Guest Post: The Hijab Judgment and the Meaning of Constitutional Secularism

[This is a guest post by Karan Gupta.]

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Numerous questions arose consequent to the recent ban in Karnataka on students wearing a hijab over a school uniform in classrooms. Some resolution was brought to the dispute on 15 March 2022, when a three-judge Bench of the Karnataka High Court dismissed the petitions challenging the ban. The High Court adopted a narrow path to reach its conclusion – that wearing a hijab is neither essentially religious nor is it an essential religious practice. To the Court, the ban, though touching upon the right to privacy, autonomy, and agency, is a constitutionally permissible restriction.

Some authors have commented on the judgment from different angles (see here, here, here, here, and here). I will focus however on the Court’s reasoning and conclusion which rests on India’s commitment to secularism. In unpacking the arguments raised, I argue that the Court committed itself to operationalising secularism through an equality lens which views all individuals as abstracted from society. This lens prioritises uniformity, assimilation and sameness within the arbitrarily identified ‘quasi-public space’ of a classroom, as opposed to viewing individuals as shaped by distinct identities and consequently prioritising the recognition, protection and celebration of plurality.

Secularism – Two questions

In unpacking how the case sets the stage for secularism as a cause of concern, let us consider two roughly separate questions – what is secularism and how is it operationalised/achieved? 

On the first question, I suggest reading the Petitioners’ argument in the following manner: first, India is committed to a “positive” secularism which entails religious diversity, pluralism, and toleration; second, under the Indian Constitution, though the state is not anti-religion, the Constitution proscribes state action which discriminates against individuals on religious grounds.

On the second question, I suggest reading the Petitioners’ argument in the following manner: first, operationalising secularism includes recognising, protecting, promoting, and celebrating diversity and proscribing any action which homogenises and erases diverse identities; and second, flowing from the previous, where state action indirectly discriminates against an individual on the basis of religion, there is a duty of reasonable accommodation. The argument then was that positive secularism, understood as religious diversity, pluralism, and toleration, is operationalised through recognising and protecting diversity through the implementation of the non-discrimination duty.

The Court accepts the Petitioners’ arguments on the first question (what is secularism) and rejects the arguments on the second question (how is secularism operationalised). It is worth unpacking this in some detail.

Individuals and Identity

The Court accepted that India is committed to positive secularism, which is “not antithesis of religious devoutness but comprises in religious tolerance” (p. 42). It also accepted that secularism, as a basic feature of the Indian Constitution, places upon the state a duty to not discriminate against anyone on the basis of religion. (p. 42). The Court cited Chief Justice S. R. Das’ (as he then was) observations in Re: Kerala Education Bill that India has welcomed diverse creeds, cultures and races, the observation in S. R. Bommai that India, as the ‘world’s most heterogenous society’ celebrates its rich heritage through accommodation and tolerance, as well as the Supreme Court’s observations in Indira Gandhi v Raj Narain that the basic feature of secularism is that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion (p. 40-42). So far, so good. The crucial move however, which touches upon the second question, came immediately thereafter.

The Court recorded that “it is pertinent” that the Constitution imposes a Fundamental Duty to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities (p. 42). The Court observed that this duty is as also found in the Karnataka Education Act 1983 Act, which empowers the State to act in a manner to “inculcate the sense of this duty” and “cultivate a secular outlook” (p. 97). The move here is crucial. To the Court, the commitment to secularism (or as the Court frames it – ‘a secular outlook’) is operationalised/achieved by transcending religious diversities. And how should this be done? The Court answered – through equal treatment that is not informed whatsoever by religious identities or claims. As long as all individuals are treated equally(i.e., in the same manner), and no space is accorded whatsoever for religious claims, the actions aid in transcending religious diversities and are constitutionally protected (p. 95-97). To the Court, any religion-sensitive treatment undermines the constitutional duty to transcend religious diversities, and by extension undermines the commitment to secularism.

This, I argue (with respect), is problematic.

Individual identity is shaped by their membership of groups across different axes – nationality, religion, language, caste, colour, creed, etc. There is a critical difference between an identity axis as the basis for autonomy, agency, and self-actualisation as compared to an identity axis as the basis for prejudicial and degrading treatment based on group membership. This view of equality is sensitive to the reasons and effects for which the identity axis is employed. If race is employed as the basis for actions which result in recognising and redressing past disadvantage, or addressing structural inequality, this would arguably be permissible. However, if race is used as the basis for actions which perpetuate unfair treatment and stigmatisation, these actions would be suspect. It recognises, protects, promotes and celebrates a claim arising out of an identity axis when it furthers individual liberty and proscribes state action where it perpetuates unfair treatment.

For instance, the former explains the Constitutional guarantee that any section of citizens having a distinct language shall have the right to conserve the same (Art. 29) as well as the enabling provisions empowering the President to direct that a language be officially recognised throughout a State if a demand is made by a substantial proportion of the population of a State (Art. 347). The latter explains the constitutional guarantee that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion (Art. 29.2). This also explains the co-existence of the constitutional guarantee to the freedom of conscience and the right to freely profess, practise and propagate religion (Art. 25.1) and the provision enabling the state to make law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (Art. 25.2). The distinction based on the reasons and effects recognises that an identity axis (say language and religion) may at an individual level be founded in autonomy and agency, be deeply constitutive of individual identity, and be worth protecting. The distinction also recognises that identity axes have historically been the basis of prejudicial and degrading action, requiring constitutional non-discrimination guarantees on their basis.

The Court overlooked the above difference. To the Court, any claim grounded in or arising out of religion, whether based on autonomy, privacy, and choice or to recognise and redress past disadvantage and prevent its perpetuation, is impermissible. To the Court, transcending religious diversities (which is how secularism is operationalised) entails viewing every individual, not as located at the cross-currents of distinct identities and group memberships, but as a unit abstracted from society. Social structures, power imbalances, past and present practices are all irrelevant so long as the action under challenge treats all individuals equally(i.e., in the same manner). Even if the action under challenge results in unfavourable treatment, exclusion, or relative group disadvantage, the same is sustainable as long as every individual has been treated equally.

Notice how the above view is often the basis of the argument against reservations. In adopting the ‘equality as symmetry’ view, the argument runs that any differential treatment, even if explained through recognising and redressing past disadvantage, constitutes ‘preferential’ treatment, which is impermissible. The Court adopts this view of equality as symmetry and sameness in contrast to an equality which is sensitive to social structures, power imbalances, past and present practices.

Armed with the view that secularism is operationalised by transcending religious diversities, and that this entails treating all individuals in the same manner, the Court concluded that the State is right in its argument that the prescription of a dress-code (even if to the exclusion of hijabs), being “religion-neutral” and “universally applicable” cannot be called into question as it operationalises constitutional secularism (p.39, 96). As every individual is a unit abstracted from society, the prescription of a dress-code, in so far as it treats “all the students as one homogenous class, serves constitutional secularism” (p. 96).

An (undesired) solidarity of sameness – indirect discrimination, reasonable accommodation, and public spaces

The Court’s reasoning from the above may be deduced thus:

1. Indian is committed to positive secularism, which entails religious diversity;
2. Operationalising secularism involves a duty to transcendall religious diversity;
3. Religious diversity can only be transcended by abstracting individuals from the ebbs and flows of societal structures and treating allindividuals in the samemanner; and
4. Any differential treatment, based on religious identities or claims, will undermine the constitutional commitment to secularism.

This above line of reasoning sets the stage for the Court to address (and reject) the Petitioners’ arguments on indirect discrimination and reasonable accommodation. The argument was two-fold – first, proscribing hijabs within classrooms, in so far as it prejudicially affects only women, amounts to ‘gender–based’ discrimination which Article 15 does not permit (p. 28); and second, where facially neutral regulations have an adverse impact on one gender or one religion, a commitment to substantive equality places the burden of reasonable accommodation on the State – i.e., where there is no undue burden/hardship, the state must take steps to accommodate the claim (p. 29).

These above contentions were however decidedly at odds with the Court’s understanding that any action is protected as long as it treats all individuals equally(in the same manner) in furtherance of the secular commitment to transcend all religious diversities. Thus, the Court’s rejection of the Petitioners’ arguments rested comfortably on its own understanding – “when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like”, there is “absolutely no scope” for a challenge on discrimination (p. 100).

The Court then went one step forward and took the reasoning to its logical conclusion and rejected the argument for reasonable accommodation. The Court held that if the Petitioners argument was accepted, there would be two classes of students – those who wear a hijab and those who do not. To the Court, the object of prescribing a uniform (i.e., ensuring uniformity, transcending religious diversities, and homogenising) would be defeated if there is “non-uniformity in the matter of uniforms”.  And thus, if the Petitioners’ arguments were accepted, the uniform “ceases to be uniform” (106). The next observation is crucial. The Court noted that “this would establish a sense of social separateness, which is not desirable”. The Court noted that as young children are highly impressionable, and grasp the “differentiating lines of race, region, religion, language, caste”, proscribing hijabs creates a “safe-space where such divisive lines should have no place” (107).

Notice the emphasis on the object of prescribing a uniform within educational institutions, and specifically classrooms. This is not piece-meal, but animates the entire judgment. Something must explain the Court’s acceptance of India’s commitment to a positive secularism which entails religious diversity and plurality and at the same time be averse to the visibility of that diversity within classrooms. This distinction between a public space generally and the public space of a classroom is explained in the Court’s acceptance of the State’s argument that educational institutions are ‘qualified public spaces’ (p. 32). The Court concluded that: first, schools are qualified public spaces predominantly for imparting education; second, imparting education implicitly includes discipline and decorum; third, given the qualified nature of the space with a demarcated primary goal, substantive rights “metamorphise into a kind of derivative rights” and must give way to the primary goal (p. 100). With this, the Court concluded that by “no stretch of imagination” can it be said that the prescription of a dress-code offends the right to expression or autonomy (p. 100). The Court cements its distinction between public spaces and the qualified public space of the classroom by concluding that women “can wear any apparel of their choice outside the classroom” (p. 124).

With respect, the Court’s reasoning on the above front is inadequate. First, there is no explanation whatsoever on what demarcates a ‘space’ as a qualified public space. For instance, why are only classrooms carved out, as opposed to the entire school premise itself? Second, the arbitrary demarcation of ‘qualified public spaces’ would open the floodgates to arguments that all substantive rights are nothing but derivative rights within such qualified spaces which must give way to the primary objective with which those spaces are demarcated; third, the Court offered no justification as to why secularism may be operationalised differently within a classroom as opposed to outside it. To me, the only explanation is the Court’s notion that it is mostly young impressionable students (p. 107) who are within classroom and as operationalising secularism is solely understood as transcending religious diversities, students should not be allowed to “readily grasp” the “differentiating lines” of religion. But this is again not helpful as there is no explanation as to why transcending religious diversities operates in this specific manner within classrooms only and why the logical conclusion is not that religious diversity and plurality must be eliminated from all public spaces which are equally accessible to ‘young’ and ‘impressionable’ children.

There is yet another worrying premise in the reasoning – that seeing difference and diversity is problematic and does not serve constitutional secularism. To the Court, transcending religious diversities entails that such diversity should not be seen in the public space of a classroom, as these would create separateness. Recall here that one basic premise of critical race theory is that ‘colour-blindness’ or not seeing race for any context and in public spaces is in reality a technology of power to prevent the redressal of past disadvantage or celebrate diversity in the name of universalism. At its base, colour-blindness (and by extension religion-blindness) obscures the distinction I noted above which touches upon the reasons and effects for employing an identity axis and treats any action based on an identity axis as impermissible. The Court adopted a similar premise and held that constitutional secularism is served by eliminating any plurality in the public space which (to it) may cause social-separateness.

The Court however overlooked the importance of seeing diversity and locating every individual within their societal structures and power hierarchies. It (regrettably) accepted that transcending religious diversity entails suppressing and turning a blind-eye to any religious plurality within the classroom as a public space. In accepting that students should not see diversity, and that uniformity and assimilation is the core ideal, the Court committed itself to a universalism that is erroneously structured on the solidarity of sameness, rather than the dynamics of celebrating difference and plurality. In doing so, the Court operationalised secularism by arbitrarily carving out a ‘qualified public space’ and effectively suspending the right to freely profess, practise and propagate religion.

Conclusion

The Petitioners’ argued that a commitment to positive secularism was operationalised through protecting, promoting, and celebrating diversity, while the State argued that the commitment was operationalised by transcending all religious diversities through equal treatment, homogenisation, assimilation and the removal of any plurality from public spaces. Ratna Kapoor was right to caution over two decades ago that ideological battles are waged not “in opposition to secularism, but in and through it”. The Court vindicated this when it recognised that both sides equally emphasised secularism to buttress their arguments (p. 39).

In failing to recognise that the reasons for and effects of employing an identity axis are relevant, the Court accepted the argument that secularism is operationalised/achieved through an equality lens which views all individuals as abstracted from society and prioritises uniformity, assimilation and sameness. In a bid to achieve this, it also abandons its own observations on the first question of what constitutes secularism.

It is ironic that the Court recognised that India is a “sanctuary for several religions, faiths & cultures that have prosperously co-existed” (p. 40). It is also ironic that the Court quoted the words of Rabindranath Tagore that “none shall be turned away from the shore of this vast sea of humanity that is India”. It is not ironic however that a secularism which accommodates, celebrates and nurtures plurality and diversity has been rejected. It remains to be seen whether the Supreme Court will take note of the two questions on secularism as well as the distinctions urged above and arrive at a different conclusion.

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[All views are personal]

The Citizenship (Amendment) Act Challenge: Three Ideas

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.

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[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let us now summarise the structure of the judgment:

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

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

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

 

 

 

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

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

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

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

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

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

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

Download Table

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

1. The Supreme Court’s religious freedom cases can be broadly divided into two types: cases involving State intervention into the management of temples, durgahs, maths, gurudwaras, which primarily include administration of estate, and appointment of officials; and cases involving the relationship between the members of religious communities, or practices of those members (beef eating, bigamy, excommunication, tandava dancing). Of course, the line might be blurred sometimes (Seshammal and Adithyan are examples).

2. In the first decade of the Supreme Court’s jurisprudence, the religious/secular distinction was evolved to deal with the first type of case, and the essential religious practices test was invented to deal with the second type. As argued above, there is some justification for the Court dealing with the religious/secular question on the basis of the constitutional text itself (although one might disagree with how the Court has drawn the line), and the nature of the claims before it. However, the essential religious practices test was invented out of whole cloth. In fact, in each of the cases that used it – Narasu Appa Mali, Ram Prasad Seth, and Qureshi – there were alternative means, rooted in the constitutional text, available. In fact, in the first two cases, the Court expressly upheld the law on the basis of Article 25(2)(b) as well as holding that it was not an “essential religious practice.” In the third, the Court’s own reasoning would have allowed it to reach the same conclusion on the basis of the “health” restriction under Article 25(1).

3. In Swamiar, the Supreme Court held that what practices are deemed religious will be decided on the basis of what the religion itself claims. This, very clearly, is an unworkable proposition. If the entire scheme of Article 25 and 26 is to draw a line between the religious and the secular, then the determination of what constitutes religion cannot, under the risk of vicious circularity, be left to the religion itself. This is evident from the fact that the Court, while paying lip service to the proposition throughout its history, has never seriously applied it. In Ratilal, for instant, the Jains argued that the whole point of temple property was its use for religious purposes. The Court simply dismissed the argument by asserting that management of property was incidental to religion, without substantiating the same. In Sardar Sarup Singh, the Court made a half-hearted attempt, stating in one line that no text had been produced to show that direct elections to the management committee were part of the Sikh religion. However, even in that case, the Court dodged the main issue by reframing it: it had been argued that the Management Committee performed religious functions. The Court expressed no opinion on that contention, but stated that the impugned provision was only about elections to the committee, and therefore, what the committee actually did (once elected) was irrelevant. This reasoning is unconvincing. Throughout its history, the Court has consistently failed to provide a set of principles to distinguish the religious from the secular. Instead, it seems to have decided the cases on a priori definitions that change with every judgment.

4. In the 1960s, Gajendragadkar CJI substantially muddied the waters by invoking both tests together. In Durgah, which classically fell into the first category (management of estate), he conflated the two tests, and then further added another, holding that practices born out of mere “superstition” could not be considered religious (this proposition was disagreed with in Seshammal). Then, in Govindlalji – another estate management case – he first invoked the essential religious practices test, but applied it to draw a distinction between the religious and the secular. While in Seshammal the Court stuck to the religious/secular distinction, the confusion returned in Adithyan, and continues to this day.

5. In determining what constitutes an “essential religious practice”, the Court has failed to lay down a set of consistent principles. It has often referred to Swamiar (again, a case in a different context), but has not applied it. In some cases, it has referred to texts such as the Quran, in others it has referred to judgments of the Privy Council, in still others it has looked at how old the practice is. Again, while paying lip service to Swamiar’s proposition that the religion itself should be allowed to determine what is religious, the Court has, effectively, arrogated to itself that power, relied upon sources of dubious authority, has never explained why it has chosen the sources that it has and ignored others – and most importantly – has elevated the essential religious practices test to the first, and often last, enquiry that it conducts.

6. Each of the cases that the Court decided on ERP grounds could have been decided on the basis of the constitutional text. We have discussed the three cases in the 50s; furthermore, in Saifuddin, Faruqui and Avadhuta, ERP was an entirely extraneous consideration. In fact, it is unclear what role, as an analytical matter, the essential religious practices test plays in the first place. It would be one thing if Justice Ayyangar’s concurring opinion in Saifuddin was law. In that case, proving ERP would insulate a religious practice even from Article 25(2)(b). However, that is not law. What the essential religious practice achieves is that it spares the Court from actually upholding a law on the basis of Article 25(2)(b), or the prefatory sub-clause of 25(1). Instead, it allows the Court to hold that religion, the Constitution, and the State are not in conflict, because the practice sought to be regulated isn’t “integral” or “essential” to the religion at all, and so outside the scope of constitutional protection. This might be a convenient doctrine politically (and scholars have made that argument), but it is entirely contrary to what the Constitution prescribes.

7. In sum, therefore, while Articles 25 and 26 are unhappily worded, the Court’s messy jurisprudence is entirely of its own making.
   1. The essential religious practices test is an entirely arbitrary doctrine that has been grafted onto the constitutional text, in effect to make 25(2)(b) and the first part of 25(1) as redundant as possible.
   2. The Court has regularly mixed up doctrines originally evolved in two very different contexts. The question of the extent to which the State can intervene into the management of religious institutions is very different from the extent to which it can intervene into intra-community relationships and individual practices – the Constitutional text itself treats the two very differently. This has led to absurd results, such as Avadhuta II.
   3. The Court has failed to develop a coherent jurisprudence on the two basic tests that it has used: what principles are to be applied to distinguish between the religious and the secular? And what is the methodology and sources to determine whether something constitutes an “essential religious practice”?
   4. At the same time, the present confusion is easy enough to resolve. It can be resolved by getting rid of the ERP test, replacing it with a deferential – but watchful – application of Article 25(2)(b) and 25(1), using the illustrations provided in 25(2)(a) and 26(d) to draw the distinction between the religious and the secular when it comes to the first category of cases, and applying a civil-rights based standard (as evolved in Justice Sinha’s dissenting opinion in Saifuddin, discussed earlier on this blog) in the second category of cases.

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)).

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

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

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

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

The Dawoodi Bohra Case: Issues

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

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

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

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

The Majority Opinion

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

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

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

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

Concurring Opinion of Justice Ayyangar

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

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

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

Dissenting Opinion of Justice Sinha:

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

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

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

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

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

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

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

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

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

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

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

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

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

“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.

 

Guest Post – III: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

(This is the third and final essay in a series on secularism and the freedom of religion under the Indian Constitution, by Suhrith Parthasarthy, a Madras-based lawyer and journalist. In the previous essay, the Tamil Nadu ordinance presently under challenge, which provides that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” can be appointed as priests in state-administered temples, was discussed. In this concluding essay, that ordinance is placed in the context of the historical tension between the freedom of religion and State interference under the Indian Constitution)

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Throughout its history, the Supreme Court of India has generally viewed governmental intervention in matters of religion as a vital component in the state’s movement to initiate social welfare and reform. The court has, over the years, carved a particular jurisprudence that allows it to determine what constitutes an “essential religious practice;” and, in so doing, the court has provided itself a legal basis to condone pervasive state intervention in matters of both religious belief and religious practice. Indeed, as Marc Galanter once observed, even in a secular state, “civil authorities, including the courts, find themselves faced with the necessity of ascertaining what is religious.” And, in India, this necessity is particularly stark given that the state’s powers to bring forth social reforms in Hindu religious institutions is constitutionally accorded.

But, equally, as the senior advocates Rajeev Dhawan and Fali S. Nariman wrote, “The nationalization of religious endowments, temples and places of learning sits uneasily with both the guarantee of religious freedom and secularism.” In fact, Donald E. Smith, one of the earliest commentators on the Indian Constitution’s guarantee of religious freedom dramatically argued that the movement to bring forth social change in religious institutions, such as the eradication of untouchability, “is not consistent with the concept of a secular state…In a secular state the nature of the relations between the Church and its believers is to be settled between themselves.”

Nonetheless, given that discrimination in religious institutions is often so deep-rooted as to deny individuals’ their most basic civil liberties, and given that the Constitution enjoins the state to promote social welfare in these institutions, India’s secularism, if indeed we must call it that, is certainly quite distinct from the various western models of the concept (it could be described, for instance, as Rajeev Bhargava does, as a form of contextual secularism). This means the court is often tasked with the onerous job of striking a delicate balance between practices or beliefs, which individuals or groups might view as being freely exercisable, and the power of the state to intervene in the management and administration of religious institutions.

Yet, every time the Supreme Court has embarked on this mission to determine what constitutes “an essential religious function,” it appears to be making a moral judgment. As Dhawan and Nariman wrote, “With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.” Apart from arrogating unto itself this power to determine what constitutes an essential religious practice, the Supreme Court has further muddled the interpretive process by bringing forth a facile distinction between “denominational” temples and public temples. While the former category, which, according to the court, includes a few closely-knit Hindu religious institutions, enjoys a greater element of liberty in managing its own affairs, the latter category has been seen as capable of being completely brought within the state’s officious powers. It might, for instance, indeed be true that the restriction applied in Hindu religious institutions, which sees qualifications for priesthood restricted on the basis of the Agamas, as a practice antithetical to decent morality. But, the question remains: must not the state leave religion alone? Even in public religious institutions, is it not for the community of followers to determine for themselves what constitutes an essential religious practice?

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To resolve this question – i.e., the conflict between the right to religious freedom and the state’s duty in intervening to bring forth social welfare and reform in matters of religion – we must start with the constitutional text. Let us see what Articles 25 and 26 expressly provide.

Article 25 states “(1) 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, practice and propagate religion. (2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II – In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Article 26 states: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—(a) to establish and maintain institutions for religious and charitable purposes, (b) to manage its own affairs in matters of religion (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

As we saw earlier, when plainly read, these provisions tend to promote religious freedom free of interference from the state. Yet, harmonizing the two rights with the specific mandates imposed on the state therein has proved to be a source of substantial difficulty for the Supreme Court. In the earliest case where the court was called upon to make this reconciliation, it made a curious choice. In the Shirur Mutt case, the court simultaneously defined religion to include religious practices and beliefs (as opposed to the definition offered, for instance, by Chief Justice Chagla in Ratilal Panachand Gandhi vs State Of Bombay) but also endorsed substantial state intervention in religious institutions. Justice Mukherjea’s observations are worthy of being quoted in full. He wrote:

“In the first place, 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)… as we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

But here’s the paradox. In spite of holding thus, the Supreme Court nonetheless in Shirur Mutt upheld vast portions of the Madras Hindu Religious and Charitable Endowments Act, 1951, under which a commissioner could frame and settle a ‘scheme’ if he or she had reason to believe that a religious institution was mismanaging the resources placed under its care or was being run contrary to the purposes for which it was founded. The result therefore helped herald several new laws through which states sought to arrogate the power to control Hindu religious institutions. What’s more, with time, the doctrine of essential religious practice, as was originally framed in Shirur Mutt, also began to wither, and took on a whole new meaning.

In Sri Venkatramana Devaru v. State of Mysore, for instance, the court was asked to determine whether the Madras Temple Entry Authorization Act, which was enacted with a view to granting Harijans a right to enter all public temples, applied to a temple founded by a sect called the Gowda Saraswath Brahmins. The court held that the sect was indeed a separate religious denomination that enjoyed the right to manage its own affairs under Article 26, but it also found that this right was subject to laws protected by Article 25(2)(b). To hold otherwise, wrote Justice Venkatarama Aiyar for the court, would render Article 25(2)(b) wholly nugatory in its application to denominational temples, even though the language of the clause includes such institutions. The court was forced into trying to harmonize Articles 26 and 25(2)(b) because it had found that the practice of excluding certain persons from entering into a temple for worship was a matter of religion according to Hindu Ceremonial Law. Thus, in Devaru, Justice Aiyar found, quite contrary to the judgment in Shirur Mutt, that it was for the court to determine what practices were essential according to the tenets of a religion.

In the decades that followed Devaru, as Ronojoy Sen points out in his excellent book, “Articles of Faith: Religion, Secularism, and the Indian Supreme Court,” the essential practices doctrine entrenched itself as the test to determine different varieties of cases. It has been employed not only in deciding which practices deserve constitutional protection, but also in adjudicating the validity of legislation aimed at usurping the administrative and managerial authority of religious institutions. The consequences of the doctrine have been stark. It has allowed the Supreme Court to define for us what our religious beliefs and practices ought to encompass. In fact, Justice K. Ramaswamy went so far as to differentiate, in AS Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765, between what he termed as secularisation and secularism.

“Secularisation,” wrote Ramaswamy J., “essentially is a process of decline in religious activity, belief, ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may not accept any religion as the basis of State action or as the criteria of dealing with citizens, the Constitution of India seeks to synthesise religion, religious practice or matters of religion and secularism. In secularising the matters of religion which are not essentially and integrally parts of religion, secularism, therefore, consciously denounces all forms of super-naturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious practices are anti-thesis to secularism which seeks to contribute in some degree to the process of secularisation of the matters of religion or religious practices.” Having held thus, Justice Ramaswamy delved into a deep discussion of various Hindu religious texts to determine for the followers of the faith what they ought to regard as essentially religious. The result has been the withering of the autonomy of both the individual and the group to enjoy a freedom of conscience. The questions that the court poses no longer relate simply to whether a specific measure is required in the interests of fulfilling the community exceptions of public order, morality, or health. Rather, they involve a purported analysis of inherently religious tenets, which the court is certainly not qualified to rule conclusively upon.

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In his final book, “Religion without God,” Ronald Dworkin wrote that when governmental intervention “cannot be justified as protecting the rights of others, but only reflects disapproval of the religion that imposes the duty in question, government has violated the right to free exercise.” The Supreme Court of India has repeatedly committed such errors. In aiming to rationalize religion, the court routinely disapproves of different religious practices, holding such practices to be inessential to the practice of the religion. In the case of the archakas appointments, it could be plausibly argued that state intervention is required to correct a historic social evil. But we must nonetheless ask ourselves whether it is within the state’s domain to intervene in matters of ethical choice. The Supreme Court was possibly quite correct in ruling in the ERJ Swami case, which we discussed earlier, that a deviation from the Agamas would violate one’s freedom of conscience. But the manner in which it arrived at its decision—which involved an engagement with complicated religious tenets—remains dubious.

When the court sits over judgment of the Tamil Nadu ordinance of 2006, therefore, it must look to set right several doctrinal errors of the past. It must test the law purely on whether it is required in the interests of morality, public order, or health, and, if not, whether the law is required to promote social welfare and reform. While it is one thing to argue that the prevention of entry into temples of some communities helps propagate a deeply corrosive form of discrimination, it is another to argue that the state must also regulate how temples select their priests. It isn’t for the courts to reformulate religion in the manner that it feels most rational.

Guest Post – II: Secularism and Freedom of Religion Reconsidered – Old Wine in New Bottles?

(This is the second essay in a three-part series on secularism and the freedom of religion, by Suhrith Parthasarthy, a lawyer and a journalist, who currently practices as an attorney at the Madras High Court. In Part One, the Supreme Court’s recent deviation from its time-honoured practice of intervention into religious matters on the ground of social reform was discussed. In this post, the ongoing Tamil Nadu litigation that throws up the question of intervention yet again, is examined. In the last post, the normative and constitutional arguments that become salient in this case, will be discussed)

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Traditionally, as Manuraj Shanmugasundaram pointed out in the January issue of The Caravan Magazine, priests to Hindu religious temples in Tamil Nadu have been appointed by following a hereditary principle of succession, generally within a community of Brahmins. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, protected this practice of appointing priests on a hereditary basis. We shall now take a look at what this section originally said:

“(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, however, with a view to abolishing this practice of making hereditary appointments, the state government amended, among other provisions, Section 55 of the Act. The amended section stated “(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.” A further explanation was also added: “In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.”

This amendment to Section 55 was challenged in the Supreme Court by way of 12 separate writ petitions filed by hereditary Archakas and Mathadipatis of some of the most ancient and historic Hindu public temples in Tamil Nadu. The petitioners’ contended in ERJ Swami v. The State of Tamil Nadu[1] that Articles 25 and 26 of the Constitution of India protected their freedom of hereditary succession to the office of the Archaka, and this freedom was an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.

The court through Justice DG Palekar’s judgment dismissed the writ petitions. It held that the power to appoint archakas to public temples was a secular function (remember, the Constitution explicitly allows the state to regulate such non-religious functions) and to the extent that the trustees of the temples were no longer bound to make appointments on the sole ground of hereditary succession the amendments were valid. But, the court also held, that the amendment did not provide any power to the trustees to eschew the Agamas, which constitute the fundamental treatise on rituals in Hindu temples, in determining who could be appointed as a priest.

Justice Palekar’s observations in this regard are telling, and worthy of being quoted in full. He writes:

“The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in temples of a different denomination. …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 Garha 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. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.”

To sum up, the Supreme Court in ERJ Swami’s case upheld the 1970 Amendment, by holding that the function of appointing an Archaka was secular in nature, and that therefore a trustee of a temple was not bound to appoint priests on the basis of hereditary succession. The court nonetheless rendered nugatory the fundamental purpose of the amendment by also holding that the trustee was nonetheless obligated to follow the Agamas in arriving at a decision. And the Agamas provide that only members of particular “denominations” are competent to preside as priests. As a result of this judgment, every time an appointment is made to the position of an Archaka in a public temple, notifications seeking applications often seek to reinforce the fulfilment of specific conditions of caste as a criterion for appointment.

In 2006, however, the government of Tamil Nadu sought to further change this practice. It introduced an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to the 36,000-odd temples under government administration across the state. The ordinance was immediately challenged in the Supreme Court, and has been stayed pending a final decision. The primary argument of the petitioners is that the new law violates the specific finding of the Supreme Court in ERJ Swami’s case, that it seeks to permit the state to act contrary to the Agamas, even though the fulfilment of these conditions has been held to be integral to the practice of the religion.

[1] AIR 1972 SC 1586.

Guest Post – I: Secularism and the Freedom of Religion Reconsidered – Old Wine in New Bottles?

(In this three-part series, Suhrith Parthasarthy, a Chennai-based lawyer and journalist, re-examines the issue of secularism and the freedom of religion in India, in light of an important, ongoing litigation at the Supreme Court).

The right of individuals and groups to practice their own religious belief has long been recognized as an integral value of liberal democracies. Intervention by the State in matters of religion is therefore often seen as anathema. Laws which impinge the observance of any religious belief or practice, or which discriminate between religions, are generally viewed as violating this right to a freedom of conscience. Like most other liberties, however, this right too is subject to certain restrictions, the “community exception,” as Tom Bingham, the late British judge and jurist described it.

In India, the right to religious freedom and its boundaries (which also peculiarly includes a few specific mandates to the state) is contained in Articles 25 and 26 of the Constitution. The former guarantees the people a freedom of conscience and the right freely to profess, practise, and propagate religion, subject to public order, morality, and health, and to the guarantee of other fundamental rights. It also protects laws made by the state to regulate any economic, financial, political, or other secular activity associated with religious practice, and laws that provide for social welfare and reform, including the throwing open of Hindu religious institutions of public character to all classes and sections of Hindus. Article 26 provides (once again subject to public order, morality, and health) a right to every religious denomination to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.

Read plainly, it appears that these provisions collectively seek to protect a person’s or a group’s fundamental right to practise religion substantially free of interference from the state. But, in practice, the community exceptions have often transcended the right. They have ended up allowing the state to limit protection only to those matters, which, in its opinion, are essential to the religion concerned. And the Supreme Court has often sat as an arbiter to decide which practices and beliefs constitute these “essential parts of religion.” The court has also used this test to determine the validity of legislation aimed at administering religious institutions, particularly Hindu temples. As a result, the purpose of judicial enquiry by the Supreme Court often appears to be aimed at rationalizing religion. It was in this light that Justice K. Ramaswamy observed in A.S. Narayana Deekshitulu v. State of Andhra Pradesh that the religious freedom guaranteed by Articles 25 and 26 “is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order.”

Recently, however, the Supreme Court has shown an inclination towards rethinking its jurisprudence. In January 2014, in the case of Subramanian Swamy v. The State of Tamil Nadu, the court quashed an order passed by the government of Tamil Nadu, which sought to bring within the state government’s control the management of the Sri Sabhanayagar Temple in the town of Chidambaram. Specifically, a bench of Justices BS Chauhan and SA Bobde found that the order appointing an Executive Officer to the Temple under Section 45 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, was in violation of the rights guaranteed under Article 26 of the Constitution of India to the Podu Dikshitars, a small sect of Smartha Brahmins.

The court arrived at its decision on the basis of a 1951 ruling of the Madras High Court, which, in its opinion, operated as a judgment in rem, i.e. that the judgment was binding on everyone, and had an effect beyond just the rights of the parties concerned. In Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt v. The Commissioner, Hindu Religious Endowments, Madras, the Madras High Court had found several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 unconstitutional insofar as the law was made applicable to the Matathipathi of the Shirur Mutt in the South Kanara District and to the Dikshitars of the Sabhanayagar Temple. Subsequently, the decision rendered in favour of the Shirur Mutt was substantially reversed by a five-judge bench of the Supreme Court in what is today known as “The Shirur Mutt case”. But the state government chose to accept the high court’s ruling insofar as it applied to the Dikshitars of the Sabhanayagar Temple, while appealing the verdict insofar as it applied to the Shirur Mutt. In other words, the government had conceded that the Dikshitars represented a separate “religious denomination” enjoying special rights. Therefore, according to Justices Chauhan and Bobde, to today re-examine the question of whether the Dikshitars were a religious denomination that enjoyed these special rights under Article 26 was barred as it had already been conclusively judged.

On these technical principles, to lawyers in particular, the Supreme Court’s decision in the Subramanian Swamy case might even appear unexceptional. But the bench also made a series of telling remarks that possibly went beyond the gamut of the proceedings. It held, for instance, that any takeover by the state of a temple’s management ought to be limited in duration. “Even if the management of a temple is taken over to remedy [an] evil,” wrote Chauhan, J., “the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived.” This view of the Supreme Court, which effectively calls for stronger limits on state intervention in matters of religious administration, goes against the general grain of the court’s previously established jurisprudence. More crucially, it also gives us a hint of how the Supreme Court might rule on a string of litigation concerning Tamil Nadu’s temples pending for final hearing on the court’s docket. One such case involves the appointment of archakas—or priests—in the state’s temples.

(The facts and background of the case will be examined in the next post)