The case presented a complex legal challenge at the intersection of Articles 14, 15, 21, and 25 of the Indian Constitution, raising questions about equality, religious freedom, and the right to dignity in death.

With the Supreme Court’s two-judge bench issuing divergent opinions, the matter brought to light the judiciary’s struggle to reconcile competing interests. Justice BV Nagarathna delivered a progressive opinion firmly rooted in constitutional values, calling out the State and local authorities for perpetuating discrimination against Christians and emphasising the secular fabric of India.

In contrast, Justice Satish Chandra Sharma’s opinion prioritised public order and adherence to regulatory norms, reflecting a more conservative approach that arguably overlooked the structural inequities at play.

The court’s eventual compromise, directing the burial at a designated Christian graveyard under Article 142, addressed the immediate dispute but left broader constitutional questions unresolved, raising critical concerns about the judiciary’s handling of systemic discrimination.

Justice BV Nagarathna’s opinion: A strong defence of Constitutional values

Justice BV Nagarathna delivered a strongly worded opinion, criticising the State and the gram panchayat for perpetuating discriminatory practices against Christians and undermining constitutional principles. She described the refusal to allow the burial in the village graveyard as “unfortunate, discriminatory, and unconstitutional,” explicitly highlighting its violation of Articles 14 (equality before the law), 15 (prohibition of discrimination on grounds of religion), and 21 (right to dignity, which includes dignity in death).

As per the report of LiveLaw, Justice Nagarathna noted that the village panchayat’s actions and the affidavit submitted by the Additional Superintendent of Police (ASP), which opposed the burial, “betray the sublime principle of secularism.”

She observed:

“The refusal to bury the deceased in the ancestral village graveyard violates Articles 21 and 14 and furthers discrimination on the grounds of religion. The State cannot deny equality before the law.” 

According to the LiveLaw report, Justice Nagarathna further criticised the State for failing to act against discriminatory attitudes, asserting that it had abdicated its duty to foster fraternity and ensure equality. It was her opinion that the attitude of the village panchayat gave rise to hostile discrimination, and such an approach betrays the secular fabric of our nation and the duty of every citizen to foster fraternity.

“How could ASP Bastar could give such an affidavit and what was the authority? It betrays the sublime principle of secularism. Secularism along with fraternity is a symbol of brotherhood between all faith and essential for the social fabric of our country and duty is to foster fraternity among different sections,” her opinion said as per Bar and Bench.

Justice Nagarathna proposed a pragmatic solution by allowing the burial on the family’s private agricultural land, emphasising that such a decision would not set a precedent for future claims. She directed the State to provide security to ensure that the burial could proceed peacefully and issued an additional directive requiring the State to earmark burial grounds for Christians across all districts within two months.

“The State must act to ensure that designated burial grounds for Christians are available throughout the State to avoid such controversies in the future.”

Justice Nagarathna invoked the Supreme Court’s past observations on secularism and fraternity, quoting Justice Chinnappa Reddy’s iconic statement in the Bijoe Emmanuel case:

“Our tradition teaches tolerance, our Constitution teaches tolerance, let us not dilute it.”

In short, through her opinion, Justice Nagarathna made the following key observations-

• Upholding secularism: Justice Nagarathna invoked the secular ethos of the Constitution, condemning the exclusionary practices of the gram panchayat and the State’s endorsement of such discrimination. She stressed that secularism entails equal treatment of all faiths and criticised the affidavit submitted by the State police, which explicitly denied burial rights to Christians in tribal burial grounds.
• Right to dignity in death: Justice Nagarathna’s recognition of the right to dignity in death as a part of the broader right to life under Article 21 is a crucial highlight. By directing the burial on private land, she sought to balance individual rights with practical considerations, though this move might inadvertently dilute the case’s central question of access to public burial spaces.
• Critique of Gram Panchayat: Her rebuke of the gram panchayat for “taking sides” underscores the growing politicisation of local governance bodies in communal disputes. However, her reliance on the private land solution, while pragmatic, could be criticised for sidestepping the long-term structural issue of discriminatory burial practices.
• Mandating systemic reforms: Justice Nagarathna directed the State to demarcate burial grounds for Christians across all villages within two months, a step that, while commendable, reflects a reactive rather than proactive approach by the judiciary in addressing systemic inequities.

Justice Satish Chandra Sharma’s opinion: Balancing rights and public order, no matter the cost

In contrast, Justice Satish Chandra Sharma took a more conservative stance, focusing on public order and adherence to existing regulations. He upheld the Chhattisgarh High Court’s decision to deny burial in the village graveyard and ruled that the deceased should be buried in the designated Christian burial ground located 20–25 kilometres away. Justice Sharma argued that burial rights under Article 25 (freedom of religion) must be subject to reasonable restrictions, including public order and State regulations.

“There is no reason why there should be an unqualified right to burial. Sweeping and illusionary rights can lead to public order disruption. Maintenance of public order is in the larger interest of society.”

As per the report of Bar and Bench, Justice Sharma also dismissed the argument that burial in the village graveyard was a constitutional entitlement, stating:

“The right to religious freedom under Article 25 cannot be stretched to claim a blanket right to be buried in grounds earmarked for another religion.”

Justice Sharma, according to LiveLaw, reasoned that the availability of a designated Christian burial ground nearby was sufficient to satisfy the petitioner’s rights, noting that burial grounds are traditionally designated for specific communities to avoid conflicts.

“To claim Article 25 rights to burial in areas designated for another faith would be stretching the right beyond reasonable limits. The State can frame regulations to maintain public order.”

Justice Sharma’s opinion ultimately prioritised regulatory uniformity and social harmony over addressing systemic discrimination, a perspective criticised for lacking sensitivity to the petitioner’s plight and the broader implications for minority rights. In short, through his opinion, Justice Sharma made the following key observations-

• Deference to local practices: Justice Sharma’s reliance on the High Court’s reasoning—that burial grounds are designated for specific communities—risks legitimising exclusionary practices rooted in social prejudice. By framing the dispute as a matter of public order, his judgment arguably prioritised societal biases over constitutional values.
• Regulatory formalism: His rejection of burial on private land and insistence on using the designated Christian burial ground in Karkapal highlights a strict adherence to regulatory frameworks. However, it also underscores a reluctance to question systemic discrimination in such frameworks, even when they conflict with fundamental rights.
• Public order vs. individual rights: While public order is a valid constitutional limitation under Article 25, Justice Sharma’s reasoning effectively places an undue burden on minority communities, forcing them to accept segregationist practices. This approach risks emboldening majoritarian pressures, particularly in deeply polarised societies.

Article 142 directions: A compromise that misses the larger picture

The Supreme Court’s decision to invoke Article 142 to direct the immediate burial of the deceased at the designated Christian graveyard in Karkapal reflects a pragmatic approach to resolving the immediate dispute.

While this direction ensured that the petitioner could proceed with the burial without further delay, it falls short of addressing the deeper constitutional and social issues raised by the case. The Court’s reliance on Article 142 to avoid a prolonged legal battle highlights an attempt to balance competing interests, but it also exposes significant gaps in judicial engagement with structural discrimination.

One of the most troubling aspects of this compromise is the Court’s avoidance of the core constitutional issues at stake. Instead of referring the matter to a larger bench to decisively address whether the denial of burial rights in the village graveyard amounted to unconstitutional discrimination, the Court settled for an ad hoc resolution. This avoidance not only leaves the fundamental question of the constitutionality of such practices unanswered but also risks setting a precedent where urgent cases involving marginalised communities are reduced to temporary, case-specific solutions. By failing to engage with the broader principles of equality and secularism, the Court missed an opportunity to lay down a robust precedent that could guide future disputes of a similar nature.

The compromise also reinforces the marginalisation of minority voices. By directing burial at a designated Christian graveyard far from the petitioner’s village, the Court effectively sidelined the petitioner’s plea for equal treatment and dignity. This resolution sends a message that minority communities must navigate systemic biases rather than challenge them outright. The petitioner’s demand for burial in the village graveyard was not just a logistical issue but a symbolic assertion of equality and belonging. The Court’s failure to address this demand perpetuates the notion that minorities must acquiesce to discriminatory practices, thereby entrenching their exclusion from shared communal spaces.

While the invocation of Article 142 served to bring an end to the immediate crisis, the compromise falls short of delivering substantive justice. It highlights a judicial tendency to focus on expediency at the expense of confronting structural inequalities, leaving marginalised communities to grapple with the long-term consequences of systemic discrimination.

Critical reflections: Judicial challenges in addressing discrimination

The Supreme Court’s handling of the burial dispute raises important concerns about the judiciary’s approach to balancing constitutional values against public order, systemic discrimination, and local governance. A closer examination of the case reveals troubling trends that demand critical scrutiny.

First, Justice Sharma’s emphasis on maintaining public order over upholding individual rights reflects a growing judicial inclination to privilege peace and harmony over addressing the legitimate grievances of marginalised communities. While public order is undoubtedly an important consideration, prioritising it in this manner risks reinforcing entrenched biases rather than dismantling them. In cases involving historically marginalised groups, such an approach undermines the transformative potential of the Constitution by legitimising social hierarchies under the guise of pragmatism.

Second, the Court’s avoidance of structural issues highlights a broader hesitation to confront systemic inequities. By focusing on short-term solutions, such as imposing a two-month deadline for demarcating burial grounds for Christians, the Court addressed only the immediate logistical concerns without tackling the underlying issues of social exclusion and prejudice.

The decision stops short of questioning whether the segregation of burial grounds is constitutionally permissible, thereby missing an opportunity to challenge practices that perpetuate discrimination.

Third, the case underscores the politicisation of local governance bodies, which often act as enforcers of communal divides rather than mediators of inclusive policies. Instead of protecting the rights of all citizens, these institutions have increasingly become instruments of exclusion, driven by majoritarian pressures. The judiciary must play a more active role in holding local governance bodies accountable to constitutional principles, ensuring they act as facilitators of inclusion rather than agents of division.

Finally, the intersection of caste, religion, and conversion brought to light by this case reveals the persistent hostility faced by tribal Christians. These individuals often occupy a precarious position, trapped between their ancestral identity and their chosen faith. Conversion to Christianity frequently becomes a basis for denying them access to ancestral land or communal spaces, exacerbating their social exclusion.

The judiciary must ensure that constitutional protections extend to all citizens, irrespective of their faith or choice to convert, and that conversion does not become an excuse for perpetuating discrimination.

Together, these reflections highlight the need for a more proactive and transformative judicial approach to address structural inequalities and protect the rights of marginalised communities.

Broader implications: The judiciary’s role in addressing systemic discrimination

The split verdict in this case underscores the judiciary’s ongoing struggle to reconcile constitutional principles with the realities of an increasingly polarised society. Justice Nagarathna’s dissenting opinion serves as a vital reminder of the judiciary’s fundamental duty to uphold constitutional values and protect the rights of marginalised groups. Her emphasis on equality and non-discrimination reflects the transformative vision of the Constitution, which seeks to dismantle systemic inequities and foster inclusivity.

However, the lack of a decisive resolution on the fundamental issue of discriminatory burial practices reveals the judiciary’s limitations in confronting entrenched societal biases. By failing to refer the matter to a larger bench or deliver a definitive ruling, the Court has missed an opportunity to provide clarity and enforce constitutional safeguards against discrimination.

This case also brings to light the pressing need for legislative reforms aimed at ensuring equal access to public burial grounds for all communities, irrespective of caste, religion, or conversion status. The judiciary’s reliance on public order as a justification for discriminatory practices risks normalising exclusionary behaviour, allowing prejudices to persist under the guise of maintaining peace. Legislative intervention is critical to prevent such misuse of public order and to establish clear, enforceable guidelines that uphold the principles of equality and secularism.

In a country as diverse as India, disputes of this nature challenge the foundational ideals of the Constitution, particularly secularism and equality.

The resolution of such cases serves as a litmus test for the judiciary’s commitment to addressing systemic discrimination and safeguarding the rights of marginalised groups. While pragmatic solutions may provide immediate relief, they fail to address the deeper social and institutional barriers that perpetuate exclusion. To truly uphold constitutional ideals, the judiciary must adopt a more assertive stance, one that not only resolves individual disputes but also challenges the systemic biases that underlie them.

Related:

Sambhal Custodial Death: A systemic failure exposed

Parbhani police under scrutiny: Fact-finding report exposes allegations of brutality, illegality, and constitutional violations

Eradicating Stigma: A Landmark Judgment on Manual Scavenging and Justice for Dalits

The post Constitutional ideals vs. public order: SC delivers split verdict on Christian burial rights, fails to confront structural discrimination appeared first on SabrangIndia.

At the start of her address, Justice Nagarathna stated that our transformative constitution’s bold aspirations are manifest in its grant of rights and remedies against oppressive social wrongs such as prejudice, stigma, and exploitation.

What is this constitutional vision of social justice?

In answer to this question, Justice Nagarathna said that social justice is an ideal that is achieved through the progressive elimination of injustice and inequity in society. It calls for transformative efforts to undo the impact of pervasive social hierarchies and past injustice. It also demands the creations of conditions of justice.

Elaborating on these conditions of Justice, she said that these would emerge from an active process of remedy of preventing an act, decision, or situation that would arouse the sense of injustice in the people. The special constitutional provisions and safeguards for weaker sections of the society manifest the intent to create such conditions of justice.

“For instance, by granting political reservation to schedule caste and schedule tribes the Constitution ensures that the members of socially marginalised groups are not excluded from political executive and governance. In that sense constitution sets a benchmark for inclusive governance and social justice.,” she added.

Supreme Court’s Contribution to quest for social justice

Justice Nagarathna shared her insights on Public Interest Litigation, where the doctrine of locus standi was substantially diluted to enable the concerned citizens to seek the indulgence of the constitutional courts to remedy an instance of social injustice.

To strengthen this, she cited the landmark case of Hussainara Khatoon vs. State of Bihar, in which a PIL was filed by two Supreme Court advocates underscoring the plight of thousands of under-trial prisoners languishing in various jails. This, in turn, resulted in the release of over 40,000 under-trial prisoners.

“PIL is the incarnation of the judicial activism in its people oriented litigative dimension. The Court demonstrated a willingness to act as a bridge between life and law, to blend the structure of adjudication to the needs of the vulnerable members of the society. As a result, undertrial as well as convicted prisoners, women in protected custody, children in juvenile institutions, bonded and migrant labourers, unorganised labourers, Sc and ST, landless agricultural labourers who fall prey to the faulty mechanisation, slum dwellers and pavement dwellers, these and many more groups now come to the Supreme Court seeking justice.”

Notably, she also highlighted that at a certain point, the Supreme Court had a specially created Bench designated as a Social Justice Bench, which assembled every working Friday at 2 pm to hear public interest litigation and other writ petitions.

Justice For Women

Speaking under this head, she shared several landmark judgments that have led to the progress of justice for women and sexual minorities. In this respect, she also referred to publication of “Handbook on combating Gender Stereotypes” saying that this would deepen public trust by correcting anti-women prejudices. It may be recalled that it was only last year that this handbook was published to identify and remove the use of words that are loaded with gender stereotypes in judgments and court language.

The judgments discussed during the address included CB Muthamma v. Union of India and others., in which Muthamma an officer in the Indian Forest Service challenged IFS rule which prohibited married women from being appointed as a matter of right and required a woman member to obtain permission before her marriage. Though the government withdrew this rule, former Justice Krishna Iyer held:

“Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.”

Underscoring women’s financial impendence, she cited the case of Govt. of A. P v. PB. Vijayakumar. In it, the former Justice Manohar Sujata, the second woman judge of the Supreme Court, upheld policies that provided special reservations for women as a measure to achieve effective equality.

“The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.,” the judgment stated.

In Anuj Garg v. HotelAssociation of India, the Supreme Court struck down Section 30 of the Punjab Excise Act, which prohibited the employment of any man under the age of 25 and any woman in any part of an establishment in which liquor or another intoxicating drug was being consumed. The Court termed such an Act pre-constitutional legislation.

In furtherance of this, she apprised her audience of the progressive journey in the field of personal law. For this, she referred to the landmark judgments, including Shayara Banovs Union Of India. In this, a constitutional bench of the Top Court of India struck down the practice of Triple Talaq as illegal and violative of fundamental rights guaranteed under Article 14 of the constitution.

It is noteworthy to mention that, following this, the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, prohibiting triple talaq as void and illegal. It provides imprisonment for up to 3 years and a fine to the husband who practiced instant Triple Talaq.

Further, in Vineeta Sharma v. Rakesh Sharma, the SC recognized the rights of a Hindu daughter to be a co-parcener alongwith her brother in respect of the division of coparcenary property.

Women in the legal profession

Justice Nagarathna said that women in the legal profession have come to stay and have made a real mark in the legal profession both as lawyers, advocates, and the bench.

“I must say one thing that in order that women are not ignored in the legal profession or on bench they must put in more effort, I suppose. This is the feeling I have that if I should not be ignored by being a women in the legal profession or on the bench, I must make a mark. For that I must put in more effort. I do not know whether men in the legal profession or my male colleagues would have to put that much effort. The effort is not in order to get a bouquet or a pat on the back but simply to say that look I am here too and I am not an adjunct I am part of the entire system and I have a right to contribute to the justice of this country in the same way as any male judge would and therefore I think psychologically if we think that we need to put more effort the effort is worth it then secondly with regard to gender” she added

Workplace Harassment

Justice Nagarathna also touched on the aspect of sexual harassment against women at workplaces. For this, she cited the decision of Vishakha v State of Rajasthan where the Top Court addressed deep rooted gender inequality at workplace and passed detailed guidelines, by invoking its inherent jurisdiction to deal with workplace sexual harassment against women.

Following this, in 2023, Aureliano Fernandes Versus State of Goa And Others, the Supreme Court of India has issued a slew of directions for the proper implementation of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 all over the country.

Justice for sexual minorities

Speaking about the progress in the justice for sexual minorities, Justice Nagarathna mainly cited the two landmark judgments in this field, starting from NALSA v. UOI, where the Court said that the right to self-determination for transgender persons is an instance where it has led the complex social process of inclusion. While crafting the range of remedies for transgender persons, it held that they were a socially and educationally backward class of citizens who ought to be eligible for affirmative action in education and employment besides welfare and other policies. It was held that the State was bound to take affirmative action for their advancement so that the injustice done to them for centuries could be remedied. This, in turn, led to the enactment of the Transgender Persons (Protection of Rights) Act, 2019.

Pursuant to this, in Navtej Singh Johar & Ors. v. Union of India, the Top Court decriminalized all consensual sex among adults and led to the inclusion of the LGBTQ community in mainstream society.

By the end of her address, she also shed some light on how, in 2020, during covid 19 (Gujarat Mazdoor Sabha v State ofGujarat), the Supreme Court quashed the notification issued by the Gujarat Labour and Employment Department granting exemptions to all factories in Gujarat from provisions of the Factories Act, 1948 relating to daily working hours, weekly working hours, intervals for rest and spread overs of adult workers as well as from payment of overtime wages at double rates.

A bench of Justices DY Chandrachud, KM Joseph & Indu Malhotra held that the pandemic cannot be a reason to do away with statutory provisions that provide dignity and rights for workers by the Gujarat Government. In this context, the bench has stated that the pandemic is not a “public emergency” within the meaning of Section 5 of the Factories Act threatening the security of the country.

After discussing these and several other judgments including in the field of disability rights, Justice Nagarathna said: “The above discussion of the SC’s role in advancing the role of social justice is a testament to the fact that it is an institution that is responsive to aspirations of a rapidly changing social milieu. I am assured that in the decades to come, the SC as a composite institution would serve we, the people of India in a more effective manner and steer the chariot of a social justice towards a constitutional destiny. For that we must believe in our constitution, we must believe in the preamble, the chapter on the fundamental rights and the directive principles, the goals that it has envisioned and the fact that it is eternal and all enduring.”

Q & A with Justice Nagarathna

At the end of the session, Justice Nagarathna also answered two questions asked by the audience. One of the questions surrounded the recent development where, last year, she, in a split verdict, allowed the medical termination of a 26-week pregnancy of a married woman. In view of this, the matter was referred to a 3-judge bench led by the Chief Justice of India, and ultimately, the Court rejected the abortion plea.

The question posed was: How do you see the Indian Legal system responding to such a scenario in the coming days? Whether it is going to be pro life of fetus or pro abortion in light of new emerging technologies facilitating such reproductive rights of women.

Replying to this, she said that, ultimately, the facts of the case give rise to a judgment one way or the other. Every case that comes up regarding termination of pregnancy must be viewed in the context of the facts and the surrounding circumstances in which the lady is placed and she is asking for the termination of her pregnancy.

She also added that it is only when the termination of pregnancy is outside the scope of the Medical Termination Of Pregnancy Act of 1971 that this debate begins.

“But if we view the plea made by a woman in the context of how she is placed, what the facts and circumstances are then this debate would actually fade into insignificance. Of course the health condition of a fetus has been given importance now but let me say that if it is a case of a minor child seeking unwanted pregnancy which has arisen on account of a sexual assault whether the question of pro life would be considered or the circumstances in which the minor assault victim is placed to get rid of unwanted pregnancy is to be considered.,” she added.

The post Constitution sets benchmark for both inclusive governance & social justice: Justice B.V. Nagarathna appeared first on SabrangIndia.