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RAJEEV DHAVAN
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is littered with scores of them-it was politically convenient to identify the religious form in which protest was expressed as the sine
qua non rather than to admit that discontent arose out of the exploitative policies of the Raj. This method of cloaking social truth
remains an important policy imperative in the hands of India's contemporary rulers.
The contradictions precipitated by this policy surfaced after Independence 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 India 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 loyalties are predicated upon community and caste identification as
well as upon class loyalties.'5 Indeed, the reasons for many allegedly 'communal' tensions and religious clashes in contemporary India can be attributed to the manner in which politicians (and their
supporting band of ideologists) have politically appropriated religious group life to their own purposes.'6
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 creating a wall of separation between the State and religion seems both
contradictory and awkwardly over-simplified. While India's constitutional lawyers were sensitive to the post-New Deal prognosis that
judges were not to be trusted with the determination of social welfare questions,'7 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 Indian Express, 13 September 1986.
16. Indeed, reports on the turmoil following Mrs. Gandhi's assassination attribute 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 questions (e.g., Rau's "Notes on Fundamental Rights," II Shiva Rao infra n. 18, 22-23; and
151-52). It was felt that such a clause would not just affect agrarian reform (e.g., II
Shiva Rao 122, 26 March 1947). A.K. Ayyar (letter dated 4 April 1947, II Shiva Rao
143-45) also pointed out that if the freedom of religion clause was too widely defined,
social legislation would be impeded.
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person shall be ineligible for inclusion in any ... electoral ... roll or
claim to be included in any special electoral roll for any such constituency 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, The
Indian Constitution: Cornerstone of 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. 123(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 appeals 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.
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community.22
This general constitutional approach was undermined by subsequent 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 Marathi-speaking Maharashtra and Gujarati-speaking Gujarat, and
carving Hindi-speaking Haryana out of Punjab in 1967. Most of India's other States began to support their linguistic identities.
The system of patronage established around patterns of electoral support further reinforces religious and other identities. Politicians deliberately manipulate and manage religious, caste, linguistic
and other identities in order to organize a basis for support and dispense return favors. At another level, India's remarkable compensatory 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 invited to adjudicate electoral complaints about a successful candidate'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 determinant in the vast and crucial area of preferential treatment for
educational opportunities and government jobs.25
Some members of the Constituent Assembly had probably foreseen this when they unsuccessfully supported a constitutional mandate 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 questioning of India's formal constitutional doctrine, partly because it is
familiar and convenient and partly because there is a fear that majority religious groups may assert their supremacy in politics and administration.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 Reservation and Discrimination in India (1982); and for a comment on recent law, see
Singh, "Castes and Classes: The Doctrinal Puzzle from Balaji to Vasanth," 1 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 Constitutional 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 familiar constitutional doctrine, their decisions mark a flexible accommodation of conflict-
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tempt to prevent religious denominations from administering institutions 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."29 However, the major debate concerned religious 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 compromise permitting such instruction outside working hours30 was superseded 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.31
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.32
These institutions could not be denied State aid because of their religious 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 provisions, which are especially relevant to maintaining the cohesiveness 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 social reform of religion but religious groups had won the right to institutional existence, to own property and manage their own affairs,
to be partly funded by the State (even if they imparted religious instruction), and to propagate their beliefs. However, even if the religious groups had held their ground against the reformers in the
Constituent Assembly, the overall constitutional framework bor29. 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 the
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 sectors of education in India. For State attempts to regulate and assimilate minority
educational institutions, see Part IV of this article.
32. Arts. 29 and 30, Constitution of India.
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rowed from American doctrine had delimited their sphere of operation. 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 conservative 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 invited to resolve complex and politically sensitive subjects.33 However, 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 intervention results in the displacement of existing managers of religious
and educational institutions by new incumbents, the displaced managers may turn to the law courts to reopen the dispute.34 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 capacity of Anglo-American judges to balance out rights remains (e.g., Dworkin, Taking
Rights Seriously (1977)), outspoken research speaks of the instrumental predilections 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 Political Order in 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 Judicial Power (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 the
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. 181 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. Bhabapritananda 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 resolution in respect of a Brahmo 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.
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been commended for its balance and objectivity, it has always been
an invitation to both judicial statesmanship and mischief.
Indian society presents numerous awkward judicial issues. Are
followers of the Saint Kabir Hindus?45 Can the government celebrate the 2500th year of Lord Mahavira, the founder of Jainism?46
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?5l 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 prevention of cow slaughter just a Hindu attempt to deprive Muslim butchers of their livelihood or also an interference with an essential
practice mandated by the Holy Koran?53 What were the judges to
do with these questions? What 'traditions' were they expected to examine 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 comuel, 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 especially on the Arya Samaj (pr. 29 p. 112), Jains (pr. 31 p. 113), and Sikhs (pr. 32 p. 1134).
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 Emperor 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 constitutional 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.
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Durgah Committee case, Gajendragadkar denied validity to "practices which, though religious, may have sprung from superstitious
and unessential accretions to religious itself."66 Under this rationale, an 'essential practice' did not just have to satisfy an internal test
of being integral to a religion, but an additional external requirement that it was not the product of superstition. Gajendragadkar
enlarged his argument in various cases concerning religious endowments,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 denominations 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 allocate a new reformist role to the courts. The courts are not just expected 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 jurisprudence of religious freedoms. The latest judgment which
caused a national furor by absolving Jehovah's Witnesses from singing 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 Durgah 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 applying Hindu Law," 70 Z. V.R. 110 (1968); Derrett, "The definition of a Hindu," 2
S.C.J. J. 67-74 (1966).
69. Bijoe Emmanuel v. State of Kerala, C.A. No. 870, reversing A.I.R. 1986 Kerala 32 and creating an unexpected controversy. For other important recent examples, see two recent cases. The Anand Margis were treated as a denominational sect,
but their tandava dance was not regarded as an 'essential practice' even though they
passionately believed it was (see Jagdishwaranand v. Police Commissioner, Calcutta,
supra n. 47, esp. pr. 12 p. 57). However, the followers of Aurobindo did not even
succeed in getting their religious status recognized: see S.P. Mittal v. Union of India,
supra n. 44 (note the dissent of Chinnappa Reddy at pr. 33 p. 11.
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Constitutional Limitations
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 general of these schemes is the legal mandate 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 process' provisions.7'
In the second scheme, termed the categorization approach, the
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 decided 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 concentrate on the 'Y' question. By this method the Court argues that if an
activity falls within any category of permissible restriction, it automatically 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 assumed 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), substantive 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., Central 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, 1819.
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right to "administer.
. . (its)
property" but some of its other rights as well. This attempt never
developed into acceptable doctrine even though it irritated the sensitivities of constitutional experts who were appalled that the judges
did not realize that their approach militated against the written text,
legislative history, and constitutional intent. Later, when the 'right
to property' was abolished for all other citizens and persons, it was
retained for religious and minority groups. In the latter case, it was
made clear that compensation for the acquisition of the property of
educational institutions "should be calculated in such a way that
would not restrict or abrogate" a minority's right to establish and
administer educational institutions of its choice.
Indian courts have made pointed use of the categorization approach in their interpretation of religious freedom. The Constitu72. The 'eminent domain' principle enshrined in Art. 31 gave rise to a considerable controversy between the Government and the Supreme Court. The contours of
that controversy are discussed in Dhavan, The Supreme Court and Parliamentary
Sovereignty (1976). These controversies triggered off a series of constitutional
amendments resulting in the 42nd Amendment during the Emergency; on these developments, see Dhavan, supra n. 27.
73. E.g., Narayan Nair v. State of Kerala, A.I.R. 1970 Ker. 98 (F.B.);
Laxminarayan Temple v. L.N. Chandore, A.I.R. 1970 Bom. 23.
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tion (Article 25(2)) does not allow freedom of religion to affect the
operation of any law regulating or restricting "any economic, financial, political or other secular activity" associated with any religious
activity. On plain reading this would mean that matters characterized as 'secular' are subject only to the requirement of a legal mandate. There is also room for the argument that secular matters must
be incidental to (or simply 'associated with') religious practice (the
'incidental relation' argument). However, the courts seem to have
abjured such a plain reading and followed a wide categorization approach, leaving 'incidental relation' arguments to be absorbed into
the 'essential practice' test, described earlier. In this regard, the
courts have not followed a two-stage categorization test (Is 'Y' secular? Is 'Y' only incidentally related to 'X' (the religious right in
question)), but opted for a one-stage mutual exclusion test (If 'Y',
then not 'X'), even though the two-stage categorization test had
some adherents in the early jurisprudence of the Supreme Court.74
The one-stage 'mutual exclusion' test makes it unnecessary for the
courts to consider the impact of secular regulation on religious practice. If a regulatory activity is categorized as a 'Y' (secular) activity,
it operates with over-riding effect on 'X' (religious freedoms) areas
as long as a legislative mandate has been obtained for the operation
of the restraint. This combined use of the categorization and legal
mandate techniques have had a profound effect on the regulation of
religious activities and practices. It was with great difficulty-and
after considerable dissension-that the Supreme Court accepted that
the right of a religious leader to excommunicate a member of a religious group was an 'X' question (and part of religious freedom)
rather than a 'Y' (secular) activity.75 However, this case is as unusual as it is complex. In the main, the courts have constantly curtailed the rights of religious institutions on the basis that the
restraints have raised only 'Y' category questions.
This trend was begun in the Srirur Math judgment, which did,
however, express some sensitivity for religious rights in not allowing
government inspectors free access to the holy parts of the shrine.76
But, in so doing, it may have missed the wood for the trees. For
74. For earlier cases which exude a more sensitive two stage inquiry, see
Commr. v. Swamair, supra n. 41; Ratilal v. Bombay, A.I.R. 1954 S.C. 388; Modh.
Qureshi v. Bihar, supra n. 53; the majority judgment in Saifduddin Saheb v. Bombay
A.I.R. 1962 S.C. 853. The more straight-forward reformism is developed most clearly
by Gajendragadkar, J. in Durgah Committee v. Hussain Ali, supra n. 66. For an interesting reversion to a possible two-stage test, see Bijoe Emmanuel supra n. 69,
where the Supreme Court ruled that Jehovah Witness children cannot be compelled
to sing the national anthem; see further the review petition by the Attorney General, Indian Express 23 August 1986.
75. Saifuddin Saheb v. State of Bombay, supra n. 74.
76. Supra n. 41 at pr. 25 p. 292.
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what was at issue was not just an offense to religious sentiment, but
the institutional right of religious endowments to manage their own
affairs. By treating vast areas of State intervention as a matter of
course and, therefore, acceptable, the autonomy of many religious
institutions was undermined. The State's 'fall back' default power to
administer erring institutions was transformed into a tough and allencompassing regulatory system on the ground that all 'secular'
questions were amenable to State regulation. A lonely protest from
a Tamil Nadu judge over interference with the Temple of Sri
Prasanna Venkateshwarswami at Madurai warned the government
about the long-term effect of replacing the default 'safety valve' system by the new regulatory apparatus of control:
Any injudicious and frequent interference in the management of this long established institution on the part of the
authorities would introduce deadlock and frustration and
dampen the enthusiasm of the Sourashtra Sabha (who run
the temple). In the course of time, they would become indifferent and voluntary donations and contributions would
also disappear. This would naturally adversely affect the
proper maintenance and upkeep of the temple, the worship
and celebration of the usual festivities. The less the interference by the authorities, the better will be the promotion
of the good interests and objects of the institution.77
Although the Constitution limits the 'Y' category to a specific
list (economic, financial, political or other secular activity), the categorization approach has also been used to interpret the scope of
other constitutional limitations. As with 'free speech' limitations,
the courts have followed a mechanical approach of locating an activity within a 'Y' category without asking further questions about the
effect of a 'Y' category restriction on the ambit of a right. This is
particularly true in the area of public order.78 It has generally been
assumed that as soon as a restriction is said to be associated with
public order, the courts need not pursue further questions. For example, was the threat to public order serious? Was the power
granted or exercised too widely? Was the religious right in question
eroded? If so, to what extent? Again, the Constitution protects the
77. Rajgopalan v. Commissioner HR & CE, D.B., 84 L. W. 86 at 90 (1971). For a
general critical review of the judicial discourse, see Dhavan, "The Supreme Court
and Hindu Religious Endowments," 20 J.I.L.I. 50-102 (1978).
78. E.g., Ramji Lal Modi v. U.P., A.I.R. 1957 S.C. 620; Thus, even in cases like
Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 126; Supdt. Central Jail v. R.M.
Lohia, A.I.R. 1960 S.C. 633; Arun Ghosh v. W.B., A.I.R. 1970 S.C. 1228 at pr. 3, pp.
1229-30;where a rigorous distinction between 'law and order' and 'public order' was
maintained, it was generally assumed that as long as the objective was to preserve
'public order', more meaningful questions about the reasonableness of any measure
could be shelved.
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a dewan (meeting) on the same day as a Hindu mela (fair)82 and pilgrims to the holy Ganges are told that they are being assessed a fee
so that the government can preserve law and order.83
All this has generated a climate in which the limitations have
acquired an ex cathedra character and have become more fundamental than the right. Such an attitude may easily be justified where
the threat to public order, morality, and health is obvious. But there
is a qualitative difference between a case where the Court enforces
compulsory innoculation against small pox84 and cases where it
pleads for religion to submit to the new dispensation of secularism.
Rather than balance out conflicts between the need for secular control and social reform (in the narrow sense) and the right to religious freedom, the Court has either openly espoused its secularism
or mechanically followed the categorization technique by both enlarging the interpretation of categories of permissible limitation and
rendering them absolute. This has important implications in any assessment of the relationship between the Court and the government.
To begin with, it has enabled the Court to be generally pro-State.
After the preliminary years of 'balancing', the Court has generally
allowed the executive and legislative branches to do whatever they
like. The nub of the issues in the religious freedom cases has devolved away from religious freedom to a disorganized discussion of
the legitimate areas of operation of a modern State. And the courts'
answer to the question, "How modern is the modern State?" appears
to be, "As modern as it wants to be!" By resolving these questions
mechanically, the Court has not really evolved a theory about the
permissible limits of social reform. It has left it to other agencies of
the State to assume broad powers to regulate religious freedom and
has provided supportive constitutional protection so long as some
nexus is deemed to exist between the power exercised and the broad
undefined categories of control. By enlarging, but not defining, notions of secular management, public order, morality and health, almost any part of religious activity is subject to control. This is
manifested in the virtual takeover of the management of religious
institutions, the scheduling and re-routing of religious processions
and public celebrations, and the re-interpretation of the significance
of religious practices by agencies of the State, including the judiciary. As Indians and members of religious groups, themselves, the
L.J. 917.
82. Bedi Gurcharan Singh v. State of Haryana (1975) CrOim.
83. Ramchandra v. State, A.I.R. 1976 Cal. 164.
84. Dr. Raghava Menon v. Health Inspector, Koduvayur (1972) KL.T. 834 (quoting at pr. 7 p. 838 police power theories derived from Blackstone). In Vallimal v.
State of Madras, A.I.R. 1967 Mad. 332, the State was empowered to close a religious
burial ground because of possible hazards to health. The broad power of control is
drawn from the Common Law as enshrined in the opening words of Art. 25(1), Constitution of India.
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IV.
Minority Educational Institutions
Initially courts resisted the temptation to treat minority educational rights similar to other religious rights, reinforce mechanically
the State's general regulatory power or support the impetus for social reform that characterized many religious freedom cases.86 In order to understand the reasons for their forbearance we need to
reflect on the somewhat complex, if not unruly, educational plans
posited by the Constitution. The Constitution envisages the State as
a major provider of education. It decrees the expectation that "The
State shall endeavor to provide within a period of ten years from the
commencement of this Constitution (i.e. by 25 January 1960), for
free and compulsory education for all children until they complete
the age of fourteen years."87
At the same time, the Constitution also provided for compulsory
grants for an interim period for educational institutions of the Anglo-Indian community.88 Beyond this point, there is some ambiguity
about the grant support duties of the State. The text of the Constitution does not rule out-indeed, seems to anticipate a partnership
between the public and private sectors as providers of education.
One view of this partnership sees an enlarged State role in education so long as the State does not discriminate among private institutions. An alternative view affirms that the State is not just obligated
85. Note the complexities in Tejraj v. Government of Madhya Pradesh, A.I.R.
1958 M.P. 115; for a different though equally complex, fact situation, see Bhikamchand v. Kasturbhai 1976 Bom. 1905. Successive governments have been anxious
that the temple entry campaign should be accelerated well beyond the limited objectives of access to 'untouchables' to cover access to all denominations, sects or religions. While the policy of encouraging across-the-board public entries is laudable, it
often results in perpetuating the efforts of outsiders seeking control of the temple
itself.
86. E.g., Bombay v. Bombay Education Society, A.I.R. 1954 S.C. 561; In Re. Kerala Education Bill, A.I.R. 1958 S.C. 856. For a comparable juristic balance between
the regulatory imperative and religious freedom, see Commr., H.R.E. v. Swamiar,
supra n. 41.
87. Art. 45, Constitution of India.
88. Art. 337, Constitution of India has continued the privileges of the Anglo-Indian community for ten years after the commencement of the Constitution. Presumably, this does not affect the entitlement of Anglo-Indian institutions to grant
entitlements under Art. 30(2) similar to those for any other minority.
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ment's three language formula, the creation of language-based geographical political units, and the support that the Hindi language has
had from the Central Government and the governments of some of
the Hindi-speaking States. The attempt to dislodge Western education is not just part of the linguistic jingoism practiced in many
States. Rather, it is crucially linked to more precise beliefs about
the educational opportunities provided by each of the various competing linguistic mediums of instruction. Policies are not just motivated to support new indigenous methods of instruction, but to
deprive successful alternatives of crucial government support. As
the struggle for autonomy, government recognition, and the financial patronage of the State is redefined in constitutional litigation,
middle class judges are forced to find constitutional answers that accord with their support for the Western style education that gave
them social mobility and that will, in the future, give their children
a competitive edge. This has the curious effect of judges supporting
educational institutions of religious minorities in ways that are at variance with the 'secular' limitations they impose on the working of
other religious institutions.
The initial instinct of the Supreme Court was to maximize the
freedom of educational institutions. In an early judgment of 1950,91
the Supreme Court suggested that State-run or State-aided institutions could not participate in any positive discrimination policy laid
down by the government. Although the judgment is based on a
drafting oversight in the Constitution, it had sufficiently far-reaching implications for the government's educational plans to necessitate an immediate amendment to the Constitution. The Court
retained its sympathy for minority educational institutions even
though the Union Government and various State governments explored various methods to increase their control. In essence, the
controversies centered around three broad areas: (a) the imposition
of a medium of instruction on State-aided schools; (b) increasing regulation of the management of State-aided and other schools and colleges, sometimes as a price for State aid; and (c) the assimilation of
State-aided and other schools and colleges into the general framework of education.
(a) The first case to reach the Supreme Court on the 'medium of
instructions' issue came from the State of Bombay.92 In an attempt
to deprive Bombay's prestigious Anglo-Indian English medium
schools of the bulk of their students, it was decreed that primary
and secondary educational schools could only admit those students
91. Champakam Doirajan v. State of Madras, A.I.R. 1951 S.C. 226.
92. State of Bombay v. Bombay Education Society, supra n. 86.
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whose mother tongue was English (i.e., Anglo-Indians and Englishspeaking pupils of non-Asian descent). This provoked a litigious alliance between powerful religious and other educational trusts that
controlled the English medium schools and parents who did not
want their children to be denied the benefits of English medium education. The decree was struck down in a judgment that did not
quite analyze the issues raised by the articles dealing with 'Cultural
and Educational Rights' (Articles 29 and 30). Although the Supreme
Court was surely right to insist that the 'nondiscrimination clause
(Article 29(2)) is applicable to prevent discrimination over admissions "on grounds only of religion, race, caste, language or any of
them", the judgment obscures many other issues. One of the central
issues was whether this bundle of 'Cultural and Educational Rights'
is specifically linked only to the preservation of a 'distinct language,
script of culture' (an Article 29(1) emphasis) or whether it provided
more general protection to religious and linguistic minority educational institutions irrespective of whether State intervention related
to the preservation of a distinct language script or culture (an Article 30(1) emphasis). This point was of crucial importance because
the decree did not necessarily limit the use of English as a medium
of instruction but simply limited its use for an identifiable linguistic
minority. The consequences of the decree were more far-reaching
because the institutions in questions would lose viability if starved of
its non-minority students. The solution provided by the Supreme
Court does not grapple with this issue directly.
This does not aid in determining the interior of the right itself
and in deciding whether the Article 30(1) emphasis has priority over
the Article 29(1) emphasis. The judgment is also not wholly helpful
regarding the extent of the 'police power' that it acknowledges exists as a restraint on Article 29(1) and Article 30(1), even though no
such restraint is recognized by the text of the Constitution. More
specifically, it does not tell us when, under what circumstances, and
to what extent the State may impose a medium of instruction on
State-aided and other schools and colleges.
Not surprisingly, the medium of instruction issue surfaced again
in later cases. A case from Gujarat presented the issue in obverse
form.93 At issue was a prohibition on the use of English as a medium of instruction generally. It was easy to argue and decide that
Anglo-Indians were entitled to preserve their 'script' and be taught
in their mother tongue. However, in order to preserve the rights of
non-Anglo-Indian Roman Catholics, the argument turned much
more to the Article 30(1) emphasis that these rights were as much
93. Sri Krishna v. Gujarat University, A.I.R. 1963 Guj. 88 (F.B.); on appeal
Gujerat University v. Sri Krishna, supra n. 90.
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munist government, elected to power in the 1957 elections, formulated many radical proposals, including a controversial Education
Bill that sought to regulate and, in certain instances, take over the
management of many educational institutions run by Christians and
others. In opinions generally supportive of minority rights, the
Court continued to suggest a link between Article 29(1) (right to
language, script and culture) and Article 30(1) (right to educational
institutions), providing room for the interpretation that the purpose
of Article 30(1) rights was circumscribed by what we have earlier
called an Article 29(1) emphasis.10' Clearly, the Court did not want
to accord Article 30(1) independent status. In time, however, Article
30(1) was established as an independent right. The more crucial issue concerned the power of the State to regulate minority educational institutions. Where did this power come from? It is not
mentioned in the Constitution, but is drawn from a theory that
every State has an inherent 'regulatory' power, sometimes loosely
referred to as 'police power'. While police power is usually concerned with 'public health, public order and morality', a much wider
regulatory power was conceded here on the basis that the power to
administer did not include the power to mal-administer.102 Appropriately understood, this latter reasoning suggests that the State
only had the default power to intervene in the event of mismanagement. However, the actual power of regulation conceded to the
State was much more than a default power. At the same time, the
Court ruled that several regulatory measures cut deeply into the autonomy of affected religions and other minority institutions, and declared that the Constitution did not sanction inroads into this
autonomy as the price for State aid.103 Nor could recognition of col100. In Re Kerala Education Bill, supra n. 86; on how the judgment links with
national education policy, note comments at pr. 8 p. 1734.
101. Id., pr. 10 p. 981 on Art. 30 being concomittant to Art. 29 cf. pr. 23 p. 979, and
at pr. 8 p. 1734; T.L. V. Ayyar, J. at pr. 41 p. 490 on the purpose of article 30.
102. On the general regulatory power and its purpose, see pr. 19 pp. 974-6; pr. 31
pp. 982-3 and T.L.V. Ayyar at pr. 44 p. 992.
103. Controversial provisions of the Bill included: cl. 3(5) bringing new educative
initiatives under the Bill; clause 8(3) transferring fees collected by aided schools to
the government; clauses 9-13 on the government right regarding appointments and
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Personal Laws
Apart from the control of religious endowments and educational
institutions, the third major area of constitutional litigation has been
over the reform of 'personal laws'. Sensitive to legal practice of the
Raj (which followed a policy of preserving 'personal laws' while allowing the judiciary to reconstitute it) and aware that 'personal
laws' were inextricably bound up with the religious sentiment and
belief of various communities, the Constitution makers voiced two
secular concerns. The first of these followed the familiar plea of social reform concentrating, among other matters, on the oppressive
and exploitative effect of personal laws on women and children.
The second espoused the wider imperative of codification. The
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promise of a uniform civil code became an important Directive Principle of State Policy, not enforceable in law but nevertheless fundamental in the governance of the country. Codification had, after all,
been introduced with allegedly beneficial social results in Ataturk's
Turkey. Whatever the inherent merits of these 'developmental' insights, they provoked a measure of uncertainty among various religious communities.
1987]
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ate plea was made to root out those aspects of 'personal laws' that
militated against equal treatment of the sexes (in matters of marriage, succession, and equal status) or generally allowed social and
economic exploitation of family, sect, group, or class members. Orthodox Hinduism came into conflict with Islamic fundamentalists
when it asserted that Islamic personal law was irrational and
inequitable.
A relatively lesser concern has centered around Muslim property codes. A Muslim could evade the provisions of the Transfer of
Property Act, 1882 regarding gifts of immovable property. While
this created all kinds of evidentiary and other problems,'21 there is
nothing to suggest that this exception was used by Muslims to 'hoodwink' third parties or seriously prejudice the political economy. Indeed, the uncodified law relating to the Hindu joint family created
more difficulties regarding revenue and agrarian reform in various
social settings. Nor can too much be made of the Islamic law of succession. It is not always fair to women, but even under a new Code
there would be nothing to prevent a Muslim from disposing of his
property by testamentary succession.'22 If change was to be
achieved in this area, social acceptance would have to precede statutory fatwah.'23 In the course of time, many Muslim social practices
became Indianized in ways not wholly differentiated from the social
practices of other communities, giving rise to similar legal problems.
Changes were constantly taking place. However, the provocative demand of personal law reform was couched in a sufficiently threatening way for the communities to regard it as an exercise in political
bullying rather than as a serious discussion about reforming law and
social practices.
The primary focus of attention remains the Muslim law of marriage, the freedom of a Muslim man to marry four wives, and his
consequent duty to maintain all of them even if they left him as a
result of what one High Court judge referred to as the husband's
121. The immunity is contained in S. 129 of the Transfer of Property Act, 1882.
For a good summary of the case law and some of the evidentiary problems, see Noor
Jahan v. Muftkhar Dad Khan A.I.R. 1970 All 171; For an interesting case, see
Krishna Iyer, J. in Makku Rawther's Children v. Maharashtra, A.I.R. 1972 Kerala
27, esp. pr. 15 p. 33: "A gift by a Muslim paramour to a heathen mistress cannot
claim immunity from section 129 on godly grounds"; On hiba generally, see Mulla,
Principles of Muhameddan Law 136-69 (1972); Diwan, Muslim Law in India 137-54
(1977); Fyzee, Outlines of Muhammadan Law 217-273 (1974); Pearl, A Text Book of
Muslim Law 158-61 (1981); Mahmood, The Muslim Law of India 195-205 (1980);
Ameer Ali, Mohammedan Law in India 33-109 (1985); Wilson, Anglo-Muhammedan
Law 318-36 (1920).
122. There is nothing in the law to prevent anyone in India from making a will
which will subvert the application of their respective personal law.
123. Fatwah means a declaration of law. Whether social change should precede
legal change is one of those perennial questions which has never been properly answered in Western jurisprudence.
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"conjugal greed"'.24 Litigation on these questions continues to inspire judicial activism and provoke strong public reaction. These
cases are further complicated by the existence of a 'secular' 19th
century Criminal Procedure Code (revised in 1973) empowering a
magistrate to award maintenance to a needy spouse.125 Do these
"benign provision(s), enacted to ameliorate the economic condition
of neglected wives and discarded divorcees", apply to Muslims?126
Asked in this rhetorical form, the question can only be answered affirmatively. But this kind of rhetoric is a recent development in the
jurisprudence of Indian courts; the early cases simply apply the
Criminal Procedure Code.127 However, Indian litigation is artful
enough to elicit more complex answers from the judiciary. In
Itwari,'28 the husband responded to a maintainance claim under the
Criminal Procedure Code by filing a suit for the restitution of conjugal rights, claiming that it was his right under Islam to have more
than one wife. Forced to examine the husband's claim in the light of
this Islamic law, the Allahabad High Court opined that the Koran
permitted-not mandated-four wives, and further held that each
wife was entitled to equal treatment and could leave her husband if
she found the idea or existence of a subsequent marriage unpalatable.'29 Itwari argued its proposition with a subtle appeal to Islamic
tradition, demonstrating considerable judicial self restraint in not
taking too reformist a stance.130 Such caution was abandoned in the
124. Supra n. 64 at 687.
125. Section 488, Criminal Procedure Code, 1898; Sec. 125, Criminal Procedure
Code, 1973.
126. Krishna Iyer, J. in Bai Tahira v. Ali Hussain Fissali, A.I.R. 1979 S.C. 362 at
pr. 1 p. 363; also Krishna Iyer in Fuzlumbi v. K. Khader Vali, A.I.R. 1980 S.C. 1730 at
pr. 1 p. 17 on the heartlessness with which the lower judge had cancelled an order
for maintenance; and at pr. 5 p. 1731 on "the scheme of relief for driftwood and destitute wives and divorcees discarded by heartless husbands."
127. For an evaluation of recent and early decisions, see Caroll, "Muslim Family
Law in South Asia: Important Decisions Regarding Maintenance for Wives and exwives," 1 Isl. & Comp. L. Q. 95-113 (1981); Diwan, "Claim of Maintenance under
Criminal Procedure Code" 27 J.LL.I. 291-317 (1985); aspects of the emerging interpretation of Section 125 can be seen in Khurshid Khan v. Husnabanu (1976) Crim.
L.J. 1584; Muslim husbands could defeat claims under Section 488 of the old Criminal Procedure Code by divorcing their wives (Ahmad Giri v. Mst. Begha, A.I.R. 1955
J.K. 1; Mohd Ibrahim v. Jaithoon Bivi, A.I.R. 1951 Mad. 831.)
128. Supra n. 64. The case is quite convoluted. The District Judge (quoted at pr.
3 p. 685) rightly assessed the fact situation as one of extreme cruelty by the husband.
Accordingly, the suit for restitution was simply a ploy to avoid paying maintenance.
129. Id., pr. 9 p. 686, quoting the Koran IV.3 to show that Islam required an equity
of respect and concern between wives and permitted, but discouraged, polygamy.
130. Id., pr. 12-15 p. 687 where a plea is made for a reformist interpretation of
Muslim law. But this is done with sobriety seeking to persuade rather than embarrass minority communities about alleged social embarrassments in their law. Cf.
Krishna Iyer, J. in Fuzlumbi, supra n. 126 at pr. 5 p. 1731 where the judge asserts his
reformist role and Chandrachud C.J. in Shah Bano, id. at pr. 32-34 pp. 954-55 (on the
need for reform).
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context of law, it also exaggerated what "law' could do, and has
sharpened the social and political effect of judicial decisions.
It is in this context that a trilogy of Supreme Court decisionsBar Tahira,135Fuzlumbi,'36 and Shah Bano'37-have to be considered. Bai Tahira138 concerned the payment of maintainance when
an agreed mahr had already been paid. Krishna Iyer, J. held that
such payments affected the quantum, but not the existence, of the
husband's liability.'39 That would have been enough to dispose of
the case. But Krishna Iyer had long been a proponent of Muslim
law reform.'40 Here was an opportunity to plead for that reform
with the added emphasis that if such reform was not effected, a
great and continuing injustice would be done to all Muslim women.
He drew out the social implications in a characteristically graphic
manner:
Ill used wives and desperate divorcees shall not be driven to
material and moral dereliction to seek sanctuary in the
streets. This traumatic horror animated the amplitude of
[the legislation].'4'
Fuzlumbi142 would have followed Bai Tahira143 except for judicial
indiscipline on the parts of the lower courts.'44 Krishna Iyer continued his valiant attack, concluding that the institution of 'divorce'
(talaq) in Muslim law also needed judicial reform.'45 It is thus not
surprising that the Chief Justice Chandrachud's opinion in Shah
Bano146 begins with an inelegant but powerful prefatory description
of the social problematic before the Court:
Some questions which arise under the ordinary civil and
criminal law are of far reaching significance to large segments of society which have been traditionally subjected to
unjust treatment. Women are one such segment. "Na stree
135. Supra n. 126.
136. Id.
137. Supra n. 65. The triology must also be read with Zohara Khatoon v. Mohammad Ibrahim, A.I.R. 1981 S.C. 1243.
138. Supra n. 126.
139. Id., pr. 12 pp. 365-6 that in order to 'annihilate' the obligation, the mahr must
be a reasonable substitute.
140. E.g., Shahalameedan v. Subaida (1970) K.L.T. 4 (on polygamy); Khader v.
Kunhamina (1970) K.L.T. 237 (on the doctrine of mushaa); see Derrett, "A Hindu
Judge's Animadversions to Muslim Polygamy," 70 Bom. L. Rev. 61-63 (1970).
141. Bai Tahira, supra n. 126 at pr. 11 p. 365.
142. Id.
143. Id.
144. Fuzlumbi, supra n. 126 at pr. 1-2 where Krishna Iyer, J. cautions courts below for not following Supreme Court decisions and distinguishing them on flimsy
grounds.
145. Id., pr. 20 p. 1737 echoing Bahrul Islam J's attack on the liberalization of
talaq (divorce) at the hands of British judges.
146. Supra, n. 65.
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public sector employment opportunities for certain classes of disadvantaged added support to these initiatives.152 However, apart from
these obvious social embarassments in Hindu life, it was felt that all
other social reform could be achieved on an incremental basis. This
is not because the need for such reform was de minimis, but because there was much that needed reform and change. For example,
India's largest religion, Hinduism, is built on complex notions of social hierarchy. Although this hierarchy gives integrity to the religion as a whole, it also conceals vast exploitative patterns within its
folds. Throughout the 19th and 20th centuries there have been
many attempts to reform Hinduism so that the rich variety of group
life continues to endure, while shedding those insular and hierarchical aspects that perpetuate the control and exploitation of some
human beings by others. But it is a moot question whether this
could be done without such reform altering the essential character
of Hinduism. Yet, such reform is a noble, difficult and essential task
that must accompany the modern evolution of contemporary Indian
religions before they suffer a more cruel fate at the hands of fanatics
and fundamentalists. But at what pace must this reform take place?
Must it happen at once through the aegis of State institutions like
the legislature and judiciary? Or can it proceed in a less dramatic,
though, perhaps, equally effective manner by looking at problems as
they arise, bearing in mind the constitutional configuration that
gives at least partial protection to many of these practices.
Shah Bano's case portrays many interesting features of the new
reformism. Judges sought a reformist answer drawn from the interior of the religion itself. This is not always easy, especially when
fundamentalist organizations intervene in a case to argue that the
judicial reformist construction of Islam is inconsistent and wrong.153
But the judges went about this construction in a self-assured manner. Not content with asserting that Islam produced all the beneficent results that they desired, they stressed the urgent need for a
rational uniform civil code that would supplant the personal law.154
They maintained that exploitative tendencies in religion-based personal law must, and would, be excised immediately. This is after
they had already achieved their interpretative purpose with the help
of Islam. With all its laudable intentions, Shah Bano's case proRamanathaswami Temple, Rameshwaran). On untouchability, see generally Galanter, "The Abolition of Untouchability," in Mahar (ed.), The Untouchables of India
(1972).
152. See generally, Galanter supra n. 2.
153. In Shah Bano's case, supra n. 65 at pr. 32, the Supreme Court dealt with
these interventions in a confidently cavalier way and clearly did not anticipate the
national upsurge that was to follow.
154. Id., pr. 94 prs. 32-33 pp. 954-55.
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voked some believers to assume that Islam was not only on trial, but
found wanting.
From Itwari to Shah Bano, there are a series of cases presenting
new constitutional issues. Although India's libertarian and egalitarian Constitution promotes freedom of religion, it cannot allow any
religion to sustain any pattern of social and economic inequality.
The Constitution-makers had obscured this issue by using phrases
like "social welfare and reform" and "public order, health and morality"'55 rather than more threatening phrases portraying the campaign to root out exploitation and inequality. This new emphasis is
both proper and necessary. But there is a difference between dealing with specific problems of exploitation in an imaginative and persuasive way and assimilating various religions and religious practices
into a new secular orthodoxy. It is possible to oppose exploitation
while being sensitive to the imperatives of group and religious life in
India. Not because certain groups are important electorally but because it goes to the essence of India's unique experiment with
democracy.
VI
This essay seeks to examine religious freedom in India through
the three major areas of constitutional litigation: the control of religious endowments, the regulation of minority educational institutions, and the reform of personal laws. Addressing social and
political problems through court cases has many limitations because
of the formal setting in which such litigation is conducted and the
reified form in which judicial reasoning is cast. However, Indian litigation displays an energetic liveliness, providing many insights about
complex social relations.'56 Many cases and situations reach the
courts without too rigorous a selective filter from the legal profession. Lawyers are often happy to file cases to gain interim relief or
create social mischief even if the litigation is not otherwise publicly
or legally meritorious. Much of the case law on religious freedom is
untidy, conceals local power conflicts, and reflects partisan manipulation by state agencies. What is abundantly clear is that religious
life manifests itself in powerful local, regional, and national institutions and groups. While many groups derive their identity from
traditional and customary elements drawn from India's long and
155. Art. 25(1), (2), Constitution of India. It will be recalled (from Part II of this
article) that the problems of social reform were the ones that troubled the Constitution-makers the most. Clearly, their efforts enabled reform but did not decisively
foreclose controversy.
156. Indian litigation moves from litigant to lawyer to court with ruthless ease,
even though it leaves an untidy backlog of cases which take years to travel through
the system; see Dhavan, supra n. 35.
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tion is necessary, it has not always been above suspicion. Occasionally, judges have been quick to detect that the State has undertaken
particular regulation to support disguised social and political power
struggles. This apprehension has deepened in cases concerning the
regulation and control of those minority educational institutions
that educate India's middle classes. Nonetheless, the pace of regulation has quickened. Powerful religious endowments and no less
powerful educational institutions have consented to the broad
framework of regulation, reserving their constitutional attack
against the manner in which the regulation applies to them. This
considerable achievement has been marred by the over-enthusiastic
manner in which some judges have indulged in their own brand of
assimilative secularism. Having gained so much through the regulatory process, it is unnecessary and dangerous to pursue Gajendragadkar's judicial policy of virtually reforming religion out of existence.
Such initiatives have a 'King Canute' quality to them-impressive as
legal pageantry but counter-productive as a judicial estimate of social and political life. Justice B.K. Mukerjea's salutary-if ambiguous-judgment in Srirur Math could, and should, be built upon with
greater judicial sensitivity for discovering religious groups' definition
of themselves.
The more difficult and challenging task has been in situations
where religious practices have been impugned as inequitable and exploitative. Some of these allegations do not concern malpractice in
the administration of institutions but more direct attacks on the social inequity alleged to be contained in the religions themselves.
Here, too, judges have choices. The Constitution provides enough
textual justification to give social reform overriding priority. Is such
a judicial stance necessary or even salutary? It certainly carries
symbolic implications, portraying India's quest for social justice in
uncompromising terms. But the struggle for social justice is not fulfilled by constitutional rhetoric. Rather, it calls for cooperation
from India's many religions. The aftermath of Shah Bano's case
serves as both warning and instruction. It is here that reformist
judges need to be more sensitive and incisive in interpreting various
religious traditions. The quest for a uniform Civil Code is laudable.
But it can hardly be invoked as policy when it is perceived as a
threatening Damocles sword hanging over the future of personal
laws. Nor must it be invoked as a constitutional necessity if the exploitative elements complained of in any religion can be ameliorated
by means of the interior tradition of that faith. To this extent,
judges must be both ideologists as well as reformers, but not with
blind zeal, unmindful of the totality of effects of what they say and
do.
Such an approach is entirely consistent with the unique consti-
254
[Vol. 35