Indeed, Ambedkar’s own arguments were the culmination of decades-long discourse, in which the representatives of the ‘Depressed Classes’ (as they were then referred to in the public sphere) located the greatest deprivation of their freedom (as we saw in the previous chapter) within social and economic practices of exclusion. As early as 1890, Gopal Baba Walangkar, a retired army officer, wrote a petition highlighting ‘exclusion from dharmshalas [pilgrims’ and travellers’ guest-houses], discrimination while travelling, bans on participation in trade, [and] social stigma’,80 which the Mahar caste was subjected to. Walangkar was responding to practices that formed part of daily living, including, perhaps most notoriously, schoolroom segregation, where ‘untouchable’ students were made to sit outside the class, in the verandah, in order to maintain adequate physical distance from upper-caste students.81
The truth of Walangkar’s allegations was formally affirmed four decades later in the report of the Starte Committee, set up by the Bombay Legislative Council. The Starte Committee Report highlighted the fact that the single, dominant feature that defined the relationship between the Depressed Classes and the rest of society was exclusion, which, as we discussed above, variously took the form of physical segregation (including residential segregation), socially sanctioned prohibitions from undertaking certain trades or professions, and exclusion from the use of common or public utilities.82
Beginning with Walangkar’s petition, every level of response initiated by the Depressed Classes recalled this fundamental reality: one of the first organizations dedicated to the welfare of the Depressed Classes was called the ‘Bahishkrit Hitkarini Sabha’, and Ambedkar’s journal was called Bahishkrit Bharat.83 The word ‘Bahishkrit’, depending on the specific nuance, means either excluded or boycotted. As we have seen, by the 1920s, this had evolved into a specific language of rights and remedies: a right against horizontal discrimination, as expressed in the resolutions passed during the Mahar Satyagraha,84 and the remedy—expressed in a Settlement arrived at by the Minorities Committee at the Second Round Table Conference in London—that required the ‘invalidation’ of ‘any custom or usage’ (as opposed to any ‘law’) that discriminates.85
What this tells us is that, unlike the American and French revolutions, the Indian pre-Independence discourse of freedom had twin focal points, viz., political independence from an authoritarian colonial power (which explains the predominance, in the Fundamental Rights chapter, of classic liberal civil and political rights against the State), as well as horizontal independence from exclusionary systems of authority and control, manifested most clearly in various reform movements aimed at the emancipation of women and the eradication of the caste system.86
The vocabulary of rights was central to both foci. Within this framework, the Constituent Assembly Debates, discussed above, make it clear that one of the characteristic features of oppression that the Constitution sought to address was, precisely, the horizontal exercise of power relations in an exclusionary manner, including in the sphere of economic transactions. As Ambedkar specifically pointed out in his Memorandum to the Fundamental Rights Sub-Committee in the early days of the Constituent Assembly, the following paragraph, that had been recorded in the Starte Committee Report of 1929, continued to hold true even as the Constituent Assembly deliberated:
We have heard of numerous instances where the orthodox classes have used their economic power as a weapon against those Depressed Classes in their villages, when the latter have dared to exercise their rights, and have evicted them from their land, and stopped their employment and discontinued their remuneration as village servants. This boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using commonly used paths and the stoppage of sale of the necessaries of life by the village bania.87
Ambedkar then cited a letter that he had received from an ‘untouchable’ in a Punjab village to argue that ‘the general use of the boycott’ remained a staple feature of Indian life.88
Therefore, the very different Indian experience with political and civil rights movements leading up to, and influencing the framing of, the Constitution indicates that there is enough warrant for the Court to strike the balance between autonomy and social democracy in a manner that is more skewed towards the latter. This further buttresses the broad reading that the Court provided to Article 15(2) in IMA.
In the next two chapters, we shall discuss how this understanding of the Constitution’s role is borne out by other guarantees under the Constitution—specifically, the horizontally applicable provisions guaranteeing the abolition of untouchability and of forced labour. For now, it is sufficient to note that this commitment is reflected by the other parts of Article 15(2) itself. In addition to shops, Article 15(2)(a) guarantees access to ‘public restaurants, hotels, and places of public entertainment’. Article 15(2)(b) does the same for ‘wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public’. In the face of all this, it makes perfect sense that the framers, through Article 15(2), which is also clearly transformative, were attempting to do away with traditional discriminatory practices that pervaded the private economic realm. Their use of the word ‘shops’, including Ambedkar’s clarification of its meaning, was one way of doing so, and fulfilling the transformative promise of India’s Constitution.
V. Conclusion
In his famous poem Begampura, the sixteenth-century Bhakti poet Ravidas imagined a utopia: a city without taxes, [private] property, or torture, a city of equality. Apart from these familiar themes, common to utopian thinking, one other stands out: in Begampura, Ravidas and his kin were free to ‘walk where they want to’.89 What this casual, almost throwaway, line demonstrates is that the struggle for social justice in a society riven by caste has always included a focus on access and exclusion.
In 1991, the state of Gujarat passed the Disturbed Areas Act.90 The Act authorizes the government to declare areas in the state to be ‘Disturbed’ (ostensibly because of riots or mob violence), and then effectively prohibit the transfer of property within those areas. Under the guise of maintaining public order in times of communal stress, the Act, in effect, has become a State-wielded weapon of segregation and ghettoization, and has created colonies ‘exclusively’ for Hindus and for Muslims.91
Ravidas’ Begampura and the Gujarat Disturbed Areas Act belong in separate universes: ethical, moral, and political. The dream of the Indian Constitution was to create Begampura; the Gujarat Disturbed Areas Act shows us how far we have wandered in the opposite direction. IMA v. Union of India is a transformative judgement because it allows us a glimpse of how, one day, the Constitution may be invoked to bridge the chasm between the dream and the reality.
In summary, Article 15(2)(a) contains an inbuilt framework broadly akin to a civil rights law, which prohibits discrimination even within the private economic realm, to the extent that such discrimination operates to exclude persons from access to core economic, social, and physical infrastructure. It makes the right to non-discrimination horizontally enforceable. This interpretation turns upon a historically grounded reading of shops, which understands that word to be embodying the abstract market of arm’s-length economic transactions. The specificity of the text of Article 15(2) is not an insurmountable bar against a broad reading of shops. The Constituent Assembly Debates support a broad reading. The structure of Part III supports it. And finally, the uniquely transformative nature of India’s Constitution justifies the use of horizontal constitutional rights against discriminatory economic transactions in the private sphere. As a corollary, it hardly needs to be said that laws like the Gujarat Disturbed Areas Act, which authorize the government to impose communal housing segregation, can no longer withstand constitutional scrutiny.
IMA v. UoI’s transformative interpretation of the Constitution is faithful to the structure and philosophy of India’s bill of rights. It ought to b
e upheld, and its reasoning taken to its logical conclusion.
5
Religious Freedom and Group Identity: Saifuddin and the Anti-Exclusion Principle
You can never separate social life from religious life.
Alladi Krishnaswami Ayyar, debates on Fundamental Rights in the Advisory Committee (April 1947)
IN AUGUST 2016, THE High Court of Bombay upheld the right of women to access the inner sanctum of the Haji Ali Dargah.1 A year later, the Supreme Court referred to a Constitution Bench the question of whether Kerala’s famous Sabarimala Temple could deny access to women between the ages of ten and fifty. The case was fiercely contested by the Travancore Devaswom (temple) Board and various religious groups, and was heard by the Supreme Court in July 2018.2
But before that, in January 2016, the case (pending for thirty years) of Central Board of the Dawoodi Bohra Committee v. State of Maharashtra was listed (although it wasn’t heard) before a five-judge bench of the Supreme Court. More directly even than the right-to-worship cases, Dawoodi Bohra heralded a reopening of a fraught constitutional question: in what manner should a Constitution that guarantees the freedom of religion to both individuals and communities mediate the claims of religious groups against the claims of their constituents?
Dawoodi Bohra involves a request to the Court to reconsider and, if necessary, reverse a fifty-year-old judgement: Sardar Syedna Tahir Saifuddin v. State of Bombay.3Saifuddin was about a constitutional challenge to the Bombay Prevention of Excommunication Act, 1949, which outlawed the practice of excommunication within religious communities. The petitioner was the ‘Dai’ or head priest of the Dawoodi Bohra community, an offshoot of Shia Islam. He argued that, by taking away his power of excommunication, the Act violated his right to religious freedom under Article 25(1) of the Indian Constitution, and the Dawoodi Bohras’ right to regulate their own affairs in matters of religion under Article 26(b) of the Constitution.
By a 4–1 majority, the Supreme Court agreed with the Dai, and struck down the Act. Writing for the three judges, Justice Das Gupta held that Articles 25 and 26 of the Constitution protected practices that were essential, or integral, parts of religion. Surveying the authorities, he found that excommunication was needed for preserving community solidarity, cohesiveness, and discipline, and, therefore, fell within Articles 25 and 26. He then held that, since the Act only purported to bar excommunications made on religious grounds, it could not be saved by Article 25(2)(b), which allowed the State to override religious freedom in the interests of ‘social welfare or reform’. In his concurring opinion, Justice Ayyangar went one step further, and held that even if the Act was a measure of social reform, it could not be allowed, under the Constitution, to ‘reform a religion out of existence’.4
Chief Justice Sinha dissented. According to him, an excommunicated person ‘is excluded from the exercise of rights in connection … with places of worship … from burying the dead in the community burial ground and other rights to property … which are … of a civil nature and are not purely religious matters’.5 The Act was actually furthering the underlying objectives of Article 25(1) and of the Constitution by guaranteeing human dignity and the individual freedom to dissent without the price of ostracism, and of being ‘treated like a pariah’.6 He therefore upheld the Act.
The three judgements in Saifuddin represent three radically different understandings of the right to, and limits of, religious freedom under the Indian Constitution. In particular, they differ on the relationship between the individual member of a religious community, the community itself, and the State—a relationship that has always been underdetermined by the sparse constitutional text. The attempt to have the Supreme Court review its judgement in Saifuddin, therefore, is not simply about a single case, but a challenge to a sixty-year-old judicial practice of interpreting the Indian Constitution’s religious freedom guarantees.
In this chapter, I argue against the majority and concurring opinions, and in support of CJI Sinha’s dissent. I begin by unravelling the web of textual provisions that characterizes the right to freedom of religion under the Indian Constitution and, in particular, the tension between individual religious freedom and group autonomy (I). I then argue against the ‘essential religious practices’ test, which was the basis of the majority and the concurrence in the Dawoodi Bohra Case (II). However, the Court’s invocation of this test stems from the ‘thick’ role played by religion in Indian public life, which underscores the need for an approach that is different from the one adopted in Western liberal constitutional jurisdictions (III). Nonetheless, CJI Sinha’s dissent and the ‘anti-exclusion principle’ that I will develop out of it provide an alternative that is equally cognizant of the reality of the State-religion-community relationship in India. The anti-exclusion principle limits religious group autonomy in the interests of securing individual access to basic material and cultural goods (IV). It is more faithful to Indian history, to the structure of the Indian Constitution, and to the Constitution’s transformative purpose of limiting powerful group affiliations in the interests of individual freedom (V). It should be the blueprint that the Court adopts in future cases dealing with religious freedom and secularism (VI).
I. Individual , Community, State: The Textual Web of Indian Constitutional Secularism
The Constitution’s Fundamental Rights chapter comprises diverse, and possibly conflicting, sets of rights-holders, duty-bearers, and juridical relationships. There are individual rights against the State, direct horizontal rights, and also group rights, such as the rights of minorities to conserve their language, script, and culture. Further, the Constitution also allows the State wide regulatory powers over both individuals and groups, with a view to social reform, for instance, through reservations. Consequently, it is a mistake to understand the Constitution’s religious freedom clauses (as academic and judicial debates tend to have done) as though they constitute a self-contained code.7 An understanding of religious freedom under the Constitution is incomplete without acknowledging that the provisions are nested within a Fundamental Rights chapter that, in various contexts and ways, attempts to grapple with the relationship between three actors, viz., the individual, the community and the State.
What do these provisions say? Article 25(1) guarantees that ‘subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise, and propagate religion’. This language of personal freedom is similar to liberal-democratic constitutions all over the world.8 Immediately after that, however, Article 25(2)(a) permits the State to make laws for ‘regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice’. Article 25(2)(b) follows, allowing laws ‘providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus’.
Two things stand out. First, the Constitution expressly distinguishes between religion and secular activities that might be ‘associated with religious practice’. Implicitly, therefore, it tasks the courts with drawing the dividing line between the religious and the secular.9 Second, it allows the State to intervene in, and recalibrate, the relationships within religious groups or communities, in the interests of ‘social welfare and reform’, an instance of which is requiring public Hindu religious institutions to be open to all Hindus. Once again, the Constitution makes the courts the ultimate arbiters of the question.
Article 26(b) permits a ‘religious denomination’ to ‘manage its own affairs in matters of religion’, while also allowing it to administer property that it owns or has acquired ‘in accordance with law’. Two things, again, stand out. First, Article 26 directly makes groups the bearers of rights. And second, like Article 25, Article 26 invites law, and the courts, to draw a distinction between matters of religion and secular questions, illustrated by the express textual provision that prope
rty may be administered only in accordance with law.
Articles 25 and 26, taken together, guarantee the rights of individuals and groups to religious freedom, while allowing the State to regulate secular matters that might take a religious form, and to frame reform-oriented laws that might impinge upon the internal autonomy of religious communities. Read plainly, the text seems to represent conflicting impulses, attempting to achieve a ‘simultaneous commitment to communities and equal citizenship’.10 Scholars have disagreed about whether it manages to achieve a workable modus vivendi between competing claims,11 or only succeeds in setting up an irreconcilable contradiction.
Finally, note what is left unsaid. Articles 25 and 26 do not provide a principle to distinguish between the religious and the secular. Furthermore, they do not clarify whether Article 26(b) guarantees only a group right against State intervention, or whether it also guarantees to groups rights against their own constituents (and vice versa).12 Article 26(b) does not directly speak to situations where the individual and the community might clash with each other over issues of religious freedom. The wide powers given to the State under Article 25(2)(b) suggest the answer might not be as easy as it has been in other jurisdictions, where individuals have few antecedent constitutional rights against their communities.13 As we shall see, the majority’s error in Saifuddin lay in its failure to address any of these questions in the comprehensive manner that they required.
The Transformative Constitution Page 18