The Dawoodi Bohra case, which we discussed in the last essay, has been taken off the supplementary list for tomorrow. Hopefully, it will not take eleven years for it to be listed a second time!
In the meantime, I came across this quotation by the liberal political theorist, Will Kymlicka, in his article, ‘The Rights of Minority Cultures: Reply to Kukathas’, which sums up the argument of the previous essay quite well:
“A liberal theory can accept special rights for minority culture as against the larger community so as to ensure equality of circumstance among them. But it will not justify (except under extreme circumstances) special rights for a culture against its own members. The former protect the autonomy of the members of the minority of the cultures; the latter restrict it. Liberals are committed to supporting the rights of individuals to decide for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to – perhaps even defined by – the view that individuals should have the freedom and the capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance. [For example] restricting religious freedom or denying education to girls is is inconsistent with these liberal principles and indeed violates one of the reasons liberals have for wanting to protect cultural membership – namely, that that membership in a culture is what enables informed choices about how to lead one’s life. Hence, a liberal conception of minority rights will condemn certain practices of minority cultures just as it has traditionally condemned the traditional practices of majority cultures, and will support their reform.”
The basic idea, again, is that the while the basic, normative unit of Part III is the individual, the protection of group rights under Articles 26, 29 and 30 of the Constitution acknowledges the fact that individuals are embedded in culture, and culture is what mediates effective exercise of human freedom. However, just as that basic idea requires the Constitution to guarantee group rights, it simultaneously limits the extent to which those rights can be invoked. In Kymlicka’s phrase, a culture cannot invoke special rights against its own members, insofar as such rights become a tool for curtailing, rather than enhancing, individual freedom. The philosophical mistake that the majority made in the Dawoodi Bohra Case was to treat group rights under Article 26(b) as ends in themselves (and hence, the repeated fears about the need to maintain group purity and discipline through the power of miscommunication), and not as instruments towards achieving individual freedom. In fact, a reading of the sort that Kymlicka advances (and which would require the Court to have upheld the Bombay Act), is more consistent with both the liberal strand of Part III (as embodied in classic civil rights against the State – Articles 14, 19, 21, 25), as well as its social-democratic strand, which is concerned with protecting individuals from the tyranny of their own communities (Articles 15(2), 17, 23, 25(2)).