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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.

 

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Filed under Access to Religious Spaces, Article 15 (general), Equality, Essential Religious Practices, Freedom of Religion, Non-discrimination, Sex Discrimination, Sex Equality

The Supreme Court’s Triple Talaq Judgment

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

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

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

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

Yes: Nariman and Lalit JJ

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

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

Yes: Nariman and Lalit JJ (Article 14)

No: _____

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

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

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J

N/A: Nariman and Lalit JJ

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

Yes: ______

No: Khehar and Nazeer JJ

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

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

Yes: Khehar and Nazeer JJ

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

Therefore:

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

The Judgment of Nariman J (joined by Lalit J)

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

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

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

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

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

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

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

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

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

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

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

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

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

The Judgment of Joseph J (for himself)

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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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).

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Dawoodi Bohra Case Delayed :: Will Kymlicka and Cultural Autonomy

The Dawoodi Bohra case, which we discussed in the last essay, has been taken off the supplementary list for tomorrow. Hopefully, it will not take eleven years for it to be listed a second time!

In the meantime, I came across this quotation by the liberal political theorist, Will Kymlicka, in his article, ‘The Rights of Minority Cultures: Reply to Kukathas’, which sums up the argument of the previous essay quite well:

A liberal theory can accept special rights for minority culture as against the larger community so as to ensure equality of circumstance among them. But it will not justify (except under extreme circumstances) special rights for a culture against its own members. The former protect the autonomy of the members of the minority of the cultures; the latter restrict it. Liberals are committed to supporting the rights of individuals to decide for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to – perhaps even defined by – the view that individuals should have the freedom and the capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance[For example] restricting religious freedom or denying education to girls is is inconsistent with these liberal principles and indeed violates one of the reasons liberals have for wanting to protect cultural membership – namely, that that membership in a culture is what enables informed choices about how to lead one’s life. Hence, a liberal conception of minority rights will condemn certain practices of minority cultures just as it has traditionally condemned the traditional practices of majority cultures, and will support their reform.” 

The basic idea, again, is that the while the basic, normative unit of Part III is the individual, the protection of group rights under Articles 26, 29 and 30 of the Constitution acknowledges the fact that individuals are embedded in culture, and culture is what mediates effective exercise of human freedom. However, just as that basic idea requires the Constitution to guarantee group rights, it simultaneously limits the extent to which those rights can be invoked. In Kymlicka’s phrase, a culture cannot invoke special rights against its own members, insofar as such rights become a tool for curtailing, rather than enhancing, individual freedom. The philosophical mistake that the majority made in the Dawoodi Bohra Case was to treat group rights under Article 26(b) as ends in themselves (and hence, the repeated fears about the need to maintain group purity and discipline through the power of miscommunication), and not as instruments towards achieving individual freedom. In fact, a reading of the sort that Kymlicka advances (and which would require the Court to have upheld the Bombay Act), is more consistent with both the liberal strand of Part III (as embodied in classic civil rights against the State – Articles 14, 19, 21, 25), as well as its social-democratic strand, which is concerned with protecting individuals from the tyranny of their own communities (Articles 15(2), 17, 23, 25(2)).

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

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

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

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

 

“Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination.”

 

From time immemorial, the Agamas have represented a personal law relating, among other things, to the appointment of archakas to Hindu temples. However, through its constant usage and application a convention appeared to have developed by which appointments of archakas were made only on the basis of hereditary succession, usually from within a small denomination of Brahmins. This practice of making hereditary appointments, while not a part of the personal law as contained in the Agamas, came to form a custom, of sorts, and was accorded further legitimacy by Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, a legislation that was enacted to specifically enable a complete takeover of Hindu temples by the State. The section reads: “(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, the Tamil Nadu government amended Section 55. It now read as follows: “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” 

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

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

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

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

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

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

 

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

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

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

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

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“Essential Religious Practices” and the Rajasthan High Court’s Santhara Judgment: Tracking the History of a Phrase

This week, the Rajasthan High Court held that the Jain practice of santhara – a ritual of “voluntary and systematic fasting to death” was illegal, since it amounted to abetment to suicide (criminalised under Section 306 of the Indian Penal Code).

There are many issues that arise out of this judgment. This was a PIL filed by a ‘lawyer’ who had no connection with, and was not affected in any way by santhara. The Court’s decision to issue notice and hear the case on merits demonstrates yet again that PIL has been entirely cast off from its moorings: the loosening of standing rules was intended to ensure the representation of those who could not represent themselves. By now, it is used to  transform the Court into a super-legislature, where any social question might be agitated by any person (something similar is ongoing in the Supreme Court, in the Kamlesh Vaswani anti-porn petition). The Court’s analysis of whether santhara is equivalent to suicide is fraught with problems as well. In this essay, however, I will focus on another part of the Court’s judgment: its finding that santhara did not constitute an “essential religious practice” for the Jains, and consequently, was not protected by Article 25 of the Constitution. The Court held:

“We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.”

The essential practices test has been used consistently by the courts at least since 1957. The test allows the Court to initiate a judicial enquiry into whether or not an impugned religious practice is an “essential practice”, independent of what the religion’s adherents themselves say about it. Commenting upon the Supreme Court’s use of the test, Jacobsohn has insightfully noted that it has become “an internal level of reform”: by holding that certain regressive practices do not constitute “essential” parts of a religion, the Court not only denies them constitutional protection, but also takes upon itself the task of recharacterising the religion in a more progressive light, and, in a sense, create new social facts through its holdings. Naturally, for these very reasons, the test has met with fierce criticism. The judiciary, it is argued, possesses neither the competence nor the legitimacy to decide what constitutes an “essential practice”; it is not, after all, “the Supreme Court of Hinduism” (Galanter)  These criticisms are powerful ones, but in this essay, I want to ask a different question. The Constitution does not mention the term “essential religious practice”: it grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the “essential practices” of religion. So where does this concept comes from?

We can find a clue in the Constituent Assembly Debates. On the 2nd of December, 1948, Ambedkar delivered a speech in the Constituent Assembly where, among other things, he observed:

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

Ambedkar’s use of the term “essentially religious”, therefore, was in response to a very specific concern. He was worried that unlike in the West, with its seemingly clear demarcation between the City of God and the City of Man, there was no aspect of Indian life which was untouched by religion. Consequently, insofar as the Constitution protected religion and personal laws, there was a very real risk that it would entirely hamstring the State’s power to pass social legislation. He was, therefore, adamant that there must be a separation between religious activities, and secular activities tinged with religion. The latter could have no constitutional immunity from legislation. In Ambedkar’s formulation, it is clear the word “essentially” qualified “religious”, and was designed to separate the religious from the secular.

The wording of Article 25 responds to Ambedkar’s concern. Unlike Article 19, where the main Article lists out the fundamental freedoms (Article 19(1)), followed by the scope of reasonable restrictions (Articles 19(2) – 19(6)), Article 25 starts off with limitations: “Subject to public order, morality and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

At this point, the following question may be raised: with the limitations built into the right to freedom of religion, is there any further need for Amedkar’s proposed demarcation between that which is “essentially religious” and that which is not? Surely, social and welfare legislation could be justified under the “public order, morality and health” categories. In fact, the very structure of the Article – specifying both the right and its restrictions – ought to preclude threshold enquiries separating the religious from the non-religious (this is the form of rights-adjudication practiced in South Africa, for instance).

Notwithstanding the presence of limitations, however, there might still be a role for the threshold enquiry. To start with, as Ambedkar pointed out, if every sphere of existence has religious significance, then there seems little point in a constitutionally guaranteed right to the freedom of religion in the first place. Secondly, prima facie constitutional protection places a heavy burden of justification upon the State, and if every regulatory law has to run the gauntlet of the “public order, morality and health” tests, many might not survive. And thirdly, the expressive significance of holding something to be a fundamental right protected by the Constitution might well require a threshold enquiry to ascertain whether the reason why the Constitution protects religion in the first place, ought to extend to the practice under question.

The first few judgments after the coming into force of the Constitution did use “essentially religious” in the sense that Ambedkar had used it. In Lakshmindra Swamiar (1954), the Supreme Court held that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”

For the Court, therefore, “essential” marked the border between the religious and the secular. These observations were repeated that same year in Ratilal vs State of Bombay, where the Court added that “no outside authorities has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”

Three years later, however, in Ram Prasad Seth vs State of UP, the Allahabad High Court put a very different gloss on things. UP Government regulations, which prohibited bigamous marriages to those in public employment, were challenged on the grounds of Article 25. It was argued that the Hindu religion allowed certain funeral rites for a deceased individual to be performed only by sons. Consequently, it was imperative for a Hindu individual to have a son, and sometimes, bigamy was the only way of achieving this. In response, the Court analysed certain important Hindu religious texts, and on the basis of analysis, held that “[bigamy] cannot be regarded as an integral part of a Hindu religion… the acts done in pursuance of a particular belief are as much a part of the religion as belief itself but that to my mind does not lay down that polygamy in the circumstances such as of the present case is an essential part of the Hindu religion.”

Here is the key shift: the word “essential” has gone from qualifying the nature of the practice (i.e., whether it is religious or secular), to qualifying its importance (within the religion) – i.e., from whether something is essentially religious to whether it is essential to the religion. It is a minor grammatical shift, but with significant consequences, because it allows the Court to define questions that are internal to religion in a judicial enquiry, and thereby define the nature of the religion itself.

The Supreme Court adopted this interpretation one year later, in Qureshi vs State of Bihar, holding that the sacrifice of a cow on the occasion of Id was not an essential religious practice for Muslims: “We have… no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.” The Court further entrenched this position in 1962, in Syedna Saifuddin, while striking down a law that prohibited excommunications. The Court held that Article 25(2), which allowed the State to pass reform legislation, “is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1).” Four years later, this attitude seemed to have become such an undisputed part of judicial wisdom, that Chief Justice Gajendragadkar was able to devote an entire judgment to answering the central questions: who is a Hindu, and what constitutes Hinduism?

We can see, therefore, that the essential practices test did not originally mean what it has come to mean now. At this point, however, another objection might be raised: does not the question of whether a particular practice is religious or secular involve as much judicial interference as the question of whether it is essential to a religion? The answer is: not necessarily. In its early judgments, the Court held that this question could only be settled by the tenets of the religion itself, which does not necessarily mean judicial enquiry into what those tenets say. In other jurisdictions, the Court only asks whether a particular practice is “sincerely held” by its adherent, a question that requires it to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself. A purely subjective test, however, might simply smuggle back in Ambedkar’s fundamental worry: that religion could now be invoked to cover every aspect of a person’s life. A possible answer to this was suggested by Justice Sinha in his dissenting judgment in Syedna Saifuddin, holding that practices that directly impacted a person’s enjoyment of his civil rights that were guaranteed by law (as excommunication did), would not be given constitutional protection.

I cannot here go into a full analysis of Justice Sinha’s fascinating proposal. What I hope to have established is that in its present form, the essential practices test is based on an interpretive mistake: it misinterprets what Ambedkar said, as well as the early judgments of the Supreme Court itself. This, coupled with the institutional problems that it creates, should be enough for a fundamental reappraisal of this test within the scheme of Indian constitutional jurisprudence.

 

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Freedom of Religion and Non-Discrimination: The Haji Ali Dargah’s Decision to Ban Women from Access to the Inner Sanctum

In 2012, the Haji Ali Dargah Trust, which administers the shrine of Saint Haji Ali, barred women from entering the the inner sanctum of the dargah, which houses the tomb of the saint. In November 2014, the Bharatiya Muslim Mahila Andolan filed a PIL before the Bombay High Court, challenging this decision. The hearings are ongoing, and the Court will issue directions on April 1. In this post, I will attempt to argue that the PIL should succeed, and that the Court ought to issue directions to the State authorities to ensure that women are not barred from offering prayers in the inner sanctum.

In order to succeed, the petitioners must prove the following propositions: first, that the right to offer prayers in the sanctum of the Haji Ali Dargah is protected under Article 25 of the Constitution (right to freedom of religion) or, at any rate, is a right at common law; secondly, this right is not overridden by any rights that the Dargah Trust might have under Article 25 or 26 (i.e., the freedom of religious denominations to manage their religious affairs); and thirdly, that the petitioners are entitled to enforce their rights against the State, by requiring the State to guarantee and facilitate their access to the inner sanctum of the dargah.

On the first proposition: As the Supreme Court has held in a number of cases, such as The Commissioner, Hindu Religious Endowments vs Lakshmindra SwamiarJagannath Ramanuj Das vs State of Orissa and Sardar Saifuddin vs State of Bombay, the right to worship, and modes of worship, are protected under Article 25 of the Constitution. Admittedly, it has also been held that the right to worship doesn’t extend to any and every place. But in Ismail Faruqui vs Union of India, while holding that a mosque was not an essential and integral part of the practice of Islam, the Court also held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. It is fairly well-established that the inner sanctum/tomb of a dargah does bear special significance for the followers of the saint in question. Consequently, the petitioners would have an Article 25 right to offer prayers at the tomb.

Even if the right to offer worship at a particular place does not have the status of a constitutional right under Article 25, it remains – at the very least – a civil right, enforceable by a suit. This was the stated position in Das Gupta J.’s judgment in Sardar Saifuddin vs State of Bombay (pointed out above). According to the learned judge, in construing the provisions of the Bombay excommunications legislation, “a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”

In a separate case – in the context of Hindu denominational temples (Venkatramana Devaru vs State of Mysore), the Court noted, in general terms, that if it is found thatall persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right.” There is nothing in the logic of this proposition that limits it to temples. Consequently, the petitioners have a fundamental right under Article 25, to offer prayers in the inner sanctum of the Haji Ali dargah. Failing this, they have a common law right against obstruction of access to this place of worship by other private parties.

On the second proposition: as stated above, in part, it is now a well-accepted position of law that insofar as Articles 25 and 26 protect not just matters of doctrine or belief, but also to acts done in pursuance of religion (such as, allegedly, the exclusion of women from the inner sanctum), such constitutional protection is limited to rituals and observances, ceremonies and modes of worship which are integral parts of religion.” This has been upheld in the cases discussed above – Lakshmindra Swamiar, Mahant Jagannath Ramanuj Das, Venkataraman Devaru; Sardar Saifuddin, etc., and is a proposition of law, is beyond argument. The logic of this argument was explained by Dr. Ambedkar in the Constituent Assembly Debates. He pointed out that unless constitutional protection was limited to essentially religious practices, religion would end up covering an unconscionably vast range of the lived existence of most people..

The distinction has been explained by Justice Sinha, in his dissenting opinion (although not on this point) in Sardar Saifuddin vs State of Bombay. The learned judge noted: “We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”

Consequently, whether the Dargah Trust has an Article 26 (or 25) right to exclude women from the inner sanctum would depend upon whether controlling access to the sanctum amounts to an “essential religious practice”. I suggest that it does not. In Lakshmindra Swamiar, the Supreme Court noted that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion(paragraph 20) To answer this question, Courts have examined the foundational texts of a religion, as well as customary practices. For instance, in Ram Prasad Seth vs State of UP, the Allahabad High Court analysed extracts from the Manusmriti, the Dattak Mimamsa etc., in order to find that polygamy was not an essential part of Hindu religion. In cases involving Islam, the Courts have consulted the Qur’an and its suras. For example, in Mohd. Hanif Qureshi vs State of Bihar, the Supreme Court relied upon the Quran to hold that sacrificing a cow on Bakr’id was not an essential part of the Islamic religion.

In this case, there are two crucial facts that indicate that the exclusion of women from the inner sanctum of the dargah is not an essential religious practice. As the petitioners have pointed out, the Qur’an and the Hadith, which list the core of the practices and beliefs that constitute Islam (that is, according to the Supreme Court), do not prescribe the exclusion of women from places of worship. And secondly, as the petitioners have also demonstrated,  65% of the dargahs surveyed by them across the city of Bombay, do not restrict women’s access to the inner sanctum.

This argument is buttressed by the fact that the Trust has made three arguments to support its exclusion of women from the inner sanctum. Apart from the argument that it is required by Islam (which has been rebutted above), it has also been argued that because women “are inappropriately dressed“; and that this step is being taken for their safety and security (and their “chastity”). It is clear that neither of these two reasons are “essentially religious” in nature, and therefore, fall outside the ambit of Articles 25 and 26 altogether.

In sum, the exclusion of women from the inner sanctum is neither sanctioned by the authoritative sources of Islamic religious doctrine, and nor by the present practices of a majority of dargah administrations. Therefore, in accordance with the settled jurisprudence of the Supreme Court, it is not an “essential religious practice” that is protected under Article 25 or 26.

As to the third proposition: once it has been established that the petitioners have a constitutional right to offer prayers in the inner sanctum of the Haji Ali Dargah, and that the administrators have no corresponding right to exclude them, the onus lies upon the State officials to effectuate that right by ensuring that its exercise is not obstructed by private parties (such as the Trust functionaries. This proposition was upheld by the Supreme Court in Vishakha vs State of Rajasthanand subsequently in Medha Kotwal Lele vs Union of India.

Therefore, on legal and constitutional grounds, the PIL should succeed. The petitioners have a fundamental right to access the tomb and the inner sanctum of the dargah. The respondents have no equivalent right to exclude them. Contrary to their claims, under the existing position of law, the Court would not be “interfering in a religious matter” if it was to order access. Consequently, the Court ought to direct the relevant State authorities to ensure that the petitioners are allowed to exercise their fundamental rights, including the right of access and prayer.

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