I. Individual, community, state: The textual web of indian constitutional secularism

The Indian Constitution’s fundamental rights chapter^{Footnote 7} comprises diverse, and possibly conflicting, sets of rights holders, duty bearers, and juridical relationships. There are individual rights against the state, familiar to classical liberal constitutionalism (equality, speech, association, etc). But there are also direct horizontal rights, guaranteeing non-discriminatory access to shops and hotels, and abolishing forced labour and ‘untouchability’. In addition, the Constitution explicitly provides for group rights, such as the rights of minorities to conserve their language, script, and culture. And lastly, it allows the state wide regulatory powers over both individuals and groups, with a view to social reform – for instance, through affirmative action even against claims of formal equality.

Later in this article, I shall advance historical and philosophical arguments interpreting – and justifying – the unique manner in which the Indian Constitution mediates these multiple relationships. For now, however, I only wish to point out that academic and judicial debates surrounding the religious freedom clauses – Articles 25 and 26 – have tended to understand these provisions as though they constitute a self-contained code.^{Footnote 8} This, I believe, is a mistake. An understanding of religious freedom under the Constitution is incomplete without acknowledging that the provisions are nested within a fundamental rights chapter that, in various contexts and ways, attempts to grapple with the relationship between three actors – the individual, the community and the state.

Let us now consider Articles 25 and 26. Article 25(1) guarantees that ‘subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion’.^{Footnote 9} This language of personal freedom is similar to liberal-democratic Constitutions all over the world.^{Footnote 10} Immediately after that, however, Article 25(2)(a) permits the state to make laws for ‘regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice’.^{Footnote 11} Article 25(2)(b) follows, allowing laws ‘providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus’.^{Footnote 12}

Two things stand out. First, the Constitution expressly distinguishes between religion, and secular activities that might be ‘associated with religious practice’. Implicitly, therefore, it tasks the Courts with drawing the dividing line between the religious and the secular.^{Footnote 13} Secondly, the Constitution allows the state to intervene in, and recalibrate, the relationships within religious groups or communities, in the interests of ‘social welfare and reform’ – an instance of which is requiring public Hindu religious institutions to be open to all Hindus. Once again, the Constitution makes the courts the ultimate arbiters of the question.

Article 26(b) permits a ‘religious denomination’ to ‘manage its own affairs in matters of religion’,^{Footnote 14} while also allowing it to administer property that it owns or has acquired ‘in accordance with law’.^{Footnote 15} Two things, again, stand out. First, Article 26 directly makes groups the bearers of rights. And secondly, like Article 25, Article 26 invites law – and the courts – to draw a distinction between ‘matters of religion’ and secular questions, illustrated by the express textual provision that property may be administered only in accordance with law.

Articles 25 and 26, taken together, guarantee the rights of individuals and groups to religious freedom, while allowing the state to regulate secular matters that might take a religious form, and to frame reform-oriented laws that might impinge upon the internal autonomy of religious communities. Read plainly, the text seems to represent conflicting impulses, attempting to achieve a ‘simultaneous commitment to communities and equal citizenship’.^{Footnote 16} Scholars have disagreed about whether it manages to achieve a workable modus vivendi between competing claims,^{Footnote 17} or only succeeds in setting up an irreconcilable contradiction.^{Footnote 18}

And lastly, note what is left unsaid. Articles 25 and 26 do not provide a principle to distinguish between the religious and the secular. Furthermore, they do not clarify whether Article 26(b) – to borrow Will Kymlicka’s terminology – guarantees only a group-differentiated right against state intervention, or whether it also guarantees rights of groups against their own constituents (and vice versa).^{Footnote 19} Article 26(b) does not directly speak to situations where the individual and the community might clash with each other over issues of religious freedom. The wide powers given to the state under Article 25(2)(b) suggest the answer might not be as easy as it has been in other jurisdictions, where individuals have few antecedent constitutional rights against their communities.^{Footnote 20} Of course, the answer to this question depends upon a deeper question which, again, is underdetermined by the constitutional text: does the Constitution treat groups as bearers of value in their own right, or does it view groups as instrumental to achieving individual fulfilment, and therefore guarantee group rights?^{Footnote 21} As we shall see, the majority’s error in Saifuddin lay in its failure to address any of these questions in the comprehensive manner that they required.

II. ‘Essential religious practices’ – tracing the genealogy of a phrase

In Saifuddin, the majority and concurrence both struck down the Excommunication Act on the ground that excommunication was an integral, or essential, part of the Dawoodi Bohra faith. And, as held by the majority, ‘what constitutes an essential part of a religious or religious practice has to be decided … with reference to the doctrine of a particular religion and include practices … regarded by the community as a part of its religion’.^{Footnote 22} Once that was established, curtailing the power of excommunication was deemed to be interference into a purely religious matter, and therefore not saved by the social reform clause of the Constitution.

The term ‘essential religious practices’, as the trigger for invoking the protection of Articles 25 and 26, has long been criticised. The objection is well known, and has been made throughout the Court’s history: it is not for the judiciary to pronounce on importance of specific doctrines or beliefs internal to a religion.^{Footnote 23} This criticism is familiar to other liberal constitutional jurisdictions. Constitutional courts in the United States,^{Footnote 24} Canada^{Footnote 25} and Europe^{Footnote 26} have established limits upon the extent to which individuals or groups can engage in religious practices that might conflict with the civil law of the state. But they have – for the most part^{Footnote 27} – refused to impose an external point of view upon whether a practice is religious or not, and how important it is to its adherents. This refusal is part of a deeper commitment to constitutional liberalism, which declines to impose particular substantive visions of the good upon individuals.^{Footnote 28} As Saifuddin illustrates, this approach is not the approach of the Indian Supreme Court.

What, however, is the genesis of the phrase ‘essential religious practices’ – if any? An answer, of sorts, is found in the debates of India’s Constituent Assembly. While discussing the religious freedom clauses, Dr BR Ambedkar, the Constitution’s principal drafter, observed that ‘the religious conceptions in this country are so vast that they cover every aspect of life, from birth to death … I do not think it is possible to accept a position of that sort … we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that … laws relating to tenancy or laws relating to succession, should be governed by religion.’^{Footnote 29}

Ambedkar, therefore, was speaking to a very specific concern, a concern that scholars have located in the difference between the ‘thin’ and ‘thick’ role of religion.^{Footnote 30} In Western liberal democracies, where religion has (largely) been relegated to the sphere of private worship and ceremony, religious autonomy is unlikely to seriously jeopardise the state’s legislative programme – or, for that matter, to affect individual rights in any meaningful way. In India, however, according to Ambedkar, religion, the private life of the individual, and the public life of the community, were inextricably bound together (or, in TN Madan’s words, religion is ‘constitutive of society’)^{Footnote 31}. Consequently, the state would have no choice but to restrict the operation of religious freedom to matters that were essentially religious, and not those that were secular in character, but over whom religion nonetheless claimed dominion. As we have seen, the Constitution explicitly contains this division, in the very text of the numerous subclauses of Articles 25 and 26. Indeed, Ambedkar’s original formulation seemed to be precisely oriented towards denying religious groups sweeping powers over their constituents.

What Ambedkar and the Constitutional text did not do, however, was to provide a test, or a set of principles, for distinguishing the religious from the secular. Both provided examples – Ambedkar of tenancy and succession law, the Constitution of administration of property – without actually answering the question. And so the battle moved to the courts.

A succinct statement of the Indian Supreme Court’s approach is provided by Dhavan and Nariman, writing in 1997. Surveying 50 years of case law, they state that there is ‘a three step inquiry to determine … whether a claim was religious at all, whether it was essential for the faith and … whether, even if essential, it complied with the public interest and reformist requirements of the Constitution’. ^{Footnote 32} This has long been established wisdom, and as we have seen, it formed the core of the majority’s reasoning in Saifuddin. While not entirely inaccurate, I will attempt to show that this summary misses one crucial aspect of judicial history: that until their conflation in the 1960s, steps one and two were invoked in very different contexts, and intended to deal with separate problems.

Let us start at the beginning. As early as 1954, the Supreme Court acknowledged the ‘thick’ conception of religion by rejecting a definition that would have limited it to private matters of thought, conscience and belief, and accepting, instead, that the religious freedom clauses would also protect action and practice. In Lakshmindra Swamiar – a case that dealt with state control over the administration of denominational temples – the Court held that ‘if the tenets of any religious sect … prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year … all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment … would not make them secular activities partaking of a commercial or economic character’.^{Footnote 33} In other words, the Court began by adopting an internal point of view to distinguish between the religious and the secular: look to the religion itself. This doctrine – again, familiar to Western liberal constitutions, where the Courts refuse to define religion and focus, instead, on the genuineness and sincerity of an adherent’s belief – nonetheless fails to solve Ambedkar’s poser. If religion itself claimed such a vast domain, making religion the arbiter of what fell within its domain seems self-defeating. The position was, however, affirmed in a similar case that same year.^{Footnote 34} In both cases, the Supreme Court employed the ‘essential practices’ formulation – borrowed from Ambedkar – to distinguish between the religious (free from regulation) and the secular (subject to regulation).

However, three years later, there was a sudden change of tack, when the Allahabad High Court was asked to decide whether government regulations prohibiting bigamy violated Article 25(1). It was argued that because of the special religious duties performed by Hindu sons, bigamy was required in case no male children were forthcoming from the first marriage. In response, the Court analysed certain important Hindu religious texts, and held that ‘polygamy … [is not] an essential part of the Hindu religion’.^{Footnote 35}

Here is the key shift: the word ‘essential’ went from qualifying the nature of the practice (i.e., whether it is religious or secular), to qualifying its importance (within the religion) – i.e., from whether something is essentially religious to whether it is essential to the religion. It was a minor grammatical shift, but with significant consequences, because it allowed the Court to address questions internal to religion in a judicial enquiry, and thereby define the nature of religion itself. Towards the end of the decade, this test was affirmed by the Supreme Court in upholding a law prohibiting cow slaughter.^{Footnote 36}

At the turn of the Court’s first decade, therefore, there appeared to be two distinct tests under Article 25 and 26 of the Constitution. First: was the practice of a religious or secular nature? And secondly: was it essential to the religion? The first enquiry was conducted to decide which aspects of temple or religious trust management could come within state control. The second was to decide whether specific religious practices, which the state sought to prohibit or regulate, met the threshold test for constitutional protection at all. As we have seen above, while the distinction between religious and secular was set up by the Constitution itself, and in Ambedkar’s framing speech, the distinction between essential and inessential religious practices was nowhere to be found in the text or history. While the Court was yet to recognise – let alone explain – the dichotomy, it is easy to see how and why it came about. The original sin lay in Lakshmindra Swamiar. That case had set up two propositions in tension with one another: first, that the scope of the religious freedom clauses extended to practice and conduct; and secondly, what practice or conduct was protected was to be judged from the internal standpoint of the religion itself. When placed in the context of Ambedkar’s acute observation about the influence of religion in Indian public life, no court could have faithfully followed both propositions. However, instead of rethinking Swamiar, the Court’s response was to tweak the test in a subtle but far-reaching direction, one that effectively gave it substantial powers of intervention into religious faith – but a direction that had clearly not been contemplated by the constitutional framers.

In the 1960s, however, in a series of judgments delivered by Justice – and then Chief Justice – Gajendragadkar, the systematic distinction between the two tests was dissolved. While deciding upon the constitutionality of an Act stipulating control over the Managing Committee of a Muslim dargah (shrine), Gajendragadkar J observed in obiter that ‘[for] the practices in question … [to] be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form … Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself ... .’^{Footnote 37}

In this paragraph, the Justice ran together the two distinct tests. In the first part of the first sentence, he equated ‘being part of a religion’ with being an ‘essential and integral part’ of it, for the purposes of constitutional protection. He then observed that the reason for this distinction was to differentiate between the merely secular claiming the mantle of religion, and the actually religious. But that wasn’t all: he then argued that ‘similarly’, there was a distinction between the religious and the merely ‘superstitious’.

There is, however, nothing ‘similar’ between the two! The religious/secular distinction, however it might be drawn, does not involve the Court in external normative value judgments about the religious practice in question. In addition to combining the two tests, the Justice Gajendragadkar was making another innovation. Effectively, he was clothing the judiciary with the power to achieve, by interpretation, what the Constitution had allowed Parliament to do, through legislation: implement ‘social reform’ by erasing of supposedly regressive religious practices. Earlier, when the Court had taken upon itself the task of deciding what constituted an essential or integral aspect of a religion, it had already assumed the power of erasure. Now, that power was coloured with the brush of normativity. And the very next year, the two (equated) tests were merged into two succeeding steps of a single test. In Govindlalji v State of Rajasthan, Gajendragadkar J held that ‘the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion’.^{Footnote 38}

And finally, in Sastri Yagnapurushadji v Muldas, the appellants tried to circumvent the operation of a Bombay temple entry law, which required public Hindu temples to open themselves up for worship to all castes, by arguing that the ‘Swaminarayan sect’ did not consider itself to be Hindu at all. This contention was rejected by (now) Chief Justice Gajendragadkar, who devoted reams of paragraphs to prove that the Swaminarayan sect was, indeed, Hindu (contrary to its own self-identification), by isolating a few core concepts that formed the bedrock of ‘Hinduism’.^{Footnote 39} The Chief Justice’s vision of Hinduism, as many scholars have remarked, was that of a rationalistic and progressive religion, implicit within which was the further notion that the appellants, in trying to continue to deny certain castes the right to worship in their temple, had themselves misunderstood the principles of Hinduism.^{Footnote 40}

To sum up, therefore: through the 1960s, Gajendragadkar CJ combined the two distinct tests – religious/secular and essential/inessential – into a single one. With respect to the first test – now the first ‘step’ – he continued to pay formal obeisance to the internal point of view – i.e., to the religious community’s determination of the scope of what constituted religion – while actually determining the question by judicial fiat; and to the second, he added a normative prong, which allowed the Court to cleanse and uniformise disparate religious practices in an (allegedly) socially ‘progressive’ direction, again by judicial fiat.^{Footnote 41} Doing so had two further consequences: as the Court increased its own power in this manner, the use of Article 25(2)(b) – which granted the state the power of religious intervention for social reform – began to decrease.^{Footnote 42} And secondly, at times, the Court was led to record seemingly absurd conclusions, such as in Commissioner of Police vs Acharya Jagdishwarananda Avadhuta, where it refused to accept a practice (in this case, a warlike public dance performed on the streets) as an essential religious practice even when the sect’s founder had stipulated it in the sect’s holy book, precisely so that it could be accorded constitutional sanctity.^{Footnote 43} Indeed, in that case, the absurdity of the conclusion was recognised by Justice Lakshmanan in a strong dissenting opinion. Justice Lakshmanan observed – the first time any judge had formally noted – that Justice Gajendragadkar’s observations in Durgah, distinguishing the ‘superstitious’ from the ‘essential religious’ and calling for close judicial scrutiny to determine the content of ‘essential religious practices’, were at variance with the original dictum of the Court in Swamiar. Quoting Cantwell v Connecticut ^{Footnote 44} and United States v Ballard,^{Footnote 45} Justice Lakshmanan now swung the pendulum to the other end: ‘to allow any authority to judge the truth or falsity of a religious belief or practice is to destroy the guarantee of religious freedom in the Constitution’.^{Footnote 46} Justice Lakshmanan’s opinion parallels that of Justice Ayyangar’s concurring opinion in Saifuddin, and provides a counterpoint to the dominant ‘three-step test’. This counterpoint goes back to the original formulation in Swamiar. By adopting the internal point of view and a deferential approach towards what constitutes constitutionally protected ‘religion’, it tips the balance back towards maintaining the integrity of religious groupings over social-reformatory purposes of the parliament and the judiciary.

III. The three-step test and its discontents

The Supreme Court itself, on occasion, has evinced awareness of the tensions created by its jurisprudence. In late 2015, Gogoi J observed that ‘performance of such tasks [i.e., determination of essential religious practices] is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity.’^{Footnote 47} These words are interesting, suggesting that the Constitution has necessarily entrusted the task of determining ‘essential religious practices’ to the Court. This necessity would seem to stem from Ambedkar’s observation in the Constituent Assembly about the pervasive role of religion in Indian public life. For this reason, the argument goes, the Constitution itself exhibits a ‘reformist intention’,^{Footnote 48} and in interpreting it, Indian courts cannot adopt the hands-off, deferential approach to religion that is the hallmark of other constitutional courts. The extent to which group and community affiliations pervade private and public life in India necessitate the Courts to take an external point of view towards the true scope and extent of religion – either via the religious/secular distinction, or the essential/inessential distinction – so that the influence of religion can be legally and constitutionally limited. This is why the Supreme Court, in its first ever decision in Swamiar, appeared to do two contradictory things: extend the scope of Articles 25 and 26 to religious conduct and practice, giving it, in theory, a vast jurisdiction, while placing a limit upon what counted as religion, and restricting its influence. And this is why the alternative approach, in Justice Ayyangar’s concurring opinion in Saifuddin, and Justice Lakshmanan’s dissent in Avadhuta (II), while seemingly elegant and attractive, is nonetheless inconsistent with the constitutional text and purpose.

The ‘three-step test’, however, comes at a high cost. First, unlike the religious/secular distinction, it has no root in the constitutional text or history.^{Footnote 49} Secondly, the Court has failed to develop a rigorous methodology for determining the content of ‘essential religious practices’.^{Footnote 50} It has relied upon English-language sources,^{Footnote 51} colonial writings^{Footnote 52} (in stark contrast, for instance, with the approach of the South African Constitutional Court),^{Footnote 53} and has even decided cases without taking testimony from the affected parties.^{Footnote 54} The Court’s enquiry privileges a certain set of sources, and – as Ashish Nandy has pointed out in his famous critique of state secularism’s failure to distinguish between ‘religion-as-faith’ and ‘religion-as-ideology’^{Footnote 55} – has the effect of uniformising and homogenisng religious meaning at the cost of dissident and marginalised traditions.^{Footnote 56} As Cecelia Lynch has persuasively argued, religious conduct and practice has to be interpreted contextually, that is, in a way that ‘makes sense to adherents given their lived experience in particular contexts … [linked] to interpretive moments in daily life’.^{Footnote 57} The Court’s approach, on the contrary, takes religious doctrine and ethics as ‘given rather than lived, experienced, and interpreted’.^{Footnote 58} This, of course, is part of the broader critique that questions the Court’s competence and legitimacy to decide such questions.^{Footnote 59}

Thirdly, as cases like Avadhuta show, the enquiry itself seems to destroy the balance between secular intervention and religious autonomy. If it is true that religious communities are essential for self-determination by providing the ‘contexts of choice’ within which individual autonomy becomes meaningful, then the determination and imposition of religious meaning by an external authority seems to defeat the purpose entirely.^{Footnote 60} And lastly, the justifications for this approach seem to rest not in constitutional principles but in consequentialist considerations. Galanter argues, for instance, that the Court’s reliance on the three-step test instead of the social reform clause is because regulating a practice that has been pronounced as non-religious, or inessentially religious, enjoys more presumptive legitimacy than granting threshold constitutional protection, and then upholding the state’s coercive power to regulate.^{Footnote 61} This also explains Gajendragadkar J’s efforts to hold that religion, truly understood, is in harmony with the reformatory ideals of the Constitution. However, as Galanter himself acknowledges, there is no empirical evidence to substantiate this claim.^{Footnote 62}

The other consequentialist justification has been that of necessity, as Justice Gogoi observed. The three-step test is required because it is the only way the judiciary can stay true to the broader constitutional vision of regulating and limiting the vast scope of religion in Indian life, in the interests of social reform. As mentioned above, the Constitutional text itself exhibits reformist intentions; and scholars of Indian secularism have repeatedly differentiated it from its liberal Western counterpart, noting its ‘ameliorative’^{Footnote 63} or ‘contextual’^{Footnote 64} nature, which specifically envisages state intervention into religion in order to achieve certain substantive values.

However, is the three-step test the only way to achieve this? This claim too, is doubtful. Each of the cases (referred to above) in which the three-step test was applied could have been decided on alternative, textual grounds. In Ram Prasad Seth, the Court upheld bigamy prohibition both on the touchstone of Article 25(2)(b), and on the ground that it wasn’t an essential religious practice. In Qureshi, while upholding a ban on cow slaughter, the Court spent a lot of time on the public health benefits of preserving the bovine population, and could therefore have upheld the prohibition upon the ‘public health’ prong of Article 25(1) instead of holding, as it did, that cow slaughter on Id was not an essential part of Islam. Sastri Yagnapurushadji could have been decided under Article 25(2)(b), which expressly allows the state to legislate for temple-entry.^{Footnote 65} In Seshammal, the abolition of the hereditary priesthood was expressly defended by the state on the grounds of social reform, an argument ignored by the Court. And similarly, in Ismail Faruqui, the state takeover of the disputed land in Ayodhya was expressly defended on grounds of preservation of public order, a permitted ground of restriction under Article 25(1) – again, ignored by the Court.

While I do not, in this article, wish to go into the correctness of these decisions, what I do wish to suggest is that existing constitutional provisions were clearly sufficient for the Court to achieve the outcomes that it did, without the further invention of the essential religious practices test. This test, therefore, does not even seem to be a constitutional necessity. Of course, as we saw at the beginning of this article, the Constitutional text itself leaves a significant number of questions unanswered, and in particular, the question of the relationship between religious communities and their own members. Saifuddin answered this question by employing the essential practices test, a test that – I have argued – is constitutionally flawed. I will now argue that it is Sinha CJ’s dissenting opinion in Saifuddin that provides a more coherent understanding of the relationship between individual, community, and state, and one that is truer and more faithful to the constitutional vision.

IV. Civic equality and the transformative constitution

Chief Justice Sinha’s dissenting opinion in Saifuddin was woven out of three strands of thought. Locating the Excommunication Act within a long history of social welfare legislation, he observed that its purpose was to ensure ‘individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity ... .’^{Footnote 66} Secondly, echoing Ambedkar’s distinction between the essentially and the incidentally religious, he noted that the effect of excommunication was to deprive an individual of basic civil rights, such as the rights to worship, community burial, community property, and so on. And thirdly, traversing beyond the contours of Articles 25 and 26, he linked the Excommunication Act with the prohibition of ‘untouchability’, under Article 17. Observing that excommunication enjoined other members of the community from having any contact, social or religious, with the outcast, he held that ‘the position of an excommunicated person becomes that of an untouchable in his community … the Act in declaring such practices to be void has only carried out the strict injunction of Art. 17 of the Constitution … to do away with all that mischief of treating a human being as a pariah ...’.^{Footnote 67}

It is this last argument that I want to consider first. It is true that Article 17 of the Constitution prohibits ‘untouchability’. The word ‘untouchability’, however, is a term of art that refers to a specific practice of caste-based structural and systemic oppression and exclusion, which operates simultaneously in the political, social, and economic spheres, and whose defining characteristic is an injunction against any form of physical contact between ‘untouchables’ and ‘touchables’.^{Footnote 68} Beyond surface resemblances, there is little similarity between ‘untouchability’ and community ostracism. In equating social ostracism with Article 17, therefore, Sinha CJ chose to adopt an interpretation of ‘untouchability’ that went beyond its concrete meaning, and embraced a wider understanding of social and community exclusion, the ‘mischief of treating a human being as a pariah … of depriving him of his human dignity’. Importantly, Sinha CJ was not the first to do so. A few years before, in Venkataramana Devaru, the Supreme Court had upheld temple-entry legislation against the claims of religious groups to bar access, on the ground that Article 25(2)(b), when construed in light of Article 17, overrode the Article 26(b) community right.^{Footnote 69}

On what basis did Sinha CJ select the more expansive, abstract definition of untouchability? It is important to note that this choice was indicated not only by the text of the clause, which abolishes the practice of untouchability ‘in any form’,^{Footnote 70} but also by the history of its framing. While the communities constituting ‘Untouchables’ had been specifically enumerated in the Government of India Act of 1935, the predecessor of the Indian Constitution, the Constitution itself, as Dr Ambedkar pointed out, had elected not to operate at that level of specificity.^{Footnote 71} Indeed, an amendment moved by Naziruddin Ahmed to restrict the scope of the Article to untouchability only on account of ‘religion or caste’^{Footnote 72} was specifically rejected by Dr Ambedkar, and negatived by the Assembly when it went to vote.^{Footnote 73} Furthermore, even though KM Munshi pointed to the fact that the word untouchability was contained within quotation marks, making it clear that the intention was to ‘deal with it in the sense in which it is normally understood’,^{Footnote 74} many members called for providing a clearer definition of the term on the grounds of vagueness,^{Footnote 75} and in fact, KT Shah specifically ‘warned’ that it might even be extended to cover women, who at various times had been treated in the manner of untouchables by the society.^{Footnote 76}

Specifically, while some of the members of the Assembly undoubtedly understood untouchability in its narrow, concrete sense,^{Footnote 77} they did not do so to the exclusion of its broader sense. Meanwhile, other members expressly linked the provision to Article 15(2),^{Footnote 78} and repeatedly argued that their understanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’,^{Footnote 79} ‘equal rights’,^{Footnote 80} ‘social equality’,^{Footnote 81} the abolition of ‘social inequity … social stigma and … social disabilities’,^{Footnote 82} and as a remedial clause for ‘those who have been left behind in social and economic matters’.^{Footnote 83} It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.

Consequently, Sinha CJ’s adoption of ‘untouchability’ in its broad sense, in the sense of social ostracism, had its foundation in both the text of the Constitution and the debates surrounding it. What, however, did that choice entail? To answer this question, let us look again at the first two strands of his argument. The purpose of the Act, he held, was to guarantee individual freedom, remove interferences with liberty, conscience and faith, and guarantee human dignity and freedom of choice. But this is the crucial question: freedom from what? Sinha CJ was not talking about state coercion and interference with freedom, in its classical liberal sense, in the sense that it is guaranteed by most Constitutions. Rather, he was talking about the coercive freedom-interfering acts of communities (such as social ostracism) against their members. In other words, as discussed above, Sinha CJ believed that Articles 25 and 26 not only guaranteed group-differentiated rights to religious denominations in the interests of preserving their integrity, but also provided for the rights of individuals against their groups, in the interests of individual freedom, liberty of conscience, and human dignity. It was in this context that the balance between group integrity and social reform, set out textually within the scheme of 25 and 26, was to be understood.

Such a strong statement of horizontality might sound discordant to readers more thoroughly acquainted with constitutional systems where the vertical relationship is the norm, and the horizontal the exception.^{Footnote 84} However, as Mark Tushnet has crucially observed, the extent to which horizontality operates within any given jurisdiction is not fixed a priori, but depends upon the relative strength of the norms supporting liberal autonomy on one hand, and social democracy on the other.^{Footnote 85} The enquiry, therefore, must be contextual. And in the rest of this article, I will argue that Sinha CJ’s understanding of horizontality, and his construction of Articles 25 and 26, is faithful to the uniquely transformative nature of the Indian Constitution.

By a ‘transformative Constitution’, I mean one that is consciously designed to transform not merely the existing legal and political system, but also the social and cultural structures that often undergird the law and politics of a society.^{Footnote 86} A transformative Constitution (or, more accurately, transformative constitutional provisions) must be distinguished from Constitutions (or constitutional provisions) that merely recognise or preserve an existing status quo, as well as Constitutions that – in pursuit of political liberalism – refrain from endorsing any comprehensive theories of the good.^{Footnote 87} The Indian Constitution, I argue, not only attempts to make a substantive break with the nation’s colonial and pre-colonial past, but attempts to do so in service of a rich vision of substantive equality between individuals, and between and within communities, a vision that is best exemplified by its provisions on horizontality.

To understand this, let us briefly look at horizontality under the Constitution. Three provisions in the fundamental rights chapter guarantee horizontal rights. Article 23 prohibits human trafficking and forced labour.^{Footnote 88} Article 17 prohibits ‘untouchability’. And then there is Article 15(2), which prohibits discrimination on grounds of race, caste, sex, etc with regard to ‘access to shops, public restaurants, hotels and places of public entertainment’.^{Footnote 89} This proto-constitutional civil rights provision was held by the Supreme Court in 2011 to include non-discriminatory access to schools.^{Footnote 90} The Court did so by invoking the Constituent Assembly Debates, where the framers of the Constitution had agreed that the word ‘shops’ was not limited to physical places where goods were bought and sold, but included the more abstract realm of economic transactions, where a good or a service was offered for consideration. At the heart of the Assembly – and the Court’s – understanding was the historical awareness that in India, the economic and social boycott, practised by dominant castes, had been one of the most effective ways of discrimination and subordination.^{Footnote 91} The exclusionary effect of the boycott had been recognised as early as 1928, by a colonial government report, which cited the examples of preventing the boycotted persons from using common paths, as well as stoppage of sale of the necessaries of life, and recommended outlawing the practice.^{Footnote 92} Thus, the boycott served as both a means of exclusion from material resources, such as schools, water tanks, and other civic amenities, as well as reinforcing existing social hierarchies through stigmatising the excluded.^{Footnote 93} It was this understanding, and the will to ensure that the newly framed Constitution could guarantee a remedy against community practices whose result was the material and symbolic exclusion (and thereby, the subordination) of individuals from the economic and social life of the polity, that saw the formulation of the oddly worded Article 15(2), and its 2011 interpretation by the Supreme Court.^{Footnote 94}

The story of Article 15(2), in its historical context, tells us something important about the Indian Constitution. Unlike the French or the American experience, where Constitution-making was – primarily – the culmination of a revolution directed against the arbitrary power of an absolutist state,^{Footnote 95} the Indian anti-colonial movement had two distinct aims: against the despotism of colonial rule, and against the far-reaching (pre-colonial) grip of caste and community upon individual life.^{Footnote 96} For instance, simultaneously with the Congress Party’s agitation against British rule in the 1920s and 1930s, BR Ambedkar (the Constitution’s principal drafter) was leading mass movements of the untouchable castes for the right to access drinking water from community wells, and the right to enter Hindu temples.^{Footnote 97} Crucially, these movements were framed within the vocabulary of civil rights (of individuals against communities), and civic equality (within communities), and against the claims of the religious integrity of communities.^{Footnote 98} As Anupama Rao puts it, the focus of the movements was an expanded and inclusive idea of the ‘public’, that covered important material and symbolic community spaces (whether religious or secular), and asked for equality of access to those spaces.^{Footnote 99} And most crucially for our interpretive purpose, as we have seen, both issues – access to water wells and access to temples – would eventually find their way into the text of the Constitution, through Articles 15(2) and 25(2)(b).

The governing principle behind what eventually became Articles 15(2) and 17 of the Constitution was therefore something that we can now define as the anti-exclusion principle:^{Footnote 100} the Constitution limits the power of groups and communities to exclude their constituents in a manner that would interfere with their freedom to participate in normal economic, social and cultural life, and thereby – in a formulation recently advanced by the discrimination law philosopher Tarunabh Khaitan – ‘disrupt secured access to basic goods’^{Footnote 101} such as negative freedom, an adequate range of valuable opportunities and self-respect.^{Footnote 102} Chief Justice Sinha’s important innovation in his dissenting opinion in Saifuddin was to extend the anti-exclusion principle from the specific logic of anti-discrimination under Articles 15(2) and 17, to the relations between religious communities and their members under Articles 25 and 26.

We can immediately see an important benefit of invoking the anti-exclusion principle over the essential religious practices test: as we discussed above, the Court’s use of essential religious practices is external, static and acontextual, and thereby – as Lynch points out – fails to be true to how the practitioners of religion make sense of conduct and doctrine in evolving social contexts. However, even if the Court was to shift tack and attempt to faithfully track the dynamism of evolving religious practices, as many scholars have pointed out, this is an inquiry it is institutionally unsuited to undertake, as well as raising concerns of legitimacy. The anti-exclusion principle spares the Court from this impossible choice, by shifting the analysis from the content of religious conduct and practice, to its discriminatory effect. Of course, discrimination itself is a contextual enquiry, depending upon an investigation both of evolving social meaning (in cases of symbolic discrimination) as well as what goods count as ‘basic goods’ at any given time. However, it is an enquiry that has always been within the judicial domain – and indeed, is constitutionally placed within the judicial domain, in the form of the rights to equality and non-discrimination.

Furthermore, the anti-exclusion principle, as I have developed it here, is substantially stronger than the principles proposed by other scholars of secularism and the interface between individual and group rights in the Indian polity. Partha Chatterjee, for instance, argues that balancing liberalism and multiculturalism requires allowing a ‘group [to] insist on its right not to give reasons for doing things differently, provided it explains itself adequately in its own chosen forum’.^{Footnote 103} At the base of this is his sense that autonomy and respect are values that are ‘sensitive to the varying political salience of the institutional contexts in which reasons are debated’.^{Footnote 104} Akeel Bilgrami, on the other hand, advocates a ‘negotiated and emergent secularism’, which, echoing Rawls’ overlapping consensus, imagines the state as providing ‘internal reasons addressing different communitarian perspectives from within their own internal substantive commitments ... so as to eventually provide for a common secular outcome, each on different internal grounds’.^{Footnote 105} Both Chatterjee and Bilgrami privilege the internal norms (and reasons) of the group (subject to certain conditions) over the external norms that might be imposed by the state. Rajeev Bhargava’s slightly stronger concept of ‘contextual secularism’ allows for differentiated group rights subject to ‘a dignified life for all’,^{Footnote 106} without fleshing out what a dignified life might entail, in practice. By contrast, the anti-exclusion principle holds that the external norm of constitutional anti-discrimination be applied to limit the autonomy of religious groups in situations where these groups are blocking access to basic goods.

V. Two objections considered

However, it is the strong nature of the anti-exclusion claim that gives rise to an obvious objection, one that is keenly perceived by the scholars discussed above: and that is that the logic of anti-discrimination law is not typically extended to religious groupings, precisely because religion is deemed to be a private (even, intimate) activity.^{Footnote 107} Furthermore – and partly for this reason – the actions of religious groups are unlikely to interfere with individuals’ ability to access basic public goods. However, as Amy Gutmann points out, there are instances where even private or voluntary associations can act as ‘source[s] of public goods’ – and thereby can ‘block’ – through exclusion – access to such goods.^{Footnote 108} In this context, the reader will recall how the argument of this article has been that religion and religious groupings play a much thicker role in Indian life (as the Constitution itself acknowledges), than they do elsewhere.^{Footnote 109} This brings us to the third strand of Sinha CJ’s dissenting opinion. As he observed, the effect of excommunication was not simply ‘religious’, but extended to barring the individual from exercising his civil rights; and furthermore, by forbidding social or economic contact, effectively turned him into a ‘pariah’. While this may not be constitutionally significant in jurisdictions where the influence of groups is significantly lesser, and where exit and entry barriers are easier to surmount,^{Footnote 110} it is precisely the thick nature of religious groupings in India that ensure that there is a closer relationship between the acts of religious communities, and individuals’ basic rights. In this sense, there is a closer analogy between regulating the conduct of landlords, employers and service providers under civil anti-discrimination law, and regulating the conduct of religious communities (acting through their leaders) under religious freedom law. As we argued above, while discussing Ambedkar’s temple-entry movement, it is their ability to impact individuals’ access to basic goods necessary to lead a dignified life (including cultural goods) that lift such actions out of the domain of the strictly private, and lends them a ‘public’ tenor^{Footnote 111} (interestingly, the vocabulary of the temple-entry movement expressly framed it in terms of access to a public space, despite its religious character).^{Footnote 112} And it is in this context that it also becomes important to note that basic goods are not limited to the material but include protection against kinds of ‘exclusion [that] can publicly express the idea that the excluded are not the civic equals of those who are included’,^{Footnote 113} an eventuality that is specifically pertinent in ‘societies that have a long history of discrimination against the groups whose members are relegated to second-class membership’.^{Footnote 114}

To put the issue another way – as Michael Walzer argues, and as the South African scholar Stuart Woolman contends in the precise context of imposing egalitarian requirements upon groups^{Footnote 115} – a regime of equality must ensure that ‘no citizen’s standing in one sphere or with regard to one social good can be undercut by his standing in some other social sphere, with regard to some other social good’.^{Footnote 116} In jurisdictions where religion plays a thin – relatively autonomous role – equality has little to say to the relationships between members of a religious community, since there is little chance of inegalitarianism within the community being translated into burdens in other spheres. However, in the words of Anupama Rao, in a society where ‘ritual, economic and social domination’^{Footnote 117} were inextricably bound up with each other, and where ‘practices of … segregation [took place] across sites of exclusion’,^{Footnote 118} Chief Justice Sinha’s important insight in Dawoodi Bohra was – to repeat – that excommunication had impacts that went beyond the ‘essentially’ religious, and affected the excommunicated individual’s access to basic public goods.^{Footnote 119}

Articles 25(1) and 25(2), I would suggest, form the third limb of the anti-exclusion principle, in addition to Articles 15(2) (non-discriminatory horizontal access) and 17 (prohibition of untouchability). Understanding Sinha CJ’s opinion through the lens of the anti-exclusion principle allows us to contrast it sharply with the majority opinion. The core of the majority’s reasoning was that since excommunication was based only on religious grounds, and was aimed at ensuring the integrity of the group, it was constitutionally protected under Article 25(1) and 26(b), and was not saved by the ‘social reform’ clause, notwithstanding its impact upon the individual’s civil rights. Effectively, the majority opinion held the group’s religious identity and integrity (subject to judicial determination) to be sacrosanct – ignoring the Walzerian insight that it is possible that an individual’s standing in one sphere (in this case, the religious sphere) can impact her standing in other spheres. On the other hand, Sinha CJ’s opinion gave primacy to the anti-exclusion principle, holding that group integrity would have to be subject to that.

We have seen how the anti-exclusion principle flows from Articles 15(2) and 17 of the Constitution, and how the thick nature of religious groupings in India provides a principled justification for extending it to Articles 25 and 26. It is at this point, however, that we must deal with another important objection. The above argument, so this objection goes, unduly subordinates the rights to associative freedom and cultural integrity to the claims of equality. As many scholars have argued, values of pluralism and diversity – to which the Indian Constitution is unquestionably committed – require us to tolerate violations of equality and certain other non-basic rights within groups, so as to protect the continued existence of groups.^{Footnote 120} In fact, the thick nature of religious groups might actually provide an argument in favour of non-interference: given the diverse ways in which thick groups provide people their contexts of choice, group autonomy and preservation are even more important goals than they otherwise would be.^{Footnote 121} To this, a textual point may be added: unlike other Constitutions^{Footnote 122} or international legal instruments,^{Footnote 123} which guarantee the rights of individuals to exercise religious freedoms singly or in community with others, and refrain from vesting rights in groups qua groups^{Footnote 124} – the Indian Constitution – through Article 26(b) – expressly makes groups the bearers of rights. This would suggest that – textually – the balance between individual and group claims must tilt towards the group.

While it is true that Article 26(b) makes groups the bearers of rights, as pointed out above, the Constitution does not state the basis of doing so. It does not clarify whether groups are granted rights for the instrumental reason that individuals can only achieve self-determination and fulfilment within the ‘context of choice’^{Footnote 125} provided by communities, or whether the Constitution treats groups, along with individuals, as constitutive units worthy of equal concern and respect.^{Footnote 126} The distinction is crucial, because the weight that must be accorded to group integrity, even at the cost of blocking individual access to important public goods, can only be determined by deciding which vision the Constitution subscribes to.

Such a question – as I’ve observed above – cannot be answered in the abstract, or through a careful reading of competing philosophical accounts, but only by grounding it in the specifics of a jurisdiction’s legal and political history.^{Footnote 127} Let us briefly consider that history. During colonial times, the British largely followed a policy of non-regulation of ‘personal law’, leaving ‘communities’ free to manage their own internal affairs^{Footnote 128} (something akin to the Ottoman ‘millet’ system)^{Footnote 129}. The fundamental normative unit was the group, evidenced through a number of legal measures such as separate electorates, and penal provisions criminalising insulting the religious feelings of any ‘class’.^{Footnote 130} For this reason, when the legality of Dawoodi Bohra excommunication was brought before the colonial courts, the only enquiry made was as to whether, historically, the Dai had the power that he claimed to exercise.^{Footnote 131}

The absence of legal regulation, however, did not impede strong social movements within religious (and other) communities, focused upon two principles: individual freedom and choice within community spaces, and the right to social and political inclusion and participation. As Tanika Sarkar argues, for example, the conception and vocabulary of women’s rights first evolved in direct opposition to community control, in the debates surrounding the abolition of forced widow immolation^{Footnote 132} and the age of consent.^{Footnote 133} Crucially, these movements found expression in the Constitution. Thus, despite a strong cultural consensus at the end of the nineteenth century, which purported to divide society into something approximating a public/political and private/community domain, consigning women to the latter as embodiments of the ‘community’,^{Footnote 134} and depriving them of participation in the public sphere, the early twentieth century saw a strong woman suffrage movement, which culminated in that most public of rights – universal adult franchise – during the framing of the Constitution.^{Footnote 135} In fact, universal adult franchise under the Constitution marked a transformation not only in ascribing public citizenship to women, but in expressly doing away with the colonial-era separate voting electorates for religious communities, marked a categorical turn away from a vision of society that treated groups as constitutive, to one that understood their value to be instrumental in guaranteeing effective individual autonomy. In addition, we have already discussed how the horizontal non-discrimination (Article 15(2) and temple-entry provisions (Article 25(2)(b)) were the results of Ambedkar’s movements, which were expressly framed in the language of civil rights for individuals against their communities, even at the cost of the ‘integrity’ of the community, understood as the continuation of strongly-held beliefs and practices.^{Footnote 136}

Indeed, it is these legacies that led Ambedkar to clarify, in the Constituent Assembly Debates, that notwithstanding the existence of minority and group rights in the Constitution, its basic unit was the individual;^{Footnote 137} and, more specifically, to remark, during the debates on the religious freedom clauses: ‘what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.’^{Footnote 138} Notice that, like Chief Justice Sinha, Ambedkar specifically argued that it wasn’t merely the state, but the social system – i.e., the community – whose actions conflicted with individual rights, and would accordingly have to be ‘reformed’. The specific sites of reform, of course, have to be historically understood, and – as we have seen – defined by the manner of discrimination, which primarily took the form of economic, social and cultural exclusion.

To sum up, therefore: the history of the relationship between groups and individuals in Indian constitutional history demonstrates that throughout the late nineteenth and twentieth centuries, individual rights, and specifically, rights to basic and public goods, emerged as oppositional to the claims of groups to self-governance and autonomy. Whether it was the right of women to an age of consent or against forced immolation, or the rights of certain castes to civic and economic inclusion, or the right of every individual to the vote qua individual, these rights were framed in the context of, and exercised against, the claims of community. The text of the Constitution speaks to the success of these movements in inscribing their vision into the founding document: Articles 15(2) and 25(2)(b) subordinate claims of group autonomy to civic and religious inclusion, and the guarantee of universal adult suffrage not only frees women from being community subjects, but also repudiates the (colonial) idea that political rights belong to communities qua communities. So while the Constitutional vision remains one that views groups as bearers of value, it does not view them as having constitutive value, one that would override individual claims against exclusion. This means that – in Amy Gutmann’s terms, and contra the majority and concurring opinions in Dawoodi Bohra, cultural survival (of groups) is an important derivative right, but not an end in itself.^{Footnote 139}

At the heart of Ambedkar and Sinha CJ’s formulations was the insight that historically, groups have played a uniquely powerful role in Indian society. This brings us back to our original distinction between the thick and the thin roles of religion in public life. As we noted in the beginning of this essay, the Indian Constitution allows for far-reaching intervention into religious community life because of the scope and the extent of religious influence over individuals. The judiciary’s own attempts to instantiate this principle has resulted in the three-step test. However, the three-step test suffers from a number of difficulties, which have made it almost unworkable in practice. Chief Justice Sinha’s dissent in Saifuddin provides us with an alternative framework that is equally cognisant of the ‘thick’ role played by religion in private and public life. This approach seeks not to limit the scope of religion by an a priori distinction (whether external or internal) between the ‘essentially’ and the ‘inessentially’ religious, or the religious and the secular, but takes as its starting point the anti-exclusion principle: the state may protect individuals from community action that excludes them from the economic, social and cultural life of the group, action that, precisely because of the ‘thick’ role of religious communities, will inevitably impact the individual’s ability to access basic public goods. The Constitution protects the integrity of groups, and their right to self-determination, subject to the anti-exclusion principle – and this is what I mean by its ‘transformative vision’. It is important to note, in finishing, that the anti-exclusion principle does not do away with associative freedoms. Not every act of every religious organisation will be subject to the claims of equality, but only those that meet the (fairly high) standard set out above.