, ,

Tomorrow, a nine-judge bench of the Supreme Court will begin hearing seven “questions” that have arisen out of a reference made in the Sabarimala review. On this blog, we have questioned the manner of the referral, the constitution of the bench, the constitution of the bench, and the framing of the questions. That said, the Court has decided to go ahead with the hearing in its present form; so the question now turns to what would be the best manner in which to answer these questions.

As a preliminary point, it is important to reiterate that many of the questions are framed in abstract terms. The best-case scenario remains – of course – for the Court to refrain from answering them in the absence of specific facts, from which legal doctrine can develop. If the Court does, however, intend to answer all the questions, then it follows that the answers, too, must be framed in the language of principles, not as concrete legal propositions. A good example of this is the last time a nine-judge bench was called upon to answer a purely constitutional question, in the absence of facts: Puttaswamy (I) v Union of India (the “privacy judgment”). Faced with the question of whether the Indian Constitution guaranteed a right to privacy, the Court – in the operative part of its judgment – simply affirmed that it did. Working out the contours of the right to privacy was left to future benches, which – for example – happened in Puttasamy II (the “Aadhaar judgment). The nine-judge bench, therefore, set out the principles involved, while concrete shape and flesh to those principles was given by later benches that had the benefit of specific facts before them. It is submitted that this salutary approach ought to be followed here as well.

On to the specific questions themselves: I will not in this post examine them individually (some of that work has been done before on this blog, and in this article, here). That may be left to later in the hearing, when there is a clearer sense of the parties’ arguments. What I want to indicate here, however, is that there is one common theme that runs through (many of) the questions: that is, the conflict between the individual and the group in the context of religion.

This conflict arises because the Indian Constitution understands religion as something that is practiced both individually (guaranteed under Article 25 of the Constitution) and in community (guaranteed by Article 26 and, in particular, Article 26(2)). In most circumstances, the contest will be between an individual and the State, or the community and the State, when laws are passed seeking to regulate or restrict elements of religious practice. There do exist, however, a set of cases where individuals are pitted against their communities – when the individual’s conception of what religious practice requires differs from what is officially sanctioned by the community, or when the individual believes that their rights are being violated by the manner in which the community’s decision-making structure functions. The classic example of this, of course, is the famous Dawoodi Bohra case, which involved the question of religious excommunication.

Now, how ought a Court to decide such a conflict if it comes before it? It is important to note, first, that there is no default “neutral” position on offer. The Constitution grants to religious denominations the right to determine matters of religion. It also grants to all the right to equally profess and practice religion. Thirdly, it grants a number of other individual rights, some of which are applicable between private parties (such as the right against “untouchability”) while others that are applicable against the State nonetheless place upon the State a positive obligation to protect them (i.e., affirmatively act to ensure that private parties are not violating them). The Constitution itself does not suggest a hierarchy of norms. Consequently, the question is one of interpretation.

Let us imagine two possible extreme approaches. Let us call the first extreme “group supremacy.” The group supremacy holds that once there exists a formal, community-sanctioned version of what religious faith or practice requires, that is sanctified by the Constitution, and nobody can interfere. Within the religious domain, in other words, there is no space for intra-group dissent, for individuals to assert their own interpretations of what faith requires, or any question of violating individuals’ rights.

The second extreme is that of “individual supremacy.” This approach holds that rights under Article 26 are entirely subject to all other parts of the Constitution. There can be no claim on behalf of the group, therefore, that conflicts with other constitutional principles (such as the right to equality, for example), and to the extent that individual and group articulations of faith come into conflict, that of the individual will prevail.

Both extremes, I suggest, are unsatisfactory, and unfaithful to the constitutional vision. The “group supremacy” approach ignores entirely what Madhavi Sunder refers to as “cultural dissent”: that is, it ignores the fact that norms internal to religious groups are often under contestation and challenge. What the “group supremacy” approach does is to put State power (through the Courts) in service of the status quo, which is the version of religious truth imposed by the formal decision-making apparatus of the group. The group supremacy approach also ignores the fact that there exist, in our country, an entire set of practices sanctified in the name of religion, that have been – and still are – violent assaults on basic human dignity (see the example of madesnana, for instance). Group supremacy, therefore, would be fundamentally contrary to our constitutional ethos.

Individual supremacy, on the other hand, is equally unsatisfactory, as it ignores the undeniable fact that the Constitutional scheme considers group autonomy in matters of religion a fundamental value. And if group autonomy means anything, it means the power of the group to determine what norms it follows for itself, without interference by parallel sets of norms (such as – again – strict requirements of individual equality).

If neither group supremacy nor individual supremacy are satisfactory ways of interpreting the scheme of Articles 25 and 26 and how they are nested within Part III, then what is? I suggest that the answer is to be found in recalling a point that Ambedkar made in the Constituent Assembly: that the fundamental unit of the Constitution remains the individual. Group rights exist in the Constitution because the framers understood that individuals need community in order to fully flourish as human beings. However, the very rationale for group rights serves to place a limit upon their extent: the group has autonomy upto the point that its norms or practices do not cause harm to the dignity or civil rights of its constituents. What is crucial to note is that the dignitarian or other harms must not lie solely within the domain of religion, because that would make the argument circular: they must extend beyond the strictly religious domain. Once again, madesnana – where Dalits are required to roll upon the leftovers of food eaten by Brahmins – is an excellent example of dignitarian harm that is deeply linked to broader social structures that go beyond simple religious faith.

The ultimate rationale for this is – as many scholars have pointed out – that in India, religion continues to be deeply linked with larger society and social and cultural structures. The consequences of unequal – or oppressive – religious practices, therefore, is not always limited to questions of faith. And it is precisely when it goes beyond that the Constitution and the Courts step in. And of course, whether that test is satisfied is for individual cases, based on specific facts.

Elsewhere, we have called this the “anti-exclusion principle.” The idea is a very simple one: the Constitution guarantees rights to both individuals and groups. In cases of conflict, a balance is essential. This balance is best-served by asking whether a particular practice under consideration has the effect of causing exclusion, or of treating certain constituents as second-class members of society, in ways that harm their dignity, or other rights in the non-religious domain. Thus, when the Court is faced with a host of competing interpretations of the Article 25/26 scheme in the coming days, this basic moral and ethical framework may come of some use in charting a path through the minefield.