In 2005, the United Nations Special Rapporteur on Religious Freedom, Asma Jahangir, submitted to the UN Committee on Human Rights a report “assessing the situation of religious freedom” in Sri Lanka. The report, which had been commissioned in order to investigate violent incidents against Christian churches on the island, concluded with the following evaluation:

The Sri Lankan Government has to fulfill its positive obligations under the right to freedom of religion…The right to freedom of religion or belief is a universal right enjoyed by all human beings and therefore by members of all religious communities, whether old or new and whether they have been established in a country for a long time or recently.

In her conclusions, the Special Rapporteur invoked a particular vision of religious freedom that has become dominant among human rights agencies, NGOs, foreign governments, and academics. According to this vision, religious freedom names an ideal social condition that may be reliably reproduced in differing national contexts through the elaboration and enforcement of particular regimes of legal rights—rights which, if properly administered, will protect minority religious communities against majoritarian politics and harmonize diverse religious interests. This vision—which can be seen with particular clarity in documents such as the US International Religious Freedom Act—treats religious rights as apolitical instruments and as legal standards that stand outside of struggles for power and the narrow interests of particular groups. In this vision, religious rights appear as the morals of historical stories, embodying the transcendence or settlement of social discord: they emerge after the Thirty Years’ War, after the American Revolution, after World War II.

However, as several contributors to this forum have pointed out, legal provisions regarding religious freedom do not emerge from history fully formed and self-interpreting. At their core, they are iterations of words and texts, (re)produced and (re)authorized by different persons or groups for different purposes. What they mean depends on local facts.

This contribution expands upon this observation by offering a different story about drafting religious rights in a particular place and time. I will show the ways in which religious rights, as rhetoric, serve not as apolitical instruments, but as indicia of political alliances; not as generic, universalizable norms, but as specific formulations of norms suited to particular moments and in service of particular political programs. In this version of the story, religious rights, rather than conclude conflict and harmonize societies, signpost disagreement.

To see this, one has to begin at the end: to begin with the text of religious freedom provisions and work back. To do so is to treat religious rights not as the solution to the problem of religious strife of persecution, but as a problem itself, or at least as an object to be explained: Why this rendering of rights and not another? Why religious rights at all? Why now?

I explore these questions through a brief illustration from my research on religion and law in twentieth-century Sri Lanka, or, as it was known during the period in question, Ceylon. The “freedom of religion” paragraph in the 1943 “Constitution for a Free Lanka” is similar to provisions for religious freedom contained in other human rights instruments. It reads:

Freedom of conscience and free profession and practice of religion, subject to public order and morality, are hereby guaranteed to every citizen. The [Free Lanka] Republic shall not prohibit the free exercise of any religion or give preference or impose any disability on account of religion, belief or status.

The paragraph was included originally as one of eight discrete paragraphs of “Fundamental Rights” compiled into a “Fundamental Rights Chapter.” Today this paragraph seems unremarkable, even vaguely familiar, a somewhat bland collection of legal guarantees similar to those found in other transnational religious freedom instruments. Yet, in 1943 Ceylon the paragraph was considered not ordinary, but controversial—a carefully crafted protest against empire.

The “Free Lanka” Constitution was a draft independence constitution prepared by a group of Ceylonese politicians who hoped that it might serve as a legal charter under which the British Crown would transfer powers of self-government to a local Ceylonese parliament. Unlike other drafts prepared at the time, it was not produced in consultation with British officials. It was the work of a cohort of young nationalists who rejected the idea that an outgoing British government should “give” to Ceylon the legal charter that announced its independence.

The inclusion of a section on fundamental rights indexed the drafters’ anti-colonialist nationalism. In the 1940s, fundamental rights were taboo for Crown constitution-makers. British legal advisors who participated in the drafting of independence constitutions followed a Colonial Office policy regarding “bills of rights”: they were not to be included. As one influential British constitution-maker of the period put it, “[A]n English lawyer is apt to shy away from [Fundamental Rights] like a horse from a ghost.” Officially, British legalists opposed justiciable bills of rights because they were not part of modern English law and because such rights might undercut parliamentary sovereignty by requiring that future legislators adhere to the political values of the present. Unofficially, the British recognized an inconvenient friction between “bills of rights” and the colonial project as a whole: if the Crown were to acknowledge and entrench fundamental rights as absolute and binding on governments, it would risk exposing the illegitimacy of colonialism more generally, insofar as colonial governments acted without consideration of such rights.

The drafters of the Sri Lankan religious freedom provision recognized this and framed religious freedom as a fundamental right, in part, to amplify its anti-colonialist tenor. In speeches, newspaper articles, and letters to overseas’ organizations such as the Indian National Congress, the drafters directly linked the push for fundamental constitutional rights with the campaign for independence from British rule. These advocates claimed that the British, as participants in the newly-formed allied “United Nations,” were bound by the “human rights” expressed in the “Declaration by the United Nations.” In a manifesto drafted slightly later, the drafters of the Sri Lankan religious freedom provision even outlined a program of “five freedoms” for Ceylon—deliberately echoing Roosevelt’s famous fourfold formulation—of which the first was “The Freedom from Foreign Rule.”

By articulating religious freedom through the idiom of fundamental rights, drafters gestured towards sources of legitimacy that were broader than (if not directly dominant over) the British Crown. They plotted religious rights, and their constitution as a whole, within a legal-philosophical terrain that treated rights not as benevolences extended by rulers, but as guarantees that conditioned the legitimacy of rule itself: governments did not authenticate rights; rights authenticated governments. This alternative approach to the legitimacy and the origin of rights had radical implications. On the one hand, drafters were able to (and did) criticize the colonial government’s legitimacy by accusing it of failing to grant adequate fundamental rights to those who lived in Ceylon. On the other hand, they simultaneously claimed as a fundamental right, “the right to independence and a free constitution.”

The inclusion of religious rights as fundamental rights also targeted a more immediate, local audience. The paragraph on religious freedom was designed in opposition to another paragraph on religious freedom—one framed under the guidance of Ivor Jennings, one of Britain’s leading constitutional scholars at the time and the author of the derisive assessment of fundamental rights quoted above. In a separate constitutional draft, Jennings had proposed to ensure religious freedom by placing certain minimal limits on the lawmaking powers of parliament. In his version, religious freedom was to be secured by preventing lawmakers from enacting bills that would confer advantages or disadvantages on particular religious communities, impinge upon the “free exercise” of religion, or “alter the constitution of any religious body.” When compared with Jennings’ formula, it wasn’t only the inclusion of “fundamental” religious rights that distinguished the nationalists’ draft, it was the nature of the rights chosen. Whereas Jennings rendered religious freedom through a series of negative legislative prohibitions, the nationalists framed religious freedom in terms of positive as well as negative liberties, prescribing not only limits on government’s powers, but guarantees of state protection for religious lives—limits and guarantees that applied not only to legislatures, but to all agents and actions of the Republic.

The politics of rights-writing extend even further. Jennings modeled his religious freedom paragraph on provisions contained in the Ireland Act of 1920, a law ratified by the British parliament, which, while permitting limited Irish “home rule,” maintained London’s claims to the island. In a contrasting move—which would have undoubtedly been recognized by Crown administrators at the time—the nationalists’ paragraph on religious freedom took its language from the 1937 Constitution of Ireland, a document that aimed to establish total Irish independence from the British. As one of the Ceylonese drafters put it, the “Free Lanka” Constitution drew from a text that effected in Ireland “a definitive break with the past” and “conduct[ed] what, in law, was a revolution.”

We can now view the nationalist’s construction of religious rights in a new light: as a polemic against Jennings’ and an invocation of alternate discourses from Europe, the U.S., and India; as a desire to mark particular distinctions and affinities (with Ireland in 1937 and not 1920, with the allied United Nations and not Britain alone); as an effort to treat constitutions not as something given to a nation by colonial governments, but as something claimed by its citizens. The legal syntax of religious rights, read against the grain, historicized, reveals the very thing that rights-discourse obscures: the fragile, contingent, interested, political nature of religious rights, and the embeddedness of rights discourse in larger local, regional, and global struggles for power and control.

The nationalists’ paragraph of religious rights was not included in Ceylon’s independence constitution. And this is part of the story too. What determined the shape of religious rights in 1940s Sri Lanka (and elsewhere in Southern Asia) was not simply a concern with the importance of resolving religious disputes or protecting religious communities, but a concern with making sure that the language chosen signaled the appropriate alliances and echoed the appropriate politics. In Ceylon, where the handover of power occurred exclusively by way of negation with the Crown, colonial politics prevailed over anti-colonial politics and Jennings’ draft, rather than the nationalists’ draft, served as template for the 1948 Ceylon Constitution. In India, where anti-colonial movements had much greater influence on the process of decolonization, a new, more nationalistic constitution (completed by a sovereign Constituent Assembly just after independence) cast religious freedoms in the idiom of fundamental rights. In each case, the rhetoric of religious freedom bears the marks of struggle, perhaps more than resolution. It imprints the politics of the 1940s: the politics of fundamental rights, the politics of colonial resistance, and the politics of constitution-making in the twilight of empire.