The current manouevres by the Indian government to define civic status in terms of religious identity have deep roots in the legal regimes introduced under British colonial rule. If implementation of the new Citizenship (Amendment) Act will require applicants to supply ‘proof of religion’, such ‘proofs’ have often been matters of adjudication in Indian courts dealing with such matters as marriage and inheritance If the government doesn’t propose to inspect what Mirza Ghalib called the unread page of a person’s inner thoughts and emotions, perhaps it can check out whether certain rituals are practiced, foods avoided, greetings exchanged or other indicators of religious affiliation.
Julia Stephens, an American scholar, has written a well-researched and stimulating study of how the legal institutions established under British rule defined the meaning and role of ‘religion’ in society with specific reference to Muslims. Developing a division between the coercive power and self-proclaimed authority of the colonial ‘state’ on the one hand, and the people and practices defined by ‘religion’ on the other, was the work of over a century and a half, characterized by controversy and contradiction but emerging into various versions of what came to be known as ‘secularism’, an ideology and strategy pulled out of European history and purportedly designed to mitigate conflict and protect vulnerable minorities.
For Stephens, ‘inspired’ by Talal Asad and his followers, secularism is a set of ideas and institutions that serve to shore up the oppressive power of the modern state and capitalist economy under imperialism. But as an historian engaged in empirical research, she takes pains to show the contingencies and countervailing circumstances that entangle intellectual history and abstract theory, in this case how ‘religion’, particularly Islam, was factored out of the great congeries of social action in India and constituted into a new sort of social formation of ‘community’ in its idiosyncratic Indian formulation.
Underlying the British engagement as rulers of India was Britain’s own transformation as the fountainhead of industrial capitalism in the course of the nineteenth century. The political and judicial system that had existed in Britain in the late eighteenth century, when the East India Company asserted territorial rule in significant regions of India, was characterized by an established church, a hereditary aristocracy, religious conflict and discrimination and what reformers like Jeremy Bentham considered an arbitrary and irrational accumulation of legal traditions that governed family relationships, property rights, as well as crime and punishment. As several scholars have shown, the institutional innovations that took place in Britain were often tried out first in India, but hesitantly and controversially both with and without the participation of Indians.