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Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution

Published online by Cambridge University Press:  03 November 2016

GAUTAM BHATIA
GAUTAM BHATIA*
Affiliation:
West Bengal National University of Juridical Sciences, Dr. Ambedkar Bhavan 12, LB Block, Sector III, Salt Lake City, Kolkata, India - 700098
*
†Email: [email protected]
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Abstract:

The religious freedom clauses of the Indian Constitution attempt to mediate between the competing claims of individuals, religious groups and the state, in a manner that is born out of specific historical circumstances. This article examines the controversial questions of whether, and to what extent, the Constitution grants individuals (specifically, dissenters) rights against the religious communities to which they belong. Taking as its point of departure a landmark Supreme Court judgment that struck down an anti-excommunication law, the article argues that the Indian Constitution is committed to an ‘anti-exclusion principle’: that is, 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. Moreover – and unlike most other Constitutions – an individual may vindicate this right directly against her community in a court of law, by invoking the Constitution. This remedy is justified both philosophically, and in the specific context of Indian history. In this manner, Indian constitutionalism offers a novel and innovative solution to the perennial problem of balancing individual rights to religious freedom against the claims of community.

Keywords

discriminationfreedom of religionIndian constitutional lawsecularism
Type
Research Article
Information
Global Constitutionalism , Volume 5 , Issue 3 , November 2016 , pp. 351 - 382
Copyright
Copyright © Cambridge University Press 2016 

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Footnotes

*

BCL, MPhil (Oxon); LLM (Yale Law School). The ideas in this article were first discussed in seminar courses at the National Law School of India University, Bangalore, and the West Bengal National University of Juridical Sciences, Kolkata. I am grateful to Shreya Atrey and Krishnaprasad KV, my perennial first readers, for their painstaking engagement with this article. I am also grateful to Suhrith Parthasarathy, Kalyani Ramnath, Abhinav Sekhri, Malavika Prasad and Rupali Samuel for their comments and suggestions.

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6 Ibid, para 23 (dissenting opinion of Sinha CJ).

7 Part III, Constitution of India.

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59 Derrett, JDM, Religion, Law and the State in Indi (Faber & Faber, London, 1968)Google Scholar; see also (n 52). More broadly, systems theorists such as Gunther Teubner have argued that autonomous social systems (in this case, law and religion) ‘cannot directly influence one another but can only effect self-regulatory processes’ through ‘structural coupling’. Teubner warns that when the ‘juridification process’ oversteps these boundaries, it leads to a ‘regulatory trilemma’, characterised by mutual indifference between the spheres, or by the disintegration of either one. Teubner, G, ‘Juridification – Concepts, Aspects, Limits, Solutions’ in Juridification of Social Spheres (Walter de Gruyter, Berlin, 1987) 1Google Scholar. While flagging that point, I note that a complete analysis of the effect of the Supreme Court’s ‘essential religious practices’ doctrine both upon its own jurisprudence, and upon the fate of internal reform movements within religion is beyond the scope of this article.

60 As Farah 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’. Ahmed, F, ‘Remedying Personal Law Systems’, International Journal of Law, Policy and the Family (forthcoming) available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2777337>>Google Scholar. Ahmed is equally cognisant of the heterodox claims within the group, and the tension securing between group autonomy and such claims.

61 Galanter (n 8) 482; see also (n 28) 98.

62 Galanter (n 8) 483.

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70 Art 17, Constitution of India.

71 Parliament of India, Constituent Assembly Debates, Vol. VIII, 29 November 1948 (speech of Dr BR Ambedkar) <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>. The first official definition of ‘untouchability’, in 1931 by the British Census Commissioner, was a broad one, defining it as social segregation characterised by exclusion from public amenities. Hutton, JH, Caste in India: Its Nature, Function and Origins (3rd edn, OUP, New Delhi 1961), 194Google Scholar.

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106 Bhargava, ‘What is Secularism For?’ (n 13).

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108 See (n 102) 98.

109 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. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.

110 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?’ (n 86). See also Hofer v Hofer, [1970] S.C.R. 958 (dissenting opinion of Pigeon J) (Supreme Court of Canada). However, as Farrah Ahmed points out (with the specific example of India), the right to exit is often illusory. Ahmed, F, ‘Personal Autonomy and the Option of Religious Law’ (2010) 24(2) International Journal of Law, Policy and the Family 222Google Scholar.

111 Note, however, that this argument doesn’t depend upon an a priori definition of the term ‘public’, as has been the route taken by the American Supreme Court, and some judges of the Canadian Supreme Court. Boy Scouts of America v Dale, 530 U.S. 640 (2000) (Supreme Court of the United States); Roberts v United States Jaycees, 468 U.S. 609 (1984) (Supreme Court of the United States); Gould v Yukon Order of Pioneers, [1996] 1 SCR 571 (concurring opinion of La Forest J; dissenting opinion of L’Hereux-Dube J).

112 Rao (n 91) 89.

113 See Gutmann (n 102) 97 (emphasis added); see also (n 100) 23. See also Gould v Yukon Order of Pioneers, ibid (dissenting opinion of MacLachlin J) (Supreme Court of Canada). For an examination of religious group membership itself being an important good, see Ahmed, F, Religious Freedom under the Personal Law System (OUP, Oxford, 2015) 60Google Scholar.

114 See (n 102) 103. The public expression of second-class citizenship is the basis of some decisions of United States Supreme Court on the Establishment Clause, although that is limited to expression by the state. See Lynch v Donelly, 465 U.S. 668 (1984) (Concurring opinion of O’Connor J) (Supreme Court of the United States).

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118 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.

119 In response to a possible objection to the use of ‘Western’ philosophers such as Gutmann and Walzer in the context of an argument about the Indian Constitution (which, I have been arguing, had its own distinct normative origin), I should clarify that Gutmann and Walzer simply help us to understand more clearly the transformative purpose of the Indian Constitution: that is, to transform a political and social reality in which individuals’ access to basic goods is often mediated (and sometimes blocked) by their religious group affiliations. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.

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121 However, as Farah Ahmed argues, groups that do not achieve ‘minimal representativeness and deliberative quality’ end up constraining the individual autonomy of their members; and the thicker the group, the more harmful those constraints will be; Ahmed (n 113) 85–91.

122 Section 31, Constitution of South Africa.

123 Art 27, International Covenant for Civil and Political Rights.

124 See Christian Education South Africa v Minister of Education, (2000) (10) BCLR 1051 (Constitutional Court of South Africa).

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130 Section 295A, Indian Penal Code. See also Sections 153A and 153B, Indian Penal Code.

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137 Parliament of India, Constituent Assembly Debates, Vol. VII, 4th November 1948 (speech of Dr BR Ambedkar), available at <http://164.100.47.132/LssNew/constituent/vol7p1.html>; see also F Ahmed, Religious Freedom under the Personal Law System (n 112) 37;+see+also+F+Ahmed,+Religious+Freedom+under+the+Personal+Law+System+(n+112)+37>Google Scholar.

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