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2/47

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


3/47

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).


4/47

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 ]


5/47

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.


6/47

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]


7/47

214 THE AMERICAN

JOURNAL

OF COMPARATIVE

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-


8/47

DHAVAN:

RELIGIOUS FREEDOM

IN

INDIA

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 ]


9/47

216

THE

AMERICAN

JOURNAL

OF COMPARATIVE

LAW

[Vol.

35

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.


10/47

DHAVAN:

RELIGIOUS

FREEDOM

IN

INDIA

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]


11/47

218 THE AMERICAN JOURNAL OF COMPARATIVE LAW

[Vol.

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


12/47

DHAVAN:

RELIGIOUS

FREEDOM

IN INDIA

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 ]


13/47

220

THE

AMERICAN

JOURNAL OF

COMPARATIVE

LAW

[Vol.

35

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-


14/47

DHAVAN

RELIGIOUS FREEDOM

IN INDIA

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]


15/47

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.


16/47

DHAVAN:

RELIGIOUS

FREEDOM

IN

INDIA

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]


17/47

224 THE AMERICAN JOURNAL OF COMPARATIVE

LAW

[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.


18/47

DHAVAN:

RELIGIOUS

FREEDOM

IN

INDIA

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 ]


19/47

226

THE AMERICAN

JOURNAL

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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.

Religeous Freedom In India - Rajiv Dhavan.pdf

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