You Shall Go to Hell: Legal Arguments on Forced Conversions Before the Supreme Court of India

Friday, May 6, 2011

After the fall of the Berlin wall, the trial which took place in London against Salman Rushdie and Viking Penguin for The Satanic Verses opened a new age. The United Kingdom was confronted by a religious challenge which concerned the increasingly God-free British society and also the new multi-religious landscape of the country.

India, Rushdie’s motherland, was also challenged during the same period. That country faced a momentous change in its economy. Prompted by the collapse of communism, the socialist, emancipated India of Nehru faded away as a market-oriented India arose. But beyond the economy, religion represented a further challenge. Was modernisation compatible with endemic religious division and conflict? And was the constitutional principle of secularism an adequate tool for the country, now that socialism was a lost cause? Wasn’t it better for India to give up on a secular and multi-religious state and embrace political Hinduism as the best path towards development? The demolition of the Babri Mosque in Ayodhya in 1992 translated the question into practice and set the tone for a long period of tension and violence. As was happening with secular and multi-religious Britain, religion challenged both secular and multi-religious India.

The aftermath of 1989 proved to be crucial in South Africa as well. In November 1990, Christian leaders representing 85 different denominations met in Rustenburg, Transvaal under the auspices of President de Klerk. The National Conference of Church Leaders in South Africa resulted in an historic moment. Religious justification of apartheid was denounced as heresy. Churches fully engaged in the transition to post-apartheid democratic South Africa. A multi-religious South Africa was rising from the ashes of traditional white Christian domination. A secular South African society and state was also taking shape as the natural outcome of free circulation of individuals and goods. Religion had challenged apartheid and was now challenging new secular and multi-religious South Africa. Was more religion needed in order to heal memory and start anew? Or was less religion needed in order not to delegate to God choices better left to human beings?

Three trials and momentous decisions delivered by the three supreme tribunals of India, South Africa and United Kingdom encapsulated the challenge and the response to the challenge while providing the evidence for interaction between the three countries as a key aspect of their approach to secular and multi-religious societies from 1989 to 2009.

The first case concerned Hindu and Muslim family laws in India. In 1992 Sushmita Ghosh, a twenty-six-year-old Indian woman who had been married under Hindu law since 1984, was asked by her husband to consent to divorce. Confronted with Sushmita’s refusal, the husband converted to Islam in order to marry a second wife under Islamic Law. Sushmita filed a lawsuit before the Indian Supreme Court, alleging the husband had half-heartedly converted to Islam solely for the purpose of re-marrying and had no real faith in Islam. The Supreme Court decided first in 1995 and definitively in 2000.

The second case involved the rights of minorities and marginal believers in South Africa. Between 1995 and 2002, post-apartheid South Africa witnessed the struggle of Gareth Prince, a young candidate to the bar, who claimed before the Constitutional Court his right to make licit use of cannabis because of his allegiance to the Rastafarian religion. A final decision was given in 2007 by the UN Human Rights Committee.

The third case addressed limits to individual cultural and religious freedom in Britain. On September 3, 2002, fourteen-year-old Shabina Begum claimed it her fundamental right as a Muslim to wear a long coat-like garment, a jilbab, instead of the uniform required by her school. With Cheryl Blair serving as Shabina’s counsel, her controversy with the Denbigh High School in Luton ended up before the House of Lords, which decided the case four years later, in 2006.

The three cases pointed toward tensions already well-known to Indians, South Africans and Britons. The defence of Islamic prerogatives against the imposition of a common secular family law was at stake in the Indian case. Freedom for marginal believers and practices to threaten security and social stability was at the core of the South African case. The place for diversity in multicultural Britain was the issue in the case of Shabina Begum.

Though deeply rooted in the respective national debates on religion, the repercussions of the cases resonated beyond national borders. Religious marriages also mattered to South Africans and Britons. The issue of religious minorities and individual faith-based claims was crucial in all the three countries. But interdependence was not limited to the trans-national nature of the issues at stake. The historical background tying together the three countries played a heavy role. Precedents and doctrine from the other countries influenced the very approach of courts involved: judicial borrowing from one national court to another translated interdependence in legal terms.

Interdependence also enabled philosophers, legal scholars and social scientists to transform the cases of Ghosh, Prince and Begum into abstractions and theories. Tenants of secularism and supporters of religious exceptionalism read the Indian case as the metaphor of their own clash. Defenders of outsiders and security hardliners did the same with the South African case. Shabina Begum came to be identified as the icon of multiculturalism.

But connections and implications were richer still. The real cases of Sushmita Ghosh, Gareth Prince and Shabina Begum outstripped national politics, rhetoric on the public role of religion in the new millennium and trendy conceptualisations.

The cases embodied two decades of civil struggle with religion and religious strife over secularization. The stories of Sushmita, Gareth and Shabina were telling fragments of a greater picture. The successful response of India, South Africa and Britain to the religious challenge of 1989 was captured in the three cases: in their broader sense as well as in the details and narrative.

After twenty years, the final page has yet to be written. Religion still challenges the three countries. But the secular and multi-religious character of India, Britain and South Africa is more mature and substantial. Moreover, the three countries represent a common space where a secular and multi-religious society is possible. In 1989, a multi-religious society still recalled the inequalities of the British Empire and a secular society still evoked the capitalist-communist divide in which the British Commonwealth had developed. Twenty years later, religion contributed much in forging a new common, secular and multi-religious space.

In two decades, thanks to their interdependence, Indians, South Africans and the British evolved towards a vital combination of secularization and multi-religiosity. A dynamism was fuelled which did not entirely neutralize conflict and violence, but which expressed the determination of the three peoples not to yield. It was possible for a nation to treasure a simultaneously secular and multi-religious society as the best legacy of the past and the finest pledge for the future. This was achieved through bitter conflict. The cases of Sushmita, Prince and Shabina incarnated that conflict. But they also contributed to an outcome which is likely to carry on inspiring India, South Africa and Britain, and possibly others, towards further achievements.

Marco Ventura

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