Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]


The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

  1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Sabarimala Judgment – I: An Overview

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.  

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.

Guest Post: Notes from a Foreign Field – The US Supreme Court’s Masterpiece Cakeshop Case: A Skipped Opportunity

(This is a guest post by Aakanksha Saxena.)

The jurisdiction of the United States Supreme Court [“SCOTUS”] is, unlike the Indian Supreme Court, extremely narrow. The Court grants certiorari in fewer than a hundred cases each term, giving nod to the several steps of constitutional adjudication that matters go through before reaching the Court. But in the area of same-sex couples and their legal rights, the Apex Court jurisprudence has been pioneering. The Supreme Court has been the first of the three federal wings of constitutional government to legalise consenting sexual intercourse, and a few years later, marriage, between two adults of the same gender. As a result, the case of a baker refusing to bake a wedding cake for a same-sex couple’s wedding gathered steam and appeared to set the stage for a further step in the direction of recognition of the rights of homosexual individuals and couples. Through this post, I shall attempt to unravel the judgement that SCOTUS finally rendered, addressing not the issue of homosexual rights under public anti-discrimination legislation, not the right to free exercise of religion – addressing really nothing at all.

Pared down, the facts of the case are this: a gay couple visited a renowned, “designer” bakery in Colorado [at a time when gay marriage was still unrecognised in the state] with the intention of procuring a unique and momentous cake for their upcoming nuptials. The owner of the bakery refused to design them a wedding cake, citing his faith as ground for refusing to make a statement in support of gay marriage; he directed the couple to other products he had ready for sale in his shop. The couple sought legal redress under the Colorado Anti-Discrimination Act [hereinafter, “CADA”], which prohibited inter alia sexual orientation-based discrimination in public places and were successful before the State authorities. The relevant provision that the bakers relied on is as under:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of … sexual orientation … the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation…

The case’s trajectory through the State judiciary gave it traction, and by the time it reached its ultimate pitstop, it was being touted as the most significant matter SCOTUS would hear this past term. Fittingly, a reading of the transcript of the SCOTUS oral arguments [duly sensationally reported in polarised media sources] reveals the Bench and the attorneys raising and debating several different aspects of the case, as well as jurisprudence on compelled speech. Several members of the Bench seemed to be performing a confused choreography around the issues, in order to appropriately articulate the questions they would approach.

 

At the Apex Court, from the exchange between the Justices, the attorney for the Petitioner-baker Jack Phillips, and the Solicitor General for the United States Department of Justice in support of the baker, there emerged three broad axes that the case seemed to turn upon several inter-linked questions: what comprises speech, and to that end, how much does it depend on who creates it? How would the case be different if the marriage being objected to was interracial, interreligious, or something else the baker found objectionable – or more simply, who can be refused service, and on what grounds? Lastly, does the nature of the message matter while refusing service?

Tying up these aspects with the First Amendment brought the conflict in the case down to the rights of the baker to free exercise of his religious beliefs and expression, which consequently protected him from being compelled to make speech, versus the rights of the gay couple Charlie Craig and David Mullins to service under public accommodation law, as recognised through years of evolution of hard-fought cases, which cases have now established jurisprudence and state legislations recognising the rights of same-sex couples to be wedded.

When the judgement was delivered, it contained a surprising, not-so-slim 7:2 verdict in favour of the Petitioner baker. Both prongs of the judgment were a surprise, considering SCOTUS follows a 5:4 voting trend on rights-based issues stemming from social equality [as I shall elaborate further shortly]; even more surprise arose from the Court’s decision to side with the baker and rule that his refusal to serve a homosexual couple was well within his constitutional rights. Peeling away the layers of the transcript and the five different opinions in the judgement, the surprise fades away and transmutes into confusion. Where is the decision on whether a cake, or other forms of artistic expression constitute speech [which issue was raised as a constitutional claim by the baker right up to his Supreme Court briefs]? Has this judgment helped furthering the legal cause of same-sex couples? What is the reason for the silence on how the Hurley case – which held that public anti-discrimination laws regulate conduct and not speech – is to be applied? Does the Court’s ruling in this case govern the baker’s cake i.e. his avowed “speech”, or the act of his refusal to make one? The answer to this last question would necessarily form precedent for further kinds of “speech” that could not be compelled.

Justice Kennedy (the Court’s perceived “swing vote”) writing for the majority (joined by Chief Justice Roberts, and Justices Breyer, Alito, Kagan, and Gorsuch) brought the focus on the standard of neutrality that the Colorado Commission, as the first branch of state adjudication ought to have afforded the Baker in its hearing, but didn’t. He therefore concluded that the Commission violated the Free Exercise Clause of the First Amendment. The opinion takes issue with the comments and questions posed by the Commissioners in their hearing of the case, deciding that the Commissioners brought prejudice and hostility against the Baker’s beliefs to the Bench, such that the Commission failed to meet the standard of neutrality that the State must afford in adjudication. In fact, Justice Kennedy even recognised that the Commissioners’ statements were ambiguous such that they could lend to two very starkly different interpretations – one of which was that “they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” I believe that this view is not only legally innocuous but also factually accurate. The majority has however taken the other view, holding that the Commissioners’ comments “might be seen as inappropriate and dismissive comments” and thus did not afford the Petitioner the due consideration for his free exercise rights.

The Court posed the question of the level and nature of the Commissioners’ bias to the attorney for the State of Colorado who, in his personal capacity, disavowed the statements while maintaining, for legal argument, that the level of bias was not such that permeated the entire judicial process so as to target the baker for his faith. The subordinate courts’ treatment of Phillips’ constitutional claims went unanswered, and the Court instead concluded on threadbare discussion and analysis that the Commission’s conduct in its treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The majority also failed to address Justice Ginsburg in dissent [Sotomayor joining], setting out the different levels of adjudication that the case went through, particularly the de novo review by the Colorado Court of Appeals, which served to negate the alleged “hostility” of one or two Commissioners at one of these levels. Justice Ginsburg also accurately pointed out the majority’s heavy yet misplaced reliance on one SCOTUS precedent on this point, Church of Lukumi Babalu Aye, Inc. v. Hialeah, which concerned governmental prejudice in only one decision-making, legislative body, a distinction that also went untreated by the majority. All opinions skimmed the standard of neutrality that a State or its agencies must afford when regulating or adjudicating, providing no analysis on the requirements that the Commission had to satisfy. Choosing to sidestep the issue of how a state anti-discrimination statute must harmoniously co-exist with First Amendment rights, the majority limited itself to the actual judicial application of the state statute in this case.

The Court also distinguished this treatment from the precedential manner in which the Commission decided what a fractured part of the majority deigned an analogous set of Colorado cases involving another Jack. Mr. William Jack requested three bakeries to bake cakes containing specific messages decrying homosexual persons based on biblical verses. He was refused at all 3, and the Colorado Commission ruled in favour of such refusal. The SCOTUS majority treated this as a buttress to its conclusion that the Commission was especially hostile to Phillips’ religion, and it did not address how the issues of speech and expression, or anti-discrimination were tackled by the Commission in either. Justice Kagan’s concurrence [joined by Justice Breyer] correctly distinguishes the treatment by the Commission in both cases – in refusing William Jack, the bakers treated him just as they would any other paying customer with the same order; in refusing Craig and Mullins, Phillips discriminated against them by refusing to provide what he ordinarily provide [a wedding cake] to other [heterosexual] couples.

This in essence is what the court was supposed to decide, as distilled by Justice Ginsburg – the Baker provided a service to heterosexual couples, that he refused to provide to the homosexual couple in this case, i.e. designing and baking a cake celebrating the wedding of Mullins and Craig; the Bench had to determine whether this refusal was constitutional. It is trite to say that the dissenters chose to uphold the decision of the Colorado Court of Appeals, but they too limited themselves to deciding this on the same basis as the majority, that is, finding that the level of alleged hostility displayed by the Commissioners did not amount to a violation of the Free Exercise clause.

On the merits of the issues raised by all parties in the case, the Justices’ opinions revealed loose threads that certainly ought to raise red flags for LGBTQ and other minority groups’ advocates, and indicate how a future case may be decided. Justice Gorsuch [concurring with the majority and joined by Justice Alito] seemed concerned about where SCOTUS must draw a line – if at all – in identifying which minorities were to be protected and what kinds of messages could be deemed expressive. To that end, perhaps his vote would, on the merits as well, go to the baker. Gorsuch, J., applying the tenets of secularism of state action found that there could be no difference of adjudication between the protection and the treatment to be afforded the avowed “secular” baker who refused to bake homophobic slurs into cakes, and Jack Phillips. Focusing therefore, on the message being “compelled”, rather than the group being protected, this opinion weighed heavier on the side of free religious exercise, as opposed to expansion of homosexual rights. Therefore, in the event a hypothetically 100% neutral commission was faced with the same facts on record, the refusal by the baker to deliver a “compelled” message that he did not agree with on the grounds of First Amendment Free Exercise, would in his eyes be considered constitutional. Gorsuch, J.’s views are cemented by his joining Justice Thomas’ partial concurrence. Justice Thomas took the baker’s case even further, by relying on precedents which had protected anti-gay sentiment under Free Speech claims. In his opinion, he therefore avoided dealing with the impact of the subsequent precedent categorically recognising gay marriage, and which required application in this case. In fact, the application of those precedents becomes unique in the context of Free Exercise which, arguably, is more at loggerheads with gay rights, than the Free Speech clause.

This line of reasoning is also at direct odds with Justice Kagan’s concurrence that sought firmly to distinguish between service providers that refuse to create “offensive” messages versus those that make identity-based refusals. These polar opposing opinions tied themselves to the majority decision only on the issue of the Commission’s treatment being an invalid exercise of State power. The two votes of Justices Kagan and Breyer would otherwise, as was considered foregone prior to the delivery of the opinion, have fallen neatly on the side of the homosexual couple. The conflict between the opinions authored by Justices Kagan and Gorsuch therefore presents the central, critical constitutional question that the Court deftly sidestepped.

Justice Kennedy’s opinion on behalf of the majority carved out the protection for religious exercise, leaving wide open the question of the give-and-take between the Free Exercise clause and a valid exercise of state power in enacting generally applicable anti-discrimination laws. Kennedy, J. highlighted the widespread concern that an exception granted to members of the clergy in choosing whether to perform gay marriage was liable to create a slippery slope fallacy for other kinds of religiously neutral service providers in the context of the wedding industry. Considering that SCOTUS judgements are traditionally devoid of any self-enforcing mechanism, it is reasonable to worry that the nature of this verdict may do even further damage to the tolerance that previous compositions of the Court was trying to propagate.

The State’s responsibility to afford secular treatment of all cases brought to its courts and tribunals is no small feature of United States democracy, and by no means must be blindsided – but was this the case to raise it, and was this the reason to side with Jack Phillips? Is it presumptuous to conclude that the current political climate in USA reined SCOTUS in, such that it chose explicitly to defer the contentious issues that were patently framed throughout the movement of this case through judicial mechanisms? Whatever being the Court’s motives, it remains to be seen what kind of lower court adjudication will ever reach the artificial standard of State neutrality that SCOTUS has banked on here, to enable a more comprehensive, nuanced decision that these exceptional and pressing issues certainly demand.

(The author practices at the High Court of Bombay.)

Guest Post: The Essential Practices Test and Freedom of Religion – Notes on Sabarimala

(This is a guest post by Dr. Tarunabh Khaitan.)

These reflections are inspired by Justice Chandrachud’s musings from the bench expressing doubts about the ‘essential practices test’.

As I argue in this paper, freedom of religion is best understood as the right of an individual, not a group. Its best rationale is to be found in the need to protect our personal autonomy in matters pertaining to religious adherence. It is an important liberal value that ought to be cherished, and not restricted too lightly. While in the instant case, I think the non-discrimination principle probably trumps the religious freedom right, it is important that we recognise this isn’t an easy case and that whichever side wins, something of value will be lost.

These are my reasons for making these claims:

Official Doctrine versus Religious Practice

Sociological data is clear that even people belonging to the same ‘religion’ are religious in different ways. There is a staggering diversity of religious beliefs and practices, such that there are many Hinduisms, many Protestantisms, many Buddhisms and many Islams. Whatever official doctrine may say, sociologists seem to be telling us that most individuals go about adhering to their religions à la carte. Instead of accepting any package on offer as is, they make choices, they pick some aspects and reject others, emphasise this and ignore that, or interpret away inconsistencies. Of course, in many religions, such as Hinduism, there is no ‘package’ on offer anyway.

Given this staggering diversity in religious practice, recognising an essential practices test artificially elevates for protection the ‘official’ (often the most orthodox) line of thinking of a religious elite for constitutional protection. This overly formal devise ignores how religious people actually live their lives.

Furthermore, there is little scope, beyond a rhetorical acknowledgement, of the religious freedom of atheists and agnostics within the essential practices test. Since there is no ‘essential practice’ to atheism, it basically falls of the constitutional radar. In the paper, I show how an autonomy-focussed individualistic reading of freedom of religion can genuinely respect an atheist’s freedom from religion.

Gatekeeping

The essential practices test is mainly used by our courts to perform a gatekeeping function—given the fact that religious freedom is often used to advance some rather bizarre claims, by asking whether the practice is essential to the official doctrine of a religion, the courts can basically ‘keep the crazies out’.

An individualistic approach to determining freedom of religion will admittedly have a very broad scope. As the paper argues, all that an individual claimant needs to prove is her sincerity in making the claim and that the object of the claim is plausibly This does open the gates very wide at the initial stage.

However, the paper says, a better approach to gatekeeping is not at the stage of determining the scope of the right itself, but at the justification stage: whether the restriction on the right is justified. At that stage, public norms of proportionality can do a much better job of discerning which religious freedom claims are worthy of protection, and which are not, without artificially determining beforehand whether a claim even counts as a religious freedom claim.

On Judicial Role

As Justice Chandrachud rightly notes, the essential practices test puts the judge in an extremely awkward situation. It asks of her to determine what is essential to a religion and what is not. This is nothing but the appropriation of a religious function by the state, and a blatant attack on the autonomy of religions. The irony, of course, is that this is done by the state in the name of protecting religious freedom. Defining what a religion is is best left to its adherents. It is better for the court to say that public reasons require a restriction on one’s religious freedom, than for it to say that what one claims as her religion is not her religion at all.

Both law and religion are autopoietic systems. Teubner identified the ‘regulatory trilemma’ that law faces when seeking to regulate such systems: (i) either law’s regulation is incompatible with the self-producing interactions of the other system (in this case, religion), and will be ignored, or (ii) the law influences the internal interactions in the regulated system so strongly that their self-production itself is endangered, or (iii) the law itself is captured by the regulated system.

One could argue that in India, (ii) has been in evidence: that the law’s overreach into religious matters has destroyed the internal capacity of religion to reform and regenerate. The relative dearth of internal religious reform movements since independence, especially within Hinduism, may be explained by this.

Pitted against this warning are the unique socio-cultural conditions in India, especially in relation to the practice of Untouchability, and our special constitutional mandate to the state to reform the majority religion. The scale of the injustices makes it hard for the state to stay distant. But it is important for it to also recognise the dangers of overreach, which might damage the religion’s capacity for organic growth and internal reform.

On the case at hand

The Sabrimala entry case is a difficult one. It is difficult because the interests on both sides are weighty. The religious interest in the case is potent because it concerns religious worship, rather than, say, a secular service being provided by a religious organisation. It is a lot easier to tell a religious body that it must not discriminate while delivering charitable services to the public, than to say that practices that constitute a sacred communication with the divine (from its internal viewpoint) should be subject to public norms. The religious freedom interest in the case at hand is very weighty indeed.

On the other hand, patriarchy is entrenched in all our institutions, and religion has played a key role in securing its position. The interest on the other hand it not simply that of ‘the right to pray’ by some women, but an important expressive interest in rejecting blatant sexism. As I have argued before in my monograph on discrimination law (chs 4&5), the overall point of discrimination law is to reduce and eliminate substantial, abiding, and pervasive advantage gaps between cognate groups (such as men and women). These advantage gaps exist in the material, political as well as socio-cultural dimensions, creating a mutually reinforcing and self-perpetuating pattern of domination and disadvantage.

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability. While Article 25(2)(b) only applies to ‘religious institutions of a public character’, Article 17 has a broader reach. The court appears not to show much patience with the argument that the understanding of Untouchability can be extended to women. But Martha Nussbaum has argued convincingly that caste taboos are inseparable from gender and sexuality taboos, and a proper understanding of Dr Ambedkar’s teachings must extend to all forms of discrimination.

Even if the court finds against the temple, it should do so with some regret at a significant interference with religious freedom. Constitutional morality cannot simply be invoked to judge the morality of the religious practice in question—the morality of our constitution extends to the protection of practices that are unpopular, offensive and even wrong. Of course, when rights of others come into conflict, religious freedom sometimes has to give way. But religious freedom would be meaningless if it only protected practices we approved of.

In particular, the court must be mindful of our political context and history. Our subcontinent has spilt much blood over religion. Even today, people are being killed for their religion, and their religion-inspired dress, food and habits. A robust protection of religious freedom (along with the right against religious discrimination) allows us to live peacefully despite our differences. It is an important liberal value that ought to be cherished, even (nay, especially) when we disagree with what it seeks to protect.

(Dr. Tarun Khaitan is an Associate Professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Guest Post: The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some Privacy Concerns

(This is a guest post by Vasudev Devadasan.)

Last month in Chirag Singhvi v State of Rajasthan the Rajasthan High Court was faced with an increasingly common set of facts. Chirag Singhvi filed a habeas corpus petition arguing that his sister Payal Singhvi had been kidnapped, forcibly converted to Islam, and compelled to marry a Muslim man. The claims regarding the kidnapping were rendered questionable when Payal Singhvi appeared in court on her own volition and it came to light that she had filed a complaint of her own. She claimed to have both converted to Islam and married on her own free will and was being harassed by her brother and father. Nonetheless, the High Court noted that she was born and raised a Jain and thus decided to examine whether an individual must complete a specific procedure before they can convert from one religion to another.

What sets the Chirag Singhvi case apart from the dozen other cases with analogous facts is that the Court took it upon itself to frame certain guidelines regulating how and when a person can convert from one religion to another. While the guidelines re-affirm the right of individuals to change religion, they also impose certain troubling conditions regarding notice and publication. Specifically:

  • The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.
  • The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.
  • The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

By requiring individuals to provide public notice of religious conversion the Court’s guidelines raise troubling questions about the right to privacy, the freedom of association, and ultimately the freedom of conscience and propagation of religion. In this post I examine how anonymity is a crucial element in exercising the freedom of association, including religious association, and the potential harms of requiring the disclosure of religious conversions.

Some Context

Before proceeding further, it would be wise to quickly recap the context in which the Chirag Singhvi decision came out. In 2006 the Rajasthan Assembly passed the Rajasthan Dharma Swatantrya Act which made religious conversions made on the basis of “allurement” or “inducement” an offence. The Act did not get the assent of the Rajasthan Governor, who reserved it for the President’s assent. The Advocate General raised some concerns and finally the matter was passed on to the Home Department. The law has still not received the President’s assent. Rather than let the checks and balances of the constitutional scheme operate, the High Court noted that the State Government was “very serious to frame certain rules to govern conversion” and thus thought it more expedient for the High Court to frame guidelines itself. The High Court did not examine why the Act might not have received the Governor or the President’s assent, nor did it even seem concerned that it had not. It merely noted tha the guidelines would be in force until the Act did come into force. What happens if the Act or other regulations do not receive the President’s assent is one left unanswered by the High Court.

The question of religious conversion also has some context. In Stanislaus v State of Madhya Pradesh, the Supreme Court upheld Madhya Pradesh and Orissa’s legislations which criminalised ‘forcible religious conversion’. The Court said that although Article 25 protects the rights of people to “propagate” their religion, it does not allow an individual to convert somebody else to his or her religion. In the Courts own words, “if a person purposely undertakes the conversion of another person to his religion, […] this would impinge on the “freedom of conscience” guaranteed to all the citizens of the country.” This understanding seems to misconceive the reason why religious ideas are disseminated. They are not disseminated, or ‘propagated’ to increase social awareness of a religion, but to engender in individuals the moral conviction that results in conversion. Article 25 thus protects the right to “propagate” religion by individual A, and also protects the “freedom of conscience” of individual B to choose any of the religions being propagated. Thus, disseminating one’s religious ideas to convert others is not an interference with their religious freedom, but rather gives meaning to their “freedom of conscience”.

Coming to the Rajasthan High Court’s guidelines, they go further than the legislations in Madhya Pradesh and Orissa did. The legislations of those two states required the person conducting the conversion ceremony to notify the relevant authority in the event they thought the conversion was coerced. However, the guidelines in Rajasthan require the individual converting to himself/herself give notice of conversion, and by displaying it in public, allowing anyone to object to the conversion.

The right to anonymous association

By requiring that individuals disclose when and which religion they intend to convert to, the guidelines place a restraint on the individual’s freedom of association (included here is their religious association), and thus on their freedom of religion. For example, if an individual intends to convert to a religion whose members have been the victims of persecution, requiring the individual to publicly acknowledge their intention to convert may dissuade him or her from converting because of the risk of persecution. However, if you allow them to convert privately, they may happily do so. We would all balk at the idea of members of a religion being compelled to publicly identify themselves (for example, during the Nazi occupation of Poland, Jews were required to wear white armbands with the Star of David). Requiring individuals who intend to convert provide public notice similarly infringes on this crucial relationship between the “freedom to associate and the privacy of one’s associations”.

The U.S. Supreme Court highlighted this exact problem when the State of Alabama demanded that the National Association for the Advancement of Coloured People (NAACP) disclose its list of members. In NAACP v Patterson, the Court held that by compelling the disclosure of the NAACP’s membership lists, Alabama was violating the privacy of group association which was essential to the freedom of association. The Court stated that, “we think it apparent that compelled disclosure of the petitioner’s membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.

The Court stated the obvious, that disclosure would dissuade individuals from joining the NAACP as they may face reprisal due to their membership. Crucially, the Court went on to hold that it did not matter that this reprisal was not from the government and may have been from fellow citizens. The Court noted:

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of NAACP’s members may have upon participation by Alabama citizens in NAACP’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.

Therefore, it should not matter that an individual facing discrimination or violence due to their conversion to a religion does not face this hardship at the hands of the State. By requiring public notice of conversion, the government is opening up these individuals to the risk of reprisal for actions that they have a constitutionally protected right to pursue.

Treatment in India

The requirement for public notice as espoused by the Rajasthan High Court has in fact been explicitly struck down by both the Himachal Pradesh High Court, and the Delhi High. In striking down the requirement of public notice prior to religious conversion in the Himachal Pradesh Freedom of Religion Act, Justice D. Gupta stated, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret” (See Evangelical Fellowship of India v State of HP). The Court also noted that the government failed to show how requiring people to publicly disclose their conversion to another religion would in any manner stop, or even reduce forcible religious conversions.

The Delhi High Court also had similar observations regarding the notice requirements in the Special Marriages Act (SMA). While each religion in India has its own set of marriage laws, the SMA allows for inter-religious marriage. Prior to marriage however, there was a requirement to publicly disclose the inter-religious marriage by a notice at the residence of both the husband and the wife to-be. The Delhi High Court struck down this requirement stating that requiring individuals to disclose their marriage to the public was a violation of their right to privacy. As in the two cases above, the Court is affirming the right to privacy that individuals have regarding their associations. This anonymity in association is essential to the meaningful enjoyment of the “freedom of conscience” that Article 25 guarantees. The Court also noted, “The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In Certain instances, it may even endanger the life or limb of one at the other party due to parental interference.

The case of Chirag Singhvi and countless others is a testament to the fact that the fears of the Delhi High Court were well founded. By requiring individuals to disclose their association on marriage or religion, the State violates their right to privacy and puts them at risk of social persecution.

Post Puttaswamy

It is pertinent to note that these decisions were all prior to last year’s landmark Right to Privacy judgement. In Puttaswamy the Supreme Court emphatically asserted that the right to privacy protects an individual’s “choice of preference” on matters of religion, and stated, “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom, to express or not express those choices to the world.” (⁋169) Requiring that individuals provide public notice of their intention to convert from one religion to another seems to fall foul of this right to anonymously practice one’s religion articulated by the Supreme Court, and places the guidelines in a rather dubious position.

Conclusion

The Rajasthan High Court cited the Law Commission’s 235th Report as evidence of the rising problem of religious conversions, and the need to regulate them. It is true that the Law Commission did lay down certain guidelines, but it prefaced these guidelines by stating, “statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable”. The High Court may have enacted the guidelines in the hope of reducing litigation of the kind in Chirag Singhvi, but such cases centre around the appreciation of evidence, something no statute or guideline can ever achieve. After examining the FIR, the various statements, and the testimony of the Molvi, the Court dismissed the case by stating that Payal Singhvi and Faiez Modi are free to go and “at liberty to live their life as per their choice.” If only the Court had extended this courtesy to the rest of the residents of Rajasthan.

Guest Post: Marriage and Religion – An Introduction to Goolrokh Gupta vs Burjor Pardiwala

(Ed. Note: On the 7th of December, after a day of hearing, the Constitution Bench of the Supreme Court passed the following order: “In the course of hearing, regard being had to the facts and circumstances of the case, a suggestion was given to Mr. Gopal Subramaniam, learned senior counsel and Mr. Percy Ghandy, learned counsel appearing for the respondents to obtain instructions. Both of them, we must state, in all fairness, prayed for some time to obtain instructions.” The Court fixed the next date of hearing on the 14th of December. It is therefore unclear at present whether this case will go on, and whether it will be decided on the constitutional point. Nonetheless, on this blog, we shall discuss some of the important issues in the case, starting with the following introductory guest post by Vasudev Devadasan.)

Currently being heard by the Supreme Court, the Goolrokh case attempts to answer the question of whether a Parsi woman ‘loses’ her religious identity upon marriage to a Hindu man under the Special Marriage Act. The case stems from the events at a Parsi funeral, when the deceased’s daughter was denied access to the Agiari (fire temple) and tower of silence to perform the last rites for her parents. The trust and priests in charge of the Agiari claimed that the daughter, by marrying a Hindu man, could no longer be considered Zoroastrian and was not entitled to enter its places of worship. Ultimately, the petitioner in the Goolrokh case approached the Gujarat High Court requesting it to pass an order stating that: by marrying a Hindu man she had not renounced Zoroastrianism and in the event of her parent’s death, she would be allowed to access the tower and the temple to perform the necessary ceremonies.

The division bench of the High Court in its 2:1 decision held broadly as follows:

  • A Parsi woman, who was born and raised Parsi and who has completed her navjote ceremony, upon marrying a Hindu man under the Special Marriage Act, would cease to be a Parsi, and would be ‘deemed and presumed’ to have acquired the religious status of her husband until a Court (after undertaking a fact-finding inquiry) declares that she has continued to practice Zoroastrianism.
  • Because the petitioner is not a Parsi woman after marriage, and because the petitioner has not made any arguments for a ‘non-Parsi’ to be allowed into the Agiari, there is no need to make a ruling on whether the actions of the Parsi trust in denying her access to the place of worship are justified or not.
  • While the freedom to practice any religion is indeed a fundamental right (under Article 25), religious denominations also have the right to manage its own affairs on matters integral to the religion (under Article 26). Until it is determined whether the issue of ‘non-Parsi’s’ being excluded from the Agiari is ‘essential or integral’ to the Parsi religion (which would grant the practice protection under Article 26), no writ can be passed.

One angle to approach the case is from the perspective of gender equality (a Parsi man marrying a Hindu woman does not lose his religious identity) and these arguments will undoubtedly be made eloquently elsewhere. But this post examines the first holding of the court from the perspective of religious identity. By accepting the argument made by the Parsi trust, that a woman is de facto excommunicated upon marrying a man from another religion, the court grants the leaders of a religion the final say on what it means to be Parsi. The reasoning of the High Court is also of interest. By holding that a woman’s religion is that of her husband’s after marriage, the High Court locates her religious identity in her family, not in her as an individual. Additionally, it creates a ‘deemed conversion’ for all women marrying men of a different religion in the absence of any religious ceremony or indeed consent of the woman. Lastly, it is worth looking at the Special Marriage Act from a historical perspective and see whether it is part of the Constitution’s transformative agenda on religion.

What does it mean to be Parsi?

The dispute in Goolrokh is whether a woman who was undoubtedly Parsi before marriage, upon marrying a Hindu man, loses her Parsi identity. Before asking the question: ‘is marrying a ‘non-Parsi’ antithetical to the Parsi religious identity’, a preliminary question is how does the Court decide what constitutes the religious identity of the Parsi religion? Is the interpretation of the religious leaders and community absolute or can an individual have views on her religion that are at odds with the community interpretation and yet be part of the religion?

The power of a community and its religious leaders to determine the content of a religion and the power to exclude those who are not in conformity with this content stems from the need to preserve integrity within the religion. Arguably, in the absence of conformity by its members to certain fundamental beliefs and practices, a religion would not be a religion. Thus, it might be argued that the views of religious leaders and the community are at the heart of religion, and have consequently been accorded protection under Article 26(b) (the freedom of a religion to administer its own affairs on ‘matters of religion’).

Alternatively, an individual may have views on their own religion that are at variance with that of the community or its religious leaders. This question is particularly relevant in India where religion often governs several day-to-day aspects of life and where the implications of being removed from one’s religion can have severe implications. In Goolrokh for example, a woman was denied access to her mother’s funeral. Imagine if a community were to believe that members had to dress in a particular manner, or display some outward symbol of religion at all times, could an individual be excommunicated for not complying? There is clearly a difference between apostacy (the total abandonment of a religion) and a level of reasonable disagreement within a religion itself.

In Goolrokh the High Court was faced with a woman who claimed that she had not lost her religious identity upon marriage to a Hindu and the Parsi establishment that argued she had. Indian courts have to a great extent conflated religious belief, and religious practice. Additionally, the courts have taken it upon themselves to determine the content of religious identity by delving into religious scripture and tenets. But such an approach inherently favours the communitarian interpretation over the individual. Belief is deeply personal, but practice is almost always social. Similarly, religious leaders have a monopoly on religious scripture and doctrine. By accepting the views of the Parsi trust the court is upholding religious views as experienced by the community and its leaders over that of the individual.

The legislature has often attempted to empower the individual’s experience of religion by banning excommunication, thus limiting the power of religious leaders to determine when an individual is not in conformity with the leader’s perception of the religion. The Bombay High Court in Saifuddin v Koicha held that it was permissible to deny a religion the power of excommunication (thus empowering an individual’s religious views vis-à-vis religious leaders) so long as it does not take away the power to exclude ‘non-believers or renegades’ who would undermine the cohesive force that defines a religion. In the Supreme Court, this view was overruled, and the power of the community and its leaders to preserve solidarity and ‘maintain discipline’ within a religion was given paramount position. As noted above the preservation of the cohesive force within religion is constitutive of religion and certainly has its place, yet this needs to be balanced with an individual’s own experience of that religion, for it is in the dialectical relationship between the two that religion truly emerges. We will have to wait and see whether the Supreme Court attempts to strike such a balance in Goolrokh.

Locating a woman’s religious identity

In its judgement, the High Court notes that in the absence of any law by Parliament, a woman’s religious identity ‘shall merge into that of her husband’ and that such a rule is ‘generally accepted throughout the world’. The court relies on Lallu Bhoy v Cassibai which states, “the lady, on marriage becomes a member of the family and thereby she becomes a member of the caste to which she moved.” The substantive justifications that the court points to are (1) after marriage the husband’s family name is used to describe a woman’s identity, and (2) if a woman’s religious identity did not merge into her husband’s, it would be hard to determine the religious identity of their children. Most tellingly however, the court describes the dispute in Goolrokh as examining the “rights of the woman in the context of family which originates from marriage of a husband and wife.

Firstly, the court has already conflated a woman’s religious identity with her caste. But that is a discussion for another time. As Jacohbsohn notes, ‘India is heir to dual legal and political traditions, one making individuals the basic unit of society and envisioning universal equal citizenship, and another positing groups as the building blocks of society with particular rights attached to collective entities.’ However, by locating a woman’s religious identity in the family, and not the individual, the court has effectively made a woman’s religious identity conditional on her husband or father. This runs in direct contradiction to the text of Article 25 which states that “all persons” have the freedom to practice a religion of their choice, thus vesting the right in the individual.

Lastly, the implication of the court’s reasoning is this: upon marriage a woman is deemed to convert from one religion to another. The Supreme Court has noted on several occasions that adopting a religion is a solemn act, often premised on religious ceremony (e.g. baptism, navjote). However, the court appears to overlook these requirements when it comes to the ‘deemed conversion’ by marriage that it postulates.

An evolving constitutional landscape

It stands to reason that personal religious law would not recognise an inter-religious marriage. In 1872 with the enactment of the original ‘Special Marriages Act’, inter-religious marriage was recognised for the first time in India provided that both parties made a declaration to not profess any particular religion. In stark contrast, Section 4 of today’s Special Marriages Act makes no mention of religion in listing out the conditions for a valid marriage. In his dissenting opinion as part of the division bench that heard Goolrokh, Justice Kureshi specifically cited the shift from the 1872 Act to the modern-day legislation, concluding that the legislature had specifically provided for the recognition of inter-religious marriage without the need for either spouse to renounce their religion or convert to the religion of the other.

In reaching this conclusion he also noted that the current Special Marriages Act was a ‘reflection on the post-independence constitutional philosophy of a secular state’. In most senses the Constitution is radically transformative when it comes to religion. From the abolition of untouchability in Article 17 to the throwing open of Hindu institutions to all castes under Article 25(2). The constitutional text envisions a secular identity that the constitutional practices of the population have not necessarily caught up to. It is precisely these constitutional practices that the a-religious requirements for marriage in the Special Marriage Act allow to develop. By allowing individuals to marry without commenting on their religious identity, the Special Marriage Act invites citizens to participate in developing the constitutional practices of the day. As Jacobsohn notes: ‘Incrementalism is thus part of the spiritual core of Indian secularism, reflecting the cohabiting reformist and the conservative components of the Indian national identity’.

Conclusion

Goolrokh promises to be an intriguing case that throws up several key constitutional questions, not just on the issue of gender equality between a woman and a man, but on how the religious identity of an individual is determined. Religious identity undoubtedly lies somewhere on a spectrum between communitarian and individualistic. Indeed, as noted above, it is the dialectical relationship between the two that creates the religious experience. Whether the Supreme Court is willing to move the religious identity away from the communitarian absolutism of the Parsi trust and accommodate the individual’s views on religion is likely to be a turning point in the case.

Asking the Right Questions: The Supreme Court’s Referral Order in the Sabarimala Case

In April 2016, a three-judge bench of the Supreme Court had heard arguments in a PIL challenging the Sabarimala Temple’s practice of barring menstruating-age women (between the ages of 10 and 50) from entering the precincts of the temple. In a brief order delivered today, the case has been referred to a five-judge bench for adjudication.

As we have discussed previously on this blog, the Sabarimala Case is a particularly complex one, involving the interaction of statutes, government rules, custom, religious practice, and the Constitution. For a satisfactory adjudication of the case, therefore, it is important that the Court ask the right questions. As we shall see below, today’s referral order succeeds in that enterprise, and lays the foundation for a clear verdict on the constitutional issues involved.

Recall that the justification for excluding menstruating-age women from entry into the Sabarimala is grounded in religious custom and usage. What complicates the issue is that there is also an existing legislation: the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965. Section 3 of that Act stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. Section 4 of the Act authorises persons in charge of places of public worship to make regulations for the “due performance of rites and ceremonies, with the proviso that the Regulations cannot discriminate against Hindus of “any class.” Acting under Section 4, in 1965, the Kerala Government framed certain rules. Rule 3 of these Rules deprived certain classes of people from offering worship, and Rule 3(b) included within this class “women at such time during which they are not by custom and usage allowed to enter a place of public worship.”  

Keeping in mind this statutory framework, we are now in a position to understand the issues involved in the Sabarimala Case. The first – and simplest – issue is whether Rule 3(b) is legally valid, given that Section 3 of the Parent Act – i.e. – the primary legislation – mandates that places of public worship must be open to all “sections and classes”. If women constitute a “section” or a “class” of Hindus, then clearly Rule 3(b), being subordinate legislation, is ultra vires the parent statute, and must fall. Consequently, the first question that the Court must answer is whether, for the purpose of temple entry, women constitute a “section” or a “class” of Hindus. To answer this question, the Court must undertake a historical examination of temple entry legislations, the kinds of exclusion that they were trying to combat, and the social movements that necessitated their enactment. While at the core of the temple entry movements was the exclusion of Dalits and other castes, it is also important to note that the root of such exclusion was ideas of ritual pollution and purity; notably, that is exactly the justification being offered for the exclusion of menstruating age women from Sabarimala. Consequently, if temple entry laws were framed for the purpose of making ideas of pollution and purity irrelevant to temple entry, then there is a strong case for including women – as a class – within their protective ambit.

Now, in the event that Section 3(b) is consistent with the parent Act, the larger question of constitutionality arises. The 1965 Act – and the Rules – are pieces of primary and subordinate legislation respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act and the Rules are invoked to justify the exclusion of women from the Sabarimala Temple, therefore, there is a clear violation of Articles 14 and 15(1) of the Constitution.

That, however, does not settle the issue, because the further argument is that the Act and the Rules merely codify the practice of existing religious mandates. These religious mandates, however, are grounded in something beyond merely the 1965 law: they are protected by Article 25(1) of the Constitution, which protects the freedom of religion. Or, in brief: the exclusion of menstruating age women is a religious mandate protected by Article 25(1) of the Constitution.

This raises a few difficult issues. The first issue is this: once the Kerala legislature passed the 1965 Temple Entry Act, then does there remain any independent right of places of public worship to regulate entry? Or, in other words, is the 1965 Act a “complete code” on the issue of temple entry? Readers will recall that a somewhat similar issue was at stake in the recent Triple Talaq judgment. The question there was whether the 1937 Shariat Act codified Muslim personal law, or whether it only recognised it. If it was the former, then if the 1937 Act was struck down as unconstitutional, the practice of triple talaq would go along with it; if the latter, however, then triple talaq was grounded not in a statute (which could be challenged and struck down for being unconstitutional), but was a part of “uncodified personal law”.

Consequently, the Court will have to decide whether, after the 1965 Act, it can be claimed that there exists an independent right under Article 25(1) to prohibit menstruating women from entering Sabarimala. If the Court decides that it cannot, then there is no further issue: insofar as the 1965 Act bans menstruating women from entering Sabarimala, it clearly violates Articles 14 and 15(1) (it may be argued that banning only menstruating women, and not all women, does not constitute sex discrimination; however, on this blog, it has repeatedly been pointed out how such arguments are flawed, and I will not rehearse them here).

However, if the Court holds that the claim can be made, then under existing Indian jurisprudence, it must ask a further question: is the banning of menstruating women an “essential religious practice” under Article 25(1), and is it consonant with the requirements of “public order, morality, and health”, to which Article 25(1) is subject. This will require the Court to go into the doctrines of the religion, and adjudicate whether the practice in question is essential, or merely peripheral.

Lastly, Article 26(b) of the Constitution guarantees to “religious denominations” the right to manage their own affairs in matters of religion. Two questions arise, therefore: do the worshippers at Sabarimala constitute a “religious denomination”? And is the question of temple access a question of “religion”? On the first issue, there exists substantial jurisprudence. My own suspicion is that in view of the fact that Sabarimala is governed by the Travnacore Devaswom Board (a State institution), and a State legislation, the religious denomination argument will not succeed. There is also a clear public element involved here (to an even greater extent than in the Bombay High Court’s Haji Ali Dargah decision).

The last sub-issue – whether temple access is a pure question of “religion” or not – appears straightforward, but is actually rather complex. This is because, historically – right from Ambedkar’s temple entry movements of the 1920s – issues of temple entry have always been framed as issues of civil rights, involving access to public spaces (for an account, see Anupama Rao’s book, Caste Question). Exclusion from temples has been understood to be an embodiment of social hierarchies and deeper social exclusions, and has been opposed in these terms. In fact, temple entry movements were so politically successful, that the Constitution contains a specific exception to the freedom of religion clause (Article 25(2)(b)) that categorically authorises the State to throw open religious institutions to all classes of Hindus. Consequently, a nuanced analysis might have to acknowledge that for historical, political and social reasons, the issue of temple access is no longer restricted to the purely religious domain, but is inextricably linked with civil status and civil rights.

In my view, therefore, the Court would have to answer the following questions in the Sabarimala Case:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

In its referral order, the questions that the Court has framed are as follows:

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

While my own framing is almost exactly the reverse of how the Court has chosen to go about it, readers will note that the ground covered is virtually identical. One thing that is particularly interesting to note is that in Question 1, the Court refers not only to Articles 14 and 15, but to Article 17 as well. Article 17 bans the practice of “untouchability”. In framing the question, therefore, the Court has at least acknowledged the possibility that banning women on grounds of menstruation creates and perpetuates a stigma that is similar in character to the stigma faced by caste-untouchability (during the hearings last year, this argument was advanced by Ms Indira Jaising).

The invocation of Article 17 is crucial for another reason. In the recent Triple Talaq judgment, the dissenting opinion by Justices Khehar and Nazeer, after holding that triple talaq was an “essential practice” under Islam and therefore protected by Article 25(1), went on to hold that the phrase “subject to public order, morality and health and to the other provisions of this Part“, which prefaced the Article 25(1) right, could not make triple talaq subject to Articles 14 and 15(1). This was because these Articles only protected the individual against the State, while Triple Talaq was an issue between two private individuals. Note, however, that Article 17 is horizontally applicable – that is, it prohibits untouchability between private parties. If, therefore, the Court is to find that excluding menstruating women from temple access amounts to “untouchability” within the meaning of Article 17, then even if that exclusion is an “essential religious practice” under Article 25(1), it will fall. This, of course, is assuming that Khehar and Nazeer JJ’s views in Triple Talaq, on this point, were correct; my own view is that they were not.

Consequently, the Court’s framing of the referral questions has set up a host of fascinating constitutional questions. And at its heart, the issue is this: should the question of temple access be left purely to the discretion of religious heads, or is it something that should be governed by constitutional norms of equality and non-discrimination? In my view, given the role played by religion in private and public life in India, given how religious status is often inextricably linked with civil and social status, and given the unique history of temple entry movements in India, constitutional norms should apply, and the exclusion of menstruating women from Sabarimala should be stuck down.

In view of the importance of the issues involved, however, it is to be hoped that the Constitution Bench is set up swiftly, and the case heard and decided finally.

 

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.

 

The Supreme Court’s Muslim Beard Judgment: A Missed Opportunity

Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:

“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.

Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.

However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.

Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.

It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:

“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”

This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).

Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.

Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:

“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).