Tag Archives: article 25

The Supreme Court’s Triple Talaq Judgment

Today, a narrowly divided Supreme Court held that the practice of instantaneous triple talaq (talaq – ul – biddat) [hereinafter “triple talaq” for short] which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid. On the outcome, the Court split three to two: Justices Nariman, Lalit and Joseph in the majority, with the Chief Justice and Justice Nazeer dissenting. However, Justice Nariman (writing for himself and Justice Lalit) and Justice Joseph used different – and partially contradictory – reasoning to arrive at the conclusion. With what is effectively a 2 – 1 -2 split, there will be considerable controversy over what, precisely, the Supreme Court held in this case. Before discussing the different opinions, therefore, it will be useful to provide a brief overview.

The constitutional status of triple talaq depended, in part, upon its legal status. In particular, there was a dispute over whether triple talaq had been codified into statutory law by the 1937 Muslim Personal Law (Shariat) Application Act. This was important, because all statutes are subject to fundamental rights. However, under existing jurisprudenceuncodified personal law is exempt from fundamental rights scrutiny. Therefore, if the 1937 Act did codify triple talaq, then the Court could examine whether it was consistent with the Constitution. If it did not, however, then the Court would have to ask whether triple talaq was part of Muslim personal law; and if so, whether to uphold its existing jurisprudence exempting personal law from fundamental rights scrutiny, or to reconsider it.

Within this framework, this is how the Court’s three judgments mapped out:

A. Does the 1937 Act codify triple talaq under statutory law?

Yes: Nariman and Lalit JJ

No: Kurien Joseph J., and Khehar and Nazeer JJ

A1. If the answer to A is yes, then does triple talaq (as codified by the 1937 Act) violate the Constitution?

Yes: Nariman and Lalit JJ (Article 14)

No: _____

N/A: Kurien Joseph J., and Khehar and Nazeer JJ

B. If the answer to A is no, then is triple talaq part of Muslim personal law – that is, is it uncodified Muslim personal law?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J

N/A: Nariman and Lalit JJ

B1: If the answer to B is yes, then can triple talaq be tested under the Constitution? 

Yes: ______

No: Khehar and Nazeer JJ

N/A: Nariman and Lalit JJ, Kurien Joseph J

C. In any event, is triple talaq protected under Article 25 as an “essential practice” of Islam?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J., Nariman and Lalit JJ.

Therefore:

A majority of three judges held that the 1937 Act did not codify triple talaq. Beyond that, however, there is no clear majority for any consequential legal proposition in this case (apart from a momentous change on the legal status of the doctrine of arbitrariness, which I shall deal with in a separate post). Justice Kurien Joseph – the “swing vote” in this case – agreed with the dissent that triple talaq had not been codified by the 1937 Act. This was at odds with the foundation of the judgment of Justices Nariman and Lalit, who held that the 1937 Act did codify triple talaq. However, Justice Joseph then disagreed with the next step in the dissent’s reasoning, which was the proposition that triple talaq was part of Muslim personal law (this, naturally, brought him into agreement with Justices Nariman and Lalit on the issue that triple talaq was not an essential or integral aspect of Islam, and therefore protected under Article 25 of the Constitution). What we therefore get, at the end of the day, is a majority in terms of outcome (3:2), a different majority on the interpretation of the 1937 (3:2) Act, but no majority for the reasoning leading up to the outcome.

The Judgment of Nariman J (joined by Lalit J)

Justice Nariman began by noting that talaq – ul – biddat was only one of the many permissible forms of divorce under Islamic law, and a strongly disapproved one at that (paragraph 9). With this brief background, he analysed the 1937 Act. Noting the Statement of objects and Reasons of the Act, which recognised a demand from the Muslim constituency that “Muslim Personal Law (shariat) should be made applicable to them.” Section 2 of the Act then stated that “Notwithstanding any custom or usage to the contrary… regarding… marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat… the rule of decision in cases where parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Nariman held that the plain meaning of Section 2 was that, after 1937, the shariat was accorded statutory sanction in India. Or, to put it in simpler language, after the 1937 Act, what made the shariat legally enforceable in India (as applied to Muslims) was the 1937 Act. Before the 1937 Act, colonial judges were applying and enforcing the shariat (presumably) directly as religious sanctions, drawn from the Quran, the Hadith, and other authoritative texts. The 1937 Act, however, now mediated between Islamic scripture and its application in concrete cases.

It was argued by the Muslim Personal Law Board that the opening words of Section 2 – “notwithstanding any custom or usage to the contrary…” implied that the purpose of the 1937 Act was not to enforce Shariat, but to remove “custom and usage” as sources of Islamic personal law. Justice Nariman swiftly rejected this argument, holding that to allow a non-obstante clause to determine the interpretation of a Section that was otherwise unambiguous, would amount to “the tail wagging the dog” (paragraph 16).

Consequently, Justice Nariman was able to conclude that the 1937 Act (which included the statutory sanction of triple talaq) “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.” (para 21). In other words, if the Court found that the practice instantaneous triple talaq violated any constitutional provision, then to the extent that Section 2 of the 1937 Act authorised it, it would be unconstitutional and void.

This would be true, of course, unless triple talaq was saved by any other constitutional provision. The Muslim Personal Law Board argued that it was saved by Article 25, which guaranteed the freedom of conscience and religion. Justice Nariman rejected this argument, pointing out that under Indian jurisprudence, Article 25 only protected “integral” or “essential” aspects of religion. In view of extensive and uncontroverted religious authority holding that triple talaq was an “irregular” way of conducting divorce, it could not, under any circumstances, be held to be an essential aspect of Islam (or under the Hanafi school of Islam, which practiced it) (paragraph 25).

Having strongly affirmed that it was the duty of the Court to strike down unconstitutional laws, and not leave the task up to Parliament (paras 26 – 30), Justice Nariman then came to the core of the case – the examination of the constitutionality of instantaneous triple talaq (paragraph 31 onwards). Focusing on Article 14 of the Constitution, he asked whether a law or a statute could be invalidated on the ground of “arbitrariness” (for a summary of the constitutional controversy on this point, see Mihir’s guest post here). After a detailed and technical discussion, Justice Nariman found that arbitrariness had always been a ground of legislative review under Article 14 (paragraphs 32 – 55), and judgments that held to the contrary were incorrectly decided.

The standard of arbitrariness required that if a law was “disproportionate, excessive… or otherwise manifestly unreasonable“, then it would be struck down under Article 14 (paragraph 45). Applying the standard to instantaneous triple talaq, Justice Nariman then held, in his concluding paragraph:

“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”

Three things stand out in Justice Nariman’s judgment. The first is his refusal to consider the question of whether personal laws are subject to the Constitution (although, in paragraph 22, he specifically casts doubt on the correctness of Narasu Appa Mali, and opines that it might need to be reviewed). In a guest post on this blog, Praharsh Johorey argued that the triple talaq case was an ideal opportunity to reconsider a judgment as clearly wrong as Narasu; elsewhere, I argued that a judgment invalidating triple talaq could either do it narrowly, through the 1937 Act and the essential religious practices test, or by taking a broad route, and reversing Narasu Appa Mali. Justice Nariman chose the narrow route, and in that sense, there is a feeling of a remarkable opportunity missed. To be fair, technically, it is difficult to fault him for this: once he had held that the 1937 Act codified Muslim personal law, there was no need for him to consider any other question. On this blog, I have often argued that judges should not go charging like wild horses over constitutional terrain, and ought to decide cases on the narrowest grounds available to them. I cannot, in good faith, criticise Justice Nariman for doing precisely that. Nonetheless, the sense of regret remains.

The second issue is Justice Nariman’s reliance upon the essential religious practices test to deny triple talaq the protection of Article 25. On this blog, I have tried to point out before that ERP is both constitutionally unprincipled and impractical, because it involves a secular Court making ecclesiastical judgments. I am not alone in this criticism: for the last four decades, ERP has been criticised by both scholars and practitioners; apart from a dissenting judgment by Justice Lakshmanan in 2004, however, it has never been seriously challenged within the judiciary. This case marked an ideal starting point for the Court to jettison this seriously flawed approach, and hold – along with Ambedkar in the Constituent Assembly Debates – that Article 25 simply wasn’t applicable to the laws of marriage, divorce, inheritance, which had a tangible impact upon the civil status of parties; in other words, one cannot, under the cover of religion, claim a vast domain of human life off-limits from constitutional values. As Ambedkar had said:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

In this second sense, the judgment represents a chance missed.

And thirdly, it appears to me that – notwithstanding his spirited revival of the doctrine of arbitrariness – Justice Nariman’s constitutionality analysis misplaces priorities. The core problem with instantaneous triple talaq was not its arbitrariness, but how, in giving men a unilateral power of instant divorce, it discriminated against Muslim women. It was more a question of unequal power and inequality (Article 15) than the rule of law (Article 14). Again, technically, one cannot fault the reasoning; in a broader sense, however, it seems to have achieved the right outcome, for the right reasons, but perhaps not… the best reasons.

The Judgment of Joseph J (for himself)

Justice Joseph wrote a brief judgment. He held that the Supreme Court, in Shamin Ara, had already held that “instantaneous triple talaq” was invalid under Islamic law (paragraph 1). It was necessary for him to carry out this analysis, because – in his view – the 1937 Act only made Islamic personal law applicable to Muslims, but was “not a law regulating talaq.” (paragraph 4) Noting that the primary authoritative source for Islamic personal law was the Quran, Justice Joseph then examined the Quranic suras that dealt with talaq, and found that:

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” (paragraph 10)

Justice Joseph then cited multiple High Court judgments, leading up to the Supreme Court judgment in Shamin Ara, which had affirmed this proposition (paragraphs 11 – 23), and concluded that:

“Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

It is important to note that Joseph J. expressed no opinion on the question of whether uncodified personal laws are subject to the Constitution, and therefore, there is no majority in this judgment that supports that point of view. In paragraph 5, he made the limited observation that “I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.” That is, his disagreement with Nariman J. was limited to the question of whether triple talaq, through the 1937 Act, could be tested under Article 14; however, since Nariman J. himself expressed no opinion on whether, if triple talaq remained uncodified, it could be tested under Article 14 (by overruling Narasu), Justice Joseph could not possibly have disagreed with him on this point, because there was nothing to disagree with.

That said, Justice Joseph’s analysis of Section 2 of the 1937 Act does not seem correct. The distinction between the 1937 Act enforcing the shariat, and the Act “regulating” triple talaq, is irrelevant to the constitutional analysis. What matters is not that the procedure of triple talaq is contained in a statute, but that the source of authority of triple talaq is a statute. The moment that is conceded, the statute in question – and along with everything that it authorises – becomes subject to Part III and the Constitution. On this issue, Justice Nariman’s view appears to be the correct one.

The Judgment of the Chief Justice (for himself and Justice Nazeer)

The Chief Justice’s judgment has the merit that, after page 176, when the recording of submissions ends, and the analysis begins, it is clear and easy to follow. That, however, is its only merit. The judgment advances novel constitutional propositions unsupported by the constitutional text, history, or precedent, and it severely undermines the constitutional balance between individual rights and religious precepts.

The Chief Justice began by noting that the sources of Islamic personal law are not limited to the Quran (paragraph 121), and that, in fact, all parties have agreed that talaq – ul – biddat is “bad in theology but good in (Islamic personal) law” (paragraph 127). Declining to go into an interpretation of rival hadiths provided by both parties, he noted that:

“The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that – before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case1 as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that ‘talaq’ had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of ‘talaq-e-biddat’, has been very much prevalent, since time immemorial.” (paragraph 144)

And:

“We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.” (paragraph 145)

The problem with this argument is that paragraph 145 does not follow from paragraph 144. Under the essential religious practices test, as applied by the Supreme Court over time, not everything sanctioned by religion is integral to it. The Chief Justice slid seamlessly between noting that instantaneous triple talaq is practiced by Indian Muslims as a part of their religion, to holding that is an essential part of it, without showing independently that the threshold of ERP has been met. Recall that the Supreme Court has held, in the past, that neither worshipping at a mosque nor cow-slaugher on Id, are integral parts of Islam, on the basis that Islam does not mandate either practice. Under this standard, in this case, it would under the ERP, it would have to be shown that Islam mandated instantaneous triple talaq. This, the Chief Justice did not show; and while I disagree with the ERP test, given that the Chief Justice had chosen to apply it, I think it important to point out that he applied it incorrectly.

The Chief Justice then advanced a proposition that is utterly bizarre. In paragraph 146, he said:

“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.”

Notably, no authority is advanced to support this proposition. That is because there is none. No Court has held that “personal law” is a fundamental right. In fact, that sentence is incoherent – how can “personal law” have the “stature” of a “fundamental right”? Rights under Article 25 belong to individuals, not to “laws”. More importantly, Article 25 does not confer constitutional protection upon personal laws. It guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

To go from “all persons are equally entitled to… freely… practice… religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Chief Justice been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of triple talaq, his Article 25(1) right was being violated; such a case, however (apart form being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

Most of all, what is entirely unacceptable about this proposition is that, as the Chief Justice himself observed (in the extract quoted above), marriage affects an individual’s civil status and civil rights. The effect of holding that “personal laws” are protected under the Constitution’s religious freedom guarantee is to grant to religious bodies the power of determining individuals’ civil status (and their civil rights), without constitutional recourse. This seems to be a negation of the very basic meaning of secularism.

The Chief Justice then held that the 1937 Act did not codify triple talaq, but only negated the use of “customs and usages” in adjudicating cases between Muslims (paragraph 156). I have already argued above that this is a flawed reading of the 1937 Act. Consequently, he held that the only limitations upon personal law can be those found in the opening phrase of Article 25(1): “public order, health, and morality.” On this, he noted:

“… it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’. We are also satisfied, that it has no nexus to ‘morality’, as well.

But why? He provided no reasoning for this. If “morality” under Article 25(1) refers to the concept of constitutional morality, then surely gender equality and non-discrimination art part of that definition of morality? And if not, what else does morality mean? What does the Chief Justice think it means, and why is instantaneous triple talaq “moral”? There are no answers.

The other preliminary phrase in Article 25(1) is “subject to… the other provisions of this Part” (that is, Part III). The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 – which triple talaq potentially violates – are only applicable to State action against individuals, and not to private violations of rights (paragraph 165). However, not only does this argument go against the Supreme Court’s recent liquor ban judgment, which the Chief Justice himself signed on to, and which held that Article 21 places an affirmative obligation upon the State to protect fundamental rights – but it also ignores the fact that triple talaq is only legally effective because it is sanctioned by the Courts. Triple talaq does not operate in some parallel, extra-legal domain; rather, it is not only recognised (as an aspect of personal law) by the State, but it can also be enforced through the courts. Therefore, the State involvement is inextricable.

Lastly, the Chief Justice addressed an argument that instantaneous triple talaq violates principles of constitutional morality, which he rejected by reiterating the proposition that personal laws themselves are a part of fundamental rights, and ending with this paragraph:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.” (paragraph 193)

It is a particularly stark irony that Chief Justice needed to replace the word “persons” (which is what Article 25(1) says) with the word “entities”, in order to sustain this unsustainable conclusion.

I have engaged with the dissent at some length, because a 3 – 2 split is a judgment by a hair’s breadth. Had one judge flipped, the dissent would have become the majority. While I feel that the majority opinions could have been stronger on some points, I feel – even more strongly – that the dissent, which elevates personal law to the status of the Constitution, and in fact, elevates it above all other fundamental rights in Part III, would – had it carried the day – done profound damage to the constitutional fabric. It would have fatally undermined the framers’ attempts to frame a secular Constitution, where religion could not become the arbiter of an individual’s civil status and her civil rights, and would, in a single stroke, have set back a long struggle for the rights of basic equality and democracy against the claims of religion.

What this divided judgment means for future jurisprudence dealing with the relationship between personal law and the Constitution, remains to be seen. The question is perhaps more open now than it ever was.

 

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Filed under arbitrariness, Article 14, Article 21 and the Right to Life, Equality, Freedom of Religion, Personal Law, Secularism

Haji Ali Dargah: Bombay High Court Upholds Women’s Right to Access the Inner Sanctum

In an important judgment delivered today, the Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah, and also held that, consequently, the Haji Ali Dargah Trust’s decision to exclude them was illegal and unconstitutional. Previously, on this blog, we discussed some of the legal and constitutional issues arising out of this case, concluding that there were good constitutional arguments in favour of the right of access.

Coming in at 56 pages, the Bombay High Court’s judgment is a crisp and lucid elucidation of the existing state of religious freedom jurisprudence under the Constitution, as well as application of that jurisprudence to the facts of this case. The Court began by recounting the three reasons provided by the Trust for barring women’s entry; first, that “women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts… [secondly] for the safety and security of women; and [thirdly] that earlier they [i.e., the Trust] were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.” (paragraph 5) It is this last reason that needed to be considered in the greatest detail, since it went directly to the heart of the Constitution’s religious freedom guarantees, granted to both individuals and to religious denominations.

In dealing with this submission, the Court considered the minutes of the meeting which had led to the Dargah Trust passing the Resolution to exclude women. Four reasons emerged out of the minutes, which overlapped with (but were not identical to) the three submissions made in Court; first, that the women being in close proximity to the grave of a saint was a “sin” in Islam; secondly, that the Trust had the fundamental right to manage its own affairs in the matters of religion under Article 26 of the Constitution; thirdly, that it was in the interests of the safety and security of women; and fourthly, at no point were women allowed to come within the proximity of the dargah (paragraph 22) This last issue was quickly disposed off by the Court, since the record made it clear that until 2011 -12, women were, as a matter of fact, allowed into the inner sanctum (paragraph 23).

This brought the Court to the core argument, which was based upon the Trust’s interpretation of Islam. The Trust argued that the Quran and the Hadith prohibited proximity of women to the tomb of a male saint, that menstruating women were ‘unclean’, and that men and women had to be separated at holy places. To substantiate this argument, it placed verses from the Quran as well as the Hadith before the Court. The Court found, however, that none of these texts stated that the presence of women in proximity to the tomb of a saint was a “sin”, and nor did they support “the absolute proposition” for banning the entry of women into the inner sanctum because of the need for “segregation”. While the Petitioners had also produced verses from the Quran in support of gender equality, the Court held that there was no need to go into these, since the Trust, on its own terms, had failed to show that the entry of women into the inner sanctum was a sin under Islam (paragraph 26).

The Court then turned to the arguments under Article 25 (freedom of religion), and Article 26(b) of the Constitution – namely, that every religious denomination, or section, had the right to mange its own affairs in matters of religion. On Article 25, relying upon the long-standing religious freedom jurisprudence of the Supreme Court, the Court first invoked the “essential religious practices test” – i.e., was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam? According to the Court, the test for an “essential practice” was that it must  “constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character” (paragraph 29). This being the case, the Court found that the Trust had failed to demonstrate that Islam did not permit the entry of women into Dargahs/Mosques, a claim that was further weakened, given that women had been allowed entry up until 2011 – 2012 (paragraph 31). Of course, the Trust argued that it was only after 2011 that its attention had been drawn to what the Sharia actually required; to this, the Court’s swift response was that the Trust had placed nothing on record to show what specific aspects of the Sharia had been drawn to the Trust’s attention that changed the position so drastically (paragraph 31).

The Court then turned to Article 26(b), which guaranteed to religious denominations the right to manage their own affairs in matters of religion. The Court first went into the history of the Trust itself, and its operations. It noted that the Haji Ali Dargah stood on public land, leased to the Trust by the Government; a scheme for managing the Trust was drawn up by a government-appointed commissioner in 1936; the role of the Trustees was to prepare books of account, conduct business, maintain the properties, and so on (paragraph 33). This enquiry was important, because under the Supreme Court’s Article 26(b) jurisprudence, especially insofar as it concerns the rights of trusts or maths, a distinction must be drawn between religious activities on the one hand, and secular activities bearing the trappings of religion on the other (unlike the essential practices test, this distinction is actually grounded in the Constitutional text – for instance, Article 25(2)(a), which permits State intervention into secular aspects of religious practice – as well as the Constituent Assembly Debates). Consequently, the Court found that:

“The aims, objects and activities of the Haji Ali Dargah Trust as set out in the Scheme are not governed by any custom, tradition/usage. The objects of the Haji Ali Dargah Trust are in respect of purely secular activities of a non-religious nature, such as giving loans, education, medical facilities, etc. Neither the objects nor the Scheme vest any power in the trustees to determine matters of religion, on the basis of which entry of woman is being restricted.”

It’s important to note here that unlike many other cases before it, the Court did not here get into the question of whether the exclusion of women from the dargah was a “religious” question or not. It simply held that the Trust was never authorised to deal with matters of religion, and that therefore, Article 26(b) was not even attracted in the first place. And there was a further reason why Article 26(b) could not apply:

“Admittedly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its decision solely based on a misreading of Article 26. The respondent No. 2 Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion’ under Article 26 and as such, the State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against discrimination based on gender.” (paragraph 36)

In other words, the Dargah’s public character took it out of the protective scope of Article 26(b), and made it subject to Articles 14, 15 and 25 of the Constitution. This is a fascinating point, especially given the long history of temple-entry movements in India. Ever since the time of Ambedkar, temple-entry movements have framed the basic question as being about access to public spaces, a right that could not be curtailed on grounds of caste etc. In this case, the form of the Trust – as well as the fact that the Dargah was “open” to all – allowed the Court to hold that the question of access was of a “public” character, and therefore, impliedly, outside Article 26(b).

The Court then went on to hold, however, that even if it was attracted, Article 26(b) could not override other constitutional provisions:

“Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution.” (paragraph 36)

With respect, this might not be correct. It is, in fact, Article 25 of the Constitution that contains the prefatory term “Subject to other provisions of this Part…” This suggests that when the framers wanted to subordinate one provision of Part III to the others, they did so expressly. The omission of this phrase in Article 26 would suggest, therefore, that it is 25(1) that is subject to 26 (in case of a clash), and that, at the very least, more work must be done before holding that Article 26(b) is subject to Articles 14 and 15.

Lastly, the Court swiftly disposed off the ‘women’s security’ argument, holding that it was for the Dargah (as well as the State) to take effective steps to guarantee the security of women, instead of banning them outright (paragraph 37). It ordered, therefore, that status quo be restored, i.e. “women be permitted to enter the sanctum sanctorum at par with men.”

The reader will note, at this point, that a final step in the argument appears to be missing. Even after holding that the arguments of the Dargah, based on Articles 25 and 26 failed, on what legal or constitutional basis were the women enforcing their right of access against the Dargah? The Dargah was not, after all, a State body, and consequently, there could be no direct relief against it under Articles 14, 15, or 25. The Court didn’t address this question separately, but the answer is found back in paragraph 18:

“… the State cannot deprive its citizens of the constitutional rights guaranteed under Articles 14 and 15. It would then be the Constitutional responsibility of the State to ensure that the principles enshrined in the Articles 14 and 15 of the Constitution are upheld. Article 14 of the Constitution guarantees that `the State shall not deny any person equality before the law or the equal protection of the law within the territory of India’ and Article 15 guarantees `the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The State would then be under a constitutional obligation to extent equal protection of law to the petitioners to the extent, that it will have to ensure that there is no gender discrimination.”

In other words, what the Court held was that under Part III, the State did not merely have a negative obligation not to infringe fundamental rights. Rather, it had a positive obligation to prevent a private party from infringing upon another private party’s fundamental rights (this, I argued before, was a move open to the Court in light of the Supreme Court judgments in Vishaka and Medha Kotwal Lele). In technical terms, this is called “indirect horizontality” (discussed previously here). If a private party is infringing my fundamental rights, I cannot move the Court directly against that private party, and ask the Court for relief against it; I must make the State a Respondent, and ask the Court to direct the State to take necessary action in order that I may vindicate my fundamental rights (by deploying police, security, or whatever else). And interestingly the petitioners in this case did make the State a party – in fact, the State was the First Respondent.

Let us now summarise the structure of the judgment:

  1. The Haji Ali Dargah Trust justified the exclusion of women from the inner sanctum on the basis of the freedom of religion (Article 25(1)), and the right of religious denominations to manage their own affairs in the matters of religion (Article 26(b).
  2. The Court rejected the Article 25(1) argument on the basis that the Trust had failed to place any material on record to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. The Dargah’s claims were thrown further into doubt by the fact that women had been accessing the sanctum up until 2011 – 12.
  3. The Court rejected the Article 26(b) argument on the basis that:
    1. The Scheme of the Dargah Trust did not allow it to adjudicate upon religious matters. Hence, Article 26(b) was not attracted.
    2. The Dargah Trust was a public charitable trust, and the Dargah was a public space open to all. Hence, Article 26(b) was not attracted.
    3. Even if Article 26(b) was attracted, it was overriden by Articles 14, 15 and 25(1)
  4. The exclusion of women from the inner sanctum of the Dargah violated their rights under Articles 14 (equality), 15(1) (non-discrimination) and 25(1) (freedom of religion).
  5. Consequently, insofar as the Dargah Trust was impeding the women’s enjoyment of their fundamental rights, they were entitled to call upon the State to perform its positive obligations under Part III of the Constitution, and vindicate their rights by taking appropriate enforcement-oriented action.

By way of conclusion, let me make two points. On this blog, I have strongly opposed the “essential features” test as being a doctrinal, historical and philosophical mistake (see here), and proposed an alternative interpretation of Articles 25 and 26 (see here). If, however, there is to be a change, that change must be initiated by the Supreme Court, sitting in a bench of appropriate strength (at least seven judges). Whatever the Bench’s personal views on the essential religious practices test, sitting as the Bombay High Court, they had no choice but to follow and apply it. This they did. What is important to note, however, is that they applied it in a narrow, circumspect, and sensitive manner, and to the extent that they necessarily had to. They limited themselves to examining only the material placed on record by the Trust. Even though the Petitioners had placed on record material arguing that Islam mandated gender equality, the bench refused to make observations on that point, one way or another. Unlike far too many previous cases, they refrained from making grand, overarching claims about the religion before them. Given that the whole problem with the essential practices doctrine is that it allows judges to impose an external view upon the lived practices and traditions of the community, the Bombay High Court’s reticence in doing that must be applauded.

This brings me to the second, related point. Over the past few years, cases of this sort – which involve issues of fundamental rights, religion, and gender equality, among others, have seen much judicial grandstanding. There have been broad and sweeping statements, which do not stand up to rigorous scrutiny, very little attention to the Constitution and to legal doctrine, and the privileging of rhetoric over reason. The Bombay High Court’s judgment is the exact opposite of all this. The bench decided the case on closely-reasoned legal grounds (as any court must) refused the obvious temptation of buccaneering into the political and religious thicket, and avoided doing anything more than was absolutely necessary for deciding the case. If we criticise the judiciary when it plays to the galleries, we must also praise it when it abstains from doing so. For that reason, apart from everything else, today’s judgment deserves much praise.

 

 

 

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Sabrimala: Key Constitutional Issues

(The following post is based on my understanding of how oral arguments progressed in Court, since I do not have access to the pleadings. Pointing out of errors would be very welcome)

Arguments in the Sabarimala Temple Entry case are underway before a three-judge bench of the Supreme Court. Based upon the proceedings so far, it is important to consider the following important constitutional questions, which the Court must address in order to arrive at a satisfactory decision.

3Recall that the key issue in the Sabarimala Case is the denial of entry to women between the ages of 10 and 50, into the Sabarimala temple. This denial is justified by Rule 4 of the Kerala Hindu Places of Public Worship Rules, framed under Section 4 of the identically-named Act. Rule 3 prohibits women from entering a place of public worship “at such time during which they are not by custom and usage allowed to enter.” The first issue, therefore, pertains to the vires of the Rule itself.

A. Vires of Rule 3

As I understand it, the Intervenors (Happy to Bleed) have argued that Rule 3 is ultra vires the parent Act, since Section 3 of the Kerala Hindu Places of Public Worship Act specifies that “notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.” When this argument was raised before the Kerala High Court twenty-five years ago, it was rejected on the ground that women between the ages of 10 and 50 did not constitute a “class” or a “section” of Hindus. This seems to me to be completely fallacious. Read plainly, a “class” or a “section” is constituted by persons sharing certain common characteristics. Women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. It is difficult to see how, in such circumstances, they do not constitute a “class”. Even though the historical context of the legislation was to ensure the removal of caste-based disabilities, it is crucial to note that the legislature chose not to use the word “caste”, but used the much broader “class” and “section”. To read these words narrowly, then, does not appear to me to be justifiable.

Section 3, however, also goes on to state that “Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion.” The proviso, therefore, overrides the right under Section 3 in cases of denominational institutions. In fact, the proviso echoes the language of Article 26(b) of the Constitution, insofar as according religious denominations autonomy in determining questions pertaining to religion. If, therefore, the conditions of the Proviso are satisfied, then there might be a problem: the Court could read down the Rule to be limited to situations where the proviso is satisfied. In other words, not every “custom or usage” is protected by the Rule, but only such customs are usages that fall within Article 26(b). It is doubtful whether the Court can read down Rule 3 to this extent (I doubt that it can), but it is certainly an option open to it. Consequently, let us consider other arguments.

Assuming, therefore, that the Rule has been read down to accord with Section 3, the second leg of the argument, then, would challenge the exclusion of women under the said rule as being unconstitutional. Let us therefore consider the constitutional arguments:

B. Constitutionality of Rule 3

The arguments on the constitutionality of Rule 3 would proceed along the same direction. It is well-established, in Madhu Kishwar vs State of Bihar, that custom or usage is subject to Part III of the Constitution. Therefore, the exclusion of women, insofar as it is justified purely by reference to custom, is unconstitutional (it violates Articles 14, 15 and 25(1)). And insofar as Rule 3 permits such exclusion, it is unconstitutional (I am assuming here that, as secondary legislation, the Rule is subject to Part III). However, once again, the core question remains must be addressed separately: what happens if the Rule – and the exclusion that it permits – is justified by recourse to the Constitution itself? Let us therefore move to the constitutional arguments.

C. Article 25(1) as the Foundation of the Petitioners’ Case

The Intervenors have argued that they have an Article 25(1) right to enter the Sabarimala Temple for the purposes of worship, since it is part of their constitutionally protected “practice” of religion. While in most cases, a Court would not contradict this claim, as long as it is genuinely and sincerely held, the Indian position – as we have seen earlier – is rather different when it comes to judicial intervention into questions of faith. The position is somewhat complicated by precedent: in Ismail Faruqui, the Supreme Court held that “the right to worship is not at any and every place, so long as it can be practised effectively.” However, the Court followed this up by noting “…unless the right to worship at a particular place is itself an integral part of that right.” The distinction between mosques and temples is relevant here: in monotheistic Islam, an individual mosque may not have specific religious significance – while in Hinduism, individual temples dedicated to specific deities are not substitutable in the same sense. For this reason, despite Ismail Faruqui, the right to worship at a “particular place” could well be “an integral part of… [the] right [to worship]” simpliciter in the present circumstances, especially since the Sabarimala Temple is dedicated to a specific deity.

Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only enforceable against the State. It stipulates that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Consequently, individual interference with this right (through the temple authorities), or interference by the Davaswom Board, would appear to be actionable under Article 25(1), without getting into knotty questions of maintainability under Article 12. At any rate, it is now well-established that the State’s obligations under Part III are not merely negative obligations of non-interference, but extend to guaranteeing effective exercise of fundamental rights. Consequently, at the very least, if the Petitioners’ claims under Article 25(1) stand, they can call upon State aid to enforce their right of access.

D. Article 26(b) as the Counterpoint to Article 25(1)

Article 26(b) guarantees the right of every religious denomination “to manage its own affairs in matters of religion.” This appears to be the foundation of the Respondents’ case. It is therefore worthwhile to focus upon it a little closely. To fall within Article 26(b), three conditions must be satisfied: (i) since Article 26(b) is subject to “public order, morality, or health“, that preambular clause must not be attracted; (ii) the claimant must be a “denomination”; (iii) the claim must pertain to “matters of religion“. With respect to (iii), Petitioners are not disputing that the issue of temple entry is a matter of religion (indeed, having themselves claimed a right to entry under Article 25(1), it is difficult to see how they could get out of that). To the best of my understanding, they are also not claiming that the Temple is a denominational temple – although the Supreme Court has, in the past, laid down fairly rigorous tests in determining what constitutes a “religious denomination” for the purposes of Article 26(b). Perhaps this is a question that will be raised by the amici, or one that the Court will examine independently.

Intervenors are arguing, however, that the operation of Article 26(b) is barred by the “morality” clause. In particular, they are arguing that the word “morality” is to be taken to mean “constitutional morality” – and since “gender justice” is an integral part of constitutional morality, denominational practices that go against gender justice are not protected by Article 26(b). The bar on menstruating-age women, whether one spins it as being based on the perceived uncleanliness of menstruation, or on the “celibacy” of the deity, amounts to gross gender stereotyping, and therefore violates constitutional morality.

I am sympathetic to the idea of constitutional morality, and have tried to fashion arguments based on constitutional morality myself, in the past. However, I see at least two problems with this argument, as it stands. The first is that insofar as Intervenors are relying upon Articles 14 and 15(1) to establish gender justice as being part of constitutional morality, both these Articles are expressly directed against the State. Therefore, even if one was to accept that “morality” refers to “constitutional morality”, the most that the Constitutional text seems to indicate is constitutional morality requires the State not to discriminate on the basis of gender. In fact, a closer reading of the constitutional text seems to militate against the Intervenors’ argument. Article 15(2), which is horizontally applicable, is limited to securing non-discriminatory access to “shops, public restaurants, hotels, and places of public entertainment.” Conspicuously, religious institutions are excluded. In fact, Article 25(2)(b), which deals with the throwing open of Hindu religious institutions to all sections of Hindus, is framed as permitting – but not obligating – the State to make laws for temple entry. This would seem to indicate that constitutional morality does not mandate gender equality in with respect to access to religious institutions.

Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision strongly supports the rights of groups to cultural autonomy. Apart from Article 26(b), Article 29 guarantees the rights of minorities to preserving their language, script and culture. Now, on what basis does one argue – purely from the constitutional text – that the right to equality or gender justice necessarily overrides the principle of cultural autonomy? On which side does constitutional morality weigh heavier? I am not arguing that the Petitioners are incorrect – only that the constitutional text underdetermines the question as far as constitutional morality is concerned.

My own argument – which I’ve recently made in an article – is slightly different. The Constitution, I’ve tried to argue, is committed to an “anti-exclusion principle”: it prohibits both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. It seems to me that access to a temple is central to equal moral membership in the cultural community, especially in a country like ours, where private and public life is suffused with religion to such an extent. The denial of entry to women on grounds such as menstruation, or breaking the deity’s celibacy, is a classic example of gender-stereotyping, which would be uncontroversially unconstitutional if done by the State. Given the place of the temple at the heart of community life, I would submit that it is similarly unconstitutional in the present situation.

E. The Temple as “Public Space”

The Bench appears to have framed the issue as a question of whether religious custom can override the right to gender equality in the context of a public temple. With respect, I do not think this is entirely correct. As argued above, the right to equality is not directly relevant in the present case, since Articles 14 and 15(1) make it clear that it is only enforceable against the State. The “publicness” of the temple is another matter altogether: I would argue that if the Court is to hold that the Sabarimala Temple is a “public temple”, then it no longer remains a “denominational” religious institution, and loses the protection of Article 26(b) without the necessity of going into the morality clause. In such a situation, the question becomes straightforward: the petitioners have a right to enter the temple under Article 25(1), and the Devaswom Board has no corresponding right to deny them entry under Article 26(b). Without the umbrella protection of 26(b), for the reasons adduced at the beginning of this post, Rule 4 is either ultra vires, or unconstitutional.

(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the issue as precisely being one of a right to access public spaces on an equal basis. “The issue is not entry, but equality“, he famously said).

(For another take on the issue, see Alok Prasanna’s article on FirstPost)

 

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Individual, Community, and State: Mapping the terrain of religious freedom under the Indian Constitution

     The Indian Constitution’s religious freedom clauses (Articles 25 and 26) constitute an extremely complex web of relationships between individual, community and State. To navigate this web, the Courts have developed two broad doctrinal tools: a distinction between the religious and the secular, and the “essential religious practices” test. To achieve clarity on what is certainly a very confused aspect of Indian constitutional jurisprudence, it is important to map out the factual background within which these tools have been employed, the methodology used by the Court, and the manner in which the conclusion has been reached.

A look at the text of Articles 25 and 26 reveals that in order to effectively interpret what the Constitution requires, the Courts are required to – at least to some extent – ask and answer substantive questions about religion. Let us take a close look at the text:

Article 25(1) guarantees the right to freedom of conscience, and the freedom to profess, practice and propagate religion. This right is made subject to a prefatory sub-clause, in the interests of “public order, morality, and health.” Article 25(1) is similar to the religious freedom clauses in other liberal commonwealth jurisdictions, and standing by itself, would present no unique interpretive difficulties. However, Article 25(2)(a) allows the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.” In some ways, the relationship between Article 25(1) and 25(2)(a) mirrors the relationship between Articles 26(b) and 26(d), which deal with the rights of religious denominations. Article 26(b) guarantees the right of religious denominations to manage their own affairs in matters of religion, and Article 26(d) allows the denomination to administer property in accordance with law (i.e., subordinating the right to manage property to State-made law).

What this scheme reveals is that the Constitution itself draws a distinction between the religious and the secular. Article 25(2)(a) provides three illustrations of the secular – the economic, the financial, and the political. 26(d) does something similar with the administration of property. Now if you think of situations where there is a dispute between the State and religious practitioners over whether a particular practice is, say, “political” or “religious”, the Constitutional text itself provides no further guidance on the issue. It is therefore clear that, ultimately, this is a question that the Courts must decide, and consequently, to an extent, the Courts will have to answer questions about whether something is religious or not.

Article 25(2)(b) further allows the State to make laws “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.” There are at least four questions thrown up by the text. First – to what extent can the Court sit in judgment over whether a particular law is for “social welfare or reform”? Second – does such a law completely override religious freedom? Thirdly – what happens when a particular sect claims that it is not “Hindu”, and therefore not subject to the second part of Article 25(2)(b)? And fourthly – what happens when a Hindu temple claims that it is not of a “public character”? It is clear that the last two questions, at least, will require the Court to ask questions pertaining to the nature and character of religion.

With all these questions in mind, let’s consider the following Table, that attempts to map the manner of judicial intervention into religious questions:

Download Table

On a close reading of the cases in the Table, the following aspects stand out.

  1. The Supreme Court’s religious freedom cases can be broadly divided into two types: cases involving State intervention into the management of temples, durgahs, maths, gurudwaras, which primarily include administration of estate, and appointment of officials; and cases involving the relationship between the members of religious communities, or practices of those members (beef eating, bigamy, excommunication, tandava dancing). Of course, the line might be blurred sometimes (Seshammal and Adithyan are examples).
  1. In the first decade of the Supreme Court’s jurisprudence, the religious/secular distinction was evolved to deal with the first type of case, and the essential religious practices test was invented to deal with the second type. As argued above, there is some justification for the Court dealing with the religious/secular question on the basis of the constitutional text itself (although one might disagree with how the Court has drawn the line), and the nature of the claims before it. However, the essential religious practices test was invented out of whole cloth. In fact, in each of the cases that used it – Narasu Appa Mali, Ram Prasad Seth, and Qureshi – there were alternative means, rooted in the constitutional text, available. In fact, in the first two cases, the Court expressly upheld the law on the basis of Article 25(2)(b) as well as holding that it was not an “essential religious practice.” In the third, the Court’s own reasoning would have allowed it to reach the same conclusion on the basis of the “health” restriction under Article 25(1).
  1. In Swamiar, the Supreme Court held that what practices are deemed religious will be decided on the basis of what the religion itself claims. This, very clearly, is an unworkable proposition. If the entire scheme of Article 25 and 26 is to draw a line between the religious and the secular, then the determination of what constitutes religion cannot, under the risk of vicious circularity, be left to the religion itself. This is evident from the fact that the Court, while paying lip service to the proposition throughout its history, has never seriously applied it. In Ratilal, for instant, the Jains argued that the whole point of temple property was its use for religious purposes. The Court simply dismissed the argument by asserting that management of property was incidental to religion, without substantiating the same. In Sardar Sarup Singh, the Court made a half-hearted attempt, stating in one line that no text had been produced to show that direct elections to the management committee were part of the Sikh religion. However, even in that case, the Court dodged the main issue by reframing it: it had been argued that the Management Committee performed religious functions. The Court expressed no opinion on that contention, but stated that the impugned provision was only about elections to the committee, and therefore, what the committee actually did (once elected) was irrelevant. This reasoning is unconvincing. Throughout its history, the Court has consistently failed to provide a set of principles to distinguish the religious from the secular. Instead, it seems to have decided the cases on a priori definitions that change with every judgment.
  1. In the 1960s, Gajendragadkar CJI substantially muddied the waters by invoking both tests together. In Durgah, which classically fell into the first category (management of estate), he conflated the two tests, and then further added another, holding that practices born out of mere “superstition” could not be considered religious (this proposition was disagreed with in Seshammal). Then, in Govindlalji – another estate management case – he first invoked the essential religious practices test, but applied it to draw a distinction between the religious and the secular. While in Seshammal the Court stuck to the religious/secular distinction, the confusion returned in Adithyan, and continues to this day.
  1. In determining what constitutes an “essential religious practice”, the Court has failed to lay down a set of consistent principles. It has often referred to Swamiar (again, a case in a different context), but has not applied it. In some cases, it has referred to texts such as the Quran, in others it has referred to judgments of the Privy Council, in still others it has looked at how old the practice is. Again, while paying lip service to Swamiar’s proposition that the religion itself should be allowed to determine what is religious, the Court has, effectively, arrogated to itself that power, relied upon sources of dubious authority, has never explained why it has chosen the sources that it has and ignored others – and most importantly – has elevated the essential religious practices test to the first, and often last, enquiry that it conducts.
  1. Each of the cases that the Court decided on ERP grounds could have been decided on the basis of the constitutional text. We have discussed the three cases in the 50s; furthermore, in Saifuddin, Faruqui and Avadhuta, ERP was an entirely extraneous consideration. In fact, it is unclear what role, as an analytical matter, the essential religious practices test plays in the first place. It would be one thing if Justice Ayyangar’s concurring opinion in Saifuddin was law. In that case, proving ERP would insulate a religious practice even from Article 25(2)(b). However, that is not law. What the essential religious practice achieves is that it spares the Court from actually upholding a law on the basis of Article 25(2)(b), or the prefatory sub-clause of 25(1). Instead, it allows the Court to hold that religion, the Constitution, and the State are not in conflict, because the practice sought to be regulated isn’t “integral” or “essential” to the religion at all, and so outside the scope of constitutional protection. This might be a convenient doctrine politically (and scholars have made that argument), but it is entirely contrary to what the Constitution prescribes.
  1. In sum, therefore, while Articles 25 and 26 are unhappily worded, the Court’s messy jurisprudence is entirely of its own making.
    1. The essential religious practices test is an entirely arbitrary doctrine that has been grafted onto the constitutional text, in effect to make 25(2)(b) and the first part of 25(1) as redundant as possible.
    2. The Court has regularly mixed up doctrines originally evolved in two very different contexts. The question of the extent to which the State can intervene into the management of religious institutions is very different from the extent to which it can intervene into intra-community relationships and individual practices – the Constitutional text itself treats the two very differently. This has led to absurd results, such as Avadhuta II.
    3. The Court has failed to develop a coherent jurisprudence on the two basic tests that it has used: what principles are to be applied to distinguish between the religious and the secular? And what is the methodology and sources to determine whether something constitutes an “essential religious practice”?
    4. At the same time, the present confusion is easy enough to resolve. It can be resolved by getting rid of the ERP test, replacing it with a deferential – but watchful – application of Article 25(2)(b) and 25(1), using the illustrations provided in 25(2)(a) and 26(d) to draw the distinction between the religious and the secular when it comes to the first category of cases, and applying a civil-rights based standard (as evolved in Justice Sinha’s dissenting opinion in Saifuddin, discussed earlier on this blog) in the second category of cases.

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Monday: An Important Case on Religious Freedom before the Supreme Court

On Monday, the 11th of January, a Constitution Bench of the Supreme Court will begin hearing the case of Central Board of the Dawoodi Bohra Committee v State of Maharashtra. This is a case that could potentially have important ramifications for religious freedom under the Constitution, and the interpretation of Articles 25 and 26. In this post, I will attempt to provide a short primer to the background of the case, and the events leading up to Monday’s hearing.

The genesis of Monday’s hearing lies in a Constitution Bench order passed in December 2004 (eleven years ago!), directing the setting up of another Constitution Bench to consider the correctness of the Supreme Court’s 1962 decision in Sardar Syedna Taher Saifuddin v State of BombayIn that case (yet another) Constitution Bench of the Supreme Court had struck down the Bombay Prevention of Excommunication Act of 1949, on the ground that it violated Articles 25 and 26 of the Constitution. Twenty-five years after the decision in Sardar Syedna [hereafter “the Dawoodi Bohra Case”], in 1986, a writ petition was filed asking the Court to review and overrule its decision. Eight years after the filing, in 1994, a two-judge bench directed the matter to be heard by a seven-judge bench. A seven judge bench was constituted that same year, but it adjourned the case. There was some controversy over whether the matter could be referred directly to a seven-judge bench. In its 2004 order, the Supreme Court observed that only a bench of ‘equal strength’ could question the correctness of a prior judgment; consequently, it was not open to a bench of two judges to directly refer the matter to a seven-judge bench. After a length discussion on the need for judicial propriety and discipline, the Court held that the matter be placed before a five-judge bench. Only if that bench doubted the correctness of the Dawoodi Bohra Case, could there be a further referral to seven judges, to finally hear and decide the issue.

The key question on Monday, therefore, will be whether the Petitioners can convince the Constitution Bench that there exists sufficient reason to doubt the Dawoodi Bohra decision, and to refer the matter to seven judges. To understand the stakes, therefore, we need to closely examine the Dawoodi Bohra decision.

The Dawoodi Bohra Case: Issues

The Dawoodi Bohra Case involved a challenge to the constitutionality of the Bombay Prevention of Excommunication Act of 1949. The preamble to the Act stated that its objective was to put a stop to the practice of excommunication, that was prevailing in certain communities, since its effect was to deprive members of their ‘legitimate rights and privileges.‘ To this effect, Section 2 of the Act defined excommunication as ‘the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature…’, despite the fact that the determination of such right/privilege might also involve the Court having to rule on questions pertaining to purely religious rites or practices. Section 3 of the Act invalidated any excommunication, and provided for penal sanctions for the same.

The Petitioner was the “dai”, or head priest of the Dawoodi Bohra community, an offshoot of Shia Islam. As the Court noted, “as Dai-ul-Mutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastical powers as religious leader of the community.” The Petitioner further argued that one of his powers, as Dai, was the power of excommunicating recalcitrant members from the community, the result of which was ‘exclusion from the exercise of religious rights in places under the trusteeship of the Dai-ul-Mustlaq.’ By taking away this power, the Bombay Act violated the Petitioner’s right to religious freedom under Article 25 of the Constitution, as well as the Article 26(b) rights of the Dawoodi Bohra community, as a religious denomination, to regulate its own religious affairs and preserve the community by enforcing discipline.

On the other side, apart from questioning whether the Dai had any such power of excommunication, the State also observed that the Petitioner’s rights “do not include the right to excommunicate any person and to deprive him of his civil rights and privileges… [further] it was denied that the right to excommunicate was an essential part of the religion of the community… [and] that, alternatively, assuming that it was part of a religious practice, it runs counter to public order, morality and health.

At its core, therefore, the Dawoodi Bohra Case was about the limits of State intervention into the affairs of a religious community – intervention that, it must be noted, was aimed at recalibrating the balance of power between its members in a more equitable direction. Apart from raising important questions of constitutional law, the case also presents a fascinating philosophical problem: to what extent can a liberal democracy, which respects the rights of cultural communities to exist and propagate, impose democratic or liberal norms upon a community’s internal functioning?

The Majority Opinion

By a 4-1 majority, the Supreme Court struck down the Act. Das Gupta J. wrote the opinion for himself, and two of his brother judges. Referring to a previous decision of the privy council, he commenced by noting that it was now a settled legal position that the Dai did have powers of excommunication. He then observed that, on a survey of precedent, there were two clear principles underlying the interpretation of Articles 25 and 26:

“The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.” 

Das Gupta J. then examined the place of excommunication in several religious systems, quoting Professor Hazeltine’s opinion that the purpose of excommunication is “maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity.” Accordingly, he observed that “excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, “of its own affairs in matters of religion.” Consequently, Article 26(b) was violated by the Act. That the effect of excommunication was to deprive a person of his civil rights was, according to the Court, irrelevant, since Article 26(b) did not carve out an exception for civil rights.

The next question was whether, despite violating Article 26(b), the Act could still be saved by Article 25(2), which allowed the State, inter alia, to make laws for social welfare and reform. Without providing any further reasons, however, the Court simply noted that “the mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss, does not offer sufficient basis for a conclusion that it is a law “providing for social welfare and reform.” Consequently, the Court held that the law violated Article 26(b), was not saved by Article 25(2), and was accordingly unconstitutional.

Concurring Opinion of Justice Ayyangar

In his concurring opinion, Justice Ayyangar observed that the purpose of excommunication was to ensure the preservation of  “the identity of a religious denomination… [which] consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community.” He then noted that “the right to such continued existence involves the right to maintain discipline by taking suitable action inter alia of excommunicating those who deny the fundamental bases of the religion.” Consequently, it was clear that excommunication was a question of religion, and even if the aim of the Bombay Act was to protect civil rights, by outlawing excommunication altogether, it was interfering with the community’s Article 26(b) right to religion.

On the question of Article 25(2), Justice Ayyangar held that laws for social reform were saved only insofar as they did not “invade the basic and essential practices of religion”, because “by the phrase “laws providing for social welfare and reform” it was not intended to enable the legislature to “reform”, a religion out of existence or identity.” And since “faith in [the Dai’s] spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit”, the power of excommunication was clearly an integral part of the religion. Consequently, the Act could not be saved by Article 25(2).

Running through both opinions are the following strains of thought: first, excommunication is essential to maintaining the ‘identity’ or ‘purity’ of religion, by purging it of dissidents – and consequently, it is a matter of religion protected by Article 26(b); secondly, the fact that excommunication deprives an individual of core civil rights is legally irrelevant; and thirdly, the law is not saved by virtue of providing for social reform, because that is not its scope (Majority), and even it it is, the State is not permitted to ‘reform a religion out of existence’ (Ayyangar J.).

Dissenting Opinion of Justice Sinha:

Justice Sinha dissented. He located the Act within a long history of social welfare legislation, noting that its aim was to give “full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others. The legislature had to take the logical final step of creating a new offence by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct.”

After considering precedent on the point, Justice Sinha then framed the question thus: Article 26 guaranteed religious denominations the right to manage their own affairs in matters of religion. However, “activities associated with religious practices may have many ramifications and varieties-economic, financial, political and other-as recognised by Art. 25(2)(a). ” These covered a much wider field than that covered by Article 25(1) or 26(b). Therefore, the Court had to “draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.” Only the former would be protected by Article 26(b). Now, in the case of excommunication, as Justice Sinha observed, the “expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.” Consequently, it was clear that excommunication belonged to the category of acts that might “tough the religious institution“, but were not essentially religious.

Justice Sinha ended his dissent on a rousing note. Comparing the effects of excommunication with that of untouchability, he concluded that:

“The Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by Art. 25 (1) of the Constitution, and not in derogation of it.”

Why the Constitution Bench Ought to Refer the Question to Seven Judges

It is my submission that the Majority opinion in the Dawoodi Bohra Case is incorrect, and Justice Sinha’s dissent is well-reasoned and persuasive. I will not attempt to make a complete argument for overruling at this point, since that is not the question before the Court on Monday. At the very least, however, there is enough reason for the Court to doubt the correctness of the Majority, and refer the question for full argument on merits. This is because:

A. The Majority provides no reason to hold that the Act is not saved by virtue of being a measure of social reform. By contrast, in his dissenting opinion, Justice Sinha places the Act in the tradition of laws outlawing Sati, removing caste disabilities, allowing widow remarriage, and so on. Since the Majority has no answer on point, at least this question deserves a full (re)hearing.

B. Justice Sinha’s argument about the link between civil rights and religion is powerful, and truer to the Constitutional scheme and intent than that of the majority. Previously on this blog, I have had occasion to attack the “essential religious practices test” that has insidiously wormed its way into the Court’s Article 25-26 jurisprudence. Providing blanket protection to “essential religious practices”, as Justice Ayyangar does in his Concurrence, rests upon a misreading of a statement made by Ambedkar in the Constituent Assembly Debates. On 2nd Decmber 1948, Ambedkar had said:

The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ambedkar’s central concern, therefore, was to ensure that in a country like India, where the influence of religion was far more pervasive than in the West, the State’s power to pass reformative legislation should not be hamstrung by giving religion an expansive interpretation. Consequently, he distinguished between questions that are “essentially religious”, and questions that are connected with religion, but deal with other aspects of a person’s life. By a judicial sleight of hand, the distinction has now been converted into one between “essential religious practices” and inessential ones, instead of practices that are “essentially religious”, and those which are incidentally so. And indeed, Ambedkar’s examples of tenancy and succession seem to speak directly to Justice Sinha’s reasoning that, insofar, an ostensible religious act ends up curtailing an individual’s civil rights, it loses constitutional protection.

C. Justice Sinha’s dissent is more in tune with the Indian constitutional secularism. In a detailed study of the Court’s religious freedom jurisprudence, Gary Jacobsohn has argued that it is best characterised as (in his words) “ameliorative secularism”. Ameliorative secularism – as opposed to the “wall of separation” view in the United States – is embodied by an approach to religion that allows the State (or the Court, as the case may be) to intervene in religious practices with the goal of ensuring individual autonomy and freedom. There is a deeper argument of liberal philosophy here: Liberalism is based on the priority of individual freedom; however, it is well understood by now that for human beings, individual freedom and self-fulfilment are often dependent upon participation in, and identification with, affiliative groups (including religious groups). The reason why a liberal Constitution also provides for group rights, therefore, is not because groups are valuable in themselves, but because they are central to a complete and fulfilling life. Consequently, insofar as groups fail to provide the basic conditions of individual autonomy (for instance, by wilfully suppressing women, or by forcing people to conform to the dominant ideology on pain of excommunication), to that extent, the State can intervene through reformatory measures. This idea of ‘ameliorative secularism’ is present in a number of Supreme Court judgments, and most vividly in Gajendragadkar CJI’s opinion in Sastri Yagnapurushadji.

D. Justice Sinha’s dissenting opinion is more in line with the transformative spirit of the Constitution, that recognises that horizontal asymmetries of power are as dangerous and pernicious towards individual freedom as State oppression. Indian civil rights movements leading up to the framing of the Constitution were focused equally on freedom from alien political dominance, as well as freedom from oppressive private power. This is reflected in Ambedkar’s Mahar satyagrahas for temple entry and for the right to draw water from the community well. The Indian Constitution as well, through a number of provisions, recognises this (Articles 15(2), 17, 23 and 25(2)(b), to name four).

I hope to be able to develop these arguments more fully, either as a critique of the Court’s decision, should it choose against referral, or as reasons why a potential seven judge bench should overrule the Dawoodi Bohra Case.

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Guest Post: Religious Freedom and Archaka Appointments in the Supreme Court’s Recent Decision

(In this guest post, Suhrith Parthasarathy, a Madras-based lawyer, discusses the recent Supreme Court decision on Archakas and Agamas)

Previously, in a three-part essay published on this blog, I had previewed a case concerning the appointment of archakas (priests) to Tamil Nadu’s temples which brought to light seemingly significant conflicts between the rights of certain denominations to a freedom of religion and conscience and the state’s duty in bringing forth reform and welfare to society. Last week, a two-judge bench of the Supreme Court of India, in Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another, delivered a final verdict in this case. Unfortunately, the judgment, authored by Justice Ranjan Gogoi, not only lacks clarity, but also fails to address the key constitutional questions at the root of the dispute.

 Conventionally, as a matter of custom, archakas were consecrated by virtue of rights flowing through what are known as the Agamas, which are a collection of scriptures governing the conduct of a Hindu temple’s religious affairs. The Agamas include within their numerous diktats specific criteria for eligibility to the post of an archaka. One such criterion was explicated by the Supreme Court, as an example, in Seshammal v. State of Tamil Nadu [ERJ Swami v. The State of Tamil Nadu], AIR 1972 SC 1586. The statement is worth quoting in full:

 

“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 Garbha 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.”

 

From time immemorial, the Agamas have represented a personal law relating, among other things, to the appointment of archakas to Hindu temples. However, through its constant usage and application a convention appeared to have developed by which appointments of archakas were made only on the basis of hereditary succession, usually from within a small denomination of Brahmins. This practice of making hereditary appointments, while not a part of the personal law as contained in the Agamas, came to form a custom, of sorts, and was accorded further legitimacy by Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, a legislation that was enacted to specifically enable a complete takeover of Hindu temples by the State. The section reads: “(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, the Tamil Nadu government amended Section 55. It now read as follows: “(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.” 

Soon after the provision was modified, a group of hereditarily appointed Archakas challenged the amendment, in Seshammal, arguing that their rights under Articles 25 and 26 stood infracted. A five-judge constitutional bench, speaking through Justice D.G. Palekar’s opinion, dismissed these petitions, but nonetheless provided an additional imprimatur to the supposed sacrosanctity of the Agamas. The power to make appointments of archakas, the court held, was a secular function—the archaka, the judgment said, was “a servant of the temple…As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the Principal Act [Tamil Nadu Hindu Religious and Charitable Endowments Act] which provides all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite there from shall, whether the office or service is hereditary or not be controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders neglect of duty, misconduct or other sufficient cause. That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority.” Nonetheless, while the state is exercising a secular power in making appointments, the court found that the the criteria prescribed under the Agamas was essential to the practice of the religion, and was therefore inviolable. “In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples,” wrote Justice Palekar. “Failure to do so would not only be contrary to Section 28(1) [of the Tamil Nadu Hindu Religious and Charitable Endowments Act] but would also interfere with a religious practice the inevitable result of which would be to defile the image.” However, according to the court, while making appointments from a specified denomination, sect or group in accordance with the Agamas, the state was not bound to follow a principle of hereditary succession, and therefore the amendment was found valid.

In so holding, the Supreme Court effectively foiled the Tamil Nadu government’s intention to appoint archakas from denominations beyond those purportedly prescribed under the Agamas. After decades of accepting the status quo, in 2006, the government sought to adopt a more direct approach—it introduced an executive order stating, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples.” The ostensible objective of this order was to allow the state to appoint archakas, by prescribing a new set of criteria, which would not necessarily be in consonance with the Agamas. The order was followed by an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to temples administered by the government of Tamil Nadu. This ordinance however subsequently lapsed, leaving the executive order alone as the subject matter of challenge before the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam.

The petitioners in Adi Saiva Sivachariyargal Nala Sangam argued that the Supreme Court was bound by the decision of the 5-judge bench in Seshammal. According to them, any deviation from the Agamas in appointing archakas, would infract their rights under Articles 25 and 26. While the power to appoint priests was a secular function, the qualifications prescribed under the Agamas, they argued, were essential to the practice of their religion, and were therefore inviolable. Countering, the State sought to rely on another decision of the Supreme Court, N. Adithayan v. The Travancore Devaswom Board, AIR 2002 SC 3538. Here, a two-judge bench had upheld the appointment of a person from outside the Malayala Brahmin community as priest of a Siva temple in Kerala. The State further contended that the Petitioners’ rights under Article 25 were not violated by the executive order, as it was a measure intended at bringing forth social reform and welfare—a feature, which the Constitution specifically protects.

The Supreme Court however, took a curious approach to determining the issue. The bench found (correctly) that the decision in N. Adithayan was inapplicable to the present contest, as it was a judgment rendered on very specific facts, where a petitioner had been unable to prove that an appointment of a priest from a community outside of his own was in violation of any established religious practice, protected under Article 25. The court similarly found (more questionably though) that its decision in Seshammal was also of only limited relevance to the present dispute. “Seshammal is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas,” Justice Gogoi wrote. “Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong as prescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the Poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies.”

Having found that neither of these judgments was particularly helpful to it in resolving the dispute, the court arrived at an unusual conclusion. Wrote Justice Gogoi:

 “…It will be necessary to re-emphasise what has been already stated with regard to the purport and effect of Article 16(5) of the Constitution,* namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23.05.2006 by its blanket fiat to the effect that, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential of falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed.”

 

[*Note: Clauses 1 and 2 of Article 16 provide that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and that no no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. Article 16(5) however carves out an exception for laws relating to appointments by the State to religious or denominational institutions where a person professing a particular religion or belonging to a particular denomination may be accorded special preference.]

Any law, whether legislative or otherwise, can either be valid or invalid. It’s difficult to understand how the constitutionality of an executive order can differ based on the facts and circumstances of an appointment made under such a law. The issue really ought to have been simple enough for the Supreme Court from a purely constitutional perspective. That the Agamas and its diktats represent an essential religious practice is now trite. After all, the court, in a five-judge bench decision in Seshammal, has already held thus. The only question that was to be answered therefore was whether the governmental order, which sought to deviate from the Agamas, was protected by any one of the exceptions carved into Article 25, specifically whether it was necessary in the interest of social welfare and reform. Unfortunately, the bench in Adi Saiva Sivachariyargal Nala Sangam makes no attempt to answer such questions. Instead, it ends with a rather flawed proposition—that the government order ought to be tested on the touchstone of Article 14, each time an appointment of an archaka is made.

The effective result of the judgment is therefore this: that the executive order is simply extraneous to any appointment of an archaka. Any selection made in the future would have to be in consonance with the Agamas. However, in cases of appointments, where caste, birth or any other constitutionally unacceptable parameter, to use the court’s words, are invoked as criteria, such a choice would be open to challenge under Article 14. This is a quite remarkable conclusion. There is no finding in the judgment on whether the criteria fixed in the Agamas constitute “law” within the meaning of Article 13(3) (it’s apposite to remember here that the court in Seshammal only found that the power of appointing priests to be a secular function; the qualifications for such a post, prescribed as they are under the Agamas, were considered essential to the practice of religion). If the Agamas fall within what are generally regarded as “personal laws,” they would fall outside the scope of the definition prescribed in Article 13(3), and they would therefore not be amenable to a challenge under Article 14. Interestingly, in July this year, in Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461, the Supreme Court had found that religious scriptures are in the nature of personal law and their validity is ordinarily protected by Articles 25 and 26. The Supreme Court’s almost hypothetical conclusion that an appointment made under the Agamas would infract Article 14 if the appointment partakes a consideration based on caste is therefore doctrinally unsustainable. Were such a position to be accepted, it may well be tantamount to reforming a religion out of existence, to use Justice N. Rajagopala Ayyangar’s aphorism in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, for no classification made in a religious scripture is likely to meet the scruples of Article 14.

Ultimately the Supreme Court’s decisions on matters such as these turn on political considerations. In Adi Saiva Sivachariyargal Nala Sangam, the court was clearly handicapped by the decision of its larger bench in Seshammal; what’s more, while Article 25 permits the State to bring forth a law in the interest of social reform and welfare, such a law would necessarily have to be introduced by way of legislation. Unless a larger bench overrules Seshammal, the Agamas cannot be considered as anything but an essential religious practice. And it must logically follow therefrom that the thwarting of appointments of archakas under the Agamas can only be made by way of legislation, and only in the interest of social reform and welfare. Hence, purely on constitutional grounds, the Supreme Court, in my submission, has erred in failing to strike down the Tamil Nadu government’s executive order. Additionally, the court has left us with a further conundrum. Now, every time an appointment of an archaka is made, the selection is likely to be challenged. Each of those challenges will likely entail an analysis of the Agamas, an exercise that the courts are certainly not competent to perform. Reformation of religion is an important function of the state, especially in a country such as ours, where social iniquities abound. But, regardless of how we might feel intuitively about a reformatory measure of the State, the question of how far a constitutional court must go in furthering this movement continues to perplex.

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