Guest Post – III: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

(This is the third and final essay in a series on secularism and the freedom of religion under the Indian Constitution, by Suhrith Parthasarthy, a Madras-based lawyer and journalist. In the previous essay, the Tamil Nadu ordinance presently under challenge, which provides that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” can be appointed as priests in state-administered temples, was discussed. In this concluding essay, that ordinance is placed in the context of the historical tension between the freedom of religion and State interference under the Indian Constitution)

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Throughout its history, the Supreme Court of India has generally viewed governmental intervention in matters of religion as a vital component in the state’s movement to initiate social welfare and reform. The court has, over the years, carved a particular jurisprudence that allows it to determine what constitutes an “essential religious practice;” and, in so doing, the court has provided itself a legal basis to condone pervasive state intervention in matters of both religious belief and religious practice. Indeed, as Marc Galanter once observed, even in a secular state, “civil authorities, including the courts, find themselves faced with the necessity of ascertaining what is religious.” And, in India, this necessity is particularly stark given that the state’s powers to bring forth social reforms in Hindu religious institutions is constitutionally accorded.

But, equally, as the senior advocates Rajeev Dhawan and Fali S. Nariman wrote, “The nationalization of religious endowments, temples and places of learning sits uneasily with both the guarantee of religious freedom and secularism.” In fact, Donald E. Smith, one of the earliest commentators on the Indian Constitution’s guarantee of religious freedom dramatically argued that the movement to bring forth social change in religious institutions, such as the eradication of untouchability, “is not consistent with the concept of a secular state…In a secular state the nature of the relations between the Church and its believers is to be settled between themselves.”

Nonetheless, given that discrimination in religious institutions is often so deep-rooted as to deny individuals’ their most basic civil liberties, and given that the Constitution enjoins the state to promote social welfare in these institutions, India’s secularism, if indeed we must call it that, is certainly quite distinct from the various western models of the concept (it could be described, for instance, as Rajeev Bhargava does, as a form of contextual secularism). This means the court is often tasked with the onerous job of striking a delicate balance between practices or beliefs, which individuals or groups might view as being freely exercisable, and the power of the state to intervene in the management and administration of religious institutions.

Yet, every time the Supreme Court has embarked on this mission to determine what constitutes “an essential religious function,” it appears to be making a moral judgment. As Dhawan and Nariman wrote, “With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.” Apart from arrogating unto itself this power to determine what constitutes an essential religious practice, the Supreme Court has further muddled the interpretive process by bringing forth a facile distinction between “denominational” temples and public temples. While the former category, which, according to the court, includes a few closely-knit Hindu religious institutions, enjoys a greater element of liberty in managing its own affairs, the latter category has been seen as capable of being completely brought within the state’s officious powers. It might, for instance, indeed be true that the restriction applied in Hindu religious institutions, which sees qualifications for priesthood restricted on the basis of the Agamas, as a practice antithetical to decent morality. But, the question remains: must not the state leave religion alone? Even in public religious institutions, is it not for the community of followers to determine for themselves what constitutes an essential religious practice?

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To resolve this question – i.e., the conflict between the right to religious freedom and the state’s duty in intervening to bring forth social welfare and reform in matters of religion – we must start with the constitutional text. Let us see what Articles 25 and 26 expressly provide.

Article 25 states “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II – In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Article 26 states: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—(a) to establish and maintain institutions for religious and charitable purposes, (b) to manage its own affairs in matters of religion (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

As we saw earlier, when plainly read, these provisions tend to promote religious freedom free of interference from the state. Yet, harmonizing the two rights with the specific mandates imposed on the state therein has proved to be a source of substantial difficulty for the Supreme Court. In the earliest case where the court was called upon to make this reconciliation, it made a curious choice. In the Shirur Mutt case, the court simultaneously defined religion to include religious practices and beliefs (as opposed to the definition offered, for instance, by Chief Justice Chagla in Ratilal Panachand Gandhi vs State Of Bombay) but also endorsed substantial state intervention in religious institutions. Justice Mukherjea’s observations are worthy of being quoted in full. He wrote:

“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b)… as we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

But here’s the paradox. In spite of holding thus, the Supreme Court nonetheless in Shirur Mutt upheld vast portions of the Madras Hindu Religious and Charitable Endowments Act, 1951, under which a commissioner could frame and settle a ‘scheme’ if he or she had reason to believe that a religious institution was mismanaging the resources placed under its care or was being run contrary to the purposes for which it was founded. The result therefore helped herald several new laws through which states sought to arrogate the power to control Hindu religious institutions. What’s more, with time, the doctrine of essential religious practice, as was originally framed in Shirur Mutt, also began to wither, and took on a whole new meaning.

In Sri Venkatramana Devaru v. State of Mysore, for instance, the court was asked to determine whether the Madras Temple Entry Authorization Act, which was enacted with a view to granting Harijans a right to enter all public temples, applied to a temple founded by a sect called the Gowda Saraswath Brahmins. The court held that the sect was indeed a separate religious denomination that enjoyed the right to manage its own affairs under Article 26, but it also found that this right was subject to laws protected by Article 25(2)(b). To hold otherwise, wrote Justice Venkatarama Aiyar for the court, would render Article 25(2)(b) wholly nugatory in its application to denominational temples, even though the language of the clause includes such institutions. The court was forced into trying to harmonize Articles 26 and 25(2)(b) because it had found that the practice of excluding certain persons from entering into a temple for worship was a matter of religion according to Hindu Ceremonial Law. Thus, in Devaru, Justice Aiyar found, quite contrary to the judgment in Shirur Mutt, that it was for the court to determine what practices were essential according to the tenets of a religion.

In the decades that followed Devaru, as Ronojoy Sen points out in his excellent book, “Articles of Faith: Religion, Secularism, and the Indian Supreme Court,” the essential practices doctrine entrenched itself as the test to determine different varieties of cases. It has been employed not only in deciding which practices deserve constitutional protection, but also in adjudicating the validity of legislation aimed at usurping the administrative and managerial authority of religious institutions. The consequences of the doctrine have been stark. It has allowed the Supreme Court to define for us what our religious beliefs and practices ought to encompass. In fact, Justice K. Ramaswamy went so far as to differentiate, in AS Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765, between what he termed as secularisation and secularism.

“Secularisation,” wrote Ramaswamy J., “essentially is a process of decline in religious activity, belief, ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may not accept any religion as the basis of State action or as the criteria of dealing with citizens, the Constitution of India seeks to synthesise religion, religious practice or matters of religion and secularism. In secularising the matters of religion which are not essentially and integrally parts of religion, secularism, therefore, consciously denounces all forms of super-naturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute in some degree to the process of secularisation of the matters of religion or religious practices.” Having held thus, Justice Ramaswamy delved into a deep discussion of various Hindu religious texts to determine for the followers of the faith what they ought to regard as essentially religious. The result has been the withering of the autonomy of both the individual and the group to enjoy a freedom of conscience. The questions that the court poses no longer relate simply to whether a specific measure is required in the interests of fulfilling the community exceptions of public order, morality, or health. Rather, they involve a purported analysis of inherently religious tenets, which the court is certainly not qualified to rule conclusively upon.

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In his final book, “Religion without God,” Ronald Dworkin wrote that when governmental intervention “cannot be justified as protecting the rights of others, but only reflects disapproval of the religion that imposes the duty in question, government has violated the right to free exercise.” The Supreme Court of India has repeatedly committed such errors. In aiming to rationalize religion, the court routinely disapproves of different religious practices, holding such practices to be inessential to the practice of the religion. In the case of the archakas appointments, it could be plausibly argued that state intervention is required to correct a historic social evil. But we must nonetheless ask ourselves whether it is within the state’s domain to intervene in matters of ethical choice. The Supreme Court was possibly quite correct in ruling in the ERJ Swami case, which we discussed earlier, that a deviation from the Agamas would violate one’s freedom of conscience. But the manner in which it arrived at its decision—which involved an engagement with complicated religious tenets—remains dubious.

When the court sits over judgment of the Tamil Nadu ordinance of 2006, therefore, it must look to set right several doctrinal errors of the past. It must test the law purely on whether it is required in the interests of morality, public order, or health, and, if not, whether the law is required to promote social welfare and reform. While it is one thing to argue that the prevention of entry into temples of some communities helps propagate a deeply corrosive form of discrimination, it is another to argue that the state must also regulate how temples select their priests. It isn’t for the courts to reformulate religion in the manner that it feels most rational.

Guest Post – II: Secularism and Freedom of Religion Reconsidered – Old Wine in New Bottles?

(This is the second essay in a three-part series on secularism and the freedom of religion, by Suhrith Parthasarthy, a lawyer and a journalist, who currently practices as an attorney at the Madras High Court. In Part One, the Supreme Court’s recent deviation from its time-honoured practice of intervention into religious matters on the ground of social reform was discussed. In this post, the ongoing Tamil Nadu litigation that throws up the question of intervention yet again, is examined. In the last post, the normative and constitutional arguments that become salient in this case, will be discussed)

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Traditionally, as Manuraj Shanmugasundaram pointed out in the January issue of The Caravan Magazine, priests to Hindu religious temples in Tamil Nadu have been appointed by following a hereditary principle of succession, generally within a community of Brahmins. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, protected this practice of appointing priests on a hereditary basis. We shall now take a look at what this section originally said:

“(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, however, with a view to abolishing this practice of making hereditary appointments, the state government amended, among other provisions, Section 55 of the Act. The amended section stated “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” A further explanation was also added: “In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.”

This amendment to Section 55 was challenged in the Supreme Court by way of 12 separate writ petitions filed by hereditary Archakas and Mathadipatis of some of the most ancient and historic Hindu public temples in Tamil Nadu. The petitioners’ contended in ERJ Swami v. The State of Tamil Nadu[1] that Articles 25 and 26 of the Constitution of India protected their freedom of hereditary succession to the office of the Archaka, and this freedom was an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.

The court through Justice DG Palekar’s judgment dismissed the writ petitions. It held that the power to appoint archakas to public temples was a secular function (remember, the Constitution explicitly allows the state to regulate such non-religious functions) and to the extent that the trustees of the temples were no longer bound to make appointments on the sole ground of hereditary succession the amendments were valid. But, the court also held, that the amendment did not provide any power to the trustees to eschew the Agamas, which constitute the fundamental treatise on rituals in Hindu temples, in determining who could be appointed as a priest.

Justice Palekar’s observations in this regard are telling, and worthy of being quoted in full. He writes:

“The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in temples of a different denomination. …Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”

To sum up, the Supreme Court in ERJ Swami’s case upheld the 1970 Amendment, by holding that the function of appointing an Archaka was secular in nature, and that therefore a trustee of a temple was not bound to appoint priests on the basis of hereditary succession. The court nonetheless rendered nugatory the fundamental purpose of the amendment by also holding that the trustee was nonetheless obligated to follow the Agamas in arriving at a decision. And the Agamas provide that only members of particular “denominations” are competent to preside as priests. As a result of this judgment, every time an appointment is made to the position of an Archaka in a public temple, notifications seeking applications often seek to reinforce the fulfilment of specific conditions of caste as a criterion for appointment.

In 2006, however, the government of Tamil Nadu sought to further change this practice. It introduced an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to the 36,000-odd temples under government administration across the state. The ordinance was immediately challenged in the Supreme Court, and has been stayed pending a final decision. The primary argument of the petitioners is that the new law violates the specific finding of the Supreme Court in ERJ Swami’s case, that it seeks to permit the state to act contrary to the Agamas, even though the fulfilment of these conditions has been held to be integral to the practice of the religion.

[1] AIR 1972 SC 1586.

Summary and Addendum to the Delhi High Court on free speech: When Time/Place/Manner Restrictions become Problematic

In the last post, we discussed the Delhi High Court’s problematic judgment on the 19th of February, holding that the Delhi Defacement Act imposed an obligation upon private property owners to obtain municipal permission before putting up political posters on their own walls, failing which those posters could be taken down. To summarise:

(1) The Court held that the restriction was justified under the public order and decency prongs of the Constitution. In this, it is submitted that it erred, on the following grounds:

(a) The cases that it relied upon – Novva Ads and In re Noise Pollution – were not decided on 19(2) grounds. Novva Ads, a case about hoardings, was decided within the framework of time/place/manner restrictions, which meant that 19(1)(a) was not attracted at all. In re Noise Pollution was decided under Article 21.

(b) The Court’s framing of the public order exception is incorrect in two respects:

(b)(i) In holding that the issue of proliferating political posters that could become “eyesores” was an issue of “public order”, the Court went against long-established Supreme Court jurisprudence, according to which “public order” is a term of art, and refers to the maintenance of public peace and tranquility that is one level beyond simply maintaining “law and order”, and preventing ordinary law-breaking. Public order is not a question of cityscaping or of architectural aesthetics. Such an interpretation would expand 19(2) so widely, that it would denude 19(1)(a) of any relevant content.

(b)(ii) In holding that Delhite’s “short fuse” meant that political posters would have a “tendency” to excite public disorder, the Court erred in two further respects:

(b)(ii)(I): It sanctified the heckler’s veto, which was expressly rejected by the Supreme Court in Rangarajan’s Case.

(b)(ii)(II): In relying upon Ramji Lal Modi for the “tendency” test, it ignored all the Supreme Court decisions after 1957 that insist upon a close proximity between speech and public disorder. No matter how short the fuses of Delhites might be, and how many parking disputes might escalate into violence, there is simply no warrant for holding that there is the required degree of proximity between putting up political posters on one’s own property, and public disorder.

(c) The Court’s framing of the decency exception is also incorrect. It relied upon Kunte’s Case, but there, the Supreme Court expressly interpreted “decency” to refer to constitutional values (such as secularism). None of those values are implicated in political speech on my own property.

(2) The Court also erred in holding that political speech was a form of commercial advertising, and therefore might not have constitutional protection. Again, it erred in two respects: first, the distinction between political speech and commercial advertisement is well-accepted in Indian free speech jurisprudence, and secondly, following Tata Press, even commercial advertisements are accorded 19(1)(a) protection.

(3) The Court’s suggestion that because the conduct of elections is governed by a statute, any political speech with respect to elections falls beyond Article 19(1)(a) is not only illogical and a non-sequitur, but eviscerates Article 19(1)(a) of its central meaning: the purpose of free speech is to ensure a thriving democracy by free exchange of political expression.

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Let us now consider a crucial issue: that of time/place/manner restrictions upon free speech. This is important because, notwithstanding its deeply problematic reasoning, the Court concluded by directing the municipality to ensure that its policy would be “content-neutral”. Content-neutrality requires the State not to restrict speech on the basis of its communicative content, or its message. It does allow the State to restrict speech on the basis of its effects, insofar as those effects are independent of its content. To take an example: we have laws against arson not because we disagree with a pyromaniac’s philosophy, which he tries to communicate by burning buildings, but because the State has a legitimate interest in protecting property against destruction. Content-neutral restrictions are also called “time/place/manner” restrictions, because they tend to regulate when, where or how persons might exercise their right to free speech without censoring its message.

There are times, however, when this neat distinction may break down. A legislation framed as a time, place or manner restriction might nonetheless raise troubling constitutional questions. This is because although T/P/M restrictions are ostensibly aimed at regulating the process or method of expression, neither method nor process are empty categories without political valence. To understand how this might play out in a concrete situation, let us consider one of the petitioner’s submissions before the Delhi High Court. In paragraph 3, the Court noted:

“The petitioners plead that the petitioner no.3 being a new political party, without funding as available to the other older political parties, has to employ innovative and unique ways to propagate itself and its ideology to the masses and thus conceived voluntary display of its posters upon private properties i.e. houses of its supporters / volunteers; however the said posters put up by the petitioners no.1 & 2 on their houses were forcibly removed.”

There are many ways to disseminate a political message. Some, like television and newspapers, are capital-intensive. Others, like leafletting and putting up political posters, are not. Well-financed political parties are in a position to avail of the former media much more than newer, more poorly-funded parties. Correspondingly, newer/poorer political parties must – of necessity – resort to the latter media. We can therefore see how a formally neutral, T/P/M regulation nonetheless casts differential burdens upon different speakers and, correspondingly, privileges one form of political message over another (readers will note the similarity with disparate impact in discrimination law).

In City of Ladue vs Gileo, the American Supreme Court was asked to consider an identical issue. A city ordinance prohibited residential “signs”, subject to certain exceptions. The stated justification was to prevent visual blight, ugliness and clutter. The justification, therefore, was content-neutral. Nonetheless, the Court struck it down. It held:

“[the City of] Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates,parties, or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.”

Specifically responding to the argument from content-neutrality, the Court observed:

“… even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must “leave open ample alternative channels for communication”… residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute… even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reachneighbors, an audience that could not be reached nearly as well by other means.”

At the heart of the Court’s opinion is the following idea: while government may regulate the time, place or manner of speech, it cannot foreclose an entire medium of communication. This is especially true when the medium in question is an important and vital artery for participation in public and political debate, especially for people who would not otherwise be able to do so. In this context, the petitioners’ argument – that, belonging to a new, poorly-funded party, this was their only realistic method of political communication – acquires strong constitutional force.

So while the Delhi High Court insisted that the municipality’s policy must be content-neutral, it failed to consider the fact that sometimes regulating a medium itself sacrifices the ideal of neutrality. Given the tenor of the rest of the judgment, this is not very surprising, but it the Court’s refusal to engage with an issue that has crucial 19(1)(a) implications is disappointing.

City of Ladue vs Gileo was cited by the petitioners. The Court chose to dismiss it in a line, on the ground that the American First Amendment is absolute while Article 19(1)(a) is not. As we pointed out in the previous post, that is quite simply incorrect. And as this post should make clear, Gileo represents a deep and thoughtful discussion of issues that are as germane to Article 19(1)(a) as they are to the American First Amendment. It bears repeating once more that this disturbing trend of refusing to even engage with American First Amendment jurisprudence on entirely unpersuasive grounds of textual difference is constitutionally damaging. We do not have to follow, or even agree with, American cases. But the least we can do is to take seriously the arguments and debates that are equally relevant to Article 19(1)(a), and address the issues that they raise.

Time/place/manner jurisprudence, with all its attendant complexities and nuances, is still at an embryonic stage in India. While the Delhi High Court decision deals it a severe set back, we can continue to hope for course-correction at a future stage.

Political advertising on private property: The Delhi High Court’s strange and disturbing judgment

Yesterday, in Anil Bhatia vs NCT, a division bench of the Delhi High Court held that under the Delhi Prevention of Defacement of Property Act, the State may prohibit people from putting up political posters upon their private property, without the prior consent of municipal authorities. Insofar as the Court also clarified that the regulation of posters on private property must only be on content-neutral grounds, it is arguable that the case arrives at a correct outcome (for reasons which will be explained). Nonetheless, the judgment suffers from numerous conceptual confusions, which effectively continue and accelerate the creeping expansion of Article 19(2) (and correspondingly, the creeping evisceration of Article 19(1)(a), which has long been a staple feature of Indian free speech jurisprudence.

Section 3 of the Defacement Act penalises the defacement of property “in public view”. Defacement is defined as “marking with ink, chalk, paint or any other material”. Section 6 authorises the Lieutenant-Governor to order the erasure of any such defacement. It was argued by the petitioners – members and volunteers of the Aam Aadmi Party –  that in light of Article 19(1)(a) of the Constitution, the Defacement Act was not applicable to the act of putting up political posters on the walls of their own homes – and that in the event and to the extent that it was, it was unconstitutional.

A bench of the Chief Justice and Justice Endlaw rejected the argument. They relied upon the Supreme Court judgments in Novva Ads (regulation of public hoardings) and In re Noise Pollution (regulation of use of loudspeakers) for the proposition that “advertisements / hoardings erected on private properties also are required to be licensed and regulated as they generally about (sic) on and are visible on public roads and public places and that hoardings erected on a private building may obstruct public roads, they may be dangerous to the building and to the public, they may be hazardous and dangerous to the smooth flow of traffic by distracting traffic, and their content may be obscene or objectionable.” (para 19)

The Court then observed that if people were granted freedom to do whatever they wanted with their property, then their would be “no need for town planning and all towns/cities will become slums.” (paragraph 21) Unregulated posters, it held, would “create ugliness, visual blight and clutter, tarnish the residential and commercial architecture, impair property values and impinge upon the privacy and special ambience of the community.” (paragraph 21) It noted that “no parallel can be drawn by the petitioners with the freedom of speech. Unlike oral speech, signs/hoardings/posters take up space, obstruct view, distract motorists, displace alternative uses for land (??!!), are a source of litter and all of which legitimately call for regulation.”

At this point, it is important to pause and notice a crucial distinction between two kinds of speech-regulation. First, there is content-based regulation, that restricts speech on the basis of its communicative message. Obscenity laws and hate speech laws are classic examples of content-based speech restriction. Secondly, we have time-place-manner regulation, which is content-neutral, but regulates speech on the basis of its effects. For instance, a rule prohibiting loudspeakers in a park after 10 PM is content-neutral, because it is not based on what a person is saying, but on the fact that there is a legitimate State interest in maintaining tranquility in public spaces after a certain time. To take a more extreme example – laws against arson are content-neutral not because they prohibit a pyromaniac from “expressing” his philosophy, but because they are aimed at protecting public property.

The last example shows us that a content-neutral law is not, strictly speaking, a restriction (in the constitutional sense) upon the freedom of speech. It affects how one can speak (what medium one can use, in which spaces and at what times), in service of State purposes that are entirely independent of what the speaker is saying. The distinction is not absolute, because the more extensive time/place/manner restrictions become, the closer they get to actually restricting vast swathes of free speech; it is also possible to justify most content-based restrictions under some time/place/manner grounds. The enquiry, therefore, must be sensitive to fact and context.

The core point, however, is that once a restriction is classified as a content-neutral, time/place/manner regulation, then the issue of 19(2) does not arise. 19(2) tells us when the State may, by law, place reasonable restrictions upon the freedom of speech; T/M/P regulations, however, ex hypothesi are not restrictions upon the freedom of speech, but regulations determining the method of its exercise. This explains why in Novva Ads and In Re Noise Pollution, the two Supreme Court cases the High Court relied upon, 19(2) was not at issue. In Novva Ads, the regulations on public hoardings were justified on T/P/M grounds, and consequently there was no 19(1)(a) violation; in In Re Noise Pollution, the Court held that the right to live in a tranquil environment was an Article 21 right, and therefore, the freedom to use loudspeakers could be curtailed in the interests of protecting the citizenry’s Article 21 rights.

If the Court had limited itself to classifying the Defacement Act as a T/P/M, it would have remained over-broad and problematic, but legally defensible. However, the Delhi High Court then proceeded to justify the Defacement Act under Article 19(2). This raised an immediate problem, because 19(2) categories were never meant to deal with T/P/M restrictions. Consequently, the Court was required to perform numerous contortions to fit the Defacement Act within the contours of 19(2). It did so through an expansion of “public order” and “decency”.

In paragraph 28, it held:

“We are of the opinion that once unregulated putting up of posters /banners / hoardings even if on one‟s own property, is a public nuisance, a law regulating the same would be a law „in the interest of ‟public order within the meaning of Article 19(2). Just like requirement of taking permission for dharnas/rallies/processions has been held to be not unreasonable, similarly the requirement of taking permission for putting up posters / banners / hoardings even on one’s own property but visible to others and affecting the view of and becoming an eyesore for others, cannot be said to be unreasonable.”

With due respect, this is utterly absurd. A building that is an “eyesore” for someone else has nothing to do with public order! Public order is a term of art, and in a series of decisions in the 1950s and 60s, the Supreme Court clarified its meaning. In Ram Manohar Lohia, for instance, the Court famously propounded its concentric circles theory: “security of the State” belonged within the genus of “public order”, which, in turn, belonged within the genus of “law and order”. This makes it clear that “public order” is a term that is about preventing public disturbances and maintaining public peace.

What did the Court do to get around this? It went one step further, in the next paragraph:

“We cannot also be unmindful of the realities of today’s life in the city as Delhi, where residents are on short fuse and altercations on issues, earlier treated as trivial, like parking, traffic accidents, often turn fatal. The possibility of unregulated political posters becoming a similar cause, cannot be ruled out.”

It is hard to imagine a more callous attitude towards core civil liberties, like the freedom of speech. In Rangarajan’s Case, the Supreme Court had made it clear that the heckler’s veto could not be a ground of restricting speech; here, the Court constitutionally sanctifies the heckler’s veto by holding that the “short fuses” of Delhi’s residents constitute a ground for restricting political posters.

Immediately after that, the Court held:

“The Supreme Court, as far back as in Ramji Lal Modi Vs. The State of U.P. AIR 1957 SC 620 held that if certain activity has a tendency to cause public disorder, a law penalizing such activity cannot but be held to be a law imposing reasonable restriction “in the interest of public order”.”

The Court’s invocation of the 1957 Supreme Court judgment in Ramji Lal Modi as the only authority for this proposition is baffling, because much water has flown under the bridge in the fifty-eight years after Ramji Lal Modi was decided. In Modi, the Court rejected the argument that there must be a proximate link between speech and public disorder for it to be legitimately restricted. Three years later, however, in Ram Manohar Lohia, the Supreme Court reversed its position, and held (correctly), that 19(2) authorised the State to make restrictive laws not simply “in the interests of public order” (which was a boundless and boundlessly manipulable standard), but satisfying the requirements of “reasonableness” as well. This requirement could be fulfilled only by demonstrating a proximate connection between speech and public disorder. This position has been consistently upheld since Lohia, in cases such as O.K. Ghosh and Kameshwar Prasad; in Rangarajan’s Case, the Court explicitly said that the requirement of proximity must be like that of a “spark in a powder keg”, and in Arup Bhuyan’s Case, the Court adopted the American standard of “incitement to imminent lawless action”. It is submitted, with respect, that no matter how short the fuses of Delhites might be, and however many violent parking disputes might take place, putting up a political poster upon the walls of one’s privately-owned property is neither incitement to imminent lawless action, nor a “spark in a powder keg” towards public disorder. In relying solely upon Ramji Lal Modi for the proposition that Delhites’ short fuses imply that political advertisements will have a “tendency” towards public disorder, and that therefore the State can restrict them, the Court simply ignores the reasonableness requirement under Article 19(2), and all the cases that have interpreted it.

The Court then added the additional 19(2) ground of “decency”, holding that:

“Not only so, the expression “decency” in Article 19(2) has in Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte (1996) 1 SCC 130 been held to indicate that the action must be in conformity with current standards of behaviour and propriety. If the act of putting up posters, on own property but in view of others, is a public nuisance, it will be an indecent act.” 

With respect, this misreads and misinterprets Kunte’s case entirely. In that case, the Supreme Court held that “current standards of behaviour and property” must be located within the Constitution. In that case, which was about the regulation of election speech, the Court held, in lines that immediately followed the ones quoted above:

“In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the House.”

Decency, therefore, refers to constitutional decency – that is, conforming to the standards and values espoused by the Constitution. It is unclear what the Court intends it to mean here, but it does not seem to match what the Supreme Court actually said in the case that it relies upon.

But there is worse to come. In trying to buttress its decision, the Court referred to numerous regulations upon advertising, before holding that political posters amount to advertising a product! It noted, in para 34:

“Advertising‟ is defined in Black‟s Law Dictionary 8th Edition as the act of drawing public attention to something to promote its sale and informative advertising is defined as advertising that gives information about the suitability and quality of a product. The Shorter Oxford English
Dictionary 6 the Edition defines the word „advertisement‟ as having its origin in French and as meaning information/notification, a written statement calling attention to something, a public announcement in newspapers, on posters on television etc. We are thus of the opinion that the political posters which the petitioners have affixed/want to affix on their buildings/houses would fall within the meaning of advertisement and would also be governed by the Municipal Laws.”

This strange and twisted interpretation eviscerates the distinction between political and commercial speech, that has been accepted by the Court (with some modifications) from as far back as Hamdard Dawakhana’s Case, in 1959. Supreme Court cases, without exception, have recognised the crucial importance of political speech to a thriving democracy, which rests upon informed political decision-making. Sometimes, the Court has held that commercial speech also deserves a similar protection to political speech, because it plays the crucial role of informing consumers in a market economy (Tata Press vs MTNL). So there is some authority for the proposition that the protection accorded to commercial speech can be scaled up; here, however, the Court decides to scale down the protection accorded to political speech because, in its opinion, it is simply identical to hawking a product on a market. Whatever the normative arguments for and against this proposition, it is entirely inconsistent with the idea of republican democracy, that lies at the heart of Article 19(1)(a), and has been so held consistently by the Supreme Court.

Ultimately, in paragraph 37, the Court asked the municipality to frame a policy regulating the putting up of posters on private property, and required the policy to be content-neutral. Depending upon how the policy is ultimately framed, the actual damage to free speech might not be great. The Court’s reasoning, on the other hand, recklessly expands the scope of Article 19(2) to an extent where Article 19(1)(a) retains little meaning.

Before concluding, two brief points: in paragraph 27, the Court rejects relying upon an American precedent, on the ground that the American First Amendment is absolute, while Article 19(1)(a) is subject to reasonable restrictions. It is astonishing how deeply this canard has taken hold in Indian free speech jurisprudence. The American First Amendment is not absolute. It authorises obscenity laws, consumer fraud legislation, medical malpractice laws, copyright, laws prohibiting true threats and blackmail, and fighting words. With respect, refusing to engage with carefully reasoned American judgments on the basis of a cosmetic difference in text is no more than intellectual lethargy.

Secondly, after noting a series of cases in which it was held that the right to vote/contest elections is a statutory right (and not a 19(1)(a) right)), the Court observed: “It thus appears doubtful that asking for votes and/or propagating political ideology during the time of elections would qualify as a Fundamental Right under Article 19(1)(a) of the Constitution.”

At this point, one might ask: if propagating political ideology is not a fundamental right under Article 19(1)(a), then what is?

The Delhi High Court judgment in Anil Bhatia is deeply damaging judgment to civil liberties and – it is submitted – ought to be overruled.

Guest Post – I: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

(In this three-part series, Suhrith Parthasarthy, a Chennai-based lawyer and journalist, re-examines the issue of secularism and the freedom of religion in India, in light of an important, ongoing litigation at the Supreme Court).

The right of individuals and groups to practice their own religious belief has long been recognized as an integral value of liberal democracies. Intervention by the State in matters of religion is therefore often seen as anathema. Laws which impinge the observance of any religious belief or practice, or which discriminate between religions, are generally viewed as violating this right to a freedom of conscience. Like most other liberties, however, this right too is subject to certain restrictions, the “community exception,” as Tom Bingham, the late British judge and jurist described it.

In India, the right to religious freedom and its boundaries (which also peculiarly includes a few specific mandates to the state) is contained in Articles 25 and 26 of the Constitution. The former guarantees the people a freedom of conscience and the right freely to profess, practise, and propagate religion, subject to public order, morality, and health, and to the guarantee of other fundamental rights. It also protects laws made by the state to regulate any economic, financial, political, or other secular activity associated with religious practice, and laws that provide for social welfare and reform, including the throwing open of Hindu religious institutions of public character to all classes and sections of Hindus. Article 26 provides (once again subject to public order, morality, and health) a right to every religious denomination to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.

Read plainly, it appears that these provisions collectively seek to protect a person’s or a group’s fundamental right to practise religion substantially free of interference from the state. But, in practice, the community exceptions have often transcended the right. They have ended up allowing the state to limit protection only to those matters, which, in its opinion, are essential to the religion concerned. And the Supreme Court has often sat as an arbiter to decide which practices and beliefs constitute these “essential parts of religion.” The court has also used this test to determine the validity of legislation aimed at administering religious institutions, particularly Hindu temples. As a result, the purpose of judicial enquiry by the Supreme Court often appears to be aimed at rationalizing religion. It was in this light that Justice K. Ramaswamy observed in A.S. Narayana Deekshitulu v. State of Andhra Pradesh that the religious freedom guaranteed by Articles 25 and 26 “is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order.”

Recently, however, the Supreme Court has shown an inclination towards rethinking its jurisprudence. In January 2014, in the case of Subramanian Swamy v. The State of Tamil Nadu, the court quashed an order passed by the government of Tamil Nadu, which sought to bring within the state government’s control the management of the Sri Sabhanayagar Temple in the town of Chidambaram. Specifically, a bench of Justices BS Chauhan and SA Bobde found that the order appointing an Executive Officer to the Temple under Section 45 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, was in violation of the rights guaranteed under Article 26 of the Constitution of India to the Podu Dikshitars, a small sect of Smartha Brahmins.

The court arrived at its decision on the basis of a 1951 ruling of the Madras High Court, which, in its opinion, operated as a judgment in rem, i.e. that the judgment was binding on everyone, and had an effect beyond just the rights of the parties concerned. In Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt v. The Commissioner, Hindu Religious Endowments, Madras, the Madras High Court had found several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 unconstitutional insofar as the law was made applicable to the Matathipathi of the Shirur Mutt in the South Kanara District and to the Dikshitars of the Sabhanayagar Temple. Subsequently, the decision rendered in favour of the Shirur Mutt was substantially reversed by a five-judge bench of the Supreme Court in what is today known as “The Shirur Mutt case”. But the state government chose to accept the high court’s ruling insofar as it applied to the Dikshitars of the Sabhanayagar Temple, while appealing the verdict insofar as it applied to the Shirur Mutt. In other words, the government had conceded that the Dikshitars represented a separate “religious denomination” enjoying special rights. Therefore, according to Justices Chauhan and Bobde, to today re-examine the question of whether the Dikshitars were a religious denomination that enjoyed these special rights under Article 26 was barred as it had already been conclusively judged.

On these technical principles, to lawyers in particular, the Supreme Court’s decision in the Subramanian Swamy case might even appear unexceptional. But the bench also made a series of telling remarks that possibly went beyond the gamut of the proceedings. It held, for instance, that any takeover by the state of a temple’s management ought to be limited in duration. “Even if the management of a temple is taken over to remedy [an] evil,” wrote Chauhan, J., “the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived.” This view of the Supreme Court, which effectively calls for stronger limits on state intervention in matters of religious administration, goes against the general grain of the court’s previously established jurisprudence. More crucially, it also gives us a hint of how the Supreme Court might rule on a string of litigation concerning Tamil Nadu’s temples pending for final hearing on the court’s docket. One such case involves the appointment of archakas—or priests—in the state’s temples.

(The facts and background of the case will be examined in the next post)