Individual Rights in India: A perspective from the Supreme Court
by Hon’ble Mr. K.G. Balakrishnan1
Paper to be presented at the International Roundtable Conference
University of Georgia (April 3-6, 2009)
---------------------------------------------------------------------------------------------------------Introduction
I had been invited to come and speak about how the Supreme Court of
India treats individual rights in its constitutional adjudication. Like any other
Constitutional Court, our Court is also required to draw a balance between the
conceptual triangle of individual rights, group rights and governmental interests in
varying measures. In some cases the rights of individuals need to be
safeguarded against arbitrary governmental action, while in some other instances
an individual needs protections from the actions of groups. There are of course
scenarios where the constitutionally recognised ‘group rights’ also need to reevaluated and interpreted.
It would be nearly impossible to present a reasonable understanding of
individual rights in all spheres of public law. Hence for the purpose of this paper, I
have chosen to focus on how the Constitution of India seeks to protect religious
freedom and the manner in which the Supreme Court has interpreted these
protections. The evolving understanding of ‘religious freedom’ is a worth a
thorough discussion since it involves a clear interplay between individual rights,
group rights and governmental interests.
In an undeniably religious society such as India where manifestations of
religious beliefs are prominently visible in public life, it is exceedingly difficult to
1
Presently serving as the Chief Justice of India (January 2007 onwards) at the Supreme Court of
India, New Delhi
precisely define what is meant by ‘religious freedom’. The contemporary
understanding of the same draws both from the cultural beliefs and practices of
the various religious groups on one hand and the rights enumerated by the
Constitution of India on the other hand. An acceptable idea of ‘religious liberty’
can neither be entirely rooted in the unquestioned continuance of all of the
practices of India’s numerous religious denominations nor exclusively in the
language of constitutionally recognised rights. This dichotomy is indeed
acknowledged in Article 25 of the Indian Constitution which lays down a concept
of ‘freedom of religion’ which can be the subject of restrictions on grounds such
as ‘public order, morality, health’ as well as all the other fundamental rights
enumerated in Part III of the Indian Constitution.
However, this pragmatic concept of ‘religious freedom’ has been repeatedly
questioned
in
post-independence
India,
especially
with
regard
to
the
understanding of ‘secularism’ in public law.2 The Courts have evolved the binary
categories
of
‘essential
practices’
and
‘secular’
activities
of
religious
denominations in order to identify the permissible domain for governmental
regulation over their activities. Likewise, individual and group behaviour rooted in
religious beliefs is sought to be both protected and regulated at different times by
relying on the various principles embodied in Part III such as ‘equal protection
before the law’, exercise of civil liberties and the rights of minorities. In most
cases the judiciary plays a balancing game between the competing claims of
governmental action and religious liberty (of individuals or groups) by expounding
on a fairly complex understanding of ‘secularism’.
2
Indian Courts are forever grappling with the competing strains of ‘No concern secularism’ which
advocates a strict ‘wall of separation’ between the functions of the State and religious practices
and that of ‘Equal respect secularism’ which is comparable to the idea of ‘Sarva Dharma
Sambhava’ that mandates due recognition and acceptance of religious practices. See Jakob De
Roover, ‘The vacuity of secularism – On the Indian debate and its Western origins’, Economic
and Political Weekly (September 28, 2002) at p. 4047-4052
2
However, as the large volume of scholarship on the interaction between law and
religion in India amply demonstrates, unlike most civil-political rights, ‘religious
liberty’ cannot be understood squarely in the individual-state framework. The
colonial as well as post-independence period has been marked by several
instances of legislative and judicial interventions against retrograde practices
rooted in religious beliefs.3 Despite the contestations about the manner and
consequences of such interventions, most of them can be reasonably
categorised as measures of ‘social reform’. These interventions open up
questions about the inter-relationship between law and social change.
Furthermore, the language of the Constitution itself encourages questions about
the proper scope of ‘religious freedom’ by enumerating rights relating to the
preservation of minorities’ identity and leaving personal laws outside the scope of
constitutional scrutiny. Very often these questions are cast not in the context of
individual or group rights enforceable against the State but in the domain of
relations between the religious majority and the various minority communities.
Such a framing of questions in political terms highlights the possibilities of
divergence between the idea of ‘religious liberty’ and several core ideals of the
Constitutional scheme.
The question that one can ask is whether our legalistic understanding of
‘religious liberty’ is compatible with constitutional objectives such as the
promotion of ‘democratic citizenship’, protection of ‘minority rights’ and the
advancement of ‘rule of law’. Before attempting to examine the contours of
‘religious freedom’ in light of the constitutional objectives mentioned above, it
would be useful to outline the historical processes that have shaped the
understanding of the same. The focus of this is the British administrators’ avowed
3
Reference can be made to colonial regulations for the abolition of Sati, allowance of widow
remarriage, restraint of Child marriage and the abolition of the Devadasi system among others. In
respect of the constitutional scheme one can refer to the prohibition of untouchability, the
passage of the Hindu Code Bill (to check polygamy, normalise inter-caste marriages and confer
property rights on women) and the enforcement of temple-entry for lower castes.
3
distancing from personal laws grounded in religious beliefs even though there are
several scholars who argue against this thesis. The dilemma of the colonial
lawmakers was also replayed in the course of India’s Constituent Assembly
Debates in the late 1940’s. In this period, the focus shifted to debates about what
version of ‘secularism’ would best serve the interests of a plural nation. In this
respect, the liberal ideal of ‘No concern secularism’ which advocates a strict wall
of separation between the government and religious practices, poses questions
about the normative objectives of ‘equal citizenship’ and ‘State neutrality’ in a
country where religious identity is a core part of life.4
The evolution of ‘religious liberty’ in modern India
The ‘religious freedom’ guarantees have been laid down in Articles 25-30 of the
Indian Constitution. A seemingly existential question about the same is whether
the scheme of these guarantees veers towards a notion of ‘No concern
secularism’ (a strict wall of separation between religion and statist functions) or
that of ‘Equal respect secularism’ (Due recognition and tolerance of religious
practices and differences). The third strand of privileging ‘Religious autonomy’
over statist practices is perhaps more suited for examination from the standpoint
of cultural studies rather than constitutional theory.
Before examining the location of these guarantees in light of constitutional
objectives such as democracy, equal protection and rule of law it will be useful to
dwell on how the formal legal system treated religious practices in the pre4
Most of these debates were shaped by the political alignment in respect of the case for the
Hindu Code Bill and the scope of minority rights (such as the right of religious minorities to
preserve their cultural identity, impart religious instruction and seek reservations for education
and jobs). A predisposition towards ‘equal respect secularism’ in the Indian context perhaps
mandates the use of the parameter of ‘State tolerance’ rather than ‘State neutrality’. See P.C.
Upadhyaya, ‘The Politics of Indian Secularism’, Modern Asian Studies, Vol. 26(4), (Oct. 1992) at
p. 815-853
4
constitutional era. Regardless to say, governmental action (both legislative and
judicial) in the colonial period cannot be described as having been based on a
normative understanding of ‘secularism’.
The interface between colonial law and religion: Religious usages and beliefs
have been the core basis of traditional legal practices in Indian society. At the
outset of the rule of the East India Company in Bengal in the mid 18 th century,
dispute-resolution was largely based on customary traditions. Even though the
Mughal administration had created a certain degree of uniformity with respect to
criminal law and land-revenue administration, there was tremendous diversity in
the practices of various communities with respect to matters like marriage,
inheritance, succession and casteist practices among others. Undoubtedly, most
of the customary practices were rooted in the religious beliefs of the respective
communities. Company officials saw this allowance of autonomy in the ‘private
domain’ as one which corresponded to the historical demarcation between
Common law and Ecclesiastical jurisdictions that had emerged in England.
While the Company had a clear economic motive to apply English laws for
resolving commercial disputes and determining land revenue, a clear policy
choice was made to grant autonomy to the ‘natives’ in respect of personal laws.
In 1780 the Warren Hastings administration in Bengal passed a regulation which
declared that the customs and usages of the ‘Gentoos’ and the Muslims would
be respected in civil matters such as marriage, inheritance and succession.
However, the existing diversity of customary practices motivated continuous
attempts towards codification of the natives’ laws based on translations of
ancient scriptural texts.5 The works so produced often encapsulated positions
5
One of the Company’s key motivations behind the early codification efforts (of the late 18th
century) was to lay down clear rules for devolution and transfer of property among the members
of the respective communities. This is clearly linked to the need for certainty of ‘proper title’ for
facilitating revenue collection and the alienation of property in commercial transactions. See
Bernard S. Cohn, ‘From Indian Status to British Contract’, The Journal of Economic History, Vol.
21(4), (Dec. 1961) at p. 613-628
5
which would be at variance with prevailing customs and reliance on the same
created a substantial divergence between the decisions of formal courts and
customary dispute-resolution bodies.6 Hence in many instances when members
of a certain community approached a Presidency or ‘Mofussil’ (District) Court for
resolving a property dispute, the Court would be inclined to apply the position
articulated in the scriptures which would often be far removed from the actual
prevalent practices. Another complication was that when English judges relied on
the opinions of Court appointed Pandits (Hindu priests) and Maulvis (Muslim
clerics), the same allowed scope for corruption by the latter.
Despite the ‘declared’ autonomy for the operation of personal laws, there was no
coherent scheme of identifying religious practices that could be the basis for
effective dispute-resolution. With the territorial expansion of Company rule in the
first-half of the 19th century, judges trained in the English Common law tradition
began to apply principles that they themselves were familiar with. The implication
of this was that in the event of uncertainty in choosing between scriptural
interpretations and actual customs, Courts were more likely to invoke the
doctrine of ‘justice, equity and good conscience’ to decide cases. A consequence
of the same was that judges were more likely to superimpose their own solutions
over a community’s practices that often had religious underpinnings.
With the passage of time, the body of case-law resulting from this composite
approach to decision-making assumed the status of binding precedent. In
historical writings, the infusion of Common law and equity into the application of
the customs of the Hindus and Muslims is said to have shaped the emergence of
6
Some of the most notable works produced during the early phase of codification were Nathaniel
Halhed’s ‘Gentoo Code’ and Colebrooke’s ‘Digest of Hindu Laws’ that were in turn based on
translations of ancient scriptural texts such as the Dharmashastras and the Manusmritis, by
Company appointed Pandits. In the realm of Muslim Law, the existing usages were believed to be
less diverse and the major example of codification came several decades later in the 1840’s in
the form of Hamilton’s ‘Hedayas’. See J. Duncan Derrett, ‘The Administration of Hindu Law by the
British’, Comparative Studies in Society and History, Vol. 4(1), (Nov. 1961) at p. 10-52
6
‘Anglo-Shastric’ and ‘Anglo-Mohammedan’ law. The long-term impact of this
composite-approach adopted by the colonial-era courts has been clearly
observed in the changes to the laws governing the administration of joint family
property among Hindus as well as those regulating the functions of religious
endowments. The restrictions placed on the alienation of joint family property
under customary Hindu traditions were diluted by invoking considerations of
equity and individual rights. Likewise principles relating to the English common
law of trusts were applied to regulate the handling of property by religious
endowments.
Similarly, judicial interventions invoking equity have also been documented with
respect to validity of marriages, adoption and succession in Hindu Law. In certain
instances, the formal courts would also curtail socio-religious practices that
involved caste-based discrimination.7 Continuities of this composite approach
can perhaps be seen in the contemporary understanding of ‘religious autonomy’
which is mediated more by the language of constitutionally privileged rights
rather than considerations of equity and common law principles.
Besides invoking foreign principles such as binding precedent and equity in
Hindu and Muslim Law, the colonial-era courts also played an ‘essentialising’ role
in shaping religious identities. In certain instances courts would find themselves
grappling with the customs of communities with ‘syncretic’ practices. In mid-19 th
century Bombay Presidency, the Kutchi Memons and the Aga Khan sect were
two prominent examples of such syncretic groups.8 When members of such
communities would approach the formal courts for resolving disputes with a
customary dimension, the latter would inadvertently have to inquire into what
7
Arguments about the invocation of equity by colonial-era courts have been clearly made in Alan
Gledhill, ‘The influence of Common Law and Equity on Hindu Law since 1800’, International and
Comparative Law Quarterly, Vol. 3(4), (Oct. 1954) at p. 576-603
8
See the narration in ‘Chapter 2: The Aga Khan case’ in Amrita Shodhan, A question of
community: Religious groups and colonial law (Calcutta: Samya Publishers, 2001)
7
constituted the ‘essential’ religious identity of the said community. Hence Courts
would end up preferring a definitive view on the ‘essential’ practices of a religious
group by inquiring into its scriptural authorities and oral history.
There were instances of divergence between the group’s practices provided for
in textual traditions and those observed to be commonly followed by a given
community. By preferring an objective and uniform view of the essential practices
of a community, the Courts would confer legitimacy on such a version which in
time would recast the religious identity of such a community.9 In other words, the
colonial courts began identifying and defining religious identities as an incident of
their dispute-resolution functions. Such a judicial ‘construction’ of identities was
not limited to ‘syncretic’ groups but also extended to breakaway movements and
even groups such as forest-dwelling tribes which had historically been outside
the Hindu caste system. It can be argued that this trend of the courts’ identifying
the essential religious characteristics of a group has continued in the postindependence era where the Constitutional courts have repeatedly inquired into
the demarcation between the ‘essential practices’ and ‘secular’ functions of
religious denominations.10
9
This trend of judicially ‘constructed’ identities is best described as an example of ‘Reification’ i.e.
a retrospective description of historically diverse patterns and processes through the prism of
uniform and objective parameters. The colonial Courts’ tendency to identify the essential religious
characteristics of ‘syncretic’ and diverse groups has been linked to the long-term consolidation of
the purist notions of Hindu and Muslim identity.
10
The rule of thumb developed in the Shirur Mutt case (AIR 1954 SC 282) of course being that
the ‘religious freedom’ guarantee in the Constitution protects the exercise of the ‘essential
practice’ practices of a denomination, whereas the exercise of ‘secular’ functions is subject to
governmental regulation. The obvious problem with this is that Courts have to necessarily inquire
into the contents of religious beliefs which in turn may be seen as an affront to religious
sensibilities. See Robert D. Baird, ‘Religion and Law in India: Adjusting to the Sacred as Secular’
at p. 7-34 in Robert D. Baird (ed.), Religion and Law in Independent India, 2nd edn. (New Delhi:
Manohar Publishers Ltd., 2005) [Hereinafter ‘BAIRD, RELIGION AND LAW IN INDEPENDENT
INDIA’]
8
Besides the case-by-case judicial reconfiguration of religious practices and
identities, the colonial period also witnessed several legislative interventions
which sought to curtail retrograde practices that had a religious basis. Over
several decades there were legislations that prohibited infanticide, abolished the
upper-caste practice of sati (ritual widow-immolation), sought to remove caste
disabilities for ownership of property, provided for widow remarriage and raised
the age of consent for marriage. The attribution of these interventions as ‘social
reform’ measures has been contested by questioning the motivations of the
colonial administrators at various points of time. For instance some historians
have argued that the abolition of sati was prompted by the colonialists’ urge to
exhibit their ‘civilizational superiority’ over the barbaric native practices, rather
than the motive of saving the lives of upper-caste Hindu widows. 11 Similarly the
controversy over the ‘Age of Consent’ Bill also tended to focus more on the
backwardness of Hindu society rather than the effective protection of girls who
were married at a very young age.12 Most of these legislative interventions also
met with some resistance on the ground that they violated the guarantee of
religious autonomy that had been assured during the early years of the East
India Company’s rule as well as by the British crown after the revolt of 1857.13
11
See Lata Mani, ‘Contentious traditions: The debate on Sati in Colonial India’, Cultural Critique,
No. 7, The nature and context of Minority Discourse II (Autumn 1987) at p. 119-156
12
The controversy over the Age of Consent Bill following the Rukmabai case in the 1890’s has
been discussed in Antoinette Burton, ‘From Child Bride to ‘Hindoo Lady”: The debate on sexual
respectability in Imperial Britain’, The American Historical Review, Vol. 103(4), (Oct. 1998) at p.
1119-1146
13
The Codification efforts that gained prominence from the 1860’s onwards also attempted to
steer clear from personal laws and religious usages. For example, this period is significant for the
Utilitarian influence behind the codification of the law of contracts, evidence, transfer of property,
negotiable instruments and trusts among other areas. In the realm of personal laws, the Shariat
Act, 1872 was a half-baked attempt to codify the usages of Muslims while laws pertaining to
marriage and divorce were passed for the Parsee and Indian Christian communities at their
behest during the same period.
9
It can also be argued that the ‘Orientalist’ influences which pandered to local
customary traditions had become entrenched in the early decades of Company
rule and it was only after the consolidation of British rule that the government
made decisive interventions in the socio-religious sphere. However, historians
have instead emphasized the role of socio-religious reformers among the Indian
elite who often campaigned for such interventions by the colonial authorities.
Without delving into the nuances of the motivations for such legislative
interference, it can be argued that perhaps there are continuities between the
same and the modern constitutional rights aimed at social reform.14
Despite the Colonial authorities’ declared distancing from the religious usages
and personal laws of the ‘natives’, a substantial amount of scholarship attempts
to exhibit that there was interference with the same by both judicial and
legislative means.15 While legislative interventions have been located as part of
the colonisers’ ‘civilizing mission’ and as offshoots of ‘Orientalist’ influences at
times, it is the trends discernible from judicial interference with customary law
which find resonance in contemporary India. The dissonance between religious
practices and the invocation of constitutional principles can also be examined in
the framework of ‘legal pluralism’ but the focus of this paper is on how such
questions have been tackled by constitutional courts. The key issue of course is
the continuance of the courts’ tendency to ‘essentialise’ religious identities while
demarcating between the categories of ‘religious’ and ‘secular’ functions.
14
For instance the right against untouchability enumerated in Article 17 of the Constitution was
clearly directed against caste-based discrimination which had a religious basis. Similarly, the
‘religious freedom’ guarantee enumerated in Article 25 is also subject to restrictions on grounds of
‘public order, morality and health’ as well as all other Part III rights.
15
Apart from the Orientalist influences over colonial policy on religious practices, the Utilitarian
influence can also be identified in certain instances. Even though the invocation of Utilitarian
principles such as uniformity and certainty are often critiqued as unworkable in the context of
framing laws for colonies, there are also examples where avowed Utilitarians have sought to
recognise peculiarities among the ‘native’ population. For example, Sections 295-298 of the
Indian Penal Code drafted by Thomas Babington Macaulay prescribes offences like incitement of
religious hatred and desecration of religious symbols among others.
10
Contested notions of secularism in the Constituent Assembly Debates
The inclusion of the ‘religious freedom’ guarantees in the Indian Constitution has
been clearly linked to the inherently plural composition of the population.16 An
examination of the Constituent Assembly Debates reveals that the framers
themselves put forward competing and sometimes conflicting conceptions for
shaping these guarantees. For the purpose of a rudimentary survey, one can
examine the deliberations as being polarized around the ideas of ‘No concern
secularism’ and ‘Equal respect secularism’.
The understanding of secularism in a Western liberal sense hinges around three
planks – namely the free exercise of ‘religious liberty’ in a democratic society
(subject to restrictions in collective interest), the guarantee of ‘equal protection’ in
respect of religious diversity and the normative ideal of ‘State neutrality’ in the
treatment of different religions. In respect of the third category, ‘No concern
secularism’ proposes a strict wall of separation between governmental action and
religious practices whereas ‘Equal respect secularism’ advances the idea of
‘State tolerance’ i.e. fair treatment of different religions. It may be useful to
provide an overview of some of the contentious issues discussed by the
Constituent Assembly in respect of these three categories.
The Constituent Assembly was composed of members elected from the British
Indian provinces as well as those nominated by the various princely rulers. 17 The
bulk of them were aligned to political parties and after the partition on religious
16
Granville Austin opined that the provision of substantive ‘religious freedom’ guarantees to
minority communities was clearly motivated by the desire for ensuring unity, in light of the recent
experience of partition on religious lines. Refer Shefali Jha, ‘Secularism in the Constituent
Assembly Debates, 1946-1950’, Economic and Political Weekly (July 27, 2002) at p. 3175-3180
17
The 1946 elections held in the British Indian provinces were based on a limited right of
franchise (requirements of educational and property-owning qualifications for voters) and were
contested between parties such as the Indian National Congress, Muslim League, Hindu
Mahasabha, Scheduled Castes Federation, the Communist Party and several other regional and
interest-based formations.
11
lines, the motive of ensuring unity in the new formation is a prominent theme in
their recorded deliberations. Most of the members could be described as
belonging to the ‘educated elite’ and a commonly stated critique about the
evolution of the constitution is that it failed to account for popular opinions on
several contentious issues – one among them being the treatment of religion by
the state. At the outset there was disagreement on whether the word ‘secular’
should be included in the preamble to the Constitution. The same was suggested
by the proponents of ‘No concern secularism’ and the non-inclusion of the same
indicates that the contrary strand of recognising religious differences in public life
prevailed on this point.18
In shaping the ‘religious liberty’ clauses, there was substantial debate on whether
they should protect the private right of ‘religious worship’ (involving personal
beliefs and ritual observances) or an expansive right of ‘religious practice’ that
included the right to propagate one’s religion. This debate was clearly affected by
the arguments made against the incidence of conversions during the colonial
period, especially those by Christian missionaries in tribal areas. It was feared
that enumerating the ‘right to propagate’ would allow the unfettered continuance
of conversion by inducement or fraud. In addition to this, there were concerns
that the ‘freedom to propagate’ could be used to justify statements denouncing
other religions which in turn could provoke communal tensions. As it turned out,
the freedom to ‘profess, practice and propagate’ one’s religion that was laid down
in Article 25 was also subjected to the State’s police powers on grounds of
‘public order, morality and health’.
Another significant victory for the Indianised notion of ‘Equal respect secularism’
was the recognition of the rights of religious denominations to engage in secular
functions like accumulating and dispensing with property by way of Article 26.
This marked a continuity from the colonial period where a voluminous body of
18
The words ‘secular’ and ‘socialist’ were inserted into the preamble by way of the infamous 42 nd
amendment passed during the emergency in 1976.
12
case law had been developed with regard to the temporal functions of religious
endowments. While those advocating the ‘wall of separation’ theory of secularism
argued for taking away the right of religious endowments to own and administer
property, their opponents defended this right of religious institutions to engage in
secular functions while accepting governmental regulation. The liberalists’ fears
on this issue were that religious denominations controlling substantial property
would exert unwarranted influence in the domain of electoral politics envisioned
by the new constitution.
The framing of the right of minorities to ‘establish and administer educational
institutions’ that now finds place in Article 30 of the Constitution was also linked
to the debates about secularism. There were differences on whether this right
should be given to religious minorities or confined to linguistic minorities. It was
recognised that the right to operate educational institutions was inherently linked
to the preservation of the cultural identity of a group – irrespective of whether it
was of a ‘religious’ or ‘linguistic’ nature.19 In addition to this, the framers also
factored in the empirical reality that minority-run institutions, especially those run
by Christian groups tended to provide better educational quality to a wider crosssection of students from different religious groups.20
However, more than the questions about the positive protections afforded to
religious groups, it was questions dealing with the notion of ‘equal treatment’ for
all religions and the related controversy over the Hindu Code Bill that evoked the
strongest polarized responses. The efforts to reform Hindu personal law through
the legislative route can be traced back to the early 1920’s when several lawyers
joined efforts to lobby for the codification of the law relating to marriage,
19
The extension of Article 30 to religious minorities was also considered to be consistent with the
right to preserve cultural and linguistic identity that was conferred by the language of the resultant
Article 29.
20
See Rajeev Dhavan, ‘Religious Freedom in India’, The American Journal of Comparative Law,
Vol. 35(1), (Winter 1987) at p. 209-254
13
maintenance, adoption, inheritance and succession among other aspects.21
Besides the immediate benefit of legal certainty and uniformity, codification was
also intended to curtail practices such as polygamy, prohibition of inter-caste
marriages, denial of property rights to women and the exclusion of lower castes
and untouchables from ownership of property in due course. Hence, the
progressive demand for codification was cast in the language of social reform
and posed as a counterpoint to the apparently regressive position of noninterference taken by the religious conservatives. In fact Dr. Ambedkar proposed
that civil rights should be privileged over religious practices and argued that the
provision of a Uniform Civil Code should find place in the chapter on fundamental
rights. In many ways, the case for codification mirrored the intent behind the
colonial legislative interventions against seemingly retrograde social practices.
However, the objections to interference with religious beliefs gained ground not
only among the Hindu Mahasabha members but were also voiced by several
Muslim members. It was urged that adherence to customary laws dealing with
family and property relations is inherently linked to the preservation of the Muslim
identity and the language of minority rights was used to resist codification. The
net consequence of these vehement objections that came both from the Hindu
conservatives (some of whom were within the Congress) as well as Muslim
representatives, was that personal laws were placed beyond the ambit of
constitutional scrutiny and the provision of a Uniform Civil Code was an objective
enumerated in the chapter on non-justiciable directive principles of State policy. 22
At the time of the enactment of the Constitution, all communities were allowed to
retain their personal laws on account of the opposition to the codification efforts.
However, Nehru’s thumping electoral victory in the first general elections held in
21
Refer Harold Lewis Levy, ‘Lawyer-Scholars, Lawyer-Politicians and the Hindu Code Bill 1921-
1956’, Law and Society Review, Vol. 3, No. 2/3 (Nov. 1968 – Feb. 1969) at p. 303-316
22
Personal Laws are expressly excluded from the definition of ‘Law’ under Article 13. The
implication of this is that constitutional principles cannot be invoked to scrutinise them irrespective
of their discriminatory content.
14
1952 was interpreted as a mandate in favour of engineering social reform.
Hence, the Hindu Code was broken into four legislations that eventually came to
be enacted by the mid-1950’s.23 Till date, the Hindu right cites this as an example
of ‘pseudo-secularism’ practiced by the Congress wherein the majority Hindu
community had to accept incursions into their religious practices whereas the
minority communities were appeased in so far as they were allowed to continue
with their respective personal laws.24
The normative ideal of providing for ‘equal citizenship’ in the constitutional
scheme was also put under strain when demands were made for affirmative
action on religious lines. It must be noted that reservations in government jobs
and educational institutions as well as ‘separate electorates’ for legislatures were
not a novel concept in the late 1940’s since the colonial government had
provided the same on both religious and caste lines. In fact, the Scheduled
Castes Federation under the leadership of Dr. Ambedkar had successfully
lobbied with the colonial government for such affirmative action policies and it
was only by way of the Poona Pact of 1932 that the demand of ‘separate
electorates’ for the scheduled castes was dropped. Hence it was not anomalous
to observe that such reservations for government jobs, legislatures and
educational institutions had initially been extended to Indian Christians and
Muslims in addition to the duly recognised Scheduled Castes and Scheduled
Tribes. However, it was vehemently argued that the provision of ‘separate
23
Some commentators argue that a major reason for Ambedkar leaving the position of Union Law
Minister in 1951 was Nehru’s lack of firmness in pushing through the Hindu Code – which was
seen as an important step against caste-based discrimination. Instead Nehru chose to wait for a
popular mandate in the form of the 1952 elections before proceeding with the bills which finally
came to be enacted as the Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and
Maintenance Act and the Hindu Minority and Guardianship Act. See ‘Chapter 11. The Law and
the Prophets’ in Ramachandra Guha, India After Gandhi – The history of the world’s largest
democracy (New Delhi: Picador, 2007) at p. 226-241
24
See Reba Som ‘Jawaharlal Nehru and the Hindu Code: A victory of symbol over substance?’,
Modern Asian Studies, Vol. 28(1), (Feb. 1994) at p. 165-194
15
electorates’ for Muslims had contributed to the partition and that the continuance
of reservations on religious lines would further worsen the communal divisions in
society.25
The advocates of ‘No concern secularism’ also had some success in
emphasizing the objective of ‘State neutrality’ in the treatment of different
religious groups. Article 27 placed a prohibition on the collection of taxes or the
accumulation of receipts by any governmental agency for the benefit of a
particular religious group.26 Similarly, Article 28 prohibits the conduct of religious
instruction in institutions wholly maintained out of state funds. A sort of
compromise was reached between the competing strands of secularism by way
of allowing religious instruction in private as well as partially aided educational
institutions where the same was ‘voluntarily received’. The question of permitting
religious instruction was deliberated upon while keeping in mind the parental
rights of choosing the form and content of their children’s education. Concerns
about religious instruction in schools being used as a mode for conversion were
also raised in the course of the drafting of this provision.
‘Religious liberty’ and constitutional objectives
In this segment of the paper, I will examine the inter-relationship between the
understanding of the ‘religious liberty’ guarantee in the Indian Constitution and
some of the normative ideals that are embodied in the latter – namely those of
‘democratic citizenship’, protection of ‘minority rights’ and the advancement of the
‘rule of law’. Thus, the initiating question can be posed as whether the protection
25
Several commentators point to the contribution of Maulana Azad in the dropping of the demand
for reservations on religious lines. Refer Shefali Jha, ‘Secularism in the Constituent Assembly
Debates, 1946-1950’, Economic and Political Weekly (July 27, 2002) at p. 3175-3180
26
An exception to this principle has been enumerated in Article 290A under which the Central
Government subsidizes the management of a particular temple-trust. This subsidy was a
condition for the accession of the princely state of Travancore-Cochin to the Indian Union in the
late 1940’s.
16
of ‘religious liberty’ advances or frustrates the attainment of these constitutional
objectives.
‘Democratic citizenship’: A liberal constitutional framework locates the interface
between the individual and the state as the sphere for rational and effective
political participation. This privileges the ideal of a political system where
responsible citizens choose and monitor an accountable government. Hence,
democratic citizenship in a parliamentary system is mostly identified with
participation in elections. The realm of electoral politics in India has faced several
problems relating to the invocations of religious identities and symbols. While
some of the framers of the Constitution voiced concerns about the influence that
could be wielded by powerful property-owning religious denominations, 27 modern
electoral politics has grappled with repeated appeals to religious sensibilities for
garnering votes. It may be recalled that Nehru had waited for an electoral
mandate in the first general elections held in 1952 before passing the Hindu
Code that had been staunchly opposed by the Hindu Mahasabha and the then
newly formed Jana Sangh. These parties had gathered a marginal vote-share in
those elections but the same had substantially increased by the time of the fourth
general elections held in 1967 when the demand for prohibition of cow-slaughter
was a prominent electoral issue.28
27
It is commonplace to see electoral candidates maintaining close relations with heads of
religious sects or denominations that command substantial following. In many instances,
prominent politicians make contributions to religious endowments – which can simplistically be
described as consideration for the support of the latter.
28
It can be argued that the Jana Sangh’s mobilization seeking the total prohibition of cow-
slaughter around the time of the 1967 elections was clearly based on an appeal to the religious
sensibilities of a large segment of the Hindu community. The issue had been given a further fillip
on account of the Supreme Courts’ refusal to allow the absolute prohibition of cow-slaughter in
M.H. Quraishi v. State of Bihar (AIR 1958 SC 731) where arguments based on the ‘right to
livelihood’ of butcher communities were given more weightage than those relating to religious
practices.
17
While the intermixing of religion and electoral politics is a much discussed
theme, another notable trend is that of the judiciary identifying the ‘essential
practices’ of particular religious groups. The opinion of Mukherjea, J. in the
Shirur Math case29 recognised the demarcation between ‘essential practices’
(such as the conduct of prayers and rituals) and ‘secular’ functions (like owning
and administering property, distribution of offerings) as the basis for determining
the scope of governmental regulation over the activities of religious
denominations.30 As urged earlier, this conceptual framework for placing
restraints on the decidedly ‘secular’ activities of religious groups can be seen as
a continuity of the colonial courts’ handling of litigation involving religious
endowments. However, the constitutional motives of social reform and the state’s
police powers can be described as having taken the place of ‘justice, equity and
good conscience’ as grounds for also regulating the ‘essential practices’ of
religious groups.31
29
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt, AIR 1954 SC 282
30
An example of the application of this conceptual demarcation between the ‘essential’ and
‘secular’ functions of a religious group is the decision in The Durgah Committee, Ajmer and Anr.
v. Syed Hussain Ali and Ors. (AIR 1961 SC 1402); In that case the question was whether the
legislative action of constituting a Durgah Committee under the Durgah Khwaja Saheb Act, 1955,
for the administration and management of the Ajmer Durgah endowment was violative of the
denominational rights of the ‘Chishti Sufis’. It was decided that a religious denomination could
claim the protection of Article 26 only to the extent of practices which were essential and integral
parts of the religion and to no others. It was noted that in the said case, the ‘Chishti Sufis’ did not
show that they had any customary rights for the management of the Durgah endowment and
hence the right to manage the same could not be defended as an ‘essential religious practice
protected under the constitution.
31
See the language of Article 25(2) of the Constitution which reads as follows: "Nothing in this
Article shall effect 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."
18
The judicial identification of ‘essential practices’ frequently requires inquiry into
scriptural authorities as well as customary practices. Such inquiries by the
Courts’ are often resented by members of the religious groups in question and it
is commonplace to see religious leaders objecting to the interpretations and
directions given by the judiciary. As a result, the statist function of disputeresolution by adjudication is sometimes seen as amounting to undue interference
with practices that are considered crucial to the preservation of religious
identities.
An early example of this is the decision in S.S.T. Saifuddin Saheb v. State of
Bombay,32 where a challenge was made against a provision in a Bombay
legislation which curtailed the power of ex-communication among religious
groups. The constitutionality of the same was challenged by the Dawoodi Bohra
Sect which customarily vested the power of excommunication with its head. The
question posed was whether the legislative restriction on the power of excommunication violated the constitutional guarantee of religious freedom under
Article 25 and 26. It was successfully argued before the Bombay High Court that
the legislative restriction was a social reform measure since excommunication of
a member at the discretion of the sect’s head was likened to expulsion from a
caste-group and the consequent denial of civil rights. However, the Supreme
Court decision recognised that the power of ex-communication was an essential
means of maintaining the unique identity of the Dawoodi Bohra sect. In arriving at
this decision, the Court made substantive references to the origins and practices
of the sect.
An often-cited instance of judicial ‘essentialising’ of a religious groups’ identity is
the decision in the Swaminarayan sect temple-entry case.33 In that case a
32
33
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
Sastri Yagnapurushadji and Ors. v. Muldas Bhudardas Vaishya and Anr., AIR 1966 SC 1119;
For an analysis of the reformist approach adopted by Gajendragadkar, J. in this decision see
Marc Galanter, ‘Hinduism, Secularism and the Indian Judiciary’, Philosophy East and West, Vol.
19
constitutional challenge was mounted against a Bombay legislation which sought
to allow entry into all publicly endowed Hindu temples for individuals of all castes.
The litigation had begun as a civil suit in 1948 wherein the Swaminarayan sect
had urged its right to prevent non-members and Harijans from entering its
temples. By the time the matter reached the High Court, the Constitution had
been enacted and the argument taken was that the sect was not part of the
Hindu fold and hence its religious freedom (exercised by restricting entry to its
temples) was not subject to Article 25(2)(b) which permitted governmental
restrictions to ensure open access to Hindu religious institutions of a public
character. Both the Bombay High Court and subsequently the Supreme Court
rejected this plea. In justifying the operation of the temple-entry legislation,
Justice Gajendragadkar’s opinion delved into several commentaries as well as
scriptural references to identify the basic tenets of Hinduism. The Swaminarayan
sect was found to be adhering to key tenets such as the observance of Vedic
rituals, belief in the ‘Moksha’ theory and the tolerance of diverse traditions among
others. On this basis it was held that the sect belonged to the Hindu fold and
hence could not prevent non-members and Harijans from entering its temples.
The decision can be described as having been in the ‘realist’ mould where the
judge had already decided on defending the ‘temple-entry’ legislation as a social
reform measure and developed an understanding of the groups’ religious
practices which did not obstruct the implementation of the same. This judgment
is also routinely cited to argue that the ambit of ‘religious freedom’ in India has
been primarily shaped by litigation rather than the internalization of constitutional
rights amongst the citizenry.
The definition of ‘Hinduism’ has been placed before the judicial scanner on
several instances where it is linked to the scope of religious liberty. The larger
trend has been to characterise reformist or breakaway groups as coming within
21(4), Symposium on Law and Morality: East and West (Oct. 1971) at p. 467-487
20
the larger Hindu fold. For example in D.A.V. College, Bhatinda v. State of
Punjab,34 the Supreme Court rejected the argument that the Arya Samaj is a
separate religion, which was made in order to claim the autonomy granted to
religious minorities in respect of establishing and administering educational
institutions. Similarly, in S.P. Mittal and Ors. v. Union of India,35 an emergency
measure providing for temporary governmental control over the township of
Auroville in order to restore order was held to be valid since the followers of Sri
Aurobindo were deemed to be Hindus. It was observed that the practice of
‘integral Yoga’ by the followers of Sri Aurobindo was not a substantial departure
from the essential tenets of Hinduism. However, a prominent exception to this
inclusive trend is a Calcutta High Court decision where it was held that the
Ramakrishna mission was not part of the Hindu religion. 36 The Ramakrishna
Mission had sought recognition as a religious minority so that its educational
institutions would be exempted from a West Bengal legislation that regulated
appointment of staff among other aspects. The judge in question observed that
the core teachings of the Ramakrishna Mission did not strictly correspond to the
essential tenets of Hinduism and granted it separate recognition. However,
commentators often link this judicial inconsistency to concerns about the group’s
34
AIR 1971 SC 1731; Also see the Delhi High Court decision in Arya Samaj Education Trust v.
Director, Education, AIR 1976 Del 207; The question of the characterization of the Arya Samaj as
a Hindu sect had been earlier discussed in Shyamsunder v. Shankar Deo (AIR 1960 Mysore 27).
In that case, the right of an Arya Samaj convert to run for a legislative seat reserved for
scheduled castes was challenged. It was contended that since the Arya Samaj rejected the notion
of caste by birth, the candidate by joining the same had not only given up his caste but had also
left the Hindu religion. It was held by the Court that although the Arya Samaj repudiated caste,
the sect remained within the Hindu fold since its founder Dayanand Saraswati was a reformer of
his ancestral religion who deferred to the ‘authority of the Vedas’.
35
AIR 1983 SC 25, better known as the Sri Aurobindo Society case. See Robert N. Minor,
‘Auroville and the Courts in India: Religion and secular’ in BAIRD, RELIGION AND LAW IN
INDEPENDENT INDIA at p. 361-380
36
Madhab Chandra Bandopadhyaya and Ors. v. State of West Bengal, [1985-86] CWN 90, 306;
See Brian K. Smith, ‘How not to be a Hindu: The case of the Ramakrishna Mission’ in BAIRD,
RELIGION AND LAW IN INDEPENDENT INDIA at p. 425-442
21
autonomy in running educational institutions in the wake of interference by the
Communist government.
Yet another example of the higher judiciary inquiring into religious practices is the
leading decision on the constitutionality of the prohibition on cow-slaughter. In
Mohd. Hanif Quraishi and Ors. v. State of Bihar,37 the constitutionality of several
state legislations banning the slaughter of cattle was challenged. It may be
recalled that the objective of prohibition of cow-slaughter had found its place as a
non-justiciable provision in the Constitution,38 since it involved a clash between
the veneration for the cow amongst most Hindu groups and the ritualistic
sacrifice of cows associated with Muslim festivals. The Hindu right-wing parties
had repeatedly highlighted the government’s unwillingness to lay down an
absolutely prohibition as an affront to the sentiments of the majority Hindu
community and another example of appeasement of the minority community. The
Supreme Court attempted a balancing act by laying down that a total prohibition
on cattle-slaughter was violative of the ‘right to livelihood’ and hence
unconstitutional but defended the government’s right to prohibit the slaughter of
young and healthy cattle which could be used in agriculture and dairy functions.
This theoretical balance has also been cited in recent decisions where legislative
restrictions on cattle-slaughter were questioned.39 However, the Court also
responded to one of the petitioners’ arguments that relied on ‘religious freedom’
37
AIR 1958 SC 731; The killing of cows had become a commonplace reason for communal
violence on several instances. However, in the said case the question of communal motives was
disregarded and a constitutional challenge was based on the ‘right to livelihood’ of the Quraishi
caste of Muslims – who are traditionally associated with butchery and related trades.
38
Article 48 of the Constitution reads as follows: “48. Organisation of agriculture and animal
husbandry. - The State shall endeavour to organise and agriculture and animal husbandry on
modern and Scientific lines and shall, in particular, take steps for preserving and improving the
breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle."
39
See the decisions in Akhil Bharat Gosewa Sangh v. State of A.P. and Ors., (2006) 4 SCC 162
and State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., (2005) 8 SCC 534
22
to assert that the legislative prohibition on cow-slaughter interfered with the
conduct of essential animal sacrifices for the festival of Bakr-Id. It was argued
that this prohibition would bring undue hardship to poorer Muslims who found it
affordable to sacrifice one cattle-head for seven individuals as compared to one
sheep or goat for each individual as mandated by the Quranic texts. The Court
referred to Hamilton’s ‘Hedayas’ to hold that even though the Surrahs (Quranic
texts) required Muslims to make animal sacrifices on ‘Bakr Id’, there was no
compulsion to sacrifice cows since the texts also described other animals like
sheep and goats as suitable for sacrifice.
The line of argument adopted in this section has been that the progress towards
the ideal of ‘democratic citizenship’ in India (which privileges the interface
between the individual and the state) is often impeded by undue emphasis being
placed on religious identities. The impact of this has been felt by the unchecked
invocation of religious symbols and beliefs in electoral politics – as evidenced by
the ‘Hindutva’ cases, as well as by the persistent tendency of the higher judiciary
to identify the ‘essential practices’ of religious groups which is often seen as
unnecessary statist interference and has the effect of re-enforcing religious
identity in public life.40
‘Minority rights’: The nexus between the exercise of ‘religious liberty’ and the
protection of minority rights in India has been prominently discussed with respect
to the debates about interference with the personal laws of religious minorities.
The debate on the feasibility of implementing a Uniform Civil Code raises several
complicated questions – from the case for mitigating gender-based discrimination
40
Another example of judicial essentialising that caused much resentment are the cases involving
the Anandamargis sect. The Court’s have ruled that the ‘tandava’ dance carried out with skulls
and weapons as part of the sect’s processions is not an ‘essential practice’ protected under the
‘religious freedom’ guarantee since it poses a threat to public order. See the following decisions:
Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Anr., (2004) 12
SCC 770 and the earlier decision in
Acharya Jagdishwaranda Avadhuta and Ors. v. The
Commissioner of Police, Calcutta and Anr., (1983) 4 SCC 522
23
in personal laws on one hand to preserving religious autonomy on the other
hand. An earlier instance of substantive codification i.e. the Hindu Code Bill faced
several objections at the time of the drafting of the Constitution. The rhetoric of
conservatives (both within and outside the dominant Congress party) was that
while restraints were placed on customs rooted in the religious beliefs of the
majority community, the religious minorities were not so covered. The liberalists’
case for a Uniform Civil Code was vehemently opposed on the ground that the
imposition of uniformity would reflect majoritarian beliefs and would hence erode
the identity of minority groups such as Muslims, Christians, Parsees and Jews. 41
The subsequent enactment of the Hindu Code in the 1950’s was again criticised
by the right-wing parties as an example of ‘differential treatment’ that amounted
to an appeasement of minority interests.
Since the legislative intent behind the Hindu Code was cast as that of bringing
social reform by way of curtailing the caste and gender-based discrimination
inherent in customary practices, similar arguments were made for using
‘codification’ as a means for reforming personal customs among the minority
communities as well. A focal point of this has been the argument for interfering
with the continuance of polygamy and the ‘triple talaq’ form of divorce among
Muslims which allows the husband to obtain a divorce without cause by means of
simple oral communication. Similarly, the customary Muslim law also limits the
husband’s obligation to pay maintenance to the divorced wife to a limited period
(‘Iddat’) and an amount agreed to at the time of marriage (‘Mahr’). In the 1980’s,
the Supreme Court’s observations pertaining to these aspects in the Shah Bano
case42 provoked an acrimonious debate on the case for interference with Muslim
personal law. In that case, the Court had ruled that the provisions on
maintenance contained in the Code of Criminal Procedure should be applicable
41
See John H. Mansfield, ‘The personal laws or a uniform civil code?’ in BAIRD, RELIGION AND
LAW IN INDEPENDENT INDIA at p. 207-246
42
Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945; See Kavita R. Khory, ‘The
Shah Bano Case: Some political implications’ in BAIRD, RELIGION AND LAW IN
INDEPENDENT INDIA at p. 149-166
24
to Muslims as well. An equitable justification for such a decision is the inadequate
provision for maintenance to divorced wives in Muslim personal law. The problem
with the customary law was amplified by the ‘triple talaq’ form of divorce which
meant that a Muslim wife could be divorced without reasonable cause or
warning.
The Shah Bano decision invited controversy because the judges went beyond
the issue of ensuring justice for the Muslim divorcee woman and commented on
the desirability of implementing a Uniform Civil Code. 43 The judicial opinion was
construed as being critical of Muslim traditions as a whole and not only for the
aspect of gender-discrimination in matters such as marriage, divorce and
maintenance. While some Muslim liberals accepted the need to reform
discriminatory customs, most Islamic organisations and representatives saw it as
an example of the judiciary’s complicity with a majoritarian attack on their
religious freedom. The Union Government at the time faced immense pressure
on account of this perceived ‘attack on Islam’ and subsequently nullified the
effect of the judgment by a legislation which exempted Muslims from the law of
maintenance enumerated in the Code of Criminal Procedure. This legislative
measure to restore the customary law was again criticised as ‘minority
appeasement’ by the Hindu right and was repeatedly used in the mobilization for
the Ram Janmabhoomi movement.
Another judgment that invited controversy in this area was that of Sarla Mudgal
and Ors. v. Union of India.44 In that case Kuldip Singh, J. ruled that a Hindu
husband could not use conversion to Islam as a means of enabling a second
marriage during the continuance of the first marriage. The decision was made in
response to the routinely documented trend of Hindu men converting and
marrying again since Islam permits a man to keep four wives at a time. The
43
See Nawaz B. Mody, ‘The Press in India: The Shah Bano Judgment and its Aftermath’, Asian
Survey, Vol. 27(8), (Aug. 1987) at p. 935-953
44
AIR 1995 SC 1531
25
judgment was criticised on the ground that it curtailed an individual’s right to
convert and practice Muslim customs which should be protected under the
constitutional guarantee of ‘religious liberty’. On the other hand this instance of
‘judicial activism’ was defended by arguments for protecting the interests of a
Hindu wife whose husband may circumvent the prohibition against polygamy by
converting to Islam.45
While the above-cited judicial interventions can be described as attempts to
safeguard the status of women in respect of Muslim personal law, their criticism
is usually based on the premise that non-interference with customary practices is
an essential condition for protecting the group rights of religious minorities. A
nuanced understanding of ‘equal protection’ justifies differential treatment in
favour of communities that may face inherent disadvantages. While this logic has
been the basis of caste-based reservations for jobs and educational institutions,
questions are perennially asked about the extension of the same reasoning to
justify non-interference with the customs of religious minorities which have the
effect of continuing gender-discriminatory practices. The debate has also been
cast as posing a dilemma for a constitutional system in a pluralist society by
describing it as a clash between the ‘group rights’ of religious minorities to
continue with their personal laws and the ‘individual rights’ of members of such
minorities who face discrimination on account of these customs.
However, another complication is that the non-interference with the personal
laws for religious minorities is often described as a measure of ‘appeasement’
and an example of ‘pseudo-secularism’ by the BJP and its other Hindu right-wing
allies and affiliates. Their reasoning for demanding the implementation of a
Uniform Civil Code is that religious minorities should not be entitled to ‘differential
treatment’ which allows them to continue with customs relating to family relations.
Clearly, their key motivations for moving towards uniformity in family law through
45
The Sarla Mudgal decision has been discussed at length in the context of the demand for the
Uniform Civil Code in Kumkum Sangari, ‘Gender Lines: Personal Laws, Uniform Laws,
Conversion’, Social Scientist, Vol. 27, No. 5/6 (May-Jun. 1999) at p. 17-61
26
codification are distinct from the liberalist concerns for the rights of women who
are the subjects of oppressive customs. It is often argued that the imposition of
uniformity could well prove to be majoritarianism by disguise rather than a
measure oriented towards ‘No concern’ secularism.
‘Rule of law’: While the protection of ‘religious liberty’ in an abstract sense can
be described as a component of ensuring the ‘rule of law’ in a constitutional
system, it may be useful to explore the theoretical interconnections between
these concepts. A bare idea of ‘rule of law’ privileges ‘rule-following’ by citizens
and the state’s duty to apply rules similarly to all citizens. In responding to the
interests of different religious communities, the statist interest in advancing the
‘rule of law’ can be identified with the ideal of ensuring ‘State neutrality’ towards
religious differences. In the Indian constitutional scheme which veers towards
‘Equal respect secularism’ this ideal is better described as that of ‘State
tolerance’. However, in many instances state agencies have to reconcile this
normative objective of ‘neutrality’ or ‘tolerance’ with the exercise of police powers
in the interest of maintaining public order. Hence, it will be useful to examine
some examples – both from the viewpoint of evaluating ‘State neutrality’ towards
religious differences and the extent of governmental restrictions on religious
liberty that are considered necessary to preserve public order. The motive of
preserving public order is cited as a justification for restraining not only the
exercise of ‘religious freedom’ but also that of other civil liberties (such as
freedom of speech, assembly, association and movement among others) when
the latter is deemed to offend religious sensibilities to the extent of creating the
likelihood of communal or anti-government disturbances.46
46
A threat to public order may be caused by governmental or private acts that are perceived to be
offensive to religious sensibilities. In August 2007, BJP leaders have spoken of the ‘right against
offence to religious sensibilities’ in the context of the Congress-led Union Government’s affidavit
in the Sethusamudram project case which doubted the historical existence of ‘Rama’ and the
claim that there was a man-made bridge across the Palk Strait. It has been argued that since
most Hindus ardently believe in the story of the ‘Ramayana’, the denial of the same in the
government’s affidavit amounts to an offence to their religious identity. Such arguments for
27
The ideal of ‘State neutrality’ has been repeatedly questioned with respect to the
allowance of religious instruction in educational institutions. The constitutional
prohibition against the same extends only to institutions that are wholly
dependent on State support. Hence private institutions that receive partial state
aid are free to impart religious instruction, provided the same is shown to have
been ‘voluntarily received’ by the students by way of parental consent. At the
time of independence, this concession may have been motivated by the empirical
reality that numerous private minority run-institutions provided better education
than the government system.47 However, the continuance of religious instruction
especially in schools run by Christian missionaries is often portrayed as a
contributing factor to ‘conversion’ by inducement – especially in rural and tribal
inhabited areas. The Sangh Parivar has been especially critical that there is a
conspiracy by Western powers who fund missionary activities in backward areas
with the objective of converting tribals to Christianity. Since the early 1990’s, this
rhetoric against the perceived incidence of ‘forcible conversion’ has been taken
to dangerous levels with several attacks against Christian missionaries and
Churches in Jharkhand, Orissa, Gujarat and Maharashtra among other places.
Furthermore, some organizations routinely organize ‘reconversion’ camps
wherein they miss the point that many of the members of tribal communities who
placing restrictions on speech on account of religious sensibilities were also made in the context
of the publication of the cartoons of Prophet Mohammed by the Danish newspaper JyllandsPosten in September 2005. Since Islam forbids pictorial representation of the Prophet, the
cartoon controversy not only provoked protests by Islamic groups but also led to attacks against
European embassies and establishments located in several Muslim-majority countries. Another
prominent example of private speech that was deemed offensive to Islamic sensibilities was the
publication of Salman Rushdie’s ‘The Satanic Verses’ in 1989.
47
Even till date, some of the leading schools and colleges in many Indian cities are those run by
Christian missionary organisations. Another possible motive was that many of the members of the
Constituent Assembly (who could have been described as belonging to the ‘educated elite’ class)
had themselves risen in social status after attending such institutions.
28
they seek to ‘reconvert’ had never adhered to ‘Brahmanical’ Hinduism in the first
place.48
Linked to the above issue is the question of ‘State tolerance’ of radical and
communalized instruction in private institutions such as ‘Madarsas’ as well as the
Shishu Bharati schools run by the Sangh Parivar. Since governmental agencies
have no direct control over the teaching imparted in these institutions, the same
is often subject to communal prejudices that breeds religious intolerance in the
long run. Subsequent to the assumption of power by the BJP-led coalition in the
late 1990’s, there were distinctive efforts made to recast the history curriculum for
government schools (which tends to be a model for most private institutions as
well) in a manner which had a clear stamp of ‘Hindu revivalism’ and included
derisive references to historical events and personalities associated with the
religious minorities. This much-debated attempt at giving the school-level history
curriculum a ‘pro-Hindu’ slant raises serious concerns about ‘state tolerance’ or
even ‘support’ for instruction which is shaped by a radical but vocal segment of
the religious majority.49
Another testing ground for the ideal of ‘State tolerance’ is the extent of
governmental interference with the right of religious minorities to establish and
administer educational institutions (guaranteed under Article 30).50 While this
right is theoretically understood as a corollary of a religious minority’s right to
preserve its cultural identity (guaranteed under Article 29), the case for
governmental interference is often made by voicing concerns about improving
48
See Ronald W. Neufeldt, ‘To convert or not to convert: Legal and political dimensions of
conversion in independent India’ in BAIRD, RELIGION AND LAW IN INDEPENDENT INDIA at p.
381-400
49
This move towards saffronisation of the history curriculum has been described and criticised in
Romila Thapar, ‘Communalism and the historical legacy: Some facets’, Social Scientist, Vol. 18,
No. 6/7 (Jun – Jul. 1990) at p. 4-20
50
See Ranu Jain, ‘Minority Rights in Education – Reflections on Article 30 of the Indian
Constitution’, Economic and Political Weekly (June 11, 2005) at p. 2430-2437
29
the quality of and access to education. There are several instances where the
managements
of
minority-run
educational
institutions
have
challenged
governmental interference before the Courts. Over several decades, the
Supreme Court has opined on questions like criteria for affiliation, appointment
and service conditions of staff, admissions policy and fixation of fees. 51 While
these aspects have a nexus with the public interest in ensuring proper
management of institutions, arguments based on the right of a minority to protect
its cultural identity have been made to defend the reservation of seats for the
respective minority community. This right has been defended by the Supreme
Court but made contingent on the receipt of state aid by minority-run
institutions.52
While the autonomy of religious groups to impart religious instruction or operate
educational institutions poses questions about the ideal of ‘State neutrality’ in the
long run, it is questions about the administrative and judicial response to acts of
communal violence which prompt immediate judgment about the same. While the
exercise of ‘religious liberty’ is largely understood as a ‘positive’ right in terms of
51
An early example of such an opinion was the Presidential reference In Re Kerala Education
Bill, (1959) 1 SCR 995; The same was prompted by a popular protest organised by Hindu as well
as Christian-run educational institutions against the Communist government’s proposed
legislation which contemplated wide powers of interference in matters such as school-fees,
curriculum and the service conditions of teachers. While the CPI described this measure as
essential to check profiteering and exploitative employment practices prevalent in private-run
schools, the religious groups saw it as an attack on their religious autonomy by the ‘atheist’
Communists. The Congress-run Central Government at the time cited the violence associated
with this controversy as the justification for imposing Article 356 and dismissing the State
government.
52
In an approach similar to the question of religious instruction, minority-run institutions are
prohibited from reserving seats for their respective communities only if they are wholly dependent
on state aid. Unaided institutions as well as those receiving partial state aid are free to implement
such reservations. On the rights of minority-run educational institutions see the following
decisions: St. Stephen’s College etc. v. The University of Delhi etc., AIR 1992 SC 1630; Islamic
Academy of Education and Anr. v. The State of Karnataka and Ors., AIR 2003 SC 3724
30
free practice of rituals, propagation as well as management of endowments and
educational institutions- it also contemplates a ‘negative’ dimension i.e. that of
protection against discrimination and violence driven by religious beliefs and
identities. The onus of ensuring protection against religious discrimination and
communal violence is clearly on the State. A logical extension of this idea is that
in the event of failure to prevent violence or discrimination – the State must
proceed against or expedite the prosecution of those responsible for the injury
caused by the same. Even in a system that recognises religious differences in
public life to a certain extent, it is absolutely essential for governmental agencies
to practice ‘neutrality’ and ‘non-discrimination’ in preventing and prosecuting acts
of communal violence.
However, state complicity in communal violence has been alleged on several
occasions – the most
prominent being the anti-Sikh riots in Delhi in 1984
(following Indira Gandhi’s assassination), the communal riots in Bombay in 1992
(following the demolition of the Babri Masjid in Ayodhya) and the anti-Muslim
riots in Gujarat in 2002 (following the Godhra rail-coach burning incident). They
are cited as evidence of the respective administrations’ complicity in the violence
targeting minority communities by not providing timely armed interference and in
some instances even aiding the same. There are numerous reported instances
where police personnel have been lax in protecting persons and property
belonging to the minority communities. The documented incidence of communal
bias in ensuring post-conflict justice for victims belonging to religious minorities
clearly impedes the advancement of the ideal of ‘rule of law’. An often cited
example of a majoritarian bias in the governmental response to communal
violence is that of the differences in the law-enforcement agencies’ response to
the demolition of the Babri Masjid in early December 1992 and the Bombay
blasts in March 1993.53
53
Even though a substantial number of paramilitary units had been posted close to Ayodhya
because of the mobilization of ‘Kar Sevaks’ during the Ram Janmabhoomi movement, there was
an inordinate delay in calling them into action to restrain the mob which demolished the mosque
over several hours on December 6, 1992. While this failure to prevent the demolition has been
31
Conclusion
I began this paper by asking two questions – firstly, whether there are
continuities between the interaction of law and religion in the colonial-era and the
post-independence period. Secondly, what is the inter-relationship between the
guarantee of ‘religious freedom’ and other significant objectives of the
constitutional scheme. The choice of parameters such as ‘democratic
citizenship’, protection of ‘minority rights’ and the advancement of ‘rule of law’
was made since they correspond to contestations about the components of
liberal secularism – ‘freedom of religious practice’, ‘equal protection’ and ‘state
neutrality’.
In respect of the first question I have tried to point out two key continuities from
the interface between law and religion in the colonial period. The first is the
similarity between the ‘civilising mission’ of reforming the native’s customary
practices by way of legislative interference and the post-constitutional discourse
of citing the state’s police powers and the enumerated fundamental rights as
grounds for curtailing religious practices. Hence the legislative intent behind
colonial regulations that sought to check the prevalence of retrograde practices
attributed to the tacit support of the BJP government in Uttar Pradesh and the indecisiveness of
the Congress Government at the Centre at the time, it is a matter of grave concern that in
subsequent years there have hardly been any arrests or prosecutions of those responsible for the
demolition. The demolition of the mosque provoked a fresh round of communal violence in many
parts of the country – most prominently in Bombay where a large number of Muslims were killed.
The cycle of violence was a major motive for the criminal elements who received help from
Islamic extremists in planning the simultaneous bomb blasts that occurred in Bombay in March
1993. However, the police response to the same was a lot more decisive and hundreds of arrests
were made within months with several reports of custodial torture. The special court constituted
for the Bombay blasts case has recently convicted scores of the accused. See generally Sheetal
Parikh, ‘Enshrining a secular idol: A judicial response to the violent aftermath of Ayodhya’, 37
Case Western Reserve Journal of International Law 85 (2005)
32
like child sacrifice, sati, the prohibition on widow-remarriage and child-marriage
can be likened to post-constitutional efforts such as the passing of the Hindu
Code to check polygamy, prohibition of inter-caste marriages and protect the
rights of women with respect to divorce and property. However, the litmus test for
legislative interference and codification as a strategy for social reform has been
the case for a Uniform Civil Code. As outlined in this paper, the case for
uniformity in personal laws has been opposed by relying on the language of
‘equal protection’ which justifies differential treatment for preserving the identity
of religious minorities. Our constitutional framework has thereby sensibly
accommodated the personal laws of certain communities’ which remain outside
the scope of scrutiny based on fundamental rights.
The second continuity is that of the tendency of the formal courts to inquire into
and identify the ‘essential practices’ associated with religious groups. It is argued
that such judicial essentialising has the effect of reshaping the identity of religious
groups in the long-run. The tendency emerged as colonial courts needed to
inquire into the scriptural authorities and customs of religious groups when they
were confronted with litigation involving questions about the proper observance
of practices and the management of property owned by endowments. In doing
so, not only did Courts prefer a distinctive version of a religious group’s identity
despite its’ actual heterogeneous character – but they also invoked common law
principles and equity which contributed to the evolution of a hybridized body of
law. The Constitutional Courts inherited this hybridized form of Hindu and Muslim
Law. In dealing with disputes with religious dimensions, the higher judiciary has
persisted with determining the scope of governmental regulation by demarcating
between the ‘essential’ and ‘secular’ functions of religious groups and institutions.
This conceptual framework has been criticised since judicial essentialising of
religious beliefs and identities is often resented by those who are subjected to it.
However, such inquiry is also considered necessary when judges are trying to
draw a balance between constitutionally privileged principles and religious
freedom. The consequence is that the ambit of religious freedom for any
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denomination is constantly open to re-examination and interpretation by the
judiciary. In a country where constitutional principles are still taking root, this is an
important function played by the Constitutional Courts.
With respect to the second initiating question i.e. whether ‘religious freedom’
advances or impedes the pursuit of constitutional objectives such as
strengthening democracy, minority rights and rule of law in India - I have argued
a negative case. With regard to the ideal of promoting a culture of democratic
citizenship, a persistent problem is that of the invocation of religious identities in
electoral politics and the acceptance of the same by the judiciary – most
prominently in the ‘Hindutva’ cases. This clearly frustrates the ideal of rational
political participation by individual citizens. Religious identities are also privileged
in public life as a response to the perceived judicial interference with the
autonomy of religious groups. The polarization on religious lines has been further
enhanced by the continuing debate about the uniform civil code which also raises
crucial questions about the protection of the group rights of religious minorities.
Likewise, the ideal of ‘State neutrality’ is also frustrated in aspects like the
allowance of religious instruction, communal biases in public education and
instances of state complicity in religious discrimination as well as communal
violence.
It may have been fallacious to examine the above-enumerated constitutional
objectives as distinct categories since their pursuit is an integrated process. Even
though the Indian constitutional scheme is generally described as embodying
‘Equal respect secularism’ there have been many occasions when adherence to
‘secularism’ has been identified with constitutionality. A prominent example is the
S.R. Bommai decision54 where the Congress run Central government sought to
justify the dismissal of several state governments under Article 356 on the
ground that the latter had deviated from the constitutional prescription of
‘secularism’ by allowing the passage of the BJP’s Rath-yatra during the Ram
54
AIR 1994 SC 1918
34
Janmabhoomi movement. Even though the Supreme Court restricted the
Centre’s power to dismiss State governments by laying down that a ‘floor-test’ in
the legislative assembly was necessary for the same, the Court also opined that
‘secularism’ entailed a governmental responsibility to prevent and act against
incitement of religious hatred. As urged earlier, while ‘religious freedom’ had
traditionally been identified with positive aspects such as the right to carry on
religious practices and administer religious and charitable institutions this
decision marked the judicial recognition of a negative dimension – i.e. the right of
protection against discrimination and violence on religious lines.
Some scholarship has alluded to the idea of ‘assertive’ secularism which allows
the recognition of religious differences in public life and distinguished it from
‘ameliorative’ secularism which seeks to gradually dissolve religious differences.
Theories of multiculturalism posit corresponding categories like that of a ‘salad
bowl’ – wherein different communities co-exist while retaining their unique
cultural practices and that of a ‘melting pot’ – wherein different cultures fuse into
a common identity. It has also been argued that these western notions of
secularism are unsuitable for the Indian cultural setting, but unfortunately those
who have argued for an indigenous notion of privileging religious autonomy have
also tended to support religious extremism. In this respect the onus has been on
the Supreme Court to show the way.
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