22. See also T.N. Madan, ‘Secularism in Its Place’ in Secularism and Its Critics, supra, 297, 302.
23. Ibid.
24. The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Swamiar, 1954 SCR 1005, ¶20.
25. Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1035.
26. Ram Prasad Seth v. State of UP, AIR 1957 All 411, ¶12, relying upon State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
27. Mohd. Hanif Qureshi v. State of Bihar, 1959 SCR 629, ¶13.
28. Durgah Committee, Ajmer v. Syed Hussain Ali, 1962 1 SCR 383, ¶33. An obiter is an observation by a judge that does not form part of the conclusion or the reasoning leading to the conclusion, and is, therefore, not binding upon future benches.
29. Tilkayat Shri Govindlalji v. State of Rajasthan, 1964 SCR (1) 561, ¶57.
30. Sastri Yagnapurushadji v. Muldas, 1966 SCR (3) 242.
31. Rajeev Dhavan, ‘Religious Freedom in India’ (1987) 35(1) American Journal of Comparative Law 209, 224.
32. For criticism, see Rao, ‘Matters of Religion’, supra.
33. Seshammal v. State of Tamil Nadu (1972) 2 SCC 11.
34. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta (2004) 12 SCC 770. See also Ismail Faruqui v. Union of India, 1994 SCC (6) 360, holding that praying at a mosque was not an essential part of Islam.
35. Commissioner of Police v. Avadhuta, supra, ¶62 (dissenting opinion of Justice Lakshmanan) See also H.M. Seervai, Constitutional Law of India, Vol. 2 1268 (4th ed., New Delhi: Universal Law Publishing 1993).
36. Adi Saiva Sivachariyargal Nala Sanga v. Govt of Tamil Nadu (2016) 2 SCC 725.
37. Jacobsohn, The Wheel of Law, supra, 101.
38. H.E. Groves, ‘Religious Freedom’ (1962) 4 Journal of the Indian Law Institute 190.
39. Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’, supra, 482–83.
40. Dhavan and Nariman, ‘The Supreme Court and Group Life’, supra, 260.
41. For a critique of how colonial scholars themselves approached the question of Indian religion through a set of established lenses, see Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Supreme Court 5 (New Delhi: OUP 2013).
42. See, e.g., Shilubana v. Nwamitva, 2008 (9) BCLR 914 (CC) (South African Constitutional Court).
43. Mohd Hanif Qureshi v. State of Bihar, supra.
44. Sen, Articles of Faith, supra, 18; See also Jacobsohn, The Wheel of Law, supra 101.
45. J.D.M. Derrett, Religion, Law and the State in India (London: Faber & Faber 1968); see also Sen, Articles of Faith, supra. Indeed, this broad critique exposes striking similarities between the judicial analysis of the freedom of religion, and the colonial British view of religious groups in India. The use of textual sources of dubious variety over the lived practice of the constituents, and the imposition of an external point of view that runs contrary to how the believers themselves act, were best exemplified by the notorious Aga Khan decision in 1866, dealt with extensively by Teena Purohit in The Aga Khan Case (Cambridge: Harvard University Press 2012).
46. As Farrah Ahmed correctly notes, in the context of Indian personal law, ‘if group autonomy means anything, it surely means that the group should decide for itself the norms by which it is governed’. Farrah Ahmed, ‘Remedying Personal Law Systems’, International Journal of Law, Policy and the Family (forthcoming); preprint available at
47. Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’, supra, 482; see also Jacobsohn, The Wheel of Law, supra, 98.
48. Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’, supra, 483.
49. See Jacobsohn, The Wheel of Law, supra.
50. Rajeev Bhargava, ‘What Is Secularism For’, in Secularism and Its Critics, supra.
51. A point made by both Galanter and Sen.
52. Saifuddin v. State of Bombay, supra, ¶11 (dissenting opinion of CJ Sinha).
53. Saifuddin, supra, ¶23 (dissenting opinion of Justice Sinha).
54. B.R. Ambedkar, The Untouchables: Who Were They and Why They Became Untouchables, available at http://www.ambedkar.org/ambcd/39A.Untouchables%20who%20were%20they_why%20they%20became%20PART%20I.htm. Seervai, for instance, denies the validity of the analogy. See Seervai, Constitutional Law of India, supra, 1278.
55. Article 17, Constitution of India.
56. Parliament of India, Constituent Assembly Debates, Vol. VII, 29 November 1948 (speech of Dr B.R. Ambedkar), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29111948.html. The first official definition of ‘untouchability’, in 1931 by the British Census Commissioner, was a broad one, defining it as social segregation characterized by exclusion from public amenities. J.H. Hutton, Caste in India: Its Nature, Function and Origins 194 (3rd ed., New Delhi: OUP 1961).
57. Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of Naziruddin Ahmed), supra.
58. Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948, supra.
59. Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of K.M. Munshi), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29041947.html.
60. Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of Rohini Kumar Choudhury), supra.
61. Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of K.T. Shah), supra. During the Comments and Suggestions Phase of the framing, the Drafting Committee rejected multiple written submissions to define ‘untouchability’, noting that it would be Parliament’s task to do so in a statute. That, however, does not make the constitutional clause empty of meaning. See ‘Comments and Suggestions on the Draft Constitution’ in Shiva Rao, The Framing of India’s Constitution, Vol. 4, supra, 3, 33. This is especially because the article authorizing Parliament to make laws to implement provisions such as the untouchability prohibition (Draft Article 27), which was the rationale for the Drafting Committee’s refusal to define ‘untouchability’ with any degree of specificity, was ultimately dropped from the Constitution.
62. See Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of Promatha Ranjan Thakur), supra; Parliament of India, Constituent Assembly Debates, Vol. V, 27 August 1947 (speech of Monomohan Das), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C27081947.html. Parliament of India, Constituent Assembly Debates, Vol. XI, 21 November 1949, (speech of H.J. Khandekar), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C21111949.html.
63. Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of P.S. Deshmukh), supra; Parliament of India, Constituent Assembly Debates, Vol. VII, 29 November 1948 (speech of Shri Shibban Lal Saksena), supra.
64. Parliament of India, Constituent Assembly Debates, Vol. III, 29 April 1947 (speech of S.C. Banerjee), supra.
65. Parliament of India, Constituent Assembly Debates, Vol. XI, 19 November 1949 (speech of M. Ananthasayanam Ayyangar), supra.
66. Ibid., 23 November 1949 (speech of B.M. Gupta).
67. Parliament of India, Constituent Assembly Debates, Vol. VII, 29 November 1948 (speech of Santanu Kumar Das), supra.
68. Parliament of India, Constituent Assembly Debates, Vol. XI, 22 November 1949 (speech of Ajit Prasad Jain), supra.
69. Furthermore, scholars who accept group rights in liberal political theory are circumspect about the legitimacy of imposing liberal norms upon groups who might be following illiberal practices. See, e.g., Chandran Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20(1) Political Theory 105; Will Kymlicka, ‘The Rights of Minority Cultures: Reply to Kukathas’, (1992) 20(1) Political Theory 140.
70. IMA v. Union of India, supra.
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71. See Anupama Rao, The Caste Question (Ranikhet: Permanent Black 2010). Unsurprisingly, the draft bill of rights that Ambedkar presented to the Fundamental Rights Sub-Committee contained a lengthy clause for the prohibition of social boycotts. The Sub-Committee did not, however, include it in its report. See ‘Ambedkar’s Memorandum’ in Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 84, 91–92.
72. See Rao, The Caste Question, supra, 165; see also, B.R. Ambedkar, What Congress and Gandhi Have Done to the Untouchables,
73. Rao, The Caste Question, supra, Chs. 1–2.
74. The link between secularism and equality has been suggested by Cossman and Kapur. Brenda Cossman and Ratna Kapur, ‘Secularism: Bench-marked by the Hindu Right’ (1996) 31(38) Economic and Political Weekly 2613.
75. Rao, The Caste Question, supra, 81.
76. Ibid., 81–85.
77. Ibid.
78. For an overlapping (but different) account, see Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16.
79. Tarunabh Khaitan, A Theory of Discrimination Law (Oxford: OUP 2015).
80. For a version of this argument, see Amy Gutmann, Identity in Democracy, Ch. 2 (Princeton: Princeton University Press 2003).
81. Partha Chatterjee, ‘Secularism and Tolerance’ in Secularism and Its Critics, supra, 344, 375.
82. Akeel Bilgrami, ‘Secularism, Nationalism and Modernity’ in Secularism and Its Critics, supra, 380, 405.
83. Bhargava, ‘What Is Secularism For?’, supra.
84. See, e.g., Hosanna Tabor v. Equal Opportunity Employment Commission, supra.
85. See Gutmann, Identity in Democracy, supra, 98.
86. It might be argued that for internal dissidents, the religious context is always a ‘thick’ one. This is undoubtedly true, to a certain extent, as far as the basic good of cultural membership goes. However, ‘thick’ religious groups, in the sense that we are discussing here, have the ability to deny to their constituents more than just the good of cultural membership; they have the ability to block their access to other basic goods, including material and economic ones.
87. Kukathas argues, for instance, that groups can subordinate their members as long as there is an option to exit into the broader market economy. See Kukathas, ‘Are There Any Cultural Rights?’, supra. See also Hofer v. Hofer, [1970] S.C.R. 958 (dissenting opinion of Justice Pigeon) (Supreme Court of Canada). However, as Farrah Ahmed points out (with the specific example of India), the right to exit is often illusory. Farrah Ahmed, ‘Personal Autonomy and the Option of Religious Law’ (2010) 24(2) International Journal of Law, Policy and the Family 222.
88. For a detailed account of the interlinkages between the religious and the social in Indian group life, in the context of dissenting socio-religious movements, see Juergensmeyer, Religious Rebels in the Punjab, supra. For an examination of religious group membership itself being an important good, see Farrah Ahmed, Religious Freedom under the Personal Law System 60 (Oxford: OUP 2015).
89. Stuart Woolman, ‘Seek Justice Elsewhere: An Egalitarian Pluralist’s Reply to David Bilchitz on the Distinction between Differentiation and Domination’ (2012) 28 South African Journal of Human Rights 273, 285.
90. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 19 (New York: Basic Books 1983).
91. Rao, The Caste Question, supra, 77.
92. Ibid., 82. Rao cites the example of how the right to access temples and water tanks ended up becoming part of the same campaign, because of the spatial proximity of the two.
93. See, e.g., Kukathas, ‘Are There Any Cultural Rights?’, supra; Avishai Margalit and Moshe Halbertal, ‘Liberalism and the Right to Culture’ (1994) 61(3) Social Research 491; Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (Supreme Court of the United States).
94. Section 31, Constitution of South Africa.
95. Article 27, International Covenant for Civil and Political Rights.
96. See Christian Education South Africa v. Minister of Education (2000) (10) BCLR 1051 (Constitutional Court of South Africa).
97. See e.g., Charles Taylor, ‘The Politics of Recognition’ in Multiculturalism: Examining the Politics of Recognition (Amy Gutmann ed., Princeton: Princeton University Press 1994); for instances of how religious groups can facilitate personal autonomy, see Ahmed, Religious Freedom under the Personal Law System, supra, 62, 82. For a genealogy of this argument, especially in the context of British political theory, see Tim Rogan, The Moral Economists (Princeton: Princeton University Press 2017).
98. See Bhargava, ‘Introducing Multiculturalism’, supra, 38.
99. David Bilchitz, ‘Should Religious Associations Be Allowed to Discriminate’ (2011) 27 SAJHR 219; David Bilchitz, ‘Why Courts Should Not Sanction Unfair Discrimination in the Private Sphere: A Reply’, (2012) 28 South African Journal of Human Rights 296.
100. Partha Chatterjee, ‘Colonialism, Nationalism, and Colonized Women: The Contest in India’ (1989) 16(4) American Ethnologist 622.
101. Jacobsohn, The Wheel of Law, supra, 80.
102. Section 295A, Indian Penal Code. See also Sections 153A and 153B, Indian Penal Code.
103. Hasanali v. Mansoorali (1948) 50 BomLR 389, relied upon in Saifuddin. As discussed above, though, the colonial approach to determining the composition and character of religious groups was entirely external in nature. Purohit, The Aga Khan Case, supra.
104. Tanika Sarkar, ‘Something Like Rights? Faith, Law and Widow Immolation Debates in Colonial Bengal’ (2012) 49(3) The Indian Economic and Social History Review 295.
105. Tanika Sarkar, ‘A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal’ (2000) 26(3) Feminist Studies 601.
106. Partha Chatterjee, ‘Colonialism, Nationalism, and Colonized Women: The Contest in India’ (1989) 16(4) American Ethnologist 622.
107. Mrinalini Sinha, Specters of Mother India: The Global Restructuring of an Empire (Durham: Duke University Press 2006).
108. In fact, the 1928 government report specifically stated that the social boycott was particularly ‘dangerous’, since it invoked the principles of freedom of contract as justification, and, notwithstanding that, deserved to be outlawed. B.R. Ambedkar, What Congress and Gandhi Have Done to the Untouchables, supra.
109. Parliament of India, Constituent Assembly Debates, Vol. VII, 4 November 1948 (speech of Dr B.R. Ambedkar), supra. Even before Ambedkar, as early as 1947, while moving the resolution to establish an advisory committee dealing with fundamental rights, Govind Ballabh Pant foresaw the dangers. He lamented, ‘The individual citizen who is really the backbone of the State … has been lost here in that indiscriminate body known as the community … it is after all citizens that form communities and the individual as such is essentially the core of all mechanisms and means and devices that are adopted for securing progress and advancement’. Shiva Rao, The Framing of India’s Constitution, Vol. 2, supra, 63.
110. Parliament of India, Constituent Assembly Debates, Vol. VII, 2 December 1948 (speech of Dr B.R. Ambedkar), supra.
111. For a chronology of this failure, see Rochana Bajpai, Debating Difference, Ch. 4 (New Delhi: Oxford University Press 2011). In Shayara Bano v. Union of India (2017) 9 SCC 1, while deciding upon the validity of ‘instant triple talaq’, a dissenting opinion authored by CJI Khehar and Justice Nazeer made a breathtakingly disingenuous attempt to undo the consensus that had been achieved in the Constituent Assembly, by declaring through judicial fiat that the right to a personal law system was a part of Article 25(1)’s guarantee of the right to freedom of religion. Unsurprisingly, the dissenting opinion made no reference to the Constituent Assembly Debates, and we can count ourselves fortunate that this attempted judicial hijack found itself on the wrong side of a 3–2 split verdict.
112. Indian Young Lawyers’ Association v. Union of India, W.P. (Civ.) 373/2006. For an an
alysis, see Gautam Bhatia, ‘The Sabarimala Judgment—I: An Overview’, The Indian Constitutional Law and Philosophy Blog (28 September 2018), available at https://indconlawphil.wordpress.com/2018/09/28/the-sabarimala-judgment-i-an-overview/.
113. See Gautam Bhatia, ‘The Sabarimala Judgment—II: Justice Malhotra, Group Autonomy, and Cultural Dissent’, The Indian Constitutional Law and Philosophy Blog (29 September 2018), available at https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-ii-justice-malhotra-group-autonomy-and-cultural-dissent/.
114. Indeed, Justice Chandrachud relied on an earlier, published version of this chapter to make the case for the anti-exclusion principle as a possible way forward. For an analysis, see Gautam Bhatia, ‘The Sabarimala Judgment—III: Justice Chandrachud and Radical Equality’, The Indian Constitutional Law and Philosophy Blog (29 September, 2018), available at https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-iii-justice-chandrachud-and-radical-equality/
6: The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour
1. See, e.g., Anupama Roy, Gendered Citizenship 194 (New Delhi: Orient BlackSwan 2005).
2. Karachi Resolution, 1931; available at http://cadindia.clpr.org.in/historical_constitutions/karachi_resolution__1931__1st%20January%201931.
3. B.N. Rau, ‘Notes on Fundamental Rights’, 2 September 1946, cf. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II, 22, 33 (New Delhi: Universal Law Publishing 1967).
4. PUDR v. Union of India (1982) 3 SCC 235.
5. Ibid., ¶14.
6. The phrase is borrowed from James Gray Pope, ‘Labor’s Constitution of Freedom’ (1997) 106 Yale Law Journal 941.
7. PUDR v. Union of India, supra, ¶4. The PUDR was an organization born during the Emergency, and soon evolved into one of the most significant civil, political, and economic rights organizations in the country.
8. Ibid., ¶8.
9. S.P. Gupta v. Union of India, AIR 1982 SC 149.
10. PUDR v. Union of India, supra, ¶9.
11. Ibid., ¶11.
The Transformative Constitution Page 48