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Published online by Cambridge University Press: 03 November 2016
The religious freedom clauses of the Indian Constitution attempt to mediate between the competing claims of individuals, religious groups and the state, in a manner that is born out of specific historical circumstances. This article examines the controversial questions of whether, and to what extent, the Constitution grants individuals (specifically, dissenters) rights against the religious communities to which they belong. Taking as its point of departure a landmark Supreme Court judgment that struck down an anti-excommunication law, the article argues that the Indian Constitution is committed to an ‘anti-exclusion principle’: that is, group rights and group integrity are guaranteed to the extent – and only to the extent – that religious groups do not block individuals’ access to the basic public goods required to sustain a dignified life. Moreover – and unlike most other Constitutions – an individual may vindicate this right directly against her community in a court of law, by invoking the Constitution. This remedy is justified both philosophically, and in the specific context of Indian history. In this manner, Indian constitutionalism offers a novel and innovative solution to the perennial problem of balancing individual rights to religious freedom against the claims of community.
BCL, MPhil (Oxon); LLM (Yale Law School). The ideas in this article were first discussed in seminar courses at the National Law School of India University, Bangalore, and the West Bengal National University of Juridical Sciences, Kolkata. I am grateful to Shreya Atrey and Krishnaprasad KV, my perennial first readers, for their painstaking engagement with this article. I am also grateful to Suhrith Parthasarathy, Kalyani Ramnath, Abhinav Sekhri, Malavika Prasad and Rupali Samuel for their comments and suggestions.
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6 Ibid, para 23 (dissenting opinion of Sinha CJ).
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35 Ram Prasad Seth v State of UP, AIR 1957 All 411, para 12, relying upon State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84.
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37 Durgah Committee, Ajmer v Syed Hussain Ali, 1962 1 SCR 383, para 33 (emphasis added).
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44 Cantwell v Connecticut, 310 U.S. 296 (1940).
45 United States v Ballard, 322 U.S. 78 (1944).
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60 As Farah Ahmed correctly notes, in the context of Indian personal law, ‘if group autonomy means anything, it surely means that the group should decide for itself the norms by which it is governed’. Ahmed, F, ‘Remedying Personal Law Systems’, International Journal of Law, Policy and the Family (forthcoming) available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2777337>>Google Scholar. Ahmed is equally cognisant of the heterodox claims within the group, and the tension securing between group autonomy and such claims.
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88 Art 23, Constitution of India. In PUDR v Union of India, AIR 1982 SC 1473, the Supreme Court interpreted the term ‘forced labour’ to include non-payment of minimum wage, which workers were compelled – or ‘forced’ – to accept because of adverse market conditions.
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109 It might be argued that for internal dissidents, the religious context is always a ‘thick’ one. This is undoubtedly true, to a certain extent, as far as the basic good of cultural membership goes. However, ‘thick’ religious groups, in the sense that we are discussing here, have the ability to deny to their constituents more than just the good of cultural membership; they have the ability to block their access to other basic goods, including material and economic ones. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.
110 Kukathas argues, for instance, that groups can subordinate their members as long as there is an option to exit into the broader market economy. See Kukathas, ‘Are There Any Cultural Rights?’ (n 86). See also Hofer v Hofer, [1970] S.C.R. 958 (dissenting opinion of Pigeon J) (Supreme Court of Canada). However, as Farrah Ahmed points out (with the specific example of India), the right to exit is often illusory. Ahmed, F, ‘Personal Autonomy and the Option of Religious Law’ (2010) 24(2) International Journal of Law, Policy and the Family 222Google Scholar.
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112 Rao (n 91) 89.
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119 In response to a possible objection to the use of ‘Western’ philosophers such as Gutmann and Walzer in the context of an argument about the Indian Constitution (which, I have been arguing, had its own distinct normative origin), I should clarify that Gutmann and Walzer simply help us to understand more clearly the transformative purpose of the Indian Constitution: that is, to transform a political and social reality in which individuals’ access to basic goods is often mediated (and sometimes blocked) by their religious group affiliations. I am grateful to an anonymous peer reviewer for pushing me towards greater clarity on this issue.
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121 However, as Farah Ahmed argues, groups that do not achieve ‘minimal representativeness and deliberative quality’ end up constraining the individual autonomy of their members; and the thicker the group, the more harmful those constraints will be; Ahmed (n 113) 85–91.
122 Section 31, Constitution of South Africa.
123 Art 27, International Covenant for Civil and Political Rights.
124 See Christian Education South Africa v Minister of Education, (2000) (10) BCLR 1051 (Constitutional Court of South Africa).
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