Regulation of “Religion” and the “Religious”: The Politics of Judicialization and Bureaucratization in India and Indonesia

Abstract

This article compares the strategies through which Hindu-majority India and Muslim-majority Indonesia have regulated religion and addressed questions of what constitutes “the religious” in the post-independence period. We show that the dominant approach pursued by the Indian state has been one of judicialization—the delegation of religious questions to the high courts—while in Indonesia it has predominantly been one of bureaucratization—the regulation of religious issues by the Ministry of Religious Affairs. Contrary to the expectation that judicialization devitalizes normative conflicts while bureaucratization, more frequently associated with authoritarian politics, “locks” these conflicts “in,” we show that these expectations have not materialized, and at times, the effects have been reverse. Engaging the literatures on judicialization and on bureaucratization, we argue that what determines the consequences of the policy toward religion is less the choice of the implementing institution (i.e., the judiciary or bureaucracy) than the mode of delegation (vertical versus horizontal) which shapes the relationship between the policy-maker and the institution implementing it. Bureaucrats, judges, and elected politicians in multicultural societies around the world encounter questions of religious nature very similar to those that authorities in India and Indonesia have faced. How they address the challenge of religious heterogeneity has a profound impact on prospects of nation-building and democratization. It is therefore imperative that the consequences of the policy toward religion, and even more so the consequences of political delegation, be studied more systematically.

Constituting Religion

“…For a sanguine account of the "shared adjudication model" in India, see Solanki (2011). In contrast, Sezgin and Kü nkler (2014) find that the judicialization of religion exacerbated identity politics and deepened ethno-religious schisms in India. Religious minorities (Buddhist, Christian, Hindu, Sikh, Taoist, and heterodox Muslims) regularly field claims to religious freedom vis-à-vis the state.…”

“…This term has been used in a few prior studies, including Sezgin and Kü nkler (2014) and Fokas (2015). In this study, a judicialization of religion is not derivative of a more general "judicialization of politics," which is defined by Tate (1995: 28) as "the process by which courts and judges come to make or increasingly to dominate the making of public policies that had previously been made .…”

Selectively Assertive: Interventions of India’s Supreme Court to Enforce Environmental Laws

“…It is in these circumstances that the Judiciary's role becomes especially significant. Research suggests that judicial roles can be critical in issues where the "solutions" involve the imposition of significant political and social costs [9,56]. This is particularly true in countries such as India where the Judiciary commands wide deference-the political parties charged with implemented an unpopular court order can avoid taking responsibility for the decision by placing the blame for it squarely at the courts' doorstep.…”

The Judicialization of Religion

“…The term “judicialization of religion” has been used in a few prior studies, including Sezgin and Künkler () and Fokas ().…”