The Transformative Constitution

by Gautam Bhatia

  It is in this context that I now argue that CJI Sinha’s dissenting opinion in Saifuddin articulated an alternative to the three-step test. This alternative provides a more coherent understanding of the relationship between individual, community, and State, and one that I believe is truer and more faithful to the constitutional vision.

  IV. Civic Equality and the Transformative Constitution

  Chief Justice Sinha’s dissenting opinion in Saifuddin was woven out of three strands. First, locating the Excommunication Act within a long history of social welfare legislation, he observed that its purpose was to ensure ‘individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity…’52 Second, echoing Ambedkar’s distinction between the essentially and the incidentally religious, he noted that the effect of excommunication was to deprive an individual of basic civil rights, such as the rights to worship, community burial, community property, and so on. And third, traversing beyond the contours of Articles 25 and 26, he linked the Excommunication Act with the prohibition of untouchability under Article 17. Observing that excommunication enjoined other members of the community from having any contact, social or religious, with the outcast, he held that ‘the position of an excommunicated person becomes that of an untouchable in his community … the Act in declaring such practices to be void has only carried out the strict injunction of Art. 17 of the Constitution … to do away with all that mischief of treating a human being as a pariah … of depriving him of his human dignity.’53

  It is this last argument that I want to consider first. It is true that Article 17 of the Constitution prohibits untouchability. However, ‘untouchability’ is a term that refers to a specific practice of caste-based structural and systemic oppression and exclusion which operates simultaneously in the political, social, and economic spheres, and whose defining characteristic is an injunction against any form of physical contact between untouchables and touchables.54 Beyond surface resemblances, there is little similarity between untouchability and community ostracism. In equating social ostracism with Article 17, therefore, CJI Sinha chose to adopt an interpretation of untouchability that went beyond its concrete meaning, and embraced a wider understanding of social and community exclusion, the ‘mischief of treating a human being as a pariah … of depriving him of his human dignity’.

  On what basis did CJI Sinha select the more expansive, abstract definition of untouchability? It is important to note that this choice was indicated not only by the text of the clause, which abolishes the practice of untouchability ‘in any form’,55 but also by the history of its framing. While the communities constituting ‘untouchables’ had been specifically enumerated in the Government of India Act of 1935 (the predecessor of the Indian Constitution), as Ambedkar pointed out, the Constitution itself had elected not to operate at that level of specificity.56

  Indeed, an amendment moved by Naziruddin Ahmed to restrict the scope of the Article to untouchability only on account of ‘religion or caste’57 was specifically rejected by Ambedkar and voted down by the Assembly.58 Furthermore, even though K.M. Munshi pointed to the fact that the word ‘untouchability’ was contained within quotation marks, making it clear that the intention was to ‘deal with it in the sense in which it is normally understood’,59 many members called for providing a clearer definition of the term on the grounds of vagueness.60 In fact, K.T. Shah specifically ‘warned’ that it might even be extended to cover women, who at various times had been treated in the manner of untouchables by the society.61

  Specifically, while some of the members of the Assembly undoubtedly understood untouchability in its narrow, concrete sense,62 they did not do so to the exclusion of its broader sense. Meanwhile, other members expressly linked the provision to Article 15(2),63 and repeatedly argued that their understanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’,64 ‘equal rights’,65 ‘social equality’,66 the abolition of ‘social inequity … social stigma and … social disabilities’,67 and as a remedial clause for ‘those who have been left behind in social and economic matters’.68 Therefore, it seems clear that between both the supporters and the opponents of Article 17, as it stood, there was agreement on the breadth of its meaning.

  Consequently, CJI Sinha’s adoption of untouchability in its broad sense, in the sense of social ostracism, had its foundation in both the text of the Constitution and the debates surrounding it. What, however, did that choice entail? To answer this question, let us look again at the first two strands of his argument. The purpose of the Act, he held, was to guarantee individual freedom, remove interferences with liberty, conscience, and faith, and guarantee human dignity and freedom of choice.

  But this is the crucial question: freedom from what? CJI Sinha was not talking about State coercion and interference with freedom. Rather, he was talking about the coercive freedom-interfering acts of communities (such as social ostracism) against their members. In other words, as discussed above, CJI Sinha believed that Articles 25 and 26 not only guaranteed group-differentiated rights to religious denominations in the interests of preserving their integrity, but also provided for the rights of individuals against their groups in the interests of individual freedom, liberty of conscience, and human dignity. It was in this context that the balance between group integrity and social reform, set out textually within the scheme of 25 and 26, was to be understood.

  As in the previous chapter, such a strong statement of horizontality might sound counter-intuitive.69 However, I shall argue that CJI Sinha’s understanding of horizontality and his construction of Articles 25 and 26 are faithful to the constitutional value of fraternity. And fraternity, as part of the transformative Constitution, is committed to a rich vision of substantive equality and freedom both between and within communities.

  To understand this, recall our discussion of IMA v. Union of India, which had held that Article 15(2) guaranteed non-discriminatory access to schools.70 At the heart of the judgement was the historical awareness that the economic and social boycott practised by dominant castes in India had been one of the most effective ways of discrimination and subordination.71 The exclusionary effect of the boycott had been recognized by the 1929 Starte Committee, which had cited the examples of preventing the boycotted persons from using common paths, as well as stoppage of sale of the necessaries of life, and recommended outlawing the practice.72

  Thus, the boycott served as both a means of exclusion from material resources, such as schools, water tanks, and other civic amenities, as well as reinforcing existing social hierarchies through stigmatizing the excluded.73 It was this understanding, and the will to ensure that the newly framed Constitution could guarantee a remedy against community practices whose result was the material and symbolic exclusion (and thereby, the subordination) of individuals from the economic and social life of the polity, that saw the formulation of the oddly worded Article 15(2) and its 2011 interpretation by the Supreme Court.74

  The story of Article 15(2), in its historical context, reinforces the argument that the Indian anti-colonial movement had two distinct aims: against the despotism of colonial rule, and against the far-reaching (pre-colonial) grip of caste and community upon individual life. As discussed in the previous chapter, simultaneously with the Congress party’s agitation against British rule in the 1920s and ’30s, there were mass movements of the ‘Depressed Classes’ to access drinking water from community wells, and the right to enter Hindu temples.75

  Crucially, these movements were framed within the vocabulary of civil rights (of individuals against communities) and civic equality (within communities), and against the claims of the religious integrity of communities.76 As Anupama Rao puts it, the focus of the movements was an expanded and inclusive idea of the ‘public’ that covered important material and symbolic community spaces (whether religious or secular), and asked for equality of acces
s to those spaces.77 And most crucially for our interpretive purpose, as we have seen, both issues, viz., access to water wells and access to temples, would eventually find their way into the text of the Constitution through Articles 15(2) and 25(2)(b).

  The governing principle behind what eventually became Articles 15(2) and 17 of the Constitution, therefore, was something that we can now define as the anti-exclusion principle:78 the Constitution limits the power of groups and communities to exclude their constituents in a manner that would interfere with their freedom to participate in normal economic, social and cultural life, and thereby ‘disrupt secured access to basic goods’,79 such as basic freedom, an adequate range of valuable opportunities, and self-respect.80 CJI Sinha’s important innovation in his dissenting opinion in Saifuddin was to extend the anti-exclusion principle from the specific logic of anti-discrimination under Articles 15(2) and 17 to the relations between religious communities and their members under Articles 25 and 26.

  We can immediately see an important benefit of invoking the anti-exclusion principle over the essential religious practices test. The Court’s use of essential religious practices is external, static, and acontextual, and thereby fails to be true to how the practitioners of religion make sense of conduct and doctrine in evolving social contexts. However, even if the Court was to change tack and attempt to faithfully track the dynamism of evolving religious practices, as many scholars have pointed out, this is an enquiry it is institutionally unsuited to undertake, and it raises legitimacy concerns. The anti-exclusion principle spares the Court from this impossible choice by shifting the analysis from the content of religious conduct and practice to its discriminatory effect. Of course, discrimination itself is a contextual enquiry, depending upon an investigation both of evolving social meaning (in cases of symbolic discrimination) as well as what goods count as ‘basic goods’ at any given time. However, it is an enquiry that has always been within the judicial domain and, indeed, is constitutionally placed within the judicial domain.

  Furthermore, as I have developed it here, the anti-exclusion principle is substantially stronger than the principles proposed by other scholars of secularism and the interface between individual and group rights in the Indian polity. Partha Chatterjee, for instance, argues that balancing liberalism and multiculturalism requires allowing a ‘group [to] insist on its right not to give reasons for doing things differently, provided it explains itself adequately in its own chosen forum’.81 Akeel Bilgrami, on the other hand, advocates a ‘negotiated and emergent secularism’, which imagines the State as providing ‘internal reasons addressing different communitarian perspectives from within their own internal substantive commitments … so as to eventually provide for a common secular outcome, each on different internal grounds’.82 Both Chatterjee and Bilgrami privilege the internal norms and reasons of the group (subject to certain conditions) over the external norms that might be imposed by the State. Rajeev Bhargava’s slightly stronger concept of ‘contextual secularism’ allows for differentiated group rights subject to ‘a dignified life for all’,83 without fleshing out what a dignified life might entail in practice. By contrast, the anti-exclusion principle holds that the external norm of constitutional anti-discrimination be applied to limit the autonomy of religious groups in situations where these groups are blocking access to basic goods.

  V. Two Objections Considered

  However, it is the strong nature of the anti-exclusion claim that gives rise to an obvious objection—that the logic of anti-discrimination law is not typically extended to religious groupings precisely because religion is deemed to be a private (even intimate) activity.84 Furthermore, and partly for this reason, the actions of religious groups are unlikely to interfere with individuals’ ability to access basic public goods. However, as Amy Gutmann points out, there are instances where even private or voluntary associations can act as ‘source[s] of public goods’ and thereby, through exclusion, can ‘block’ access to such goods.85 In this context, the reader will recall how the argument of this chapter has been that religion and religious groupings play a much thicker role in Indian life (as the Constitution itself acknowledges) than they do elsewhere.86

  This brings us to the third strand of CJI Sinha’s dissenting opinion. As he observed, the effect of excommunication was not simply ‘religious’. It extended to barring the individual from exercising her civil rights and, furthermore, by forbidding social or economic contact, effectively turned her into a ‘pariah’. While this may not be constitutionally significant in jurisdictions where the influence of groups is significantly less, and where exit and entry barriers are easier to surmount,87 it is precisely the thick nature of religious groupings in India that ensures that there is a closer relationship between the acts of religious communities and individuals’ basic rights: ‘you can never separate social life from religious life,’ as Alladi Krishnaswamy Ayyar had pointed out in the Constituent Assembly.88

  To put the issue another way: as Michael Walzer argues and the South African scholar Stuart Woolman contends in the precise context of imposing egalitarian requirements upon groups,89 a regime of equality must ensure that ‘no citizen’s standing in one sphere or with regard to one social good can be undercut by his standing in some other social sphere, with regard to some other social good’.90 In jurisdictions where religion plays a thin, i.e., relatively autonomous role, equality has little to say to the relationships between members of a religious community, since there is little chance of inegalitarianism within the community being translated into burdens in other spheres. However, in the words of Anupama Rao, in a society where ‘ritual, economic and social domination’91 were inextricably bound up with each other, and where ‘practices of … segregation [took place] across sites of exclusion’,92 Chief Justice Sinha’s important insight in Dawoodi Bohra was that excommunication had impacts that went beyond the ‘essentially’ religious, and affected the excommunicated individual’s access to basic public goods.

  Articles 25(1) and 25(2), I would suggest, form the third limb of the anti-exclusion principle, in addition to Articles 15(2) (non-discriminatory horizontal access) and 17 (prohibition of untouchability). Understanding CJI Sinha’s opinion through the lens of the anti-exclusion principle allows us to contrast it sharply with the majority opinion. The core of the majority’s reasoning was that, since excommunication was based only on religious grounds, and was aimed at ensuring the integrity of the group, it was constitutionally protected under Article 25(1) and 26(b). The Act was thus not saved by the ‘social reform’ clause, notwithstanding excommunication’s impact upon the individual’s civil rights. Effectively, the majority opinion held the group’s religious identity and integrity (subject to judicial determination) to be sacrosanct, ignoring the insight that it is possible that an individual’s standing in one sphere (in this case, the religious sphere) can impact her standing in other spheres. On the other hand, CJI Sinha’s opinion gave primacy to the anti-exclusion principle, holding that group integrity would have to be subject to that.

  It is at this point, however, that we must deal with another important objection. The above argument, so this objection goes, unduly subordinates the rights to associative freedom and cultural integrity to the claims of equality. As many scholars have argued, values of pluralism and diversity—to which the Constitution is unquestionably committed—require us to tolerate violations of equality and certain other non-basic rights within groups so as to protect the continued existence of groups.93

  In fact, the thick nature of religious groups might actually provide an argument in favour of non-interference: given the diverse ways in which thick groups provide people their contexts of choice, group autonomy and preservation are even more important goals than they otherwise would be. To this, a textual point may be added: unlike other Constitutions94 or international legal instruments95 which guarantee the rights of individuals to exercise religious freedoms singly or in community with others, and refrain from vesting rights in g
roups qua groups,96 the Indian Constitution, through Article 26(b), expressly makes groups the bearers of rights. This would suggest that textually the balance between individual and group claims must tilt towards the group.

  While it is true that Article 26(b) makes groups the bearers of rights, the Constitution does not state the basis of doing so. It does not clarify whether groups are granted rights for the instrumental reason that individuals can only achieve self-determination and fulfilment within the ‘context of choice’97 provided by communities, or whether the Constitution treats groups, along with individuals, as constitutive units worthy of equal concern and respect.98 The distinction is crucial, because the weight that must be accorded to group integrity, even at the cost of blocking individual access to important public goods, can only be determined by deciding which vision the Constitution subscribes to.

  The answer to this question must be grounded in the specifics of Indian constitutional history.99 Let us briefly consider that history. During colonial times, the British largely followed a policy of non-regulation of ‘personal law’, leaving ‘communities’ free to manage their own internal affairs100 (something akin to the Ottoman ‘millet’ system).101 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’.102 For this reason, when the legality of Dawoodi Bohra excommunication was brought before the colonial courts, the only enquiry made was as to whether, historically, the Dai had the power that he claimed to exercise.103