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He makes two basic claims. First, he argues that on the question of Sabarimala, there is a basic conflict between liberal values like equality, on the one hand, and freedom of religion, on the other. While the former belongs to the domain of reason and constitutional principle, the latter pertains to matters of faith which are beyond reason. In situations of tension between the two, secular democracy demands a political “negotiation”. It is clear from the article that in the case of Sabarimala, by “negotiation”, Tharoor simply means a capitulation to the demands of the protestors. Second, he claims that underneath the current turmoil is a conflict between liberalism and democracy. While the Supreme Court has followed liberal precepts in delivering its verdict, democratic will, which Tharoor finds manifested in “informal surveys” and such like, pulls in the other direction. He argues that as a democratically elected representative of the people he is obliged to prioritise the latter.

Both the arguments advanced by Tharoor are misplaced for the following reasons. First, the wall he erects between equality and freedom of religion is without historical foundation. Freedom of religion or conscience, as a right, emerged as a part of the Enlightenment, a process of thoroughgoing social change in Europe from the 16^th to the 18^th century. The defining features of this process were a separation between ecclesiastical authority and state power, an overall curtailment of the hold of religion over public life, a fundamental retreat of aristocratic and monarchical authority, and the establishment of modern democracy based on the idea of equal citizenship. These features were different aspects of an overall process of democratisation, and were therefore interlinked. Decreasing religious sway over social and political life went hand in hand with increasing public criticism of religious institutions and dogma. Freedom of expression and conscience took root as a part of this process of subjecting religion to public scrutiny. Of course, criticism of religious authority also meant criticism of aristocratic inequality and hierarchy since the former provided ideological justification for the latter. Individual freedom of conscience and the modern ideal of equality, therefore, have historically been fundamentally interrelated. By driving a radical wedge between the two, Tharoor denies this history.

Second, even in legal and constitutional terms, there is no fundamental strain between equality and freedom of religion. Tharoor says that in the judgment delivered on September 28, the Supreme Court chose Article 14 over Article 25. This is a blatant untruth. Four out of the five judges in the Sabarimala case explicitly held the bar on women’s entry to be violative of Article 25 since it denied women their right to freedom of religion. By ruling in such a manner, the judges not only denied any contradiction between equality and Article 25, but in fact affirmed the centrality of the Article to the constitutional spirit of equality and individual dignity. Even Article 26, which deals with the rights of religious denominations, is subject to the demands of equality. In cases like Sri Venkataramana Devaru and Others v. State of Mysore and Others, the Supreme Court has quite consistently held that Article 26 cannot be used as a device to deny fundamental rights. A number of these cases dealt with the entry of Dalits into temples. By completely ignoring such established constitutional principles, and by misrepresenting the Sabarimala judgment, Tharoor attempts to illegitimately separate freedom of religion from the overall constitutional framework. Freedom of religion is an integral component of, rather than an exception to, the transformative constitutional project.

Finally, there is no contradiction between the liberal demand of equality and democratic representation. As stated earlier, the modern democratic ideal emerged from a protracted struggle against aristocratic, monarchical and ecclesiastical power. The notion of inherent equality, as manifested most famously in the Declaration of the Rights of Man and of the Citizen, has been at the foundation of this ideal. In fact, the slogan of equality has animated the demand for democratic rights throughout the modern period. The struggles of the working class, women, and oppressed races for voting rights continued well into the twentieth century and were obviously based on equality as a governing ideal. In the Indian context, the adoption of the principle of one-person-one-vote was a significant advance in a deeply unequal society and reflected the egalitarian aspirations of the vast masses of the exploited and the oppressed. It is no coincidence that the very constitution which grants universal suffrage also outlaws untouchability. By invoking democratic representation in defence of an exclusionary religious practice, therefore, Tharoor directly obfuscates the link between democracy and equality.

Despite his “instinctive liberalness” and much-flaunted erudition, Shashi Tharoor’s article places him in unsavoury company. In defending the entry ban at Sabarimala by ignoring essential aspects of our social and political history, distorting the basic nature of our constitutional framework, and misrepresenting the Supreme Court verdict, Tharoor has willy-nilly joined the ranks of the menacing thugs physically preventing women from entering the shrine. Is this an aberration – an error of judgment from an otherwise progressive politician? Or is it an indication of the Congress increasingly becoming a mirror image of the RSS in its bid to counter the latter? The recently released Congress manifesto for the Madhya Pradesh elections, with its promises of a gaushala in every village Panchayat and commercial gaumutra production, suggests interesting answers.

Arjun Sengupta teaches at the Tata Institute of Social Sciences, Hyderabad.

Courtesy: Indian Cultural Forum
 

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That these contrasting viewpoints have great social import is visible in the heated, and sometimes violent, nature of the disputes on the Sabarimala question. The violent agitations by a section of the Sabarimala devotees have been an important subject of public discussion over the last few days. The ideological conflict has implications for the basic character of our polity as well. It involves fundamental questions about the kind of constitutional democracy we aspire to have. The essence of this ideological dispute can be seen in the individual judgments delivered on 28^th September. The five-judge bench delivered four separate judgments: three ruling in favour of women’s entry and one ruling against. Of the four, two judgments in particular stand out in so far as they present starkly contrasting constitutional visions. The majority opinion of Justice D Y Chandrachud and the dissenting view of Justice Indu Malhotra are important statements within the ongoing ideological debate.

The main issue which divides the two constitutional visions is the centrality of individual rights within constitutional democracy. Justice Chandrachud’s entire judgment is based on the premise that individual dignity lies at the core of liberal constitutionalism. The Indian constitution, on his view, recognizes this centrality by enumerating justice, liberty, equality and fraternity as overarching political ideals in its preamble. All constitutional provisions including the freedom of religion, therefore, must be interpreted in view of this larger objective. Individual dignity must serve as the principal value guiding the public life of the country.     

This emphasis enables Justice Chandrachud to identify a deep connection between constitutional interpretation and tasks of social transformation. Drawing on the commitment of towering Constituent Assembly members like B.R. Ambedkar to objectives of social change, he argues that constitutional governance in India must be centrally concerned with ending caste and gender-based discrimination. Constitutional morality, in other words, partly consists in enabling society to break out of the shackles of oppressive and unequal social institutions.

In line with this understanding of constitutional morality, Justice Chandrachud interprets Article 25 of the Constitution as fundamentally dealing with the individual’s freedom of religion. On the basis of this interpretation, he is able to argue that entering the Sabarimala shrine is a part of the individual woman’s fundamental right “to profess, practice and propagate religion”. Within the history of judicial pronouncements on the right to freedom of religion under Articles 25 and 26, this marks a significant change. The bulk of the litigation under these articles has resulted from religious groups and institutions challenging state intervention in their practices. Freedom of religion under the Indian constitution has acquired, as a consequence, the character of group entitlement vis-à-vis the state. This is despite the fact that Article 25, particularly in its second clause, does provide ample scope for intervention by the state.

Justice Chandrachud breaks from this trend by arguing that freedom of religion under Article 25 also empowers individuals to make claims against groups. Thus, denial of rights to worship to any particular section within a religion or denomination could amount to a violation of Article 25. Prohibiting women between the ages of ten and fifty from entering Sabarimala, therefore, amounts to a violation of their freedom of religion. This interpretation of freedom of religion under Article 25 transforms in one fell swoop a provision which has often been used by religious groups to preserve unjust discriminatory practices into a weapon of reform and transformation. Through a simple interpretive innovation, equality and individual dignity as yardsticks which religious practices can be judged by.
This shift in interpretation is related to another striking argument by Justice Chandrachud. Through a long and complex history of judicial interventions, the Supreme Court has set up a requirement that practices must belong to the essence of a religion in order for them to enjoy protection under Articles 25 and 26. This “essential practices” doctrine obviously raises the question of how the essence of a religion is to be determined, an issue which has received much judicial deliberation. Early on, in cases like Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954), judges adopted a cautious approach leaving it to the followers of a religion to determine what its essential practices were. Over the next few decades, however, the judiciary came to adopt a more rigorous standard. In Durgah Committee, Ajmer v. Syed Hussain Ali (1962), for instance, Justice Gajendragadkar held that the judiciary needed to rigorously study the history and doctrine of a religious group to determine what the latter’s essential practices were.

The “essential practices” doctrine has provided the judiciary an opportunity for religious reform. By holding regressive and discriminatory practices to be inessential to the basic tenets of specific religions, the judiciary has deprived many such practices of constitutional protection. It must be remembered that a number of these cases, like Sri Venkataramana Devaru v. State of Mysore (1958), have been concerned with the entry of Dalits and other oppressed sections into public temples. Justice Chandrachud points out that there have been, nevertheless, two basic problems with the doctrine. First, as means of reform it allows an assessment of religious practice only in terms of religion itself. Thus, as long as a practice is understood to be essential to a religion or denomination, it would pass judicial muster no matter how oppressive or discriminatory. Second, it puts the court in the position of a theological arbiter using theological standards, rather than a custodian of the constitution using constitutional standards of assessment. In effect, it puts religion outside the pale of assessment in terms of its compatibility with the constitutional values of individual dignity and equality. Justice Chandrachud proposes, instead, an “anti-exclusion” principle, wherein the judiciary does not judge a religious practice in terms of essentiality, but rather only enquires into its relationship with the range of freedoms that underpin the constitutional framework. A religious practice, thus, would be bereft of constitutional protection if it simply fell afoul of core constitutional values. Again, it must be noted that this shift from “essential practices” to “anti-exclusion” is premised on the centrality of individual dignity, equality and social transformation to the constitutional project.

As against this pervasive stress on individual dignity, Justice Indu Malhotra keeps group entitlement at the centre of constitutional morality. Laying stress on “secularism” rather than justice and equality, she argues for an overall attitude of judicial non-intervention in religious matters. Constitutional morality, in her account, is not geared to a transformative project. Articles 25 and 26, therefore, continue to be seen as “secular” bulwarks affording protection to religious groups and their practice. The individual freedom of religion under Article 25 is given short shrift.

This constitutional vision is reflected in Justice Malhotra’s treatment of the “essential practices” doctrine. While for Justices Chandrachud, Mishra and Khanwilkar, the exclusion of women from entering Sabarimala fails the test of essential practice, and Justice Nariman remains ambivalent on the question, Justice Malhotra categorically sees the practice as an essential one. One of the chief reasons behind Justice Malhotra’s opinion on this point is that in interpreting the “essential practices” doctrine she goes back to the judgment in the Shirur Mutt case which granted almost “complete autonomy” to the members of a religious community in defining its practices, thereby ignoring decades of jurisprudential development on this question. Through this she denies in effect any independent role for the judiciary in ascertaining the essential doctrine of a religious group. This amounts to an acceptance, in other words, of all the problematic features of the “essential practices” doctrine while rejecting whatever little scope for reform it afforded.

Why would Justice Malhotra ignore an entire series of landmark judgments in understanding the “essential practices” doctrine? Why would she take the word of representatives of a religious community in defining what the latter’s practices are? Given the overall character of her judgment, one can plausibly seek answers in the centrality of group entitlement, as against individual dignity, in her conception of constitutional morality and secularism. It must be remembered that self-proclaimed representatives of a religious community or denomination, in litigations or otherwise, often represent the most powerful and influential sections of that community. Identification of essential religious practice can square very neatly then with the blanket preservation of tradition no matter how inegalitarian elements of the latter may be. The idea underlying Justice Malhotra’s position seems to be that uncritical reverence is the only permissible attitude that the constitutional framework can have towards religious groups. Reform and change are none of the constitution’s business.

It is interesting to note that proponents of women’s entry into Sabarimala, from Left activists to leaders of women’s groups, have explicitly characterized the entry ban and its supporters as “communal”. In doing so, they have invoked a notion of secularism and constitutional morality that unambiguously gives a central place to individual dignity and equality. Rejection of age-old prejudice and removal of discrimination seem to be a vital part of this secular ideal. Caste and patriarchy are openly identified as the antithesis of constitutional values.

In a sense, Amit Shah’s recent statement that “courts should only pass judgments that can be implemented” captures the core of the ideological conflict. While he was referring to courts and their powers, he might as well have talked about the constitution.

 Arjun Sengupta teaches at the Tata Institute of Social Sciences, Hyderabad.

Courtesy: Indian Cultural Forum

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