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Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution

  • GAUTAM BHATIA (a1)
Abstract:

The religious freedom clauses of the Indian Constitution attempt to mediate between the competing claims of individuals, religious groups and the state, in a manner that is born out of specific historical circumstances. This article examines the controversial questions of whether, and to what extent, the Constitution grants individuals (specifically, dissenters) rights against the religious communities to which they belong. Taking as its point of departure a landmark Supreme Court judgment that struck down an anti-excommunication law, the article argues that the Indian Constitution is committed to an ‘anti-exclusion principle’: that is, group rights and group integrity are guaranteed to the extent – and only to the extent – that religious groups do not block individuals’ access to the basic public goods required to sustain a dignified life. Moreover – and unlike most other Constitutions – an individual may vindicate this right directly against her community in a court of law, by invoking the Constitution. This remedy is justified both philosophically, and in the specific context of Indian history. In this manner, Indian constitutionalism offers a novel and innovative solution to the perennial problem of balancing individual rights to religious freedom against the claims of community.

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Email: gautambhatia1988@gmail.com
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1 PTI, ‘Now women seek entry into Haji Ali Dargah’, The Indian Express, 28 January 2016.

2 Express News Service, ‘Supreme Court to examine ban on women’s entry on Sabrimala’, Indian Express, 13 February 2016.

3 Sardar Syedna Tahir Saifuddin v State of Bombay, 1962 SCR Supl. (2) 496.

4 Ibid, para 61 (concurring opinion of Ayyangar J).

5 Ibid, para 19 (dissenting opinion of Sinha CJ).

6 Ibid, para 23 (dissenting opinion of Sinha CJ).

7 Part III, Constitution of India.

8 See e.g. R Dhavan and FS Nariman, ‘The Supreme Court and Group Life’ in BN Kirpal et al. (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP, New Delhi, 2000) 256–87; BP Rao, ‘Matters of Religion’ (1963) 5 Journal of the Indian Law Institute 509; M Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’ (1971) 21(4) Philosophy East and West 467.

9 Art 25(1) Constitution of India.

10 See e.g. First Amendment, Constitution of the United States of America; Section 15, Constitution of South Africa.

11 Art 25(2)(a) Constitution of India.

12 Art 25(2)(b) Constitution of India.

13 A point made by BP Rao in ‘Matters of Religion’ (n 8); DE Smith, ‘India as a Secular State’ in R Bhargava (ed), Secularism and Its Critics (OUP, New Delhi, 1998) 177.

14 Art 26(b) Constitution of India.

15 Art 26(d) Constitution of India.

16 Rudolph, L and Rudolph, S, In Pursuit of Lakshmi: The Political Economy of the Indian State (University of Chicago Press, Chicago, IL, 1987) 33.

17 Galanter, M, ‘The Religious Aspects of Caste: A Legal View’ in Smith, D (ed), South Asian Politics and Religion (Princeton University Press, Princeton, NJ, 1966) 289.

18 See (n 16).

19 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (OUP, Oxford, 1996) ch 3.

20 See e.g. Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US ____ (2012) (US Supreme Court).

21 For a summary of the opposing views, see Bhargava, R, ‘Introducing Multiculturalism’ in Bhargava, R et al. (eds), Multiculturalism, Liberalism, and Democracy (OUP, New Delhi, 2007) 1.

22 See (n 3) para 33.

23 See e.g. S Parthasarathy, ‘The Flawed Reasoning in the Santhara Ban’, The Hindu, 24 August 2015.

24 Wisconsin v Yoder, 406 U.S. 275 (1972) (US Supreme Court).

25 Multani v Commissioner, [2006] 1 SCR 256 (Supreme Court of Canada).

26 Leyla Sahin v Turkey, [2007] 44 EHRR 5 (Grand Chamber) (European Court of Human Rights).

27 But see MEC for Education v Pillay (2008) 2 BCLR 99 (CC) (South African Constitutional Court); R(E) v Governing Body of JFS [2009] UKSC 15 (United Kingdom Supreme Court). Note, however, that the JFS case was decided under the UK Race Relations Act, which specifically prohibited discrimination and exclusion in certain aspects of the private sphere. The argument in this article deals with how the Indian Constitution speaks to such issues.

28 Jacobsohn, G, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press, Princeton, NJ, 2003) 102.

29 Parliament of India, Constituent Assembly Debates, Vol. VII, 2nd December 1948 (speech of Dr BR Ambedkar) at <http://164.100.47.132/LssNew/constituent/vol7p18.html> (emphasis added).

30 See ibid 29; also Madan, TN, ‘Secularism in its Place’ in Bhargava, R (ed), Secularism and Its Critics (OUP, New Delhi, 1998) 297, 302.

31 See Madan (n 30).

32 See Dhavan and Nariman (n 8) 260.

33 The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Swamiar, 1954 SCR 1005, para 20.

34 Ratilal Panachand Gandhi v State of Bombay, 1954 SCR 1035.

35 Ram Prasad Seth v State of UP, AIR 1957 All 411, para 12, relying upon State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84.

36 Mohd Hanif Qureshi v State of Bihar, 1959 SCR 629, para 13.

37 Durgah Committee, Ajmer v Syed Hussain Ali, 1962 1 SCR 383, para 33 (emphasis added).

38 Tilkayat Shri Govindlalji v State of Rajasthan, 1964 SCR (1) 561, para 57 (emphasis added).

39 Sastri Yagnapurushadji v Muldas, 1966 SCR (3) 242.

40 R Dhavan, ‘Religious Freedom in India’ (1987) 35(1) American Journal of Comparative Law 209, 224.

41 For criticism, see Rao (n 8).

42 Seshammal v State of Tamil Nadu, (1972) 2 SCC 11.

43 Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770. See also Ismail Faruqui v Union of India, 1994 SCC (6) 360, holding that praying at a mosque was not an essential part of Islam.

44 Cantwell v Connecticut, 310 U.S. 296 (1940).

45 United States v Ballard, 322 U.S. 78 (1944).

46 Commissioner of Police (n 43) para 62 (dissenting opinion of Lakshmanan J). See also HM Seervai, Constitutional Law of India, Vol. 2 (4th edn, Universal, New Delhi, 1993) 1268.

47 Adi Saiva Sivachariyargal Nala Sanga v Govt of Tamil Nadu, (2016) 2 SCC 725.

48 See Jacobsohn (n 28) 101.

49 HE Groves, ‘Religious Freedom’ (1962) 4 Journal of the Indian Law Institute 190.

50 Galanter (n 8) 482–3.

51 Dhavan and Nariman (n 8) 260.

52 For a critique of how colonial scholars themselves approached the question of Indian religion through a set of established lenses, see Sen, R, Articles of Faith: Religion, Secularism, and the Supreme Court (OUP, New Delhi 2013) 5.

53 See e.g. Shilubana v Nwamitva, 2008 (9) BCLR 914 (CC) (South African Constitutional Court).

54 Mohd Hanif Qureshi v State of Bihar; see (n 36).

55 Nandy, A, ‘The Politics of Secularism and the Recovery of Religious Tolerance’ in Bhargava, R (ed), Secularism and Its Critics (OUP, New Delhi, 1998) 321, 322.

56 See (n 52) 18; see also (n 28) 101.

57 C Lynch, ‘A neo-Weberian approach to religion in international politics’ (2009) 1(3) International Theory 381, 400.

58 See ibid 401. Indeed, this broad critique exposes striking similarities between the judicial analysis of the freedom of religion, and the colonial British view of religious groups in India. The use of textual sources of dubious variety over the lived practice of the constituents, and the imposition of an external point of view that runs contrary to how the believers themselves act, were best exemplified by the notorious Aga Khan decision in 1866, dealt with extensively in T Purohit, The Aga Khan Case (Harvard University Press, Cambridge, MA, 2012).

59 JDM Derrett, Religion, Law and the State in Indi (Faber & Faber, London, 1968); see also (n 52). More broadly, systems theorists such as Gunther Teubner have argued that autonomous social systems (in this case, law and religion) ‘cannot directly influence one another but can only effect self-regulatory processes’ through ‘structural coupling’. Teubner warns that when the ‘juridification process’ oversteps these boundaries, it leads to a ‘regulatory trilemma’, characterised by mutual indifference between the spheres, or by the disintegration of either one. G Teubner, ‘Juridification – Concepts, Aspects, Limits, Solutions’ in Juridification of Social Spheres (Walter de Gruyter, Berlin, 1987) 1. While flagging that point, I note that a complete analysis of the effect of the Supreme Court’s ‘essential religious practices’ doctrine both upon its own jurisprudence, and upon the fate of internal reform movements within religion is beyond the scope of this article.

60 As Farah Ahmed correctly notes, in the context of Indian personal law, ‘if group autonomy means anything, it surely means that the group should decide for itself the norms by which it is governed’. F Ahmed, ‘Remedying Personal Law Systems’, International Journal of Law, Policy and the Family (forthcoming) available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2777337>. Ahmed is equally cognisant of the heterodox claims within the group, and the tension securing between group autonomy and such claims.

61 Galanter (n 8) 482; see also (n 28) 98.

62 Galanter (n 8) 483.

63 See (n 28).

64 R Bhargava, ‘What is Secularism For?’ in Secularism and Its Critics (n 13).

65 A point made by both Galanter and Sen.

66 Saifuddin (n 3) para 11 (dissenting opinion of Sinha CJ).

67 Saifuddin (n 3) para 23 (dissenting opinion of Sinha CJ).

68 BR Ambedkar, The Untouchables: Who Were They and Why They Became Untouchables, <http://www.ambedkar.org/ambcd/39A.Untouchables%20who%20were%20they_why%20they%20became%20PART%20I.htm>. Seervai, for instance, denies the validity of the analogy. See (n 46) 1278.

69 Venkataramana Devaru vs State of Mysore, 1958 SCR 895.

70 Art 17, Constitution of India.

71 Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of Dr BR Ambedkar) <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>. The first official definition of ‘untouchability’, in 1931 by the British Census Commissioner, was a broad one, defining it as social segregation characterised by exclusion from public amenities. JH Hutton, Caste in India: Its Nature, Function and Origins (3rd edn, OUP, New Delhi 1961), 194.

72 Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of Na Ahmed) <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

73 Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

74 Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of KM Munshi) <http://parliamentofindia.nic.in/ls/debates/vol3p2.htm>.

75 Ibid (speech of RK Choudhury).

76 Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of KT Shah) <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

77 See Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of Promatha Ranjan Thakur) <http://parliamentofindia.nic.in/ls/debates/vol3p2.htm>; Parliament of India, Constituent Assembly Debates, Vol. V, 27 August 1947 (speech of Monomohan Das), <http://parliamentofindia.nic.in/ls/debates/vol5p8a.htm>; Parliament of India, Constituent Assembly Debates, Vol. XI, 21 November 1949 (speech of HJ Khandekar) <http://parliamentofindia.nic.in/ls/debates/v11p7m.htm>.

78 Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of PS Deshmukh) <http://parliamentofindia.nic.in/ls/debates/vol3p2.htm>; Parliament of India, Constituent Assembly Debates, Vol. VII, 29 November 1948 (speech of Shri Shibban Lal Saksena), <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

79 Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of SC Bannerjee) <http://parliamentofindia.nic.in/ls/debates/vol3p2.htm>.

80 Parliament of India, Constituent Assembly Debates, Vol. XI, 19 November 1949 (speech of M Ananthasayanam Ayyangar), <http://parliamentofindia.nic.in/ls/debates/vol11p6.htm>.

81 Parliament of India, Constituent Assembly Debates, Vol. XI, 23 November 1949 (speech of BM Gupta) <http://parliamentofindia.nic.in/ls/debates/v11p9m.htm>.

82 Parliament of India, Constituent Assembly Debates, Vol. VII, 29 November 1948 (speech of Santanu Kumar Das) <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

83 Parliament of India, Constituent Assembly Debates, Vol. XI, 22 November 1949 (speech of Ajit Prasad Jain) <http://parliamentofindia.nic.in/ls/debates/v11p8m.htm>.

84 Furthermore, scholars who accept group rights in liberal political theory are circumspect about the legitimacy of imposing liberal norms upon groups who might be following illiberal practices. See e.g. C Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20(1) Political Theory 105; W Kymlicka, ‘The Rights of Minority Cultures: Reply to Kukathas’ (1992) 20(1) Political Theory 140.

85 M Tushnet, ‘The issue of state action/horizontal effect in comparative constitutional law’ (2003) 1(1) International Journal of Constitutional Law 79.

86 G Bhatia, ‘Comprehensive Transformative Amendments – Theory and Practice: Rethinking the Nineteenth Amendment and the Place of Women’s Rights in the Constitution’ (2015) 13 Dartmouth Law Journal 1.

87 Rawls, J, Political Liberalism (Columbia University Press, New York, NY, 1993).

88 Art 23, Constitution of India. In PUDR v Union of India, AIR 1982 SC 1473, the Supreme Court interpreted the term ‘forced labour’ to include non-payment of minimum wage, which workers were compelled – or ‘forced’ – to accept because of adverse market conditions.

89 Art 15(2), Constitution of India.

90 IMA v Union of India, C.A. No. 8170 of 2009.

91 See Rao, A, The Caste Question (University of California Press, Berkeley, CA, 2009). For a detailed analysis of art 15(2) of the Indian Constitution, see G Bhatia, ‘Horizontal Discrimination and Article 15(2) of the Indian Constitution: A Transformative Approach’ (2016) 11(1) Asian Journal of Comparative Law 87.

92 See Rao (n 91) 165; see also BR Ambedkar, What Congress and Gandhi Have Done to the Untouchables <http://www.ambedkar.org/ambcd/41D.What%20Congress%20and%20Gandhi%20CHAPTER%20III.htm>.

93 Rao (n 91) chs 1–2.

94 The link between secularism and equality has been suggested by Cossman and Kapur. B Cossman and R Kapur, ‘Secularism: Bench-Marked by the Hindu Right’ (1996) 31(38) Economic and Political Weekly 2613.

95 See Wood, G, The Creation of the American Republic, 1776–1787 (University of North Carolina Press, Chapel Hill, NC, 1998); Benhabib, S, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Routledge, New York, NY, 1992).

96 This argument is developed in greater detail in Bhatia, ‘Horizontal Discrimination’ (n 91).

97 Rao (n 91) 81.

98 Ibid 81–5.

99 Ibid.

100 For an overlapping (but different) account, see H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16.

101 T Khaitan, A Theory of Discrimination Law (OUP, Oxford, 2015).

102 For a version of this argument, see A Gutmann, Identity in Democracy (Princeton University Press, Princeton, NJ, 2003) ch 2.

103 P Chatterjee, ‘Secularism and Tolerance’ in Secularism and Its Critics (n 13) 344, 375.

104 Ibid.

105 A Bilgrami, ‘Secularism, Nationalism and Modernity’ in Secularism and Its Critics (n 13) 380, 405.

106 Bhargava, ‘What is Secularism For?’ (n 13).

107 See e.g. Hosanna Tabor (n 20).

108 See (n 102) 98.

109 It might be argued that for internal dissidents, the religious context is always a ‘thick’ one. This is undoubtedly true, to a certain extent, as far as the basic good of cultural membership goes. However, ‘thick’ religious groups, in the sense that we are discussing here, have the ability to deny to their constituents more than just the good of cultural membership; they have the ability to block their access to other basic goods, including material and economic ones. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.

110 Kukathas argues, for instance, that groups can subordinate their members as long as there is an option to exit into the broader market economy. See Kukathas, ‘Are There Any Cultural Rights?’ (n 86). See also Hofer v Hofer, [1970] S.C.R. 958 (dissenting opinion of Pigeon J) (Supreme Court of Canada). However, as Farrah Ahmed points out (with the specific example of India), the right to exit is often illusory. F Ahmed, ‘Personal Autonomy and the Option of Religious Law’ (2010) 24(2) International Journal of Law, Policy and the Family 222.

111 Note, however, that this argument doesn’t depend upon an a priori definition of the term ‘public’, as has been the route taken by the American Supreme Court, and some judges of the Canadian Supreme Court. Boy Scouts of America v Dale, 530 U.S. 640 (2000) (Supreme Court of the United States); Roberts v United States Jaycees, 468 U.S. 609 (1984) (Supreme Court of the United States); Gould v Yukon Order of Pioneers, [1996] 1 SCR 571 (concurring opinion of La Forest J; dissenting opinion of L’Hereux-Dube J).

112 Rao (n 91) 89.

113 See Gutmann (n 102) 97 (emphasis added); see also (n 100) 23. See also Gould v Yukon Order of Pioneers, ibid (dissenting opinion of MacLachlin J) (Supreme Court of Canada). For an examination of religious group membership itself being an important good, see F Ahmed, Religious Freedom under the Personal Law System (OUP, Oxford, 2015) 60.

114 See (n 102) 103. The public expression of second-class citizenship is the basis of some decisions of United States Supreme Court on the Establishment Clause, although that is limited to expression by the state. See Lynch v Donelly, 465 U.S. 668 (1984) (Concurring opinion of O’Connor J) (Supreme Court of the United States).

115 S Woolman, ‘Seek Justice Elsewhere: An Egalitarian Pluralist’s Reply to David Bilchitz on the Distinction between Differentiation and Domination’ (2012) 28 South African Journal on Human Rights 273, 285.

116 Walzer, M, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, New York, NY, 1983) 19.

117 Rao (n 91) 77.

118 Ibid 82. Rao cites the example of how the right to access temples and water tanks ended up becoming part of the same campaign, because of the spatial proximity of the two.

119 In response to a possible objection to the use of ‘Western’ philosophers such as Gutmann and Walzer in the context of an argument about the Indian Constitution (which, I have been arguing, had its own distinct normative origin), I should clarify that Gutmann and Walzer simply help us to understand more clearly the transformative purpose of the Indian Constitution: that is, to transform a political and social reality in which individuals’ access to basic goods is often mediated (and sometimes blocked) by their religious group affiliations. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.

120 See e.g. Kukathas (n 86); A Margalit and M Halbertal, ‘Liberalism and the Right to Culture’ (1994) 61(3) Social Research 491; Santa Clara Pueblo v Martinez, 436 U.S. 49 (1978) (Supreme Court of the United States).

121 However, as Farah Ahmed argues, groups that do not achieve ‘minimal representativeness and deliberative quality’ end up constraining the individual autonomy of their members; and the thicker the group, the more harmful those constraints will be; Ahmed (n 113) 85–91.

122 Section 31, Constitution of South Africa.

123 Art 27, International Covenant for Civil and Political Rights.

124 See Christian Education South Africa v Minister of Education, (2000) (10) BCLR 1051 (Constitutional Court of South Africa).

125 See e.g. C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton University Press, Princeton, NJ, 1994); for instances of how religious groups can facilitate personal autonomy, see Ahmed (n 113) 62, 82.

126 See (n 21) 38.

127 D Bilchitz, ‘Should Religious Associations be Allowed to Discriminate’ (2011) 27 South African Journal on Human Rights 219; D Bilchitz, ‘Why Courts Should Not Sanction Unfair Discrimination in the Private Sphere: A Reply’ (2012) 28 South African Journal on Human Rights 296.

128 P Chatterjee, ‘Colonialism, Nationalism, and Colonized Women: The Contest in India’ (1989) 16(4) American Ethnologist 622.

129 See (n 28) 80.

130 Section 295A, Indian Penal Code. See also Sections 153A and 153B, Indian Penal Code.

131 Hasanali v Mansoorali, (1948) 50 BomLR 389, relied upon in Saifuddin. As discussed above though, the colonial approach to determining the composition and character of religious groups was entirely external in nature. Purohit, The Aga Khan Case (n 58).

132 T Sarkar, ‘Something like rights? Faith, law and widow immolation debates in colonial Bengal’ (2012) 49(3) The Indian Economic and Social History Review 295.

133 T Sarkar, ‘A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal’ (2000) 26(3) Feminist Studies 601.

134 Chatterjee (n 128) 622.

135 Sinha, M, Specters of Mother India: The Global Restructuring of an Empire (Duke University Press, Durham, NC, 2006).

136 In fact, the 1928 government report specifically stated that the social boycott was particularly ‘dangerous’, since it invoked the principles of freedom of contract as justification – and notwithstanding that, deserved to be outlawed. Ambedkar, What Congress and Gandhi Have Done to the Untouchables (n 94).

137 Parliament of India, Constituent Assembly Debates, Vol. VII, 4th November 1948 (speech of Dr BR Ambedkar), available at <http://164.100.47.132/LssNew/constituent/vol7p1.html>; see also F Ahmed, Religious Freedom under the Personal Law System (n 112) 37.

138 Parliament of India, Constituent Assembly Debates, Vol. VII, 2nd December, 1948 (speech of Dr BR Ambedkar).

139 See (n 102) 77–8.

* BCL, MPhil (Oxon); LLM (Yale Law School). The ideas in this article were first discussed in seminar courses at the National Law School of India University, Bangalore, and the West Bengal National University of Juridical Sciences, Kolkata. I am grateful to Shreya Atrey and Krishnaprasad KV, my perennial first readers, for their painstaking engagement with this article. I am also grateful to Suhrith Parthasarathy, Kalyani Ramnath, Abhinav Sekhri, Malavika Prasad and Rupali Samuel for their comments and suggestions.

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