Democracy as Civil Religion: Reading Alexis De Tocqueville in India

Dissenting Piety and Democratic Values: The ‘Half-civilized’ Civil Code

In the inception of democracy in America, Tocqueville had found an interesting relation between religious innovation and political liberty. For Tocqueville, democracy was, to a large extent, an ‘unintended consequence’ of the Puritans’ search for an ideal locale to practice their religion in peace. Their quest was not for democracy but for a land where religious freedom would be upheld so that they could worship their God. Tocqueville studied democracy in America as a political as well as a value system. The French nationalist was acutely aware that the French Revolution had its meticulous pedigree of the great ‘philosophes’, but the revolution in the name of equality, liberty and fraternity led to the Reign of Terror and gave rise to the dictatorship of Napoleon. What then worked for those early settlers, the ‘half-civilized’, so that they could establish the first modern democracy and also survive it?

Investigating the American case, Tocqueville argued that a number of factors—religious, legal, political and geographical—all contributed to the ideological changes among the ruler and the ruled. Tocqueville was unequivocal about the fact that changes were required not only in political ideology but also in the values that constituted the everyday social matrix (Tocqueville, 1994, p. 8). The practice of democracy required not only agitation but also restraint: Democracy gave power to the people and therefore required greater restraint at the societal level. In the American case, the spirit of a dissenting religious group was the fountainhead of this restraint. It offered a unique synthesis between religious values and political liberty.

Tocqueville explained that in the moral world of these ‘ardent sectarians and daring innovators’, everything was classified, systematized, foreseen and decided beforehand; in the political world everything was ‘agitated, disputed, and uncertain’ (ibid., pp. 43–44). The settlers of New England belonged to the independent and educated classes of their native country where they had both social position and economic power. The immigrants—or, as they called themselves, the ‘pilgrims’—belonged to the Puritan sect named for the austerity of their principles. Puritanism had the most democratic and republican theories, which could not be practiced without provoking its most dangerous adversaries especially the state. Unable to practice with rigour, the principles which they held as supreme and persecuted by the government of their mother country for professing such values, the Puritans set out to find a place where they could live according to their own opinion and worship God in freedom. ‘Thus in the name of God, the “civil body politick” was formed’ (ibid., p. 36). Exercising the rights of sovereignty, the Puritans formulated a stringent, self-censuring legislation, which according to Tocqueville, offered the solution to the mystery of democracy.

The most striking feature of the Code of 1650 was its penchant for punitive measures. The settlers had the most stringent penal laws based on the text of the holy writ. ‘Whoever shall worship any other God than the Lord’, said the preamble of the Code, ‘shall be put to death’ (Tocqueville, 1994, p. 37). Blasphemy, sorcery, adultery and rape were punished with death. An outrage offered by a son to his parents was to be expiated by the same penalty. Tocqueville pointed out that the legislation of a ‘half-civilized’ people was applied to an enlightened and moral community. But the most interesting characteristic of these ‘fantastic’ and ‘oppressive’ laws was that they were not imposed by any authority, they were freely voted by the members of the community. Moreover, such oppressive penal code existed along with the most egalitarian and liberal political laws. In Tocqueville’s own words:

In strict connection with this penal legislation, which bears such striking marks of a narrow, sectarian persecution and were still fermenting among the people, a body of political laws is to be found which, though written two hundred years ago, is still in advance of the liberties of our age. (ibid., p. 39)

The general principles and institutions which constituted the bases of modern democracy were all recognized and established by the laws of New England: Intervention of the people in public affairs, personal liberty and trial by jury were all established without discussion.

Public action was performed with religious zeal. Tocqueville gave the example of education to illustrate the point. The Code of 1650 argued for establishing schools in every township in the following way:

Whereas Satan, the enemy of mankind, finds his strongest weapon in the ignorance of men, and whereas it is important that the wisdom of our fathers shall not remain, buried in their tombs, and whereas the education of children is one of the prime concerns of the state, with the aid of Lord…. (ibid., p. 41)

This was followed by clauses that obliged the inhabitants, under the threat of heavy fine, to support the schools. The municipal authorities had to enforce the sending of children to school by their parents and empowered to inflict fine upon those who refused compliance. In cases of continued resistance, the society assumed the place of the parent, took possession of the child and deprived the parents of their natural rights, which they used for so bad a purpose. Tocqueville argued that in no other nation, citizens had so few rights to do whatever they pleased; on the contrary, more social obligations were imposed upon them than anywhere else. But then, what ensured that democracy remained committed to the very ideals it is based on?

For Tocqueville, the division of power into different bodies and the centralization of government and decentralization of administration were two important factors for democracy to survive. ² Tocqueville was convinced that the gradual development of provincial liberties ensured participation of the people in the affairs of the state (ibid., p. 95). Yet, if people were not cautious, democratic nations were most likely to fall beneath the yoke of a centralized administration since there was a constant tendency to concentrate all the strength in the hands of those who directly represent the people. In the next section, we discuss this paradox of democracy that Tocqueville described as the ‘tyranny of the majority’. He cautioned his readers against the ‘unlimited power of the majority’ in democratic polities, which could be mitigated by making the legislative power representative of the majority but not a ‘slave of its passions’.

The Infallible Democracy: Tyranny of the Majority?

Tocqueville cautioned his readers that the very essence of democratic government consists in the absolute sovereignty of the majority and there was nothing in democracy that was capable of resisting it. The law of the country gave extraordinary power to the legislature and deprived the representatives of the executive power of stability and independence. The supreme authority of the legislature, which was supplied by new representatives, had led to mutability of laws. Thus, the omnipotence of the majority not only renders law unstable but also tampers with the execution of the law and the conduct of the administration. Tocqueville was amused by the fact that how the democratic government acts where the attention of the people lies and its enthusiasm ceases as they are distracted. ³

At the same time, Tocqueville detected the most important cause for the tyranny of the majority in the custom and values rather than in law. In America, by definition, the majority cannot do any wrong. This situation was comparable to that of the French under the old monarchy. The French people believed that the king could do no wrong. If he did so, the blame was imputed to his advisers. It enabled the subject to complain of the law without ceasing to honour and love the lawgiver. The Americans have the same opinion with respect to the majority (Tocqueville, 1994, p. 255). The moral power of the majority is founded on the principle that the interests of many are to be preferred to those of the few. But nothing in the principle of democracy would immediately suggest why a majority possessing absolute power would not misuse that power by wronging their adversaries? The sceptical author points out that men do not change their characters by uniting with one another, nor does their patience increase with their strength. On the contrary, he argues that unlimited power is in itself a dangerous thing. ⁴

According to Tocqueville the majority possesses a power that is physical and moral at the same time. It acts upon the will as much as upon the actions and represses not only all contest but also controversy. Reforms, which would need change in the beliefs and opinions of the Americans, are difficult to come by. Tocqueville noted that in no country there is so little independence of mind and real freedom of discussion as in America. The authority of the king is physical and controls the actions of men without subduing their will. The vices and follies of absolute monarchs could be depicted by the writers of the old world. Moliere criticized the courtiers in the plays that were acted before the court. But the ruling power of the United States could not be made fun of. If one dared to question the accepted value of democracy, the person would become a stranger among her own people. No writer could escape paying tribute of adulation to ‘the people’. Those who are aware of these defects of democracy hold a very different language in ‘public’. According to Tocqueville, the adulation of the masses by the politicians, moralists and philosophers was worse than that of the sycophants of Louis XVI (ibid., p. 268).

Tocqueville also feared that if ever the free institutions of America were destroyed that event would take place because of the omnipotence of the majority. It was possible that they would urge the minorities to desperation and oblige them to take recourse to physical force. He noted that this fear was already voiced by some statesmen of America as they pointed out that it is not only necessary for the republic to guard the society against the oppression of its rulers, but to guard one section of the society against the injustice of the other. Justice is the end of government as well as of civil society. The question, therefore, was the following. How does democracy mitigate these problems that threaten its very ideal? Tocqueville gave a nuanced analysis of the role of the different facets of democracy that performed this task. For example, the township system of America, pointed out Tocqueville, imparted to the people a taste for freedom and the art of being free and limited the despotism of the majority. Moreover, it was the proper functioning of the judicial power that served to repress the excesses of democracy. For Tocqueville, it was the independence of the judiciary and the principle of plurality of conscience that contributed to safeguarding democracy against the ‘tyranny of the majority’. Thus, if it was the custom of the people that had led to the infallibility of the majority, it was the same custom that also showed a way out of the same.

Tocqueville argued that in a great nation that contains diversity of customs, uniformity of laws would lead to trouble and misery. Since the legislator proceeds upon general principles, it cannot take care of special cases. This disadvantage did not exist in the confederation since the Congress regulated the principal measures of the national government while all the details of the administration were reserved to the provincial legislatures. This division of sovereignty enormously contributed to the well-being of the states that composed the union. The government of each state, which was in close immediate relationship with citizens, was familiar with the needs of the people (Tocqueville, 1994, p. 163).

The courts of justice, according to Tocqueville, were the visible organs by which the legal profession was enabled to control democracy. Armed with the power of declaring the laws to be unconstitutional, the American magistrate perpetually interfered in political affairs. He reminded the people not to disobey the laws they have themselves created (ibid., p. 284). Similarly, the institution of jury was the other crucial legal mechanism that contributed to the mitigation of the tyranny of the majority. Like universal suffrage, it was a direct consequence of the principle of sovereignty of the people. The jury was that portion of the nation to which the execution of the law was entrusted. The institution of jury raised the citizens to the bench of judges as it placed judicial decisions in the hands of the governed. Tocqueville writes that this institution helps to ‘rub off that private selfishness which is the rust of society’ (ibid., p. 285).

According to Tocqueville even more than the judiciary, it was certain aspects of the ‘customs and manners’ that contributed to the maintenance of democracy. ⁵ Once again Tocqueville detected the influence of American religiosity on its political ethics. In America, religion did not take any part in political governance, but at the same time, it was their first political institution. ⁶ The principle of ‘disestablishment’ taught the people civil liberty. The innumerable sects in America adore their deities in different manners but they all agree in respect to their duties towards man and preach the same moral law in the name of God. Tocqueville argued that the right to plurality of conscience—reflected in the multiple denominational traditions of Christianity in America—had protected American democracy from turning against itself. Thus, what finally mitigated the tyranny of the majority in America was its equally determined commitment to plurality of conscience and individual liberty.

What is important for our purpose is the argument that democracy itself has moral power and any communitarian claim has to be delicately weighed on the scale of democratic justice. In the next section, I explore the issue of the constitutional expectation for a UCC in India in light of Tocqueville’s notion of democracy as the ‘new sacred’. Robert D. Baird had captured this dimension when he wrote that the Constitution of India, apart from being a political, legal and economic document, it is a religious document as well (Baird, 2001, p. 146). Following the Tocquevillian idea that it is the practice of the institutions of democracy that needs to be investigated, I intervene in the UCC debate in the Indian context. I argue that in this intensely pitched debate, very little attention has been paid to the societal and legal processes through which the litigants seek to resolve conflicts pertaining to personal law.

The ‘New Sacred’ and the Issue of a UCC in India

I revisit the debates around a UCC in India following Tocqueville’s observations on majoritarianism; the place of judiciary in democracy and public opinion. The UCC debate in India has been entangled in the issues of minority rights, national integration and gender justice as well as discussions on citizenship and secularism. But most importantly, it is caught in the crosshair of the ideal of state-led legislation versus religious identity/reform. The relation between the judiciary and religion in India has given an ‘interventionist’ character to the Indian state (Galanter, 1971, p. 481). Analyzing the ‘Satsangi’ case over the question of the untouchables’ right to enter ‘Satsangi’ temples, Marc Galanter had argued how the very power given to the legal authorities to define what is ‘religious’ and ‘secular’, placed the judiciary and religion in an irrevocable hierarchy. In this context, the question of religion is very much mediated through the legal framework and I argue that some of the Tocquevillian insights would be helpful to understand their implications.

It can be argued that in the Indian context, the UCC debate has signified a ‘theological belief’ in equality, justice and national integration. ⁷ A binary between obscurantism versus progress/justice lies at the heart of this debate. It had paradoxically brought the Hindu right wing groups as well as liberal progressive forces, especially the feminists, on the same platform in the aftermath of the Shah Bano case. ⁸ Rajeswari Sunder Rajan has identified six broad positions vis-à-vis the issue of a UCC in the Indian context. She describes these positions as—‘constitutional secularism’ that approves a UCC in principle but not in practice, based on the modernizing agenda of the post-colonial nation state. ‘Religious patriarchy’—a position reflected in the opposition to reform in personal laws, cogently argued in the context of the Hindu code bill that saw women’s equal right of inheritance and divorce as a threat to the traditional gender hierarchy. ‘Minority communities’—their perceived threat to the sanctity of religious laws and religious identity. ‘Hindu political parties’—in the post-Shah Bano period, the Hindu parties have stepped up their demand for a UCC. Unlike the covertly patriarchal and overtly communitarian moorings of the last two positions, a ‘communitarian’ position favours a pluralist and decentralized polity and is opposed to the imposition of a UCC because of its opposition to ‘coercive state secularism’. The ‘liberal secularists’ on the other hand would support a UCC in principle on grounds of egalitarianism but would be hesitant to press for its imposition given the actual situation of conflict with ‘embattled minorities’. The ‘women’s groups’ that foregrounded the issue of women’s rights in the discussion of personal laws (Rajan, 2003, pp. 149–150). The women’s groups have since then distanced its position from the Hindu right’s demand for a UCC and have supported the processes of intra-community reforms (ibid., p. 158). ⁹

Women and civil rights groups have also underscored the futility of formal rights in a social context marked by hierarchical gender relations. They have proposed to change the terms of the debate by bringing in the notion of citizenship and the rights that go with it both in public and private domains. ¹⁰ But what have remained unattended in this debate are inquiries into those arenas that are touched by a UCC: family, kinship, inheritance and custody. There is also scant sociological work on the phenomenon of ‘legal choice’ available to the litigants that focuses on the adjudication of ‘personal law’ in civil/family courts as well as in ‘informal’ Islamic courts. Based on a belief in legal centralism, these debates have avoided analyzing the many lives of law and religion in the context of democracy.

I would like to focus on three trajectories of this debate: First, the constitutional reformist optimism around the issue of gender justice; second, the women’s reform movements within the community; and third, the literature that investigates the relation between law, gender and the legal institutions. I argue that the constitutional secularist position was as much about national unity as it was about gender. The issue of gender has been intricately woven into the narrative of the nation. Thus, while secularization of law is basic to a UCC, in terms of the contents of this conflict, it is encapsulated in the issue of gender (Baird, 2001, p. 148). Those who support a UCC point out that it is empowering for women and gives them self-esteem, whereas multiplicity of family laws leads to a chaotic situation for women who seek justice (Seth, 2005).

I dwell a little more on the national integration and justice paradigm. The vision of a UCC has been present since the time of drafting the Indian Constitution. ¹¹ The Article 44 of the Directive Principles of the Indian Constitution states, ‘The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ B.R. Ambedkar along with the women members of the Constituent Assembly like M.R. Masani, Rajkumari Amrit Kaur and Hansa Mehta backed the UCC in order to ensure equality and justice for all Indian women and wanted it to be included as a fundamental right, whereas the Muslim men members opposed the UCC. However, views of both the parties were discarded as the issue was postponed and included in the Directive Principles of the Constitution. The enactment of the UCC was supposed to promote unity and national integration, encourage communal harmony and improve the status of women through gender just laws.

The controversy surrounding the question whether religious family laws form an obstacle to democracy, national unity and progress or rather act as a warrant for the plurality of Indian society reached its climax in the course of the oft-cited Shah Bano case in the mid-1980s. The commitment to an overarching civil law code was increasingly equated with a ‘commitment to the nation’ and the Muslim groups and individuals who argued for the retention of Muslim Personal Law as an integral part of their cultural rights were branded as ‘backward’ and ‘misogynist’ but increasingly also as ‘anti-national’ and ‘unwilling to integrate’ into Indian society (Schneider, 2009, p. 60). Justice Y.V. Chandrachud while delivering his judgment on the Shah Bano case stated, ‘It is a matter of regret that Article 44 of our constitution has remained a dead letter.’

Addressing the question of gender, albeit from a different vantage point, stands the reform initiatives from within the community. While activists like Asghar Ali Engineer had brought the question of women’s rights within the purview of Islamic reform, collective efforts have been articulated by Muslim women’s groups. These movements argue that uniformity is not the only way of bringing about gender justice. Organizations and networks, such as, Awaaz-e-Nisswan (AeN), Muslim Women’s Rights Network (MWRN), Bharatiya Muslim Mahila Andolan (BMMA), have been active in justifying their demands for gender justice with religious arguments. Accusing the male ulema of imposing the ‘patriarchal’ interpretations of the Qur’an upon the illiterate Muslim masses, the activists fight for gender equity under the Muslim Personal Law by reverting to a reinterpretation of the Quran (Vatuk, 2013). The task of preparing and propagating the use of gender-just Nikahmana in marriages and ensuring the rights of women in marriage and divorce has been undertaken by these groups (Suneetha, 2012a, 2012b). They question the demonization of Islam as anti-women and read the Quran to understand the entitlements that it provides for them. Education—both Islamic and modern—is seen as important for Muslim women to deal with their situation (Suneetha, 2012a, p. 61). Though internally differentiated, these ‘Islamic feminist’ discourse represent women’s multiple identities including religious (Kirmani, 2011). It has been described as a discursive movement that has gained inspiration from the global discourse of Islamic feminism. For these movements, reforming the Muslim Personal Law is not a matter of the Indian Constitution or human rights but to reclaim the rights given to women in the Quran (Schneider, 2009, p. 57).

Although they belong to the opposite end of the spectrum, both these perspectives primarily focus on reforming the law/legal interpretation and not so much on the institutional procedure or the modes of adjudication. One demands gender justice based on the notion of constitutional rights while the other anchors its demands on a reinterpretation of the Quran to reclaim women’s rightful share. I argue that the debate will benefit if our academic focus is cast on the process and method of adjudication of personal law, since very little attention has been paid to the actual forms of dispute redressal procedures that the community in question employs. I would like to bring in the Tocquevillian approach to find out how do these institutions function by giving primacy to law as social practice as well as the procedural aspects of law.

The disputes that are addressed under personal law tread the delicate terrains of affect, gender, kinship and family finance. In recent years, a few scholars have paid attention to the processes through which the ‘pluralistic’ Indian legal system functions. ¹² In her study of family courts around the issue of Muslim Personal Law, Sylvia Vatuk has drawn our attention to the distinction between ‘law as written’ and ‘law as practiced’ or between what the law ‘says’ and what it actually ‘does’ (Vatuk, 2001, p. 228). This perspective allows us to see how the agents negotiate the conditions of their lives to achieve their interest and redress their disputes. Gopika Solanki’s fine-grained analysis has shown how legal practice is localized and decentralized by multiple legal actors. Here, family disputes are negotiated through multiple actors, such as, lawyers, clergy and the family members, religious organizations, sect councils, women’s organization as well as the door-step courts, such as, the residential committees and the women’s ad hoc groups. Ethnography of the Dar-ul-Qazas, family and civil courts in India show how the litigants negotiate these multiple forums to resolve disputes in matters of family and inheritance (Solanki, 2011).

On the basis of her research in rural Bijnor, Patricia Jeffry has raised the question: How much energy and priority should be given to legislative reform, with the state as the object of reform. Without minimizing the role of the symbolic and normative importance of law in society, she is sceptical of its efficacy on ground level. Her fieldwork suggests a much deeper affinity between Muslim and Hindu women’s predicament in case of breakdown of marriage. Jeffry argues that the Code of Criminal Procedure (CrPC) Section 125 played a very limited role in preventing women from becoming destitute after marital breakdown. In practice, Muslim and Hindu women’s economic insecurity in the event of marital breakdown has remained comparable (Jeffry, 2001, pp. 23–24). She points out that rights and obligations in the context of marital breakdown is not a narrowly legal question amenable to legal resolution. These questions are embedded in politics of gender, kinship and customary practices.

While in America, Tocqueville found administrative decentralization and the judiciary taking care of the question of diversity, in the Indian context, it operates in a far more complex legal terrain. While the Muslim Women Act (MWA) of 1986 has been often criticized as regressive, an investigation into the litigations point to a different reality. Flavia Agnes has shown how the act was being ‘interpreted’ in the courts in favour of the divorced Muslim women, by paying attention to innocuous clauses that had escaped the attention of both the protesters and defenders of act (Agnes, 2001, see also Mullally, 2004, pp. 682–683). Solanki’s ethnography also shows similar findings. In the cases that she followed, a divorced Muslim woman benefited more than she would have if her case had been tried under any other matrimonial legislation. The divorced women who remarry lose their rights to maintenance under the 125 CrPC but the same economic right was protected under the MWA (1986). In another case, the Section 3(3) of the MWA (1986) ensured that the woman secured her maintenance even though considerable time had elapsed after the divorce; it also assured that the settlement was at par with the life she led during her marriage (ibid., pp. 149–150). ¹³

In the context of the UCC debate, Arvind Verma has drawn our attention to the enforcement of law in India. He points out that here disputes are brought to local police and little difference is made between civil and criminal cases. Moreover, inheritance claims are often intertwined with criminal incidents to harass/intimidate other shareholders. Very often Section 379 of the Indian Penal Code is invoked when material objects are involved in a case of inheritance. Such allegations make the case a cognizable offence that gives the police the right to intervene in a matter that is otherwise clearly a civil dispute to be dealt by the court (Verma, 2001, p. 136). As legislation gives considerable room for interpretation, it gives extraordinary powers to police where the notion of ‘illegality of search does not exist’ (ibid., pp. 128–129). Moreover, describing the bias that exists in terms of class, caste, gender and religion in the procedural aspect of law, Verma has argued that the personal law is best kept outside the purview of the ‘generally corrupt policing system of India’ (ibid., p. 139).

Though diverse in their orientation, these studies show that we need to reckon the process of adjudication that is embedded in social practices and at the same time influenced by the wider public debates on democracy. Tocqueville had observed that in America the ‘civil religion’ of democracy was tempered by the judiciary that upheld individual rights and public opinion that valued pluralism. Together they offered a check on the ‘tyranny of the majority’. The UCC debate, an extremely polarized and politicized issue in India, needs to manoeuvre its way out of the binary between nationalism/gender justice versus minority identity and find its place in the discourse of adjudication in the institutional set up of democracy where the formal courts are not the only actors. An ethnography of legal praxis would add much to this debate and help us think through this intellectual impasse.

Conclusion

This article has been an attempt at raising a few questions vis-à-vis the UCC debate by drawing our attention to the importance of the process of adjudication. I have chosen Tocqueville as an interlocutor who had unearthed and anticipated a curious entanglement of religion with the institutions of democracy. I have read Democracy in America as a comment on the question of pluralism in general and religious pluralism in particular, in secular democracies. Tocqueville had explored the rather curious case of intervention by religious groups in politics that established the principle of ‘disestablishment’ in America. The persecuted sects valued pluralism of conscience above anything else. This is also reflected in the plural sects and denominations that have since then dotted the American religious landscape.

Tocqueville’s other observation was that once secure, democracy emerged as the new sacred where its principles were considered inviolable and sacrosanct and the majority held a unique moral power. How would it work in a plural social context marked with great diversity? Tocqueville envisaged the legal machinery to uphold diverse groups’ civil and religious rights. This, along with a civil society committed to upholding plurality of conscience was the way out of the ‘tyranny of the majority’. Democracy’s struggle to uphold the value of pluralism along with that of equality and justice manifests in many contexts and the question of a UCC in India is one such complex case. The judiciary in a democracy is supposed to be the arena to escape the ‘tyranny of the majority’. But any liberty, including religious liberty has to be exercised along with the principle of ‘non-discrimination’ so that the liberty of one did not lead to a hindrance to the liberty of others. The American Supreme Court has been inundated with cases that bring out the tension between the principles of religious liberty/rights and civil rights of the individual. It has protected religious rights in situations where the state wanted to regulate and curb those rights. The court has repeatedly held that the citizens have a constitutional right to religious liberty. ¹⁴

Finally, I would like to argue that the issue of difference and plurality along with that of justice especially in the context of personal law is a context where we need more understanding regarding the process of adjudication rather than didactic political philosophies. If the machinery that implements the law, such as, police, bureaucracy and the judiciary, do not change qualitatively, a UCC would merely mirror a ‘civil religion’ of modernity and progress—a yardstick that religious communities can never match up to. At the heart of democracy, according to Tocqueville, its most sceptical admirer, lies the difficult task of integrating equality with justice and, in a plural social context, it requires institutional efficacy as much as it needs changes in law.