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R JEEV DHAVAN
Religious
Freedom
in
India
I.
It
is
impossible
to understand
religious
freedom
without
under-
standing
the wider
process
of
the political management
of group
life.
Many years
ago,
when
India's
Constitution
was
being
drafted,
B.R.
Ambedkar,
who piloted
various
drafts
through the
Constituent
As-
sembly,
stated
that the
individual
rather
than
the
group was the
ba-
sis
of the
Indian
Constitution.'
It
is
surprising
that
this
terse
assessment should have
come
from one who had fought against Gan-
dhi and
the
Congress Party for
the collective
entitlements
of the
Untouchables.
2
However,
Ambedkar's
insight
forcefully
explains
how
groups and group
life were to
be viewed
in
the new
dispensa-
tion:
their right
to flower
in civil
society
would be
recognized, with
the Constitution
protecting
religious,
cultural
and
educational
rights.
3
Some
communities
and
disadvantaged
castes and tribes
would
even
have
special
political representation.
4
But
the future
was
impeded for
new groups and
social
combinations
which came
to-
gether
as a result
of the voluntary
and
rationally
directed
choices
of
individuals.
5
RAJEEV
DHAVAN is
Reader, Dept.
of
Law,
Brunel University,
England.
He
would
like to
thank
Professors Marc
Galanter,
Richard Lariviere
and
Upendra
Baxi and
Justices
Chinappa
Reddy,
Krishna Iyer
and
Bhagwati
for
the
opportunity
to
discuss
many issues
contained
in
this article.
1.
B.R.
Ambedkar,
Speech
to
the
Constituent Assembly,
VII C A D 38-9
4
No-
vember
1948).
2.
See, e.g., Ambedkar,
Mr. Gandhi
and the
Emancipation
of Untouchables
1943);
id.,
What Congress
and Gandhi
have
Done
t the
Untouchables
1946);
see
Ga-
lanter,
Competing
Equalities:
Law and
the
Backward
Classes n India
28-40
1984).
3. Articles 25-30,
Constitution
of
India.
4.
Articles
330-4, Constitution
of India.
5.
This
voluntarist/rationalist
approach
represents
just one point
of view in
an
otherwise
complex,
intricate and continuing
discussion
about
the
nature
of
Indian
secularism.
Contrast the
relatively
unsubstantiated
view of Watson,
The
Indian
Constitution
and the
Hindu Traditions,
at
1183 (Ph.
D. Thesis,
Northwestern
Uni-
versity, 1957)
that
India's
present Constitution
espouses a
Hindu polity.
For
other
more
incisive
views,
see
Sundaram,
A
Secular
State for
India:
Thoughts on India s
Political
Future 1944).
For later
views
see
Smith,
India as a Secular
State
1963)
and
South
Asian Politics
and Religion
1963);
Luthera,
The Concept
of a
Secular
State
and
India
1964);
Sharma ed.), Secularism:
Its Implications
or
Law and ife
1966);
Sinha ed.),
Secularism
n
India 1968);
Derrett, Religion,
Law
and the State
n
India
1968);
Saxena,
A Secular
State
and its Institutional
Patterns 1971);
Gajen-
dragadkar,
Secularism
and
the
Constitution of
India
1971);
Bachal,
Freedom
of
8/18/2019 Religeous Freedom In India - Rajiv Dhavan.pdf
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210 THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
35
Although attractive on paper, the theory collapses in real life.
If the
key notions are 'voluntarism' and 'rationality', neither
old nor
new groups can claim
a
monopoly
on
one
or the other. The distinc-
tion between 'traditional' and
'new'
groups is also
obscured
as group
life renews
itself in
various
shapes
and forms.
6
Even if these analyt-
ical distinctions are unconvincing, the Constitution has
the ideologi-
cal
objective
of de-politicizing powerful traditional group
formations
while giving different
groups
varying degrees of legal recognition.
Nonetheless, group life is
constantly re-defined by social,
political
and economic forces in
ways that threaten the fragile computations
of
the
framers of the
Constitution. While the framers were
at-
tracted
to the 'top-down'
notion of making social
forces yield to
new
rational structures,
they were aware as the British were
before
them that
the actual
management of
the political economy would
subvert these
structures
as
India's
emergent
capitalism
reconstituted
the
means through
which
it
would articulate its demands.
Some of the dilemmas of Independent
India's rulers can be
traced back to the Raj, which sought to
establish
a comprehensive
all-inclusive legal system. The Anglo-Indian
Codes 'secularized' a
large part
of the
law
relating
to legal
procedure,
contract, the trans-
fer
of property, and commercial organizations.
7
However, this secu-
Religion
and
the
Indian Judiciary
(1972); Ghouse, Secularism Society
and
the
Law
(1973);
Jain, Law and Religion: A Comparative Study of
the Freedom
of
Religion
in
India
and the United
States 1974); Glasner, The Sociology
of
Secularization:A Cri-
tique
of a Concept 1977);
Dhavan, The
Supreme Courtof
India: A Socio-legal
Analy-
sis
of
its
Juristic
Techniques 422-31 1977);
Srivastava,
Religious
Freedom
in
India:
A
Historical
and Constitutional Study 1982).
For
journal literature,
see
Galanter,
Secularism East and West, 7
Comp. Stud.
Society
History 135-59 1965); id.,
Hinduism, Secularism and the Indian
Judiciary,
21 Philosophy
East
and West
467-
487 1971); Seminar No. 67, Secularism:
A
Symposium
on the
implicationsof a na-
tional policy 1965); Subhrahmaniam, Hinduism and
Secularism, Bulletin
of
the
Institute of
Traditional
Culture,
Part I,
1-21 1966);
Tripathi, Secularism,
Constitu-
tional
Provision and
Judicial
Review, 8 J L 1-29 1966); Ghouse, Secularism
and
the
Constitution of India, 17
Indian
Year Book of
International
Affairs
559-76
1974); Nagpal,
Secularism and
the Constitution of India, Lawyer 112-7
1971);
Satyanarayana, Religion under the Constitution of
India, 3 Journal of the Bar
Council
of India 310-16 1974); Minatur, Law and Religion in a Secular State, 8
Lawyer
79 1976);
Akhishewar Singh,
The
Concept of Secularism
in
Indian Consti-
tution, 12 J. Const. Parl.
Stud. 15 1978); Chinappa Reddy, Religion in India, Ber-
trand
Russell Memorial Lecture, 1982,
mimeo); and also,
Derrett,
Freedom of
Religion in India,
KL.T (Jnl.)
91-3
1979); Mittal,
Motivated Conversion and
Pro-
tective Discrimination, 28 Punjab
University L.R. 147 1976); Bhartiya,
Propaga-
tion
of Religion..
.
. 19 J.I.L..
325
1977);
Sharma,
Article
25
of
the
Constitution
Should we amend it? A.I.R.
1985
Jnl. 22-3.
6.
See
Rudolph
&
Rudolph:
The Modernity
of Tradition: Political Develop-
ment in India 1967) and
the incisive review
by
Derrett in 71 Z.V R
89-94 1968).
7. On
the
legislation, see
Stokes, The
Anglo-Indian Codes, 2 vol. 1887);
see Ga-
lanter:
The
Displacement
of
Traditional
Law
in India
24
J.
Soc. Issues 65-91
1968);
id., The aborted restoration of Indian 'indigenous' law in India,
14
Comp.
Stud. Soc.
Hist. 53-70 1972);
Derrett,
Legal
Science
during the last
century:
India, in
Rotondi
ed.),
Inchieste
di
derreto
Comparato 413-35
1975).
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DHAVAN:
RELIGIOUS
FREEDOM
IN INDIA
larism did not extend to the
'personal
laws'
of various communities
even
though these
personal laws were used to control the
distribu-
tion
of
social and economic power. Decisions in the
area
of personal
law
were made
by
judges who, combining pragmatism and self
inter-
est with caution, constructed a body of Anglo-Hindu and Anglo-Mus-
lim.
8
Each
community
was
permitted
self
expression
so
long
as
it
did
not
compromise
the
police
duties of the
State.
These
duties were
not
just
concerned with law and order, but also with Chancery no-
tions of equity, which were used
not
merely
to
transform the
joint
family
9
but also
to
'discipline'
religious
endowments
which
retained
vast
repositories
of power and wealth.
10
Law courts absorbed, re-de-
fined
and
resolved social and economic conflicts concerning
land,
credit and status.
1
Indigenous
communities
thus
invited their
ow n
legal
metamorphosis
through
one
the
most poweful, respected and
subtle
bureaucracies
of
the
Raj the
judiciary.
12
The Raj sought
to
fashion a policy of overall supremacy
(based
on
notions
of sovereignty) rather than to press for
detailed moderni-
zation
of
the
system-an effort
that
met with resistance.
At
the
same
time
the Raj sought to divide
Indian
society into
stratified
and
disaggregated parts, each part nurtured
by encouraging its desire fo r
self-identification. Static images of what has
been
called India's
compartmentalized
society
served
many
purposes.
1
3
As
Indian
elite
politics became
more
self-confident many leaders
moderated
their own
enthusiasm
for
political change by convincing
themselves
that
the
social
reform
of
India's static
society
must
be
a
prerequisite
for making
wide-ranging political demands
suited
to a
more
dynamic
society.
14
That
'traditional'
society contained a potential for
reform,
dynamism and
change,
was ignored both by scholars and govern-
ment policy. Whenever peasant rebellions took place-and the Raj
8. See,
Derrett,
The Administration of Hindu
law
by the British, 4 Comp.
Stud.
Soc.
Hist. 10-52 1961); Fyzee, The impact of English law on the Shariat
n
India,
66
Bom. L.
Rev.
107-16
1964).
A reassessment
of
the
impact
of Imperial rule
on personal laws
is
long overdue.
9.
Derrett, A
history
of the juridical
framework
of
of the joint family, 6 Con-
tributions
of
Indian
Sociology
17 1962); Sontheimer, The
Joint
Hindu Family: Its
evolution as a Legal
Institution
1977).
10.
Derrett,
Religion Law and the State ch. 14 1968); Sontheimer,
Religious
Endowments
in
India,
67
Z.
VR. 45 1965).
11.
Washbrook,
Law, State and Agrarian
Society in
India, 15 Mod.
Asian
Stud.
649-721 1981);
Appadorai,
Worship and Conflict under Colonial Rule
esp.
ch.
5
1981 .
12. Unfortunately, there has
been
very little assessment
of
the
British
judiciary
as an institution
of
the
State.
This may
in part have been because a strict law
of
constructive
contempt
stifled comment
see
Dhavan, Contempt of
Court
and
the
Press
1981 .
13. The phrase
is
taken from Galanter, supra
n. 2 at 7.
14. See K.T. Telang's famous speech, Must Social reform precede political re-
form?, Selected Writings: Speches and Writings I, 288
1892); see further L. Heim-
sath,
Indian
Nationalism
and Hindu
Social Reform
1964).
98 ]
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212
THE
AMERICAN JOURNAL OF COMPARATIVE
LAW
[Vol.
35
is littered
with scores of them it
was politically
convenient
to
iden-
tify the religious form in
which protest was
expressed as the sine
qua
non rather
than
to admit that
discontent
arose
out of the ex-
ploitative
policies
of
the
Raj. This
method
of
cloaking
social
truth
remains an
important policy
imperative in the hands of
India's con-
temporary
rulers.
The contradictions precipitated
by this policy
surfaced after
In-
dependence
when politically
re-defined communities
and groups
made
political demands.
The
creation of Pakistan
was the direct
consequence of this policy.
As socio-political
life in Independent In-
dia
adapted
itself
to elections
and the
patronage
that
flowed from
the
electoral process,
many
of
India's
politicians
favored the familiar
policy
of defining
electoral
support
along communal
lines. While
formally espousing secularism,
they manipulated traditional
cultural
loyalties. This manipulative process
occurred not only in
rural areas
but also
subtly penetrated highly
urbanized
communities,
where loy-
alties are predicated upon
community
and
caste
identification as
well
as
upon
class loyalties.
15
Indeed,
the
reasons for
many
alleg-
edly 'communal'
tensions and
religious
clashes in
contemporary
In-
dia can
be
attributed to the manner in
which politicians
(and
their
supporting
band
of
ideologists) have politically
appropriated
reli-
gious
group
life
to
their
own
purposes.
16
II.
Although
India's Constitution
borrowed greatly
from the
U.S.
Constitution,
the
American solution of allowing the
'free
exercise' of
religious
freedoms (subject
to
the police
power of the State)
and cre-
ating
a
wall of
separation between the State and religion
seems
both
contradictory
and
awkwardly over-simplified.
While
India's consti-
tutional lawyers were
sensitive to the
post-New
Deal prognosis
that
judges
were not to
be
trusted
with the determination of social
wel-
fare
questions,
17
discussions
about religious
freedom evolved
around
more specific
concerns.
India's
Constitution-makers
did
not
want
to
15. Nehru stated: So
far as I
am
concerned,
I
am
prepared to lose
every single
election in India but
to
give
no
quarter
to communalism
or
casteism .
(Selected
Speeches:
1953-7
37
(1958)). Similar, but
more
guarded comments
have been made
by his grandson, Rajiv
Gandhi; see ndianExpress 13
September 1986.
16.
Indeed, reports
on
the
turmoil
following
Mrs.
Gandhi's assassination
attri-
bute
the ghastly
riots
to
political
manipulation
more than
righteous anger.
17.
Much
of the
controversy
surrounded the
'due process' clause.
It
was
argued
that its introduction
would make
the
judiciary the arbiter of all social
reform ques-
tions
(e.g.,
Rau's
Notes on
Fundamental
Rights,
II
Shiva
Rao infra
n.
18
22-23;
and
151-52).
It
was felt that such a
clause would not just
affect agrarian reform
(e.g.,
II
Shiva Rao 122
26
March
1947). A.K. Ayyar
(letter dated 4 April 1947 II
Shiva Rao
143-45)
also pointed out
that if
the
freedom of
religion clause
was too widely defined,
social legislation would
be impeded.
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DHAVAN: RELIGIOUS
FREEDOM
IN
INDIA
indulge
the intellectual
excess
of wholly disentangling
the State
from
religious life.
The State was
to
interact
with
religious groups
in a supportive
manner.
However,
no
one
had
quite
determined
what
the
socially
and politically assimilative effect
of
the
new
secu-
larism
was going
to be, and
discussions in
the
Constituent
Assembly
reflected tensions
among
various reformists
and community
leaders
about
the
basic
constitutional
framework.
1 8
Political
Representation
The
first and
most
complex problem
involved a decision
about
whether
religious and
other
groups
should
have separate
and dis-
tinct political
representation
in
electoral
processes and
representa-
tive
bodies. The
Raj s failure
to actively
promote
unity '
19
and
its
residual
legacy of
encouraging
religious manifestations
of political
demand
had left expectations
that were
not
satisfied
by the
creation
of
Pakistan.
Muslims,
Sikhs,
Christians,
Parsis, and
others sought
political
representation.
The
basic policy
of
non-communal
repre-
sentation
was approved
in the Minorities
Sub-Committee
and
the
Advisory
Committee
and, amidst
dissension,
was adopted
by
the
Constituent
Assembly.
The alternative
policy
of
protecting minori-
ties
from majoritarian
pressures
through
proportional
representa-
tion was
passed
over. The final
agreed-upon
constitutional
solution
dispensed with communal
representation.
It provided
that
. .
no
person shall be ineligible for inclusion in
any
elector l
roll
or
claim
to be included
in
any special electoral
roll for
any such constit-
uency
on
grounds only of
religion, race, caste,
sex
or
any
of them .
20
Constitutional
decisiveness
was supplemented
by an electoral
law
that
forbade
appeals
to
religion,
religious sentiment,
and religious
symbols.
2
The
only exceptions
were
made for
special
electorates
for India's
socially
and
economically backward
minorities
(called
Scheduled
Castes
and
Scheduled
Tribes) and
the Anglo-Indian
18 The
most succinct
account
of
these
discussions
is to be found in
Shiva
Rao,
The
Framing
of India s
Constitution:
A Study
(1968) (hereafter
Shiva
Rao
Study),
with
the
original
documents in
four connected
volumes
hereafter
cited
as Shiva Rao
preceded
by
the Volume
number. For further
comments,
see
generally
Austin,
h
Indian
Constitution:
Cornerstoneof
a Nation
(1966);
the
main discussions
in the
Constituent Assembly
took place
on VII
C A D
822
(3
Dec.
1948), 823-840
(6 Dec.
1948); 859-890
(7 Dec. 1948).
19. Austin,
supra
n. 18
at 147.
20.
Art. 325,
Constitution
of
India.
21.
S 23(2)
of the Representation
of Peoples Act (43
of) 1951
prohibits undue
influence which invokes
social
ostracism, excommunication,
expulsion from
caste
or
community,
divine displeasure or
spiritual
censure. Sec.
123(3)
is
concerned
with
ap -
peals to
religion,
race, caste,
community,
language which
would
affect voting
choices
or
(vide 3A)
provoke
enmity
between
classes.
There is a
formidable amount
of
case
law on these
kinds
of
electoral
disputes.
1987]
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214 THE AMERICAN
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LAW
[Vol.
35
community.
2
2
This general
constitutional approach
was undermined
by subse-
quent political events.
The Nehru and
Indira governments
made
major
concessions to linguistic
minorities
by
creating
Andhra
Pradesh
for
the Telugu-speaking
people, splitting
Bombay
into
Ma-
rathi-speaking
Maharashtra and Gujarati-speaking
Gujarat, and
carving Hindi-speaking
Haryana
out of
Punjab in 1967.
Most of In-
dia's other
States began
to
support
their linguistic
identities.
The system of
patronage established around
patterns of electo-
ral support
further
reinforces
religious and other
identities. Politi-
cians
deliberately
manipulate
and
manage religious,
caste, linguistic
and
other identities
in order to organize
a basis
for
support
and dis-
pense return
favors. At
another level, India's
remarkable
compensa-
tory
discrimination
program
gives
caste and religious-based groups
a
vested interest
in their own identity.
23
This has
presented
Indian
courts
with
enormous
political
and conceptual problems
when in-
vited to adjudicate
electoral complaints
about a
successful candi-
date's caste
and religious
identity.
This
task, already complex with
listed ('Scheduled') groups,
becomes
even
more
intricate
when
the
government is
asked
to dispense special
favors to 'backward
classes'.
24
A recent government committee's insistence
that
'caste'
must
be a
central
criterion for
determining
'backwardness'
may
well
increase
the
importance
of religious-based affiliations
as
the
final
de-
terminant
in the vast
and crucial area
of preferential treatment
for
educational
opportunities and government
jobs.
25
Some members
of the Constituent Assembly
had
probably
fore-
seen
this
when
they
unsuccessfully
supported
a
constitutional
man-
date
to separate
religion
from
politics. Even
if
such
a
provision
had
been introduced,
however, it is unlikely
that Indian politics
would
have abandoned its
own
level of Realpolitik.
There is
little
ques-
tioning
of
India's formal
constitutional doctrine,
partly because it is
familiar
and
convenient
and partly
because there is
a
fear
that
ma-
jority
religious
groups may assert
their supremacy
in politics
and
ad-
ministration.
26
Even if
the threat
is
not real,
the
anxieties
of
22.
Arts. 330-334, Constitution of India.
23.
For a comprehensive
account, see Galanter,
supra
n.
2.
Singh,
Equality Res-
ervation
and iscrimination
n
India 1982);
and
for
a
comment on
recent
law,
see
Singh,
Castes
and
Classes: The
Doctrinal Puzzle from
Balaji to Vasanth,
S.C.C.
J
36-50
(1986).
For
perceptions
of how the
program works,
see Anant,
Changing
Caste Hindu
Attitudes towards Harijans A
Follow-up after Four
Years,
in
Gupta
(ed.), Cohesion and
Conflict
in
Modern
India
(1978);
Agarwal,
Equality
through
Privileges:
A Study of Special
Privileges
of
Scheduled
Castes
in
Haryana 1976).
24.
Galanter,
Who
are
the Other Backward Classes:
An Introduction to a
Con-
stitutional Puzzle,
13 E.P.W 1812-88
(1978);
Galanter,
supra
n. 2
at
134-87.
25. Government of India,
Report
of
the
Backward
Classes
Commission
1981).
26. However,
as
we
shall see later, while courts display
their adherence
to famil-
iar
constitutional doctrine,
their decisions mark a flexible
accommodation of
conflict-
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DHAVAN:
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minority groups need
not
only
to be
assuaged
but
uncompromisingly
laid
to rest. Indeed,
when
India's Constitution
was being overhauled
during
the
Emergency,
an
important
symbolic
insertion into the
Preamble
identified India
as
a
'secular'
as
well
as
a 'socialist', demo-
cratic republic.
These
words
were
not
changed
by
the Janata
gov-
ernment
in its
review
of
the
Emergency
amendments
after
Mrs.
Gandhi's massive
defeat
at the
polls.
2 7
But
the gap
between
consti-
tutional symbolism and
political
practice
is
so
considerable
that we
need to examine
it
more
closely.
Social Practice nd Social
Religion
The constitutional
discussion
on freedom of
religion started
with
a
general
consideration about
the right to belief and
practice.
Two
strategies
were
given
attention.
The
first
was
the
familiar
'wall
of
separation'
doctrine,
with draft clauses specifically directed
to
non-compulsory
religious
education in
State-aided
schools
and t
non-payment
of
taxes to maintain any faith. The second
was delim-
iting the sweep of religious
rights by denying
constitutional protec-
tion
to
'secular'
(i.e. economic,
political, financial,
etc.) aspects of
religious practice. However,
this juxtaposition
between the 'reli-
gious' and the
'secular' was greatly
obscured by specific
provisions
recognizing the
institutional basis
of
religious
life and the
right
of
religious
denominations
to own
property
and manage
their own
institutions.
Although the
earlier drafts and the final
text reserved to the
police
the power
to
make
these rights subject to
public order, mo-
rality
or
health , these draft
provisions only
aroused
pessimism
among
social
reformers, who
warned
that law
courts would
interpret
the social control provisions
restrictively. The
reformers' concerns
devolved
on various
specific
issues.
At the
beginning, they
were
de-
feated in an initial wrangle
over the inclusion of
the right to 'propa-
gate'
one's religion.
The
opening
up
of
Hindu (including Sikh,
Jain,
and Buddhist) temples
to all
classes and
sections of Hindus proved
not
to be
an issue.
28
But
the reformers were defeated
in their at-
ing
intuitions and demands
from
society
and
the State. This is
as true
of
the
Supreme Court's
decision-making
in
areas
other than
religious
freedom; see
gener-
ally Dhavan, supra n. 5. For
a restatement of the fear
of majoritarianism, see Khur-
shid,
At
Home n India
1986).
27.
Inserted
by
the Constitution 42nd Amendment)
Act,
1976;
see also
Dhavan,
The
Amendment
Conspiracyor Revolution 1978)
esp. Chapter IV for
parliamen-
tary discussions on this and other
matters.
28. The
opening
up of temples
first
surfaced
in the
Draft
Constitution
(Article
19 2) b)).
There
was
some
attempt to
extend
these reforms
to
all
religious
institu-
tions see, e.g.,
Tajamul Hussain
IV
Shiva Rao 41-42).
Sikh, Jain and Buddhist
tem-
ples
were included in the final
text (Article
25
Explanation
II) following
an
amendment by K.T.
Shah on 6 Dec. 1948 VII CA D 828
ff.).
98 ]
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THE
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tempt to
prevent
religious
denominations
from
administering
insti-
tutions
and owning
property. The
reformers in
the Assembly
also
pressed
for
an
over-riding
provision
in
the
freedom
of
religion
clauses that
would
not only
permit
regulating and
restricting
of
economic,
financial, political or
other
secular
activity..,
which may
be associated
with
religious
practice
but would
also
promote
social
welfare
and
reform.1
29
However, the
major debate
concerned
reli-
gious
instruction
in State-aided
institutions.
Even
more
than
places
of
worship, educational
institutions
were
inextricably
bound
up with
the religious
life
of many communities.
The
communities
had much
to lose if
their educational
institutions
either lost
State aid
or
were
constitutionally
pressured
into
relinquishing religious
instruction
as
the
social price
for the
State's financial
support.
The initial
compro-
mise
permitting such
instruction outside
working
hours
30
was
super-
seded by
a
more accommodating provision prohibiting religious
instruction
in 'wholly
maintained'
State
educational
institutions
and
allowing
'voluntary'
participation
in
religious
instruction
programs
in
institutions
administerd
by,
recognized
by,
or
receiving
aid
from
the
State.
3
1
Some
of these
constitutional
protections
were
also extended
to
all minorities
(including,
no doubt, religious
ones) who were
allowed
to
establish
and
administer
educational
institutions
of their
choice.
3
2
These
institutions
could
not be denied
State aid
because
of
their
reli-
gious and linguistic
identity, and, in
turn, could
not deny admission
to
anyone
on grounds
of
race,
caste, or
language.
Any
'section
of the
citizens'
residing
in the
territory
of
India
has
also been
given
the
right to conserve
its
distinct
language,
script, or culture.
These
pro-
visions,
which
are especially
relevant to
maintaining
the
cohesive-
ness
and
identity of
religious
groups
(for many
groups
conserve
their
religious
identity through
language),
were
introduced
almost
by
accident.
The
reformers
obtained
an open-ended
power
to
sustain the
so-
cial
reform of religion
but
religious
groups
had won the
right
to in-
stitutional
existence, to
own
property
and manage
their
own
affairs,
to
be partly
funded
by the
State
(even
if
they imparted religious
in-
struction), and to propagate
their
beliefs. However, even
if
the
reli-
gious
groups
had
held
their ground
against
the reformers
in the
Constituent
Assembly,
the overall
constitutional
framework bor-
29 The
fact that the
'secular'
aspects of
religion
could be
controlled
was present
in
virtually
all the
drafts presented
to
various
committees
at
various
stages
of
t
constitutional
discussion.
30.
The initial
compromise
was expressed
in
Art.
22(3)
of the Draft Constitution.
31.
The final
version is
in
Art.
28(3).
Minority
institutions
dominate
various sec-
tors
of
education in India.
For
State
attempts
to regulate
and assimilate
minority
educational institutions,
see Part
IV of
this
article.
32. Arts.
29 and
30 Constitution
of
India.
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rowed
from American
doctrine had delimited
their
sphere
of
opera-
tion. Relegated
to
operate
in civil
society, denied
political
representation and
the
full State
support
given
to
non-religious
groups,
they were
accorded freedom
of speech and
conscience
and a
right
to
equality
that
most
other groups
enjoyed
as a
matter of
fact.
Thus, communist,
socialist, and
non-religious
reformist and
con-
servative
groups
enjoyed virtually
all the
rights
given
to religious
groups
without
many
of
the limitations.
By earmarking
religious
groups
for
special
attention,
the Constitution
effectively segregated
and
depoliticized
them.
III.
The
careful
deliberations
in
the
Constituent
Assembly
left
too
many unresolved issues
that,
in
turn,
were passed on to
the
judiciary
for
resolution. In
the
Common
law world,
the
judiciary
is
often in-
vited
to resolve
complex and
politically
sensitive
subjects.
33
How-
ever,
many questions
do not reach
the judiciary
at the direction
of
other political agencies
of the
State,
but
are the
product
of
forum
shopping
among
social
and
political rivals
fighting
for the
spoils of
religious
power,
status, and
office. Thus,
if governmental
interven-
tion
results
in the
displacement
of existing
managers
of religious
and
educational
institutions
by new incumbents,
the
displaced man-
agers
may turn
to the
law
courts
to
reopen
the dispute.
3 4
The
courts
33
The
general image of
a
common
law judge
as
a neutral
third
party presiding
over disputes
seems
to have
been
tarnished in recent
years.
While faith in
the capac-
ity of
Anglo-American judges
to balance
out
rights remains
(e.g.,
Dworkin, Taking
Rights Seriously
1977)),
outspoken
research
speaks
of the
instrumental predilec-
tions of
common law judges,
(e.g.,
Horwitz,
The
Transformation
of American
Law
1780-1860
(1977);
Atiyah, The
Rise
and
Fall
of Freedom
of Contract
(1979)), and their
class
bias (J.A.G.
Griffith,
The Politics of
the Judiciary (1977);
Das Gupta,
Justice
and the
PoliticalOrder n
India
(1979)). For
a
recent attempt to evaluate
common
law models
of judicial decision
making,
and, especially
their application
to India,
see
Dhavan,
Sudarshan
Khurshid
(eds.) Judges
and the JudicialPower
(1985).
34. E.g., Ramalinga
v. Sundara, A.I.R.
1929
Mad.
526 (where
Curgenen J. hints
that
the (Hindu)
District
Judge may have got
involved
in a dispute
about when
t
trustees of
a temple could celebrate
Navaratri,
a religious
festival);
Narayan
v. State
of Madras,
A.I.R. 1954
Mad. 385
(where the
board
appears
to
reject certain names
proposed);
Commr.
HRE v.
LT Swamiar,
A.I.R. 1954
S.C.
282; and
K.A. Samajan
v.
Commr.,
A.I.R.
1971
S.C. 8 appear to
be riddled
with long
case
histories
(on
Samajan
see further
A.V.
Sabha v.
Commr., A.I.R. 1976
S.C. 475); note
the
nominees
in Namboodripad
v.
C.D. Board, A.I.R.
1956
T.C. 19 at prs.
7 8 p. 22;
and the very
complex
decision
concerning
the
pious
nuns
of
Madhya
Pradesh in
State of Madhya
Pradesh v.
M.S.
Convent
School, A.I.R.
1958
M.P.
362; State
of Bihar
v. Bhabaprita-
nanda
Ojha (1959) S.C.R.
Supp. 624
is
clearly
a case of
Government involvement
in
a
dispute
between
pandas and
the priest;
Note
the State selling
right
to
perform
santhis in
temples
by auction in
V. Raman
Embran
v. Tahsildar, A.I.R.
1960 Kerala
312; or
where
the government appointed
a management committee
by
general
reso-
lution in respect
of a rahmo
Samaj endowment
and
claiming to
follow
American
case
law in
Dipendra
Nath v. State
of Bihar, A.I.R. 1962
Patna 101.
For
a similar
case
of
alleged
interference with the
Charodhi
community,
see
State of
Mysore
v.
1987]
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218 THE AMERICAN JOURNAL OF COMPARATIVE LAW
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35
of
British
India
were replete with examples
of
such
social
disputes
over power
and property inundating the courts--disputes that virtu-
ally
submerged
the
legal system.
35
Like
their
counterparts
in
In-
dependent
India,
the judges
of
the Raj backed away from
pronouncing on
purely religious
disputes.
36
However, the ingenuity
of Indian lawyers was
able
to transform most social
claims
into
legal
ones. That
the
Constitution
permitted
direct access
to the High
Courts and Supreme Court over breaches of
Fundamental
Rights
(and
also to the High Courts to review
most governmental
action)
increased
the
potential
and
actual
use
of
courts.
3
7
Broadly speaking,
the Supreme
Court was
invited
to
consider
(a)
what constituted 'religion';
and
(b) what was the
range of
permis-
sible constitutional
limitations.
Following the
British
policy
of
en-
trenching traditionalism and pragmatically leaving the resolution of
most issues to common sense
rather
than
consistent high doctrine,
the
Supreme
Court began its
reconceptualization of
the
'religious
freedom'
clauses cautiously.
Defining
Religion: The Legal Limits of Justiciability
The question of defining religion -and,
therefore, deciding
whether
a
particular claim
is, prima
facie justiciable
as a
bill
of
rights question-is as crucial as it
is
complex. The courts of British
India had
encountered this problem, but
in
a different form. To be-
gin
with,
they were
often
asked to pronounce on
social
disputes mas-
querading
as
legal
questions.
3
This involved
the
converse problem
Charodhi Abhyudha 1972)
1 Mys L J
431.
On
the installation and removal of idols
and the response
of
both government and
the
courts to
local factional
disputes,
see
Ramachandra v.
Gavalaksha
1972)
75 Bom L Rev
668;
Bhikamchand
v. Kasturbhai
1976)
Born.
1905.
For a
view that
previous
official policy was
more sensitive, see
J.
Krishnan v. G.D.M. Committee, A.I.R. 1978
Kerala
68. These are a
few
illustrative
examples of direct government involvement
and how government
is
mobilized to
take sides in
socio-political disputes.
35.
For a reaction
of an
official government to
the rising tide
of
litigation, see
Rankin
Committee, Report
on
Civil
Justice (1924).
Since
then,
successive
reports
of
the
Law Commission
and
various
other
committees view
the increasing litigation
with apprehension and helplessness. For a review
of
the
literature
and critique of
the
problem,
see
Dhavan,
Litigation
Explosion
n
India
1986).
36. E.g. Ushaben
v.
Bhagyalaxmi Chitra Mandir, A.I.R. 1978 Gujarat
13 (on
the
depiction
of the
three
goddesses as jealous). For disputes
accepted
as
'legal'
disputes,
see
Pahota Chinamma v. R. Dty.
Director
of Pub.,
A.I.R. 1964
A.P. 277;
or
Mohandas
v.
Travancore Devaswom Board
1975)
1 Kerala 55 (can a Christian
playback film
singer enter a Hindu temple?).
37.
On
how
the
new constitutional reliefs created a new anti-government litiga-
tion, see Dhavan, On the
Future
of Western Law and
Justice
in India: Reflections
on the Predicament of the Post-Emergency Court, 1981 Journal of Bar Council
India
61-86; For
an
analysis
of the
new
litigation,
see Dhavan, The
Supreme
Court
under Strain:
The
Challenge of Arrears
(1979); and
more
generally,
Dhavan,
supra
n.
35.
38. E.g. Vasudev and another
v.
Vannaji
and another (1880) 5
Born.
80 esp. at 31-
32 (whether ornaments should
be
put
on
an
idol);
Vathiar
Ramanuja v.
Aiyanchariar
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DHAVAN:
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of determining
the
extent of any
specific
legal
right without
delving
too
deeply
into the
question
of the
'religious'
point at
issue.
How-
ever,
at a
more
complex
level, British
courts
did
have
to consider
the extent
of 'religious
rights'. Following
the Roman
law
formula
of
'justice, equity,
and good
conscience',
the
British
committed
them-
selves
to
using
the
personal
law of the
Hindus,
Muslims
and other
communities
in order
to
control
land,
credit status,
and
other
dis-
putes.
39
The policy
necessitated
determining
the preliminary
claim
whether
a
particular
cause
of action
was or
was not
recognized
by
the
personal
law in question.
In a
sense,
the British
policy
on
the
determination
of
personal
law
changed
in a way quite
analogous
to
the
development
of
the
policy
of the post-independence
Supreme
Court
on determining
the
constitutional
justiciability
of religious
claims. The
British
began
by
seeking
the
advice
of religious
pandits
and
moulvis
(Hindu and
Muslim
learned
wise
men
respectively),
who acted
as
experts
advising the
courts.
But
these
often
self-styled
experts
came
in for much
criticism,
and recourse
to
them
was abol-
ished in 1864.
Concurrently,
the British
had
also commissioned
t
compilation
of many
treatises
on the
ancient
texts and
contempo-
rary
customs
of
various religions,
sects, and
geographic
areas. Even-
tually,
the courts
took
over completely,
continuing
their
alleged
fidelity
to the
essence
of
the
personal
laws
but
seasoning
their
quest
for
authenticity
with
the imperatives
of
State
policy.
In
any
event,
no
ancient
hermeneutic
tradition
could
have
assisted
the
judges
not
just
to
identify
the
personal law
but
also
to
interpret
and
adapt it
to
a rapidly
transforming
political
economy
and
political system.
If
Anglo-Hindu
and Anglo-Muslim
law
was
faithful
to the
invocations
of the ancients,
judges
of
British
India
consciously
remolded
the law,
often
making
what
Gandhi
was later
to
call 'egregious
blunders'.
After 1950
the
definition
of 'religion'
had
to be considered
in
the context
of constitutional
provisions.
At
first,
the
High
Courts
replicated
the
dilemma
of the
Constitution-makers,
with
some
judges
taking
the
strongly
reformist
line
of extending
constitutional
protection
only
to such
beliefs
and
practices
as
were
consistent
with
the new 'secularism'.
40
The constitutional
argument acquired
con-
1912)
17
Ind.
Cases
219
(annoyance
to feelings);
Behari
Lal v. Shiva
Lal 1902)
24
All. 499
(cutting
of branches
of sacred pipal
tree); see also Abdul
Hakim
Baig
v. Bur-
ramuddin,
A.I.R. 1926 Mad.
559;
Jamolinga
v. Sundara,
A.I.R.
1929
Mad. 526;
and also
Ramachandra
v. Gavalakshya
1972)
75 Born. 668
at pr. 5
p.
671.
For
a
recent exam-
ple
of abuse of
process
to
harrass a
minority
community
see Chandanmal
Chopra
v.
State A.I.R.
1986
Cal. 104
where the
petitioner
pleaded that
all copies
of
the Holy
Koran in
the State of West
Bengal
be
forfeited
and
destroyed( );
see also
Chopra:
The Calcutta
Quran etitions
1986).
39.
Derrett,
"Justice,
Equity
and
Good Conscience,"
in Anderson
(ed.),
Changing
Law
n Developing
Countries114-53
(1963);
Derrett,
"Justice,
Equity
and
Good
Con-
science
in
India," 64
Born.
L. Rev.
129
145
(1962);
Dhavan,
supra
n.
5 at
95-101.
40.
E.g.,
State
of
Bombay
v. Narasu Appa, A.I.R.
1952
Born. 85
(on
Hindu
polyg-
98 ]
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siderable
political
complexity when
proponents
of
agrarian
reform
sought
to acquire
the property
belonging
to religious
endowments
and bring it
under the scrutiny
of
various State administrations,
which
also possessed
the
default powers to create new management
if the occasion
demanded it.
In the rirur
ath
case 1954),
41
Justice
B.K. Mukerjea-an
expert
on
the
law relating
to Hindu
religious
en-
dowments-delivered
a
judgment
for a unanimous
Supreme Court.
This
judgment
has become
the focal
point
of constitutional
discus-
sion
on
religious freedoms.
Asked
to
decide
which
aspects
of any particular
religion were
entitled
to
constitutional protection,
the
Court
impliedly rejected
what
could be
called
the
'assertion'
test, whereby
a
petitioner
could
simply assert
that
a
particular
practice was
a
religious
practice.
Ac-
cordingly,
the
Court's
task
would
be
to
assess
the
sufficiency of
evi-
dence required
to establish
the existence
of
such a
practice.
Mukerjea
made
it clear that
the Court's
inquiry into
assertions
of
what
beliefs, thoughts,
and practices
constituted
a
part of
any partic-
ular religion
would be more far-ranging.
He proposed
the dangerous
test that
a 'practice' or
set
of
beliefs must
not
only exist,
but must
be
'essential'
to
that
religion.
4
2
To
restore
some
objectivity
into
this
process of judicial
determination,
it was
expected
that the
courts
would follow the
intuitions
of the
Privy Council in
determining 'es-
sentiality'
by
reference
to the doctrine
and
practice of
the religion
in
question.
43
Mukerjea's
test appeased
traditionalists
by
assuring
them
that the
Court would
be
sympathetic
to
their respective
reli-
gious faiths. It
also supported
state
sponsored
reform
by leaving one
agency
of
the State the
judiciary with
the
power to
determine
and
pronounce
upon (perhaps,
transform)
religious practice
and
be-
lief. Years
later,
another Supreme
Court judge less
sensitive
to the
conservation
of
religious
tradition had
no hesitation
in stating
that
[ilt
was obvious
that religion
undefined
by
the Constitution [was]
ncapable of
precise definition
and
judicial
definition
[was]
ex-
planatory
and not
definitive .
44
Although
the rirur ath
case has
amy) Chagla,
C.J.
at
pr.
7
p.
86
(on
the
State's
legitimate
interest
in marriage);
pr.
13
p.
89
(uniform
civil code); also
Gajendragadkar,
J. at
pr. 8
p.
94 Religion
in
a mod-
ern
State
is purely a
matter
between
an individual
and
his
God.
41.
Commr.,
H.R.E.
v.
L.T.
Swamiar, A.I.R.
1954
S.C.
282.
42. Id.
at
pr.
19 p.
290.
43.
Id.
at
pr. 19
p.
290 where
he refers
to
detailed aspects of
the Hindu religion.
However,
at pr.
2 p.
291
he
talks
of
the Government
monitoring wasteful
expendi-
tures
on
rites and
ceremonies .
44.
Chinnappa
Reddy, in S.P.
Mittal v.
Union of India, A.I.R.
1983
S.C.
1
at pr. 20
p.
8; pr.
21
p.
9. Earlier
at pr.
1 p.
3
he
states
I
apprehend I share
the
views of
those
who have
neither
faith
nor belief
in religion
and who
consider
religion
as
entirely
unscientific
and irrational
chanting of
prayers
appears to
me to be
mere
jingoism
and observance
of
ritual,
plain superstition ; see
also his
decision
in
Bijoe
Emman-
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RELIGIOUS FREEDOM
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been commended for its balance and
objectivity,
it has always been
an invitation to
both
judicial
statesmanship and
mischief.
Indian
society presents
numerous
awkward judicial
issues. Are
followers
of
the
Saint Kabir Hindus?
45
Can
the
government
cele-
brate
the
2500th
year
of
Lord
Mahavira,
the
founder
of
Jainism?
4
6
If new Hindu sects like the fanatical
Ananda Margis were a religious
denomination within
the
meaning of
the Constitution,
47
why
was
this recognition not extended
to followers
of a modern religious
leader like Sri Aurobindo?
48
How many kirpans (daggers) could a
Sikh wear?
49
Is
there a
religious
injunction
against
photographing
Hindu
women?
50
Does the secular
preference for
granting custody
of small
children to
mothers
violate contrary religious
preferences
in
favor
of
other
members of
the family?
51
Must
boys and
girls
wear
modest
apparel or
can they invoke religious requirements, which in
India
extend to questions of dress as well as
diet?
52
Was the
preven-
tion of
cow
slaughter
just
a Hindu attempt to deprive Muslim butch-
ers of
their livelihood
or also an interference with an essential
practice
mandated
by
the Holy
Koran?
5 3
What were the
judges to
do
with these
questions?
What traditions
were they expected to ex-
amine in order to determine whether any
particular
aspect
was
an
essential
practice ?
Confronted with these problems and
aware that
some
litigation
is
inspired by
social
quarrels rather than deeply felt
sentiment, the
Courts have refused
to
consider seriously some of
the
questions
brought
before
them.
Emphasizing
common
sense,
they
have often
sought
to diffuse such
situations by mediating
acceptable com-
uel, infra n.
69, that Jehovah
Witness children
do not have
to
sing the
national
anthem.
45.
Baiyananda
v.
State
of
Bihar,
A.I.R.
1954
Patna
266.
Cf.
the
case
of
the
Arya
Samaj in Arya Samaj
Trust,
Delhi v. Director
of
Education 1976)
2
Delhi 93 espe-
cially on the Arya
Samaj (pr.
29 p. 112), Jains (pr. 31 p. 113), and
Sikhs
(pr. 32 p. 113-
4).
46.
Suresh Chandra v.
Union of
India, A.I.R. 1975 Delhi 168.
47.
Jagdishwarranand
v. Police
Commissioner,
Calcutta A.I.R.
1984 Cal. 51.
48. S.P.
Mittal v.
Union of
India, supra
n. 44.
49. E.g. R. v. Dhyan Singh, A.I.R. 1952 Allahabad 53; for
earlier
cases see Em-
peror
v.
Daljit
Singh
1930) 32
Bom.
L.Rev.
106
(carrying
32
kirpans ;
Hari
Singh
v.
Emperor 1924) 5 Lahore 308
on
S. 191 f)
and
Sch. II(3)(6) of Indian Arms Act (XI)
of 1978.
50.
Nirmal
Kumar
v.
Chief
Election
Officer,
A.I.R.
1961
Cal.
289,
295-97,
pr.
9-12
for the
view that there
was nothing in the Hindu and Muslim religions obviating the
need for taking photographs for electoral
purposes
treating these
arguments
as
poignant but
unconvincing.
51. Marggarate
v. Chacko, A.I.R. 1970 Kerala 1
at
pr. 22 p.
10.
52. Rajendra Nair v. Principal, University College 1978) KL.T.
204
(the student
member
of
the Siddhu Samaj
was
not
allowed
to wear a
dhoti
and
shawl
instead of
a
shirt).
This
interpretation was
based
on
college
rules rather than
higher
legal con-
stitutional questions about
freedom of religion.
53. M.H. Qureshi v.
State
of
Bihar,
A.I.R. 1958
S.C.
731; A.H. Qureshi v. State of
Bihar,
A.I.R.
1961 S.C.
448;
Mohd. Faruk
v.
State
of
M.P., A.I.R. 1970 S.C. 93.
1987]
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222
THE AMERICAN JOURNAL OF COMPARATIVE
LAW [Vol.
35
promises through judicial pronouncements.
For
example,
faced
with
complaints
from Hindus (on
wall of
separation grounds)
and
Jains
(for
interfering
with
their
religion),
a Delhi
judge
followed
his intui-
tion
that
litigation questioning
the
government s
celebration
of
Lord
Mahavira s birthday was mischievious.
54
In
the given fact situation,
this was understandable,
even
salutary. But the judge sought
consti-
tutional
clarity when
he argued for:
a
secular
way
of remembering Bhagwan
Mahavir is de-
vised
by the government to suit all people
irrespective
of
the
religion
to which they
belong. It
is
of the essence of a
common
cultural activity
that everyone should
participate
in
it.
5
5
If this rationale is extended, it is surely
not unconstitutional for
the
Ministry
of
Culture
to celebrate all religion out
of
existence,
in
the name of
common
culture .
And, if it
did, one
would undoubt-
edly be
more
than curious about the origins of its constitutional
mandate. Yet,
the judge s
dilemma
was as
real
as
it
was complex.
A
judicial decision ordering the government
to stop its celebration
would
have offended
the sentiment of a
larger number
of Jains,
in-
cluding
many on
the government s
celebration
committee.
To
take
another
example,
consider
the
Cow
Slaughter
cases.
56
How could the
judges have ignored the fact that
Hindus,
holding
the
cow in great
reverence,
find the
idea
of
the slaughter of cows for
food
repugnant?
57
Yet what was
at issue
was
not
Hindu sentiment
but the
content
of
Islam. The
argument
that
cow
slaughter might
be
a religious
practice was
referred to
as a bald allegation
58
and,
after
a brief
reference
to
the Koran and Hamilton s translation
of the
Hedaya
9
the
Court dismissed the argument on the
ground
that the
Koran, by giving an option of the slaughter
of goat for
one
person,
or
a cow
or
camel for seven, did not
oblige the Muslim to slaughter a
cow.
60
The Hindu position
(which
was
not at issue before the Court)
was explained by interveners, but
regarding
the
Muslim position the
Court was
content
to
declare:
We
have
no
affidavit
before
us by any Maulana
explaining
the
implications
of
those verses or
throwing
any
light
on
this
problem?
6
1
54.
Supra n. 46 .
55. Id para.
14 p. 174.
56. Supra
n.
53
at
pr. 20 p 8; pr. 21
p.
9
.
57.
Qureshi,
supra n. 53 at pr. 22 p 745 col.
2.
58. Id.
at pr. 13 p 739 col. 2.
59. Id. at pr. 13 pp
739 40 citing
the
Holy
Koran
Surah
22 verses 28 and 33 and
Surah 107.
60. Id.
pr.
13 p.
740,
col. 1.
61. Id pr. 11
pp. 738-9. On
the
Supreme Court and interveners in cases gener-
ally, see
Dhavan, supra
n.
5 at 105-112.
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But,
if the
petitioners
had requested
the Court
to
hear their
religious leaders,
it
is
not
clear
whether the
Court would have
al-
lowed
them
to intervene. So, how
is the
Court
to
determine what
an
'essential
practice'
is?
Should
it
rely
on
religious
leaders?
Should
it
call for evidence?
Should
judges
pursue these questions on
the
basis
of
their
own research? Should
the
judge interpret
the
tradition
through the
techniques available
to a
'common law' judge?
And,
if as
has been suggested-the
judge
should
enter that tradition to
ascertain
its own internal rules and techniques, its methods of as-
sessing the relative importance
of its various
elements and
the
ad-
missibility of innovations ,
62
can he wholly
avoid
creative
interpretation
or ignore social discontent?
Indian judges have
not
been discerning in dealing
with
the
many difficulties raised
in
employing the 'essential practice' test.
Mechanically citing
the
rirur
Math
case
they have assumed
that so
long as some kind of inquiry into religious tradition
takes
place, the
manner and form
in
which
these inquiries are
to
be
conducted have
not
been
elaborated
by
even the highest
court of
the land.
63
There
are no indicators as
to
what kind of evidence should be considered
authoritative, no rules of interpretation, no emphasis on detailed
re-
search, and no
requirement
to consult authoritative
exponents
and
material. Some
judges
are careful about their consultation of texts.
An Allahabad
judge
took
pains over
the Koranic
texts in order to
determine
a
Muslim
husband's duty
to
maintain
his
first
wife
(who
left him
on
the
arrival
of
her
successor).
64
The Supreme Court,
ex-
amining
the
same question twenty-five years later, was much more
dramatic
in
its
examination
and decided to
throw
judicial caution to
the winds.
65
Some
judges simply
resort to whatever information
they
can
lay their
hands
on.
At least
one judge on the
Supreme Court, Justice
Gajendragad-
kar, has superimposed another 'secular'
requirement
on the 'essen-
tial
practice' test,
namely the requirement
of
rationality. In
the
62.
Galanter, Hinduism, Secularism and
the Indian Judiciary, 21 Philosophy
East and West 467 at 482-83 1971).
63.
For the
random
nature
of
the
inquiry into
religious practice using
the
Srirur
Math
case
supra n. 41, see Jagdishwaranand v. Police Commissioner, supra n.
47
prs.
10 11 pp. 56-71. In other cases virtually no
inquiry
is made at all (Tulzapurkar,
J.
in
Abdul Jalil v. U.P.,
A.I.R. 1984
S.C.
882
prs.
22-24 pp. 883-84 on whether Sunni
graves can be shifted, relying solely on the
police power
to control; see also Krishna
Iyer, J. on planning
law
and samadhis (commemorative remembrances) in Mahan
Ram
Kishan Dass
v.
Punjab, A.I.R.
1981
S.C. 1576). Consider
the
difference of
opin-
ion
in the
B.M.
Basha case in the Madras High Court
Statesman,
27
August,
1986)
where
a
Divisional Bench
stayed
the order of
a
single judge
to
the effect that grow-
ing a
beard was not an essential
part
of Islam. Mr. Basha,
a
security
officer in
Bharat Heavy Electrical
Ltd.,
had been denied permission
to
grow
a
beard.
64. Itwari
v.
Ashghari, A.I.R. 1960 All. 680.
65.
Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C.
945.
1987]
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224 THE AMERICAN JOURNAL OF COMPARATIVE
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[Vol. 35
Durgah
Committee
case,
Gajendragadkar
denied
validity
to
prac-
tices
which,
though
religious,
may have
sprung from
superstitious
and
unessential
accretions
to religious
itself.
66
Under
this
ration-
ale, an 'essential practice'
did
not
just
have to satisfy an
internal
test
of
being integral
to
a religion,
but
an
additional
external
require-
ment that
it was
not the
product
of superstition.
Gajendragadkar
enlarged
his argument
in various
cases concerning
religious
endow-
ments,
67
culminating
in
the
Swami Narayan
case,
68
which
involved
throwing
open
Hindu
temples
to
all 'classes
of
people'.
But
the
Swami Narayans
claimed
they
were
not Hindus.
In insisting
that
they
are,
Gajendragadkar
seems to
have sacrificed traditional
claims
to a reformist
modernity.
This was
partly
done for
the
purpose
of
bringing
a particular
sect
within
the ambit
of the social
reform
of
opening temples
to Untouchables.
Gajendragadkar
had
no
other
choice
but
to
extend
the
Act
as
widely
as
possible to
as
many
de-
nominations
as
possible.
Had
he not
done
so
each
sect
could have
claimed
a
modern, distinct
and non-Hindu
ancestry.
However, the
judgment
attempts more
than this
salutary purpose.
It seeks
to allo-
cate
a
new
reformist
role to
the courts. The
courts are
not
just
ex-
pected to
interpret
social
reform
statutes
liberally,
but also to
reform
religions from within
by
liberating
them from irrationality.
But
whom are
these judicial
pronouncements
supposed
to
convince?
The
petitioners?
The
religious
groups in
question? The
general
populace?
As part
of
a
plan
to
lay the
intellectual
foundations
of a
new dispensation based
on
rationality, this
approach lacks sensitivity
and
conviction. It also
lays the
path
open for
an
unmanageable
ju-
risprudence
of religious
freedoms.
The
latest judgment
which
caused
a
national
furor by absolving
Jehovah's
Witnesses
from
sing-
ing the National
Anthem
affirms
a wayward
and
eclectic
approach
by
abandoning
any
kind of
sensitive inquiry
into
religious
claims
and
providing
no
reasoned
justification
for
the
new
secularism.
69
66.
Durgah Committee
v.
Hussain
Ali, A.I.R.
1962
S.C.
1402
at pr.
33 p.
1415.
67
Apart
from
urgah
Committee
id., see
Tilkayat
v. State of
Rajasthan, A.I.R.
1963
S.C. 1638 at
pr. 61 p. 1661
where
he assumes that
a right to
management must
be a
purely
secular
matter;
see also
M.
Dasaratharami
Reddi
v.
D.
Subba
Rao,
A.I.R.
1957
S.C.
797.
68 Yagnapurushdasji
v.
Muldas,
A.I.R. 1966
S.C.
1119.
For incisive
comment,
see
Galanter,
supra n.
62; Derrett, Hindu:
A
definition
wanted for
the purpose of ap-
plying Hindu
Law,
70 Z
V.R.
110 (1968); Derrett,
The definition
of
a Hindu,
2
S.C.J.
67-74
(1966).
69.
Bijoe Emmanuel
v. State
of Kerala,
C.A.
No.
870,
reversing A.I.R.
1986
Ker-
ala
32 and creating an
unexpected
controversy.
For other
important
recent
exam-
ples,
see
two
recent cases.
The
Anand
Margis
were
treated as a
denominational sect,
but their tandava dance
was not regarded
as an 'essential practice'
even though
they
passionately
believed it
was (see Jagdishwaranand
v.
Police
Commissioner,
Calcutta,
supra
n. 47,
esp.
pr. 12
p.
57).
However,
the
followers
of Aurobindo
did
not
even
succeed
in
getting their religious
status recognized:
see S.P.
Mittal v.
Union
of
India,
supra
n. 44 (note
the
dissent
of Chinnappa Reddy
at pr.
33
p. 11.
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onstitutionalLimitations
Although
one Supreme
Court
judge
emphasized
that rights,
rather
than limitations, were
fundamental
in the interpretation
of
civil
liberties,
the
courts
have generally expanded
limitations
and
marginalized
rights.
The
Constitution
employs
various
schemes to
limit the
rights
enumerated in
the
Chapter
on
Fundamental
Rights.
The most
gen-
eral
of these schemes is
the leg l
m nd te
approach.
The original
Constitution
envisaged that
life, liberty and property
could
be
taken
away
by
procedure
established
by law .
70
All
that was
required to
legitimate
interference
with rights
was
legislative
authority.
Over
the
years,
a
notion
of
due process has been
read into
these any pro-
cess
provisions.
7
1
In
the
second scheme,
termed the
c tegoriz tion
approach,
t
Court
asks
whether any
particular activity
falls within
the
ambit
of
a right ( X )
or whether
it belongs
to
some
different
category ( Y ).
We have
already
seen
how the Supreme
Court
struggled
over X
questions
while defining religion.
Its
moral reformist
approach
to
determining
X
questions
was replicated
in other areas when
it de-
cided that
activities such
as gambling,
selling
liquor
and rural
money-lending
were
too morally
offensive
to
be protected under
the
broad
rubric
of the
right to practice
any profession
and
to carry on
any occupation or
business .
An
alternative
approach is
to concen-
trate
on the Y question.
By this method
the
Court
argues
that
if
an
activity
falls within
any category
of
permissible
restriction,
it auto-
matically
falls outside
the
ambit
of
the
right. The
Supreme
Court
has
implicitly
followed
this
reasoning
in its approach
to
free
speech
questions.
Wherever
the
Court
found
a
restriction
that
fell within
one
of the categories
of permissible
restriction
(i.e.,
public
order,
contempt
of
court,
official
secrecy, morality,
defamation,
etc.)
it
as-
sumed
that because
it fell within
a Y
category
(of restraint),
this
obviated the need
to look
at
X questions
(concerning
the
extent
of
the
right) with
any
rigor,
if at all.
A
third
approach
has
been
to evolve
a theory
of
reasonableness
drawn
from procedural due process notions
of
anti-arbitrariness
and
permissible
classification
(drawn
from
the
equality
article),
substan-
tive due
process
(drawn from
the reasonable
restrictions
permitted
70.
Art. 21
(life
and liberty)
and Art.
31 (property),
Constitution
of
India.
71
After
the any
process
view in Gopalan
v
State of Madras,
A.I.R.
1950
S C
27,
the transformation
into due
process
was
affected by Kochuni
v.
Madras,
A.I.R.
1960
S.C. 1080;
and
R.C. Cooper
v.
Union
of India,
A.I.R. 1970
S.C.
564
and settled in
Maneka
Gandhi v. Union of India
1978)
1
S.C.C.
249;
Charles Sobhraj v. Supt.,
Cen-
tral
Jail,
A.I.R. 1978
S.C.
1514;
M.H. Hoskot
v. State
of
Maharashtra,
A.I.R. 1978
S.C.
1548; Sunil
Batra v.
Delhi Administration, A.I.R.
1978
S.C.
1675;
Hussainara
Khatoon
v. State
of
Bihar,
A.I.R. 1979
S.C.
1360, 1369,
1377,
8 9
98 ]
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THE AMERICAN
JOURNAL
OF
COMPARATIVE
LAW
[Vol.
35
in respect
of seven enumerated
freedoms
in Article
19 ,
and
eminent
domain (derived
from
the
now
abolished right
to
property).
72
The
fourth
approach
emphasizes
social
reform
through
such
measures
as
the
abolition
of
untouchability,
the
prevention
of
ex-
ploitation,
police
power pertaining
to public
order, health
and
moral-
ity
provisions,
the
opening
up
of temples,
and
blanket
immunity
provisions
pertaining
to various
measures
of
agrarian
reform
and
public
policy.
These
social
reform
provisions
have been
given
fur-
ther
direction
by the
Directive
Principles
of State
Policy
which
have,
of
late,
loomed
large in
the Supreme
Court's
interpretation
of
Fundamental
Rights.
Finally,
there are
'wall
of separation'
questions
that
have
been
specifically
delineated
for operation
in relation
to particular
aspects
of
the
exercise
of
religious freedoms.
7
3
All
these
approaches have
been
used
in the
interpretation
of religious
freedoms,
albeit
with
dif-
ferent emphases.