How courts decide on matters of religion

Courts must respect the integrity of religious groups except where certain practices lead to individuals’ exclusion

During colonial times, the British largely followed a policy of non-regulation of “personal law", leaving “communities" free to manage their own internal affairs (something akin to the Ottoman “millet" system). The fundamental normative unit was the group, evidenced through a number of legal measures such as separate electorates, and penal provisions criminalizing insulting the religious feelings of any “class".

For this reason, when the legality of Dawoodi Bohra excommunication (of recalcitrant members to preserve the “identity" or “purity" of the religious denomination) was brought before the colonial courts (Sardar Syedna Taher Saifuddin v. the State of Bombay, 1962), the only enquiry made was as to whether, historically, the Dai (head priest of the Dawoodi Bohra community) had the power that he claimed to exercise.

The absence of legal regulation, however, did not impede strong social movements within religious and other communities, focused upon two principles: individual freedom and choice within community spaces, and the right to social and political inclusion and participation. Historian Tanika Sarkar’s work A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal argues that the conception and vocabulary of women’s rights first evolved in direct opposition to community control, in the debates surrounding the abolition of forced widow immolation and the age of consent. Crucially, these movements found expression in the Constitution.

Thus, as we have seen, despite a strong cultural consensus at the end of the 19th century, which purported to divide society into something approximating a public/political and private/community domain, consigning women to the latter as embodiments of the “community" and depriving them of participation in the public sphere, the early 20th century saw a strong woman suffrage movement, which culminated in that most public of rights—universal adult franchise—during the framing of the Constitution.

Universal adult franchise under the Constitution marked a transformation not only in ascribing public citizenship to women, but in expressly doing away with the colonial-era separate voting electorates for religious communities, and marked a categorical turn away from a vision of society that treated groups as constitutive to one that understood their value to be instrumental in guaranteeing effective individual autonomy.

In addition, as is known the horizontal non-discrimination (Article 15[2]) and temple-entry (Article 25[2][b]) provisions were the results of movements that were expressly framed in the language of civil rights for individuals against their communities, even at the cost of the “integrity" of the community, understood as the continuation of strongly held beliefs and practices.

Supremacy of the individual

Indeed, it is these legacies that led B.R. Ambedkar to clarify, in the Constituent Assembly debates, that notwithstanding the existence of minority and group rights in the Constitution, its basic unit was the individual; and, more specifically, to remark, during the debates on the religious freedom clauses: “What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights."

Crucially, Ambedkar was responding to repeated attempts in the Constituent Assembly to insulate personal laws from State interference by making them a part of the right to freedom of religion. Unlike the freedom of religion, a quintessentially individual right, this move would have established group supremacy over the individual in certain crucial matters, such as marriage, divorce, inheritance, and even property transfers.

The Constituent Assembly’s decisive rejection of these proposals indicates clearly that the attempt to establish groups as constitutive normative units in the Constitution failed. And it failed because the Constituent Assembly agreed with Ambedkar when he specifically argued (just as Chief Justice of India (CJI) B.P. Sinha would argue a decade and a half later) that it wasn’t merely the State, but the social system, i.e., the community, whose actions conflicted with individual rights and would accordingly have to be “reformed". The specific sites of reform, of course, have to be historically understood, and, as we have seen, defined by the manner of discrimination, which primarily took the form of economic, social, and cultural exclusion.

The “thick" role played by religion and religious groupings in Indian public life rules out a traditional “liberal" approach to the right to freedom of religion. The Constitution itself eschews this approach, its very text abandoning liberal neutrality for explicitly “reformist" intentions. The key questions are what, precisely, does the Constitution aim to reform, and how ought the judiciary effectuate its reformist intentions? The Supreme Court has answered these questions by developing the three-step test (religious/secular, essential/inessential, actually religious/merely superstitious) which allows it to separate “essential" from “inessential" religious practices, and accord protection only to the former.

Ever since CJI P.B. Gajendragadkar’s time, this has become not only an empirical, but also a normative enquiry. The Court has simply withheld constitutional protection from practices that seem out of step with the Constitution’s progressive outlook, by deeming them “non-essential". However, for a number of reasons, this approach is unsatisfactory. It also conflates two distinct questions by making them part of the same test: the distinction between the religious and the secular, which the Constitution itself draws; and the distinction between the essential and the inessential, which it doesn’t.

The anti-exclusion principle

Drawing upon CJI Sinha’s dissenting opinion in Saifuddin case, and locating it within the comprehensive transformative character of the Indian Constitution, I have proposed the anti- exclusion principle (that 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) as a replacement for the “essential practices test" (a test that ascertains what constitutes the essential part of a religion according to the tenets and doctrines of that religion itself).

This principle will obviously not apply to the first category of cases (State control over religious institutional property), which will continue to be subject to the religious/secular distinction drawn by the constitutional text. It will, however, apply to cases where constitutional protection is sought for religious customs or practices, and where there is a conflict within religious communities.

The anti-exclusion principle stipulates that the State and the Court must respect the integrity of religious groups (and thereby treat the internal point of view of religious adherents as determinative of the form and content of religious practices) except where the practices in question lead to the exclusion of individuals from economic, social, or cultural life in a manner that impairs their dignity, or hampers their access to basic goods.

The form of analysis is similar to that of anti-discrimination law. Under this approach, the Ananda Margis (a religious denomination) have every right to dance the tandava on the streets of Calcutta (carrying a skull, a trident, a knife and a live snake) if they consider it essential to their faith, but the Dawoodi Bohras can be legitimately stopped from excommunicating and ostracizing their members.

One final point remains. Does the anti-exclusion principle apply at the threshold stage of deciding whether or not to extend constitutional protection to impugned religious practices, or does it apply to judging the constitutional validity of ostensibly reformatory State laws? In my opinion, it ought to apply at both stages, depending upon the case at hand. In a case like Saifuddin, for instance, where the challenge is to a State law, then the Court can begin by asking what the law is aiming to achieve; and if the law is aiming at instantiating the anti-exclusion principle, then it is to be upheld, regardless of the status of the impugned practice.

Haji Ali and Sabarimala

On the other hand, in cases like the disputes over the access to the Haji Ali and Sabarimala shrines, there was a direct clash between two claimed rights: the constitutional right of women to worship under Article 25(1), and the right of the religious denomination to manage its own affairs under Article 26(b). In such a situation, since the foundation of the denomination’s claim is exclusion, and the treatment of women as second-class members of the community, the claim will be overridden by the stronger individual right under Article 25(1), subject, of course, to a demonstration that the religious belief is genuinely held—an issue that was controversial in the case of Sabarimala, which came to the court as a public interest litigation.

This, I would submit, is a solution that allows the Court to give effect to the Constitution’s transformative purposes without getting entangled in knotty questions of religious and theological doctrine.

The Sabarimala case was decided by a Constitution bench of the Supreme Court on 28 September 2018. In Indian Young Lawyers’ Association v. the State of Kerala, by a 4-1 majority, the Supreme Court decided in favour of women’s right to enter Sabarimala. While the CJI and Justice R.F. Nariman decided the case along traditional lines, using the essential religious practices test and also analysing whether Article 26 was applicable, the dissenting opinion of Justice Indu Malhotra and the concurring opinion of Justice D.Y. Chandrachud threw up some interesting ideas.

Justice Malhotra, for instance, rejected the essential religious practices (ERP) test altogether, but saw the question of religious worship as raising no significant fundamental rights issue at all.

Fascinatingly, Justice Chandrachud agreed that the ERP, in its present form, was unsustainable. What he also did, however, was to undertake a detailed Article 17 analysis, advocate for a broad reading of the provision, and link it up with the anti-exclusion principle. Justice Chandrachud’s judgement is a powerful articulation of a transformative interpretation of Articles 25 and 26, and provides a strong intellectual foundation for advancing such a reading in the times to come.

Edited excerpts from The Transformative Constitution: A radical Biography in Nine Acts by Gautam Bhatia.

Gautam Bhatia graduated from the National Law School of India University and has done his MPhil at the University of Oxford and LLM at Yale Law School. He is a practising lawyer in Delhi and visiting faculty at various law schools.

Close