- Vivek Anandh*
Enough has been written about the legal validity of the reference made in the review petitions filed on the Sabarimala judgment. Undoubtedly, the decision is legally suspect in referring those questions to a larger bench along with ‘similar’ such cases pending before the Supreme Court. I do not wish to add anything more on this. The dissenting opinion penned by Nariman J. amply demonstrates why the decision of the majority is wrong in rather strong words. The reference by the majority to a larger bench, however, must be analysed for the enormous implications, determination of which would alter the landscape of religious rights jurisprudence in India. In this piece, I wish to point to the interpretive approaches to Article 25 and Article 26 that can be taken in a balancing act between individual rights and communitarian rights under the Constitution.
I. The Gajendragadkar Redux
The problem with the extant jurisprudence is that it has been overly intrusive, going against the libertarian ideals of the Constitution. The threshold test that the judiciary designed for any group claims under Article 25 and 26, ostensibly called as ‘essential practices test’, requires distinguishing those practices which are so ‘essential’ a part of a religion that their removal would result in fundamental alteration of the religion itself. This test has proved to be exclusionary and has regressive implications.
Besides others, I see the development and expansion of the essential practices test having the following effects on religious rights under the Constitution. Firstly, group autonomy of religious groups/individuals for self-identification and self-regulation has been effaced completely. Secondly, religion itself as an act of self-realization by an individual and the consequential exercise of her choice to practice it in the manner that she deems fit has been replaced by judicially dictated arbitrary standards on what forms a part of the religion and what does not.
This test, first proposed in the Shirur Mutt case,[1] was limited in its ambit and intended to be an exhaustive list of situations where state interference would be permissible. While this interpretation explicitly confined itself to the words of Article 25(2)(b), it also affirmed that 'the guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25',[2] to ensure that the test does not restrict religious autonomy. However, subsequent expansion of this test in various cases such as Durgah Committee case,[3] and the Tilkayat Shri Govindlalji case,[4] reversed the understanding derived from Shirur Mutt case, by which the judiciary became an arbiter of personal belief. Specifically, the opinion of Justice Gajendragadkar in the Durgah Committee case was a turning point, where he, for the first time, distinguished between religious beliefs, which are protected under Article 25 and 26, and superstitious beliefs.
Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.[5]
With this case, the essential practices test effectively became a threshold test that must be satisfied by the claimants of rights under Article 25 and 26, effectively reversing the intent underlying those provisions. The long line of subsequently developed jurisprudence on this question, entering a slippery slope, only went on to reaffirm and expand this test without questioning its validity.
The majority opinion in the Supreme Court’s recent verdict on the issue of women’s entry in Sabarimala shrine also wades into this unnecessarily. However, the opinion of Chandrachud J., as a part of the majority, throws sufficient doubt on its validity. To this extent the dissenting opinion of Malhotra J. too is in agreement with Chandrachud J., requiring the judiciary to maintain sufficient distance on ecclesiastical questions, while at the same time protecting the other fundamental rights. However, a full-fledged overturning of the test did not take place in that case. Though none of the opinions on the Sabarimala judgment or the reference order in the subsequent review doubted the validity of Shirur Mutt case, which propounded this test, the present 9 judge bench has a golden opportunity to provide the much required doctrinal consistency on this issue.
II. Balancing Rights
To my understanding, any alternative to the essential practices test must satisfy, including but not limited to, the following requirements:
1. It must ensure autonomy of both groups and individuals to self-identify what constitutes their religion or how they wish to practise it.
2. It must recognize the plurality of beliefs rather than a monolithic construction of belief system.
3. A fluidic understanding for the term ‘religious denomination’ – for membership of any individual to belong to multiple groups simultaneously (overlapping membership).
4. It must be responsive and flexible to remedy new forms of conflicts that will inevitably arise in the future.
The underlying premise of all these requirements is that the judiciary should not interfere beyond what has been contemplated under the Constitution. The constant tension between other individual-centric rights of Part III and the group rights under Article 26 requires a delicate balancing act. Every interpretive venture under the Constitution must situate itself in the socio-political milieu that raised the question. A strict differentiation between secular activities and religious activities cannot be drawn in the Indian context. They are necessarily intertwined with each other – the individual centric rights as against the communitarian claims under Article 26.
A good example of this can be the regressive ‘religious’ practices that are associated with untouchability. The judiciary had to deal with one such instance when a ban was sought to be imposed on a religious ritual called made snana, where the devotees roll over the plantain leaves with leftovers of food consumed by Brahmins. The traditionalists, vying to protect the ritual, argued that this was a part of right to practice religion. How can this be differentiated from the protected rights under Article 25 and 26? The answer lies in having a fluidic reading of Part III, rather than merely confining the issues within Articles 25 and 26. Here is a practice reinforcing the extant social hierarchy of caste that deprives the ‘dignity’ of an individual belonging to an oppressed group. If one must stay faithful to the constitutional ideals, the underlying social oppression that places some above others should show this as a form of untouchability that is prevented under Article 17, clearly taking this outside the ambit of group protection offered under Article 26. More than the group claims seeking to protect this practice under Article 26, it is the normative force to protect individual ‘dignity’ under Article 17 and the right to equality under Article 14 that must take precedence. Here, the balance is tilted against the group claims because of the socio-political history of oppression against people belonging to lower castes. The social context of such instances cannot be eschewed while interpreting such conflicts.
It must be remembered that the claims of individual liberty against group claims generally arise out of situations wherein the supposed deprivation of liberty is not by the state but by a social group against whom the claim is made. The present jurisprudence has failed to capture this and this has been noted by Chandrachud J. in his opinion on Sabarimala case in the following words:
The assumption by the court of the authority to determine whether a practice is or is not essential to religion has led to our jurisprudence bypassing what should in fact be the central issue for debate. That issue is whether the Constitution ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens. The exclusion may relate to prayer and worship, but may extend to matters which bear upon the liberty and dignity of the individual. The Constitution does recognise group rights when it confers rights on religious denominations in Article 26. Yet the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty and equality which animate the soul of the Constitution.[6]
Such instances of conflicting claims will continue to arise and many such questions are still pending before the court for its adjudication, such as female genital mutilation, women’s entry in mosques, Parsi women’s entry issue, excommunication issues and so on. All these questions are essentially questions of an individual’s right of equal participation in social spaces. The unique circumstances of each case may lead to different conclusions. However, it is imperative that the jurisprudence should move away from intrusive threshold tests prescribed as essential practices, towards an enquiry into balancing of concerns.
Religion, as a social institution, plays an important role in the life of an individual in Indian society, exercising a great degree of power to determine who can or cannot access social goods. The internal rules and regulations of religious groups are enforced through various means of social ostracisation such as excommunication, denial of temple entry to Dalits, denial of access to public infrastructure such a wells etc. It is in this context that the interpretive path that we are going to take must begin with the inquiry from the perspective of fundamental rights rather than an exclusionary threshold test to define what forms and what does not form a part of the religion. For this to happen, religion as a social institution must be seen as secular common spaces where everyone is allowed to participate ‘equally’. The unequal bargaining power of an individual against a socio-religious group, to which one wishes to belong, can lead to situations where his participation therein can be curtailed by imposing social sanctions as those pointed above. This inverse power equation between social groups, which seeks protection under Article 26, as against individuals, requires us to move towards a progressive interpretation where equality of participation within the groups are protected. The precise threshold of intervention is when the social groups’ action excludes an individual from equally participating in social spaces created by religion. The aim is to democratize the spaces by ensuring equal access to all individuals – essentially, an extension of Article 14. The actions of the socio-religious groups to protect their group integrity must not result in undemocratic outcomes. In other words, the ability of an individual to participate in communal spaces must not be predicated upon her relinquishing any individual rights that are guaranteed under the Constitution. It might sound counterintuitive to suggest an individual-centric approach to a group rights guarantee under Article 25, however, the individual being the basic unit of the Constitution has long been recognized. This has been clearly elucidated in the opinion of Chandrachud J. in his Sabaraimala opinion in the following words:
The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalized and are aimed towards the self-realization of the individual. This makes the anti-exclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the source from which a practice claims legitimacy, this principle enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship.[7]
…
The Constitution postulates every individual as its basic unit. The rights guaranteed under Part III of the Constitution are geared towards the recognition of the individual as its basic unit. The individual is the bearer of rights under Part III of the Constitution. The deity may be a juristic person for the purposes of religious law and capable of asserting property rights. However, the deity is not a ‘person’ for the purpose of Part III of the Constitution. The legal fiction which has led to the recognition of a deity as a juristic person cannot be extended to the gamut of rights under Part III of the Constitution.[8]
In this context, the present 9 judge bench is in a unique position to lay down a concrete understanding of religious rights jurisprudence under the Constitution. While I do not agree with the overly broad propositions referred by the 5 judge bench as questions to be answered, it does not stop the larger 9 judge bench from restating the questions to be answered concisely by identifying specific issues.
*Vivek Anandh is an Advocate practising in the Supreme Court.
[1] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) SCR 1005.
[2] ibid [18].
[3] The Durgah Committee, Ajmer v Syed Hussain Ali (1962) 1 SCR 383.
[4] Tilkayat Shri Govindlalji Maharaj v State of Rajasthan (1964) 1 SCR 561.
[5] Durgah Committee (n 3) [33].
[6] Indian Young Lawyers Association (Sabarimala Temple, In re) v State of Kerala (2019) 11 SCC 1 [409].
[7] ibid [396].
[8] ibid [405].