open to external influences both from the state and from other political powers in the nationalist movement, as also in the post-colonial state. Not all of these latter agencies were concerned with the local community as its special priority. Rather they would coopt and compromise it to other causes and larger interests.

Perhaps the best illustration of this is how vulnerable sections within these communities, like women in particular, have suffered rather than gained by this displacement of customary local self-governance by centralised control over individual subjects bypassing the polity. The unfulfilled promise of personal freedom and equality that is the right of every citizen guaranteed by the state is no longer negotiated in these groups. For they came to be treated as separate from the state and the two are seen as coming from separate moral and governmental traditions. Hence the vulnerable sections within these communities are all too easily coopted to extraneous political causes and compromised by entrenched vested interests. Women standing up for a personal law that compromises their fundamental rights in favour of community claims is but one example of this.

The resurgent of communitarism even in the west, and the need for intermediary institutions and structures points once more to the need to revitalise local self-governing communities if the civil liberties and democratic rights promised constitutionally to our people, are to be fulfilled at the grass roots level. For our centralised government has failed to deliver on its promises here. We need to reintegrate the traditions of state and social governance into a single system perhaps by giving up the paradigm of centralised government for one of a society governed by smaller groups of polities, ie, a community of communities. The potential for such an alternative seems to be in the 73rd and 74th constitutional amendments for local self-governance.

When the two communities, khojas and pushtimargis, first went to court they were not described as Muslims or Hindus to start with, but rather as also Muslim and also Hindu. In other words there was an innate awareness of the diversity of local traditions within an overarching religious category, which implicitly represented many differences and even contradictions. The khoja interpretation of Vishnu’s avatars in the text of its Dashavatar is just one striking example of this. The ‘unorthodox’ practices of the pushtimargis is another. An orientalist representation of these traditions as belonging to undifferentiated communities of Muslims and Hindus had little to do with the self-understanding of these groups. It was more the result of a juridical reconstruction of them within a judicial process that coopted the narrative of community and its customary law to strengthen the authority of the state in its enforcement of a more generalised personal law.

Shodhan is right on target when she observes:

The assumptions of ungovernability of collectives were therefore counter-productive and submitted the collective to a totalising state authority. It removed the possibility of recognising the historicity of actual practices and dissent from within (p 198).

Communities were thus treated as pre-political and based on ‘natural will’ rather than on ‘free will’, to use Tonnies’ categorisation. The transition of such affinal communities into a society based on contractual individuals, was undermined if not stymied. From here to the 1909 Minto-Morley reforms of separate electorates for religious communities was only a logical step away. Rest of the communal divide that followed on this is already history now.

The challenge today is to reconstruct community in ways that will deconstruct what an earlier political process has done. But at this point in time the political process seems hardly reversible from within. It is too immersed in the compulsions of electoral politics. All the more pertinent is the reliance on civic and social means to redefine communities as more open, and communal identities as less exclusive. Perhaps once again in this endeavour we are neglecting the role of the judicial process, which is becoming the only viable check on a runaway populist politics. Unfortunately the controversy over personal law seems to strengthen threatened identities among minority communities rather than to defuse these into the more inclusive and universal ones of citizenship within the mediating structures of civil society. Amrita Shodhan has endeavoured to show how local polities were undermined in the 19th century. Now hopefully there will be a revival and resurgence of local self-governance in the 21st.

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