Religeous Freedom in India - Rajiv Dhavan PDF

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RAJEEV DHAVAN
Religious Freedom in India

I.
It is impossible to understand religious freedom without understanding the wider process of the political management of group life.
Many years ago, when India's Constitution was being drafted, B.R.
Ambedkar, who piloted various drafts through the Constituent Assembly, stated that the individual rather than the group was the basis of the Indian Constitution.' It is surprising that this terse
assessment should have come from one who had fought against Gandhi and the Congress Party for the collective entitlements of the
Untouchables.2 However, Ambedkar's insight forcefully explains
how groups and group life were to be viewed in the new dispensation: their right to flower in civil society would be recognized, with
the Constitution protecting religious, cultural and educational
rights.3 Some communities and disadvantaged castes and tribes
would even have special political representation. 4 But the future
was impeded for new groups and social combinations which came together as a result of the voluntary and rationally directed choices of
5
individuals.
RAJEEV DHAVAN is Reader, Dept. of Law, Brunel University, England. He would
like to thank Professors Marc Galanter, Richard Lariviere and Upendra Baxi and
Justices Chinappa Reddy, Krishna Iyer and Bhagwati for the opportunity to discuss
many issues contained in this article.
1. B.R. Ambedkar, Speech to the Constituent Assembly, VII C.A.D. 38-9 (4 November 1948).
2. See, e.g., Ambedkar, Mr. Gandhi and the Emancipation of Untouchables
(1943); id., What Congress and Gandhi have Done to the Untouchables (1946); see Galanter, Competing Equalities: Law and the Backward Classes in India 28-40 (1984).
3. Articles 25-30, Constitution of India.
4. Articles 330-4, Constitution of India.
5. This voluntarist/rationalist approach represents just one point of view in an
otherwise complex, intricate and continuing discussion about the nature of Indian
secularism. Contrast the relatively unsubstantiated view of Watson, "The Indian
Constitution and the Hindu Traditions," at 1183 (Ph. D. Thesis, Northwestern University, 1957) that India's present Constitution espouses a Hindu polity. For other
more incisive views, see Sundaram, A Secular State for India: Thoughts on India's
Political Future (1944). For later views see Smith, India as a Secular State (1963)
and South Asian Politics and Religion (1963); Luthera, The Concept of a Secular
State and India (1964); Sharma (ed.), Secularism: Its Implicationsfor Law and Life
(1966); Sinha (ed.), Secularism in India (1968); Derrett, Religion, Law and the State
in India (1968); Saxena, A Secular State and its InstitutionalPatterns (1971); Gajendragadkar, Secularism and the Constitution of India (1971); Bachal, Freedom of
210
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 35
Although attractive on paper, the theory collapses in real life.

If the key notions are 'voluntarism' and 'rationality', neither old nor
new groups can claim a monopoly on one or the other. The distinction between 'traditional' and 'new' groups is also obscured as group
life renews itself in various shapes and forms.6 Even if these analytical distinctions are unconvincing, the Constitution has the ideological objective of de-politicizing powerful traditional group formations
while giving different groups varying degrees of legal recognition.
Nonetheless, group life is constantly re-defined by social, political
and economic forces in ways that threaten the fragile computations
of the framers of the Constitution. While the framers were attracted to the 'top-down' notion of making social forces yield to new
rational structures, they were aware-as the British were before
them-that the actual management of the political economy would
subvert these structures as India's emergent capitalism reconstituted
the means through which it would articulate its demands.
Some of the dilemmas of Independent India's rulers can be
traced back to the Raj, which sought to establish a comprehensive
all-inclusive legal system. The Anglo-Indian Codes 'secularized' a
large part of the law relating to legal procedure, contract, the transfer of property, and commercial organizations. 7 However, this secuReligion and the Indian Judiciary (1972); Ghouse, Secularism, Society and the Law
(1973); Jain, Law and Religion: A Comparative Study of the Freedom of Religion in
India and the United States (1974); Glasner, The Sociology of Secularization: A Critique of a Concept (1977); Dhavan, The Supreme Court of India: A Socio-legalAnalysis of its Juristic Techniques 422-31 (1977); Srivastava, Religious Freedom in India:
A Historical and Constitutional Study (1982). For journal literature, see Galanter,
"Secularism East and West," 7 Comp. Stud. Society & History 135-59 (1965); id.,
"Hinduism, Secularism and the Indian Judiciary," 21 Philosophy East and West 467487 (1971); Seminar No. 67, "Secularism: A Symposium on the implications of a national policy" (1965); Subhrahmaniam, "Hinduism and Secularism," Bulletin of the
Institute of Traditional Culture, Part I, 1-21 (1966); Tripathi, "Secularism, Constitutional Provision and Judicial Review," 8 J.L. 1-29 (1966); Ghouse, "Secularism and
the Constitution of India," 17 Indian Year Book of International Affairs 559-76
(1974); Nagpal, "Secularism and the Constitution of India," Lawyer 112-7 (1971);
Satyanarayana, "Religion under the Constitution of India," 3 Journal of the Bar
Council of India 310-16 (1974); Minatur, "Law and Religion in a Secular State," 8
Lawyer 79 (1976); Akhishewar Singh, "The Concept of Secularism in Indian Constitution," 12 J. Const. Parl.Stud. 15 (1978); Chinappa Reddy, "Religion in India," Bertrand Russell Memorial Lecture, (1982, mimeo); and also, Derrett, "Freedom of
Religion in India," KL.T (Jnl.) 91-3 (1979); Mittal, "Motivated Conversion and Protective Discrimination," 28 Punjab University L.R. 147 (1976); Bhartiya, "Propagation of Religion.. . ." 19 J.I.L.. 325 (1977); Sharma, "Article 25 of the Constitution Should we amend it?" A.I.R. 1985 Jnl. 22-3.
6. See Rudolph & Rudolph: The Modernity of Tradition: Political Development in India (1967) and the incisive review by Derrett in 71 Z. V.R. 89-94 (1968).
7. On the legislation, see Stokes, The Anglo-Indian Codes, 2 vol. (1887); see Galanter: "The Displacement of Traditional Law in India" 24 J. Soc. Issues 65-91 (1968);
id., "The aborted restoration of Indian 'indigenous' law in India," 14 Comp. Stud. Soc.
& Hist. 53-70 (1972); Derrett, "Legal Science during the last century: India," in
Rotondi (ed.), Inchieste di derreto Comparato 413-35 (1975).
1987]
DHAVAN: RELIGIOUS FREEDOM IN INDIA
larism did not extend to the 'personal laws' of various communities

even though these personal laws were used to control the distribution of social and economic power. Decisions in the area of personal
law were made by judges who, combining pragmatism and self interest with caution, constructed a body of Anglo-Hindu and Anglo-Muslim. 8 Each community was permitted self expression so long as it
did not compromise the police duties of the State. These duties were
not just concerned with law and order, but also with Chancery notions of equity, which were used not merely to transform the joint
family9 but also to 'discipline' religious endowments which retained
vast repositories of power and wealth. 10 Law courts absorbed, re-defined and resolved social and economic conflicts concerning land,
credit and status.1 Indigenous communities thus invited their own
legal metamorphosis through one the most poweful,
respected and
12
subtle bureaucracies of the Raj-the judiciary.
The Raj sought to fashion a policy of overall supremacy (based
on notions of sovereignty) rather than to press for detailed modernization of the system-an effort that met with resistance. At the
same time the Raj sought to divide Indian society into stratified and
disaggregated parts, each part nurtured by encouraging its desire for
self-identification. Static images of what has been called India's
"compartmentalized society" served many purposes.1 3 As Indian
elite politics became more self-confident many leaders moderated
their own enthusiasm for political change by convincing themselves
that the social reform of India's static society must be a prerequisite
for making wide-ranging political demands suited to a more dynamic
society. 14 That 'traditional' society contained a potential for reform,
dynamism and change, was ignored both by scholars and government policy. Whenever peasant rebellions took place-and the Raj
8. See, Derrett, "The Administration of Hindu law by the British," 4 Comp.
Stud. Soc. & Hist. 10-52 (1961); Fyzee, "The impact of English law on the Shariat in
India," 66 Bom. L. Rev. 107-16 (1964). A reassessment of the impact of Imperial rule
on personal laws is long overdue.
9. Derrett, "A history of the juridical framework of of the joint family," 6 Contributions of Indian Sociology 17 (1962); Sontheimer, The Joint Hindu Family: Its
evolution as a Legal Institution (1977).
10. Derrett, Religion, Law and the State, ch. 14 (1968); Sontheimer, "Religious
Endowments in India," 67 Z. VR. 45 (1965).
11. Washbrook, "Law, State and Agrarian Society in India," 15 Mod. Asian Stud.
649-721 (1981); Appadorai, Worship and Conflict under Colonial Rule, esp. ch. 5
(1981).
12. Unfortunately, there has been very little assessment of the British judiciary
as an institution of the State. This may in part have been because a strict law of
constructive contempt stifled comment (see Dhavan, Contempt of Court and the
Press (1981)).
13. The phrase is taken from Galanter, supra n. 2 at 7.
14. See K.T. Telang's famous speech, "Must Social reform precede political reform?," Selected Writings: Speches and Writings I, 288 (1892); see further L. Heimsath, Indian Nationalismand Hindu Social Reform (1964).
212
[Vol. 35
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. 15 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 16politically appropriated religious group life to their own purposes.
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, 17 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.
1987]
indulge the intellectual excess of wholly disentangling the State

from religious life. The State was to interact with religious groups
in a supportive manner. However, no one had quite determined
what the socially and politically assimilative effect of the new secularism was going to be, and discussions in the Constituent Assembly
reflected tensions among various reformists and community leaders
18
about the basic constitutional framework.
PoliticalRepresentation
The first and most complex problem involved a decision about
whether religious and other groups should have separate and distinct political representation in electoral processes and representative bodies. The Raj's failure to "actively promote unity"'19 and its
residual legacy of encouraging religious manifestations of political
demand had left expectations that were not satisfied by the creation
of Pakistan. Muslims, Sikhs, Christians, Parsis, and others sought
political representation. The basic policy of non-communal representation was approved in the Minorities Sub-Committee and the
Advisory Committee and, amidst dissension, was adopted by the
Constituent Assembly. The alternative policy of protecting minorities from majoritarian pressures through proportional representation was passed over. The final agreed-upon constitutional solution
dispensed with communal representation. It provided that ". . . no
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.
214
[Vol. 35
22
community.
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
25
educational opportunities and government jobs.
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 Discriminationin 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-
1987]
minority groups need not only to be assuaged but uncompromisingly

laid to rest. Indeed, when India's Constitution was being overhauled
during the Emergency, an important symbolic insertion into the
Preamble identified India as a 'secular' as well as a 'socialist', democratic republic. These words were not changed by the Janata government in its review of the Emergency amendments after Mrs.
Gandhi's massive defeat at the polls.2 7 But the gap between constitutional symbolism and political practice is so considerable that we
need to examine it more closely.
Social Practiceand Social Religion
The constitutional discussion on freedom of religion started
with a general consideration about the right to belief and practice.
Two strategies were given attention. The first was the familiar 'wall
of separation' doctrine, with draft clauses specifically directed to
non-compulsory religious education in State-aided schools and the
non-payment of taxes to maintain any faith. The second was delimiting the sweep of religious rights by denying constitutional protection to 'secular' (i.e. economic, political, financial, etc.) aspects of
religious practice. However, this juxtaposition between the 'religious' and the 'secular' was greatly obscured by specific provisions
recognizing the institutional basis of religious life and the right of
religious denominations to own property and manage their own
institutions.
Although the earlier drafts and the final text reserved to the
police the power to make these rights subject to "public order, morality or health", these draft provisions only aroused pessimism
among social reformers, who warned that law courts would interpret
the social control provisions restrictively. The reformers' concerns
devolved on various specific issues. At the beginning, they were defeated in an initial wrangle over the inclusion of the right to 'propagate' one's religion. The opening up of Hindu (including Sikh, Jain,
and Buddhist) temples to all classes and sections of Hindus proved
not to be an issue. 28 But the reformers were defeated in their ating intuitions and demands from society and the State. This is as true of the
Supreme Court's decision-making in areas other than religious freedom; see generally Dhavan, supra n. 5. For a restatement of the fear of majoritarianism, see Khurshid, At Home in India (1986).
27. Inserted by the Constitution (42nd Amendment) Act, 1976; see also Dhavan,
The Amendment: Conspiracy or Revolution (1978) esp. Chapter IV for parliamentary discussions on this and other matters.
28. The opening up of temples first surfaced in the Draft Constitution (Article
19(2)(b)). There was some attempt to extend these reforms to all religious institutions (see, e.g., Tajamul Hussain IV Shiva Rao 41-42). Sikh, Jain and Buddhist temples were included in the final text (Article 25 Explanation II) following an
amendment by K.T. Shah on 6 Dec. 1948 (VII CA.D. 828 ff.).
216
[Vol. 35
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.129 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 hours 30 was superseded by a more accommodating provision prohibiting religious
instruction in 'wholly maintained' State educational institutions and
allowing 'voluntary' participation in religious instruction programs
administerd by, recognized by, or receiving aid from
in institutions
31
the State.
Some of these constitutional protections were also extended to
all minorities (including, no doubt, religious ones) who were allowed
32
to establish and administer educational institutions of their choice.
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.
1987]
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.3 3 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.3 4 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 JudicialPower (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.
218
[Vol. 35
of British India were replete with examples of such social disputes

over power and property inundating the courts--disputes that virtually submerged the legal system. 35 Like their counterparts in Independent India, the judges of the Raj backed away from
pronouncing on purely religious disputes. 36 However, the ingenuity
of Indian lawyers was able to transform most social claims into legal
ones. That the Constitution permitted direct access to the High
Courts and Supreme Court over breaches of Fundamental Rights
(and also to the High Courts to review most governmental action)
37
increased the potential and actual use of courts.
Broadly speaking, the Supreme Court was invited to consider
(a) what constituted 'religion'; and (b) what was the range of permissible constitutional limitations. Following the British policy of entrenching traditionalism and pragmatically leaving the resolution of
most issues to common sense rather than consistent high doctrine,
the Supreme Court began its reconceptualization of the 'religious
freedom' clauses cautiously.
Defining Religion: The Legal Limits of Justiciability
The question of defining 'religion'-and, therefore, deciding
whether a particular claim is, prima facie justiciable as a bill of
rights question-is as crucial as it is complex. The courts of British
India had encountered this problem, but in a different form. To begin with, they were often asked to pronounce on social disputes masquerading as legal questions. 3 This involved the converse problem
Charodhi Abhyudha (1972) 1 Mys. L.J. 431. On the installation and removal of idols
and the response of both government and the courts to local factional disputes, see
Ramachandra v. Gavalaksha (1972) 75 Bom. L.Rev. 668; Bhikamchand v. Kasturbhai
(1976) Born. 1905. For a view that previous official policy was more sensitive, see J.
Krishnan v. G.D.M. Committee, A.I.R. 1978 Kerala 68. These are a few illustrative
examples of direct government involvement and how government is mobilized to
take sides in socio-political disputes.
35. For a reaction of an official government to the rising tide of litigation, see
Rankin Committee, Report on Civil Justice (1924). Since then, successive reports of
the Law Commission and various other committees view the increasing litigation
with apprehension and helplessness. For a review of the literature and critique of
the problem, see Dhavan, LitigationExplosion in India (1986).
36. E.g. Ushaben v. Bhagyalaxmi Chitra Mandir, A.I.R. 1978 Gujarat 13 (on the
depiction of the three goddesses as jealous). For disputes accepted as 'legal' disputes,
see Pahota Chinamma v. R. Dty. Director of Pub., A.I.R. 1964 A.P. 277; or Mohandas
v. Travancore Devaswom Board (1975) 1 Kerala 55 (can a Christian playback film
singer enter a Hindu temple?).
37. On how the new constitutional reliefs created a new anti-government litigation, see Dhavan, "On the Future of Western Law and Justice in India: Reflections
on the Predicament of the Post-Emergency Court," 1981 Journalof Bar Council of
India 61-86; For an analysis of the new litigation, see Dhavan, The Supreme Court
under Strain: The Challenge of Arrears (1979); and more generally, Dhavan, supra
n. 35.
38. E.g. Vasudev and another v. Vannaji and another (1880) 5 Born. 80 esp. at 3132 (whether ornaments should be put on an idol); Vathiar Ramanuja v. Aiyanchariar
1987]
of determining the extent of any specific legal right without delving

too deeply into the question of the 'religious' point at issue. However, at a more complex level, British courts did have to consider
the extent of 'religious rights'. Following the Roman law formula of
'justice, equity, and good conscience', the British committed themselves to using the personal law of the Hindus, Muslims and other
communities in order to control land, credit status, and other disputes.39 The policy necessitated determining the preliminary claim
whether a particular cause of action was or was not recognized by
the personal law in question. In a sense, the British policy on the
determination of personal law changed in a way quite analogous to
the development of the policy of the post-independence Supreme
Court on determining the constitutional justiciability of religious
claims. The British began by seeking the advice of religious pandits
and moulvis (Hindu and Muslim learned wise men respectively),
who acted as experts advising the courts. But these often self-styled
experts came in for much criticism, and recourse to them was abolished in 1864. Concurrently, the British had also commissioned the
compilation of many treatises on the ancient texts and contemporary customs of various religions, sects, and geographic areas. Eventually, the courts took over completely, continuing their alleged
fidelity to the essence of the personal laws but seasoning their quest
for authenticity with the imperatives of State policy. In any event,
no ancient hermeneutic tradition could have assisted the judges not
just to identify the personal law but also to interpret and adapt it to
a rapidly transforming political economy and political system. If
Anglo-Hindu and Anglo-Muslim law was faithful to the invocations
of the ancients, judges of British India consciously remolded the law,
often making what Gandhi was later to call 'egregious blunders'.
After 1950, the definition of 'religion' had to be considered in
the context of constitutional provisions. At first, the High Courts
replicated the dilemma of the Constitution-makers, with some
judges taking the strongly reformist line of extending constitutional
protection only to such beliefs and practices as were consistent with
the new 'secularism'. 40 The constitutional argument acquired con(1912) 17 Ind. Cases 219 (annoyance to feelings); Behari Lal v. Shiva Lal (1902) 24
All. 499 (cutting of branches of sacred pipal tree); see also Abdul Hakim Baig v. Burramuddin, A.I.R. 1926 Mad. 559; Jamolinga v. Sundara, A.I.R. 1929 Mad. 526; and also
Ramachandra v. Gavalakshya (1972) 75 Born. 668 at pr. 5 p. 671. For a recent example of abuse of process to harrass a minority community see Chandanmal Chopra v.
State A.I.R. 1986 Cal. 104 where the petitioner pleaded that all copies of the Holy
Koran in the State of West Bengal be forfeited and destroyed(!); see also Chopra:
The Calcutta Quran Petitions (1986).
39. Derrett, "Justice, Equity and Good Conscience," in Anderson (ed.), Changing
Law in Developing Countries 114-53 (1963); Derrett, "Justice, Equity and Good Conscience in India," 64 Born. L. Rev., 129, 145 (1962); Dhavan, supra n. 5 at 95-101.
40. E.g., State of Bombay v. Narasu Appa, A.I.R. 1952 Born. 85 (on Hindu polyg-
220
[Vol. 35
siderable political complexity when proponents of agrarian reform

sought to acquire the property belonging to religious endowments
and bring it under the scrutiny of various State administrations,
which also possessed the default powers to create new management
if the occasion demanded it. In the SrirurMath case(1954), 4 1 Justice
B.K. Mukerjea-an expert on the law relating to Hindu religious endowments-delivered a judgment for a unanimous Supreme Court.
This judgment has become the focal point of constitutional discussion on religious freedoms.
Asked to decide which aspects of any particular religion were
entitled to constitutional protection, the Court impliedly rejected
what could be called the 'assertion' test, whereby a petitioner could
simply assert that a particular practice was a religious practice. Accordingly, the Court's task would be to assess the sufficiency of evidence required to establish the existence of such a practice.
Mukerjea made it clear that the Court's inquiry into assertions of
what beliefs, thoughts, and practices constituted a part of any particular religion would be more far-ranging. He proposed the dangerous
test that a 'practice' or set of beliefs must not only exist, but must be
'essential' to that religion. 42 To restore some objectivity into this

process of judicial determination, it was expected that the courts
would follow the intuitions of the Privy Council in determining 'essentiality' by reference to the doctrine and practice of the religion in
question. 43 Mukerjea's test appeased traditionalists by assuring
them that the Court would be sympathetic to their respective religious faiths. It also supported state sponsored reform by leaving one
agency of the State-the judiciary-with the power to determine
and pronounce upon (perhaps, transform) religious practice and belief. Years later, another Supreme Court judge-less sensitive to the
conservation of religious tradition-had no hesitation in stating that
"[ilt was obvious that religion undefined by the Constitution [was]
...incapable of precise definition" and "judicial definition [was] explanatory and not definitive". 44 Although the Srirur Math case has
amy) Chagla, C.J. at pr. 7 p. 86 (on the State's legitimate interest in marriage); pr. 13
p. 89 (uniform civil code); also Gajendragadkar, J. at pr. 28 p. 94 "Religion in a modern State is purely a matter between an individual and his God."
41. Commr., H.R.E. v. L.T. Swamiar, A.I.R. 1954 S.C. 282.
42. Id. at pr. 19 p. 290.
43. Id. at pr. 19 p. 290, where he refers to detailed aspects of the Hindu religion.
However, at pr. 2 p. 291 he talks of the Government monitoring "wasteful expenditures on rites and ceremonies".
44. Chinnappa Reddy, in S.P. Mittal v. Union of India, A.I.R. 1983 S.C. 1 at pr. 20
p. 8; pr. 21 p. 9. Earlier at pr. 1 p. 3 he states "I apprehend I share the views of those
who have neither faith nor belief in religion and who consider religion as entirely
unscientific and irrational chanting of prayers appears to me to be mere jingoism
and observance of ritual, plain superstition"; see also his decision in Bijoe Emman-
1987]
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 cele46
brate the 2500th year of Lord Mahavira, the founder of Jainism?
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? 51 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?5 3 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.
222
[Vol. 35
promises through judicial pronouncements. For example, faced with

complaints from Hindus (on 'wall of separation' grounds) and Jains
(for interfering with their religion), a Delhi judge followed his intuition that litigation questioning the government's celebration of Lord
Mahavira's birthday was mischievious. 5 4 In the given fact situation,
this was understandable, even salutary. But the judge sought constitutional clarity when he argued for:
...
a secular way of remembering Bhagwan Mahavir is de-
vised by the government to suit all people irrespective of

the religion to which they belong. It is of the essence of a
common cultural activity that everyone should participate
55
in it.
If this rationale is extended, it is surely not unconstitutional for

the Ministry of Culture to celebrate all 'religion' out of existence, in
the name of 'common culture'. And, if it did, one would undoubtedly be more than curious about the origins of its constitutional
mandate. Yet, the judge's dilemma was as real as it was complex. A
judicial decision ordering the government to stop its celebration
would have offended the sentiment of a larger number of Jains, including many on the government's celebration committee.
56
To take another example, consider the 'Cow Slaughter' cases.
How could the judges have ignored the fact that Hindus, holding the
cow in great reverence, find the idea of the slaughter of cows for
food repugnant? 57 Yet what was at issue was not Hindu sentiment
but the content of Islam. The argument that cow slaughter might be
a religious practice was referred to as a 'bald allegation'58 and, after
a brief reference to the Koran and Hamilton's translation of the
Hedaya,59 the Court dismissed the argument on the ground that the
Koran, by giving an option of the slaughter of goat for one person,
or a cow or camel for seven, did not oblige the Muslim to slaughter a
cow. 60 The Hindu position (which was not at issue before the Court)
was explained by interveners, but regarding the Muslim position the

Court was content to declare:
We have no affidavit before us by any Maulana explaining
the implications of those verses or throwing any light on
61
this problem?
54. Supra n. 46.
55. Id. para. 14, p. 174.
56. Supra n. 53 at pr. 20 p. 8; pr. 21 p. 9 .
57. Qureshi, supra n. 53 at pr. 22 p. 745 col. 2.
58. Id. at pr. 13, p. 739 col. 2.
59. Id. at pr. 13, pp. 739-40 citing the Holy Koran Surah 22 verses 28 and 33 and
Surah 107.
60. Id. pr. 13 p. 740, col. 1.
61. Id. pr. 11, pp. 738-9. On the Supreme Court and interveners in cases generally, see Dhavan, supra n. 5 at 105-112.
1987]
But, if the petitioners had requested the Court to hear their

religious leaders, it is not clear whether the Court would have allowed them to intervene. So, how is the Court to determine what an
'essential practice' is? Should it rely on religious leaders? Should it
call for evidence? Should judges pursue these questions on the basis
of their own research? Should the judge interpret the tradition
through the techniques available to a 'common law' judge? And,
if-as has been suggested-the judge should "enter that tradition to
ascertain its own internal rules and techniques, its methods of assessing the relative importance of its various elements and the admissibility of innovations", 62 can he wholly avoid creative
interpretation or ignore social discontent?
Indian judges have not been discerning in dealing with the
many difficulties raised in employing the 'essential practice' test.
Mechanically citing the SrirurMath case, they have assumed that so
long as some kind of inquiry into religious tradition takes place, the
manner and form in which these inquiries are to be conducted have
not been elaborated by even the highest court of the land. 63 There
are no indicators as to what kind of evidence should be considered

authoritative, no rules of interpretation, no emphasis on detailed research, and no requirement to consult authoritative exponents and
material. Some judges are careful about their consultation of texts.
An Allahabad judge took pains over the Koranic texts in order to
determine a Muslim husband's duty to maintain his first wife (who
left him on the arrival of her successor). 64 The Supreme Court, examining the same question twenty-five years later, was much more
dramatic in its examination and decided to throw judicial caution to
the winds. 65 Some judges simply resort to whatever information
they can lay their hands on.
At least one judge on the Supreme Court, Justice Gajendragadkar, has superimposed another 'secular' requirement on the 'essential practice' test, namely the requirement of rationality. In the
62. Galanter, "Hinduism, Secularism and the Indian Judiciary," 21 Philosophy
East and West 467 at 482-83 (1971).
63. For the random nature of the inquiry into religious practice using the Srirur
Math case, supra n. 41, see Jagdishwaranand v. Police Commissioner, supra n. 47 prs.
10-11 pp. 56-71. In other cases virtually no inquiry is made at all (Tulzapurkar, J. in
Abdul Jalil v. U.P., A.I.R. 1984 S.C. 882 prs. 22-24 pp. 883-84 on whether Sunni
graves can be shifted, relying solely on the police power to control; see also Krishna
Iyer, J. on planning law and samadhis (commemorative remembrances) in Mahan
Ram Kishan Dass v. Punjab, A.I.R. 1981 S.C. 1576). Consider the difference of opinion in the B.M. Basha case in the Madras High Court (Statesman, 27 August, 1986)
where a Divisional Bench stayed the order of a single judge to the effect that growing a beard was not an essential part of Islam. Mr. Basha, a security officer in
Bharat Heavy Electrical Ltd., had been denied permission to grow a beard.
64. Itwari v. Ashghari, A.I.R. 1960 All. 680.
65. Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.
224
[Vol. 35
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
69
providing no reasoned justification for the new secularism.
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. .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.
1987]
ConstitutionalLimitations
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 pro71
cess' provisions.
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.
226
[Vol. 35
in respect of seven enumerated freedoms in Article 19), and eminent

domain (derived from the now abolished right to property). 72
The fourth approach emphasizes social reform through such
measures as the abolition of untouchability, the prevention of exploitation, police power pertaining to public order, health and morality provisions, the opening up of temples, and blanket immunity
provisions pertaining to various measures of agrarian reform and
public policy. These social reform provisions have been given further direction by the Directive Principles of State Policy which
have, of late, loomed large in the Supreme Court's interpretation of
Fundamental Rights.
Finally, there are 'wall of separation' questions that have been
specifically delineated for operation in relation to particular aspects
of the exercise of religious freedoms. 73 All these approaches have
been used in the interpretation of religious freedoms, albeit with different emphases.
To begin with, an ingenious, but unsuccessful, attempt was
made to introduce a simplified version of the legal mandate approach to allow the government to do virtually whatever it wanted
so long as State action was backed by the authority of some 'law'.
The argument rests uneasily on an interpretation of Article 26
(which deals with the institutional rights of religious denominations) whereby the words "in accordance with law" are taken to
qualify not just the denomination's 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 Born. 23.
19871
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
74
some adherents in the early jurisprudence of the Supreme Court.
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 SrirurMath judgment, which did,
however, express some sensitivity for religious rights in not allowing
76
government inspectors free access to the holy parts of the shrine.
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.
228
[Vol. 35
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
77
of the good interests and objects of the institution.
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./.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.
1987]
right to propagate religion, various States enacted legislation, based

on 'inducements' or 'fraud', to prevent propagation. While the
Orissa High Court found words such as 'inducement' and 'fraud' to
be vague 79 (and probably thought that the legislation was designed
to be used only against certain proselytizing religions by the regime
in power), the Madhya Pradesh High Court and Supreme Court
were prepared to accept that the Constitution was satisfied because
some nexus with public order was established:
...
if a thing disturbs the current of the life of the community, and does not merely affect an individual, it would
amount to disturbance of public order. Thus, if an attempt
is made to raise communal passions, e.g. on the ground that
someone has been forcibly converted to another religion, it
would, in all probability give rise to an apprehension of a
breach of the public order affecting the community at
large.80
We can see how easily the Court converted a tenuous argument
into a plausible (even if vague) doctrine by the use of implausible
hard examples. Questions relating to the inducement of religious
conversion hardly present themselves in the form of physical coercion accompanied by public spectacle. The right to 'propagate' must,
perforce, include aspects of 'inducement', whether in this life or in
the life to come. Equally, any activity that some section or group
finds disagreeable can, theoretically, give rise to problems of law and
order. The Supreme Court's assumptions about social causation (inducement is fraud; fraud may cause public disorder; public order is
an over-riding category of constitutional control) obscure many important constitutional questions and leads the Court to conclude that
the two statutes before the Court do not "provide for the regulation
of religion".8 1 On the basis of this logic, blanket powers to prevent
and criminalize the public celebration of religion have been declared
constitutional. So, also, Sikhs have been told that they cannot hold
79. Mrs. Yulitha Hyde v. State of Orissa, A.I.R. 1973 Orissa 116, invalidating the
Orissa Freedom of Religion Act, 1968.
80. Rev. Stanislaus v. State v. Madhya Pradesh, A.I.R. 1977 S.C. 908 at pr. 24 p.
912; see also Rev. Stanislaus v. State of Madhya Pradesh, A.I.R. 1975 M.P. 163, validating the Madhya Pradesh Swantantraya Adhiniyam (27 of) 1968. This situation
virtually creates an offense to 'propagate' religion (a right protected by the Constitution). It should be noted that usually even where an offense is created (e.g., incitement to religious hatred) courts look for deliberate and malicious intent (note the
successful plea against acquittal in Public Prosecutor v. Ramaswami, A.I.R. 1964 Madras 258 at pr. 11 p. 260); State of Mysore v. Henry Rodrigues (1962) Crim. L.J. 564;
Cf. Veerbrahman v. State of A.P., A.I.R. 1959 A.P. 572). Such situations are quite
different from situations where a fact-finding mission is set up to examine the
proselytizing activity of any religion or sect (see G.Y. Francis v. State of M.P., 1957
M.P.L.J. 1.
81. Id., pr. 24 p. 912.
230
[Vol. 35
a dewan (meeting) on the same day as a Hindu mela (fair)8 2 and pilgrims to the holy Ganges are told that they are being
assessed a fee
83
so that the government can preserve law and order.
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 pox8 4 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
82. Bedi Gurcharan Singh v. State of Haryana (1975) Crim. L.J. 917.
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.
1987]
judges continue to exude sympathy for preserving religious freedom.

Thus, a Jain temple may be open to all Hindus but not in a way that
would give the latter the right to install a Shiva lingam (a Hindu
idol) within its precincts. 85 But such sensitivity is being buried in
the courts' generally pro-State position, enabling the government to
regulate religious activity under the broad rubric of secular control.
IV.
Minority EducationalInstitutions
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
'8 7
the age of fourteen years.
At the same time, the Constitution also provided for compulsory
grants for an interim period for educational institutions of the Anglo-Indian community.8 8 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.
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.
232
[Vol. 35
not to discriminate among competing private institutions but also

must not favor its own institutions, which must apply for financial
support just like private institutions. In this stronger view, the
State's role as a provider is marginal, with freedom to create new
State-managed institutions only where the private sector cannot and
does not provide sufficient educational facilities. Although the weak
interpretation may draw qualified support from constitutional
texts,8 9 the stronger version generates its mandate from the rising
aspirations of parts of India's increasingly active, middle and lower
classes, who feel that their children's future is more secure with the
'private' education sector than with most institutions established by
the State.
The State has also assumed important regulatory functions (in
relation to education), none of which have been clearly delineated as
permissible limitations to the "Cultural and Educational Rights"
protected by the Constitution. At a general managerial level the
State has assumed the general 'secular' power to oversee the management, and prevent the mismanagement, of any educational institutions. It is not clear from where this power stems, 90 but it is very
far-reaching and often results in legislation empowering the State to
take over the management of private and charitable educational institutions. At a more specific educational level, the State has assumed the power to ensure that general educational standards are
preserved. Part of this supervisory function includes the power to
regulate the granting of educational qualifications and to deny 'recognition' to various institutions and the certificates, awards, and degrees that they confer.
Formal education and Westernization have successfully competed with tradition forms of influence as vehicles for success in Indian society. The key to social mobility into India's coveted civil
service has long been based upon a well-grounded Western education. This applies equally to admission and success in the limited
number of good technical and professional colleges and universities.
India's enviable tradition of literature and scholarship in languages
other than English has received some stimulus from the govern89. Art. 30(2) clearly places an obligation of non-discrimination between competing minority-managed institutions.
90. The constitutional text gave no general power of management over minority
educational institutions (cf. Arts. 25 and 26 on religious institutions). The only restraint is on the extent to which State and State-aided institutions can impart religious instruction. The power to regulate educational institutions must derive from
the legislative lists. The original Constitution gave the Union Legislature the power
over technical and higher education (List I Entry 65-66) and the States power over
education generally (List II Entry 11), thus positing the possibility of conflict (see
Gujarat University v. Sri Krishna, A.I.R. 1963 S.C. 703). The Constitution (Forty
Second) Amendment Act, 1976 made the hitherto exclusive power of the State concurrent with the Union (List III Entry 25).
1987]
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.
234
[Vol. 35
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.
1987]
about the right to educational institutions as they were about the

protection of language. But the issues continued to remain obscured
because the judgment suggests, but does not totally clarify, that no
State-wide general medium of instruction policy may be possible.
The 'medium of instruction' question had important language
implications for the States. In the Punjab cases, some of these questions came to the fore. 94 By this time, the Court had clearly decided
that the Article 30(1) emphasis (right to educational institutions)
could not be whittled down to service just the narrow aims of Article 29(1) (right to language script and culture). This did not wholly
solve the medium of instruction, which had been obscured by earlier
decisions. In a surprising move, the Court recognized both the linguistic nature of Indian federalism 95 and the right of the State University to prescribe a regional medium of instruction subject to
prescribed Fundamental 6 Rights. Having gone so far, the Court
9
seemed to go no further.
The 'medium of instruction' issue required more rigorous reasoning. In a Punjab case,9 7 the Supreme Court accepted the broad
argument that various States could pursue stronger policies, with
State Universities insisting that colleges affiliated to them must
teach in a particular medium. However, in pleading for harmony,
the Court also stressed that such a medium could not be the exclusive medium of instruction, and deviant 'minority' institutions also
had the option of seeking affiliation elsewhere. 98 It also recognized
that religious minorities also had a right to their script and culture.
While it took the stronger line that "[n]o inconvenience or difficulties, administrative or financial, can justify the infringement of the
guaranteed rights," it dealt with the immediate issue with the same
unconvincing and incredulous interpretation that the section authorizing the circulars did not prescribe an exclusive medium of instruction in a particular script. 99
Although the Supreme Court has protected the rights of minorities against 'medium of instruction' policies, it has also been under
considerable pressure to recognize the importance of these policies.
Over the years, it has come to accept these pressures and approve
'medium of instruction' policies in principle, even though it has also
94. D.A.V. College, Jullundur v. State of Punjab, A.I.R. 1971 S.C. 1737.
95. Id., pr. 28 p. 1746.
96. This confirming ambivalance is characteristic of the Court's jurisprudence in
this area, supra n. 69.
97. D.A.V. College, Bhatinda v. State of Punjab, A.I.R. 1971 S.C. 1731.
98. Id., pr. 9 p. 1735, suggesting the possibility of affiliation with some out-ofstate University (pr. 11 p. 1735.) However, it was stressed that the State could not
impose a language as an exclusive medium of instruction on an unwilling minority
institution.
99. Id., pr. 11 p. 1735 (on the importance of linguistic rights); pr. 17 p. 1737.
236
[Vol. 35
protected minority institutions from the full impact of these policies.

Yet, an analysis of its decisions obscures the fact that many important questions have not been considered with the degree of exactness they deserve.
(b) The right of the State to 'regulate' the management and administration of educational institutions was placed before the Supreme
Court by the President when he invited the Supreme Court to give
an Advisory Opinion on the Kerala Education Bill, 1957.100 A Communist 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 1 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. 10 2 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. 10 3 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
1987]
lege awards and degrees be denied on an arbitrary basis. While the

actual decision favored the minorities, the exact contours of this autonomy were left undefined, as were the circumstances under which
recognition may be withheld. Only the dissenting opinion of Justice
Venkatarama Aiyar reflected awareness of the consequences of the
majority decision on the funding entitlement of minority institutions.10 4 Earlier, we indicated that the 'funding' provisions of the
Constitution contained both a weak and a strong version. Under the
strong version, the State must compete with linguistic and religious
minorities, providing alternatives only where inadequate competition is provided to minorities who have ample funding entitlements
(under Article 30(2)). Justice Venkatarama Aiyar adhered to the
weak view that the State could expand its education program, that it
did not have to examine minority alternatives when it does so, and
that there was a very limited right to funding in only some AngloIndian minority institutions by virtue of a provision in an Article0 5not
related to the Fundamental Rights chapter of the Constitution.
In subsequent decisions, the High Courts and the Supreme
Court struck down as unconstitutional provisions that simply had
appropriated the management of minority educational institutions
without just cause, or that imposed onerous admission policies. It
was more difficult not to give substance to a wider 'public benefit'
test to replace the narrower 'minority benefit' test, which had been
profiled for emphasis in the Gujaratcase (1963). Indeed, in the Kerala case (1970), Chief Justice Hidyayatullah seemed to argue for reg06
ulation for the 'public benefit' reason of maintaining standards.
For some, it was not just important to 'regulate' minority educational institutions, but also to 'assimilate' the whole system of Indian
education into a coherent whole.
(c) The idea that all educational institutions must be assimilated
into a system is implicit in the 'medium of instruction' cases. It also
lies at the root of the Punjab cases, where an attempt was made to
conditions of service of teachers and other staff; clause 20 on making primary education in all schools free; clause 14 (default power) and clause 15 (acquisition for educational reasons in the public interest) on regulating administrative and acquisition
powers; clause 33 on aspects of ouster of judicial remedies. The majority felt that cl.
8(3) and other clauses could not infringe upon those who had a constitutional right
to aid under art. 337. More generally, they felt that the default clause (cl. 15) and
free primary education as applied to new schools (cl. 20) were ultra vires (pr. 36 pp.
987-8). T.L.V. Ayyar, J. vigorously dissented on cl. 20 (prs. 37-40 pp. 988-9), the
States' duty to educate and the broad sweep of clauses 14 and 15 (see prs. 44-6 p.
992).
104. The main purpose of his dissent concerned whether the government could
insist that primary education be free in government and private schools.
106. State of Kerala v. Mother Provincial, A.I.R. 1970 S.C. 2079.
238
[Vol. 35
'assimilate' colleges of the Arya Samaj community within the

emerging system of tertiary education of the State of Punjab. In
these cases, the Supreme Court, while controlling the State in the
application of aspects of the 'medium of instruction' policy, seemed
to countenance the broad underlying objects of an assimilated system. In a sense, the Aligarh case (1969) spelled out some of the
broader implications of the policy of assimilation. 0 7 Aligarh Muslim
University was the product of long-standing Muslim initiatives going
back into the 19th century. These initiatives were finally given statutory recognition in 1920. After Independence, successive amendments to the 1920 statute sought to standardize the internal
administration and power structure by reducing the Muslim seats in
the University Court, and later by reducing the power of the Court.
Chief Justice Hidayatullah erred in deciding, against great evidence
(apparent, even, from his skeletal historical sketch) that Aligarh
Muslim University was not 'established' by Muslims simply because
private community initiatives had received recognition in a public
Act. While the decision turned on this absurd technicality, 0 8 the
judgment served as a warning that the Court favored the removal of
communal, religious, or group influences in the management of universities. Whether it would allow State intervention in respect of affiliated colleges came to be considered in the dramatic decision in
the Gujarat case (1974),109 in which six judges of a nine-Judge Full
Bench deliberated on the implications of the policy of assimilation in
the context of the wider scope of Indian secularism and the right to
equality.
If the object of the Supreme Court's exercise was to clarify the
law, its efforts belie that purpose. Although all the judges agree
that some aspects of the 'Cultural and Educational Rights' of St.
Xaviers College, Ahmedabad (i.e., provisions relating to appointments and removal of teachers and members of the governing board
and centralized teaching of undergraduate courses by the University) were violated, the judgment reflects disagreement over constitutional principles. Some judges argue that all the previous
decisions favored the minority, but ignore the fact that successive
cases consolidated the State's regulatory power over education. One
judge admits that the Gujarat case (1963) is at variance with the
Kerala opinion (1958). 11 Another judge correctly points out that
107. Azeez Basha v. Union of India, A.I.R. 1968 S.C. 662.
108. Id., pr. 23 p. 672, pr. 27 p. 673; This case has excited considerable comment;
Ghouse, "A Minority University and the Supreme Court," 10 J.I.L.I. 521 (1965).
109. St. Xaviers College v. State of Gujarat, A.I.R. 1974 S.C. 1389. For other cases
which demonstrate a continuing confusion, see Mark Netto v. Kerala A.I.R. 1979 S.C.
83; Lily Kurien v. Sri Levina A.I.R. 1979 S.C. 52; All Saints High School v. State of
A.P. A.I.R. 1980 S.C. 1042.
110. St. Xaviers Case, supra n. 109 at pr. 20 p. 1437 (per Mathew, J.).
1987]
previous decisions of the Supreme Court were "theoretically and

logically perhaps not quite consistent".1 1 1 The door was open for the
judges to manipulate previous precedent to serve their diverse aims.
Yet, as we shall see, there is also a broad level of agreement among
the judges about the regulatory power of the State in educational
matters.
The judgment addresses two broad levels of discussion. At the
level of high constitutional political theory, the Court is broadly divided between the assimilative secularists and pluralist secularists.
The assimilative secularists argue that education is important and
that a good education will "open doors of perception". In this analysis, minority control of educational institutions is a transitional
phase that will yield to the better administration of secular
governance.
The right to administer is to be tempered with regulatory
measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A
minority institution should shine in exemplary eclecticism
in the administration of the institution. The best compliment that can be paid to a minority institution is that it
112
does not rest on or proclaim its minority character.
The pluralist secularists argue that "whatever spiritual mission
of promoting [secularism] the government may have, it is conditioned by its primary duty of providing justice, respecting guaranteed rights, and ensuring equality of differences. 1 13 In the pluralist
secular vision:
The concept of a common pattern of secular education
needs to be brought down to the earth of reality and
divested of its fuzzy mystification. The concept has nothing
to do with an artificial government promoted levelling off
all differences. The public school is not a temple in which
all children are to be baptized into [the] unity of [a] secular
democratic faith while those who stand without are faintly
11 4
heretical.
In this pluralist vision of India's secular Constitution, there is
no scientific liberal enlightenment into which all Indians will be liberated from their irrational beliefs:
There is no mysticism in the secular character of the State.
Secularism is neither anti-government nor pro-government,
it treats alike the devout, the agnostic and the atheist. It
111.
112.
113.
114.
Id.,
Id.,
Id.,
Id.,
pr.
pr.
pr.
pr.
200 p. 1448 (Beg, J.).

30 p. 1398; pr. 40 p. 1399 (per Ray, C.J. and Palekar, J.).
148 p. 1436 (per Mathew, J.).
146-7 p. 1435 (per Mathew, J.).
240
[Vol. 35
eliminates God from the matters of the State and ensures

that no one should be discriminated against on the ground
of religion. The Constitution at the same time expressly
guarantees freedom of conscience and the right to freely
profess, practice and propagate religion. The Constitutionmakers were conscious of the deep attachment the vast
masses of our country had towards religion, the sway it had
on their minds and the significant role it played in their
115
lives.
The main reason why these divergent attitudes to secularism
did not result in divergent attitudes toward minority educational institutions was because the judges were agreed upon a general theory
of the regulatory state. Virtually all support the overall need for
regulation, no less for education than for other areas. With respect
to State control of minority institutions, the judges had five options:
(i)
give the State default power to interfere where there
was mismanagement;
(ii) allow the state limited police power to interfere for
morality and public order;
(iii) allow the state expanded police power to cover any
reasonable interference for the benefit of the
minority;
(iv) greater regulation of education for both the minority
and the public benefits; and
(v) greater regulation in the public benefit.
It is clear that the regulatory theory of all the judges emphasized levels (i) and (iii). Level (v) was further stressed by State socialists who argued that the State was the embodiment of public
benefit and aims to be given general powers under the broad empowerment principle of socio-political necessity. The rest of the
judges-whether assimilative or pluralist secularists-emphasize
level (iv). Despite concern about other levels, the public interest in
regulating education acquires unqualified centrality. This being the
case, the "minority benefit" emphasis came to be mechanically identified with non-interference in respect of the appointments of members of the governing board, the hiring and firing of teachers, the
admission of students, and financial management rather than on the
overall effect of government policy. Here, too, the Government was
permitted extensive regulation of the norms to be followed so long
as it did not (except in event of mismanagement) appoint its own
nominees to the board, compel quotas for admission, or make the
hiring and firing of teachers subject not just to industrial due pro115. Id., pr. 75 p. 1414.
1987]
cess but to external approval from a government official. What was

left for minority rights is limited management and financial
autonomy.
Ambiguity surrounds the fundamental issue of when and how
these institutions can be assimilated into the State system. But even
the pluralist secularists concede the need for regulatory assimilation
on a massive scale while arguing for the right to institutional recognition (i.e., the right to recognition of degrees, affiliation, or constituent status within designated universities), subject to a wider theory
of minority choice and the limited management autonomy described
earlier.
While there is no doubt that the courts have struggled greatly
with the interpretation of "Cultural and Educational Rights", two
views have been put forth. The first view has been to accept the imperatives of State regulation without conceding institutional autonomy. In this, the courts have assumed the generally pro-State stance
of denying very few powers to the State while quarrelling over the
details of exercise. The second view reflects a middle class attitude
about education. Education through private (usually minority) institutions remains the backbone of good middle class primary, secondary and, in some cases, tertiary, education. But the expanding
market economy of employment needs standards to supplement and
supplant a plethora of 'old boy' networks. Though distrust of the
State as a regulatory body abounds, judges, like their other middle
class counterparts, are not always too sure about giving too much
self-regulation in matters of education to private (including minority) institutions. This precipitates a conflict between their desire to
support minority educational institutions and a distrust of the latter's capacity for self-administration. This results in a curious and
not wholly explicable support for state regulation.
V.
PersonalLaws
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
242
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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.
Soon after the Constitution was promulgated, a large part of
Hindu law was codified, including laws relating to marriage, adoption, guardianship, maintenance and succession. 116 Although the
laws relating to the joint family remained uncodified, sections of the
Hindu Succession Act 1956 ensured that women not only held onto
property within their possession and control but could, in the future,
also inherit severable shares of joint family property on the death of
a coparcener. 117 Bigamy was abolished1 1 8 and various aspects of
family life reconstituted under the aegis of these statutory enactments. There is some disagreement whether the judges interpreted
the Hindu Code-as these statutes must inevitably be collectively referred to-in a neutral manner, from a secular standpoint or after
bearing in mind the invocation of the ancients.11 9 It is at least tolerably clear that when contemporary Indian judges season legal text
with interpretive bias, they rely more on social intuitions than on
classical learning in their interpretation of the Hindu Code, and
other 'personal laws'. 120 But whatever the position, the Hindu Code
gave strength and impetus to codification generally.
In this climate the impetus for codification was supported by a
collection of liberals, radicals, and orthodox communalists. The 'liberal' position espoused 'Nehruite' secularism, seeking to put all laws
on a new rational basis. Inspired by similar sentiments, but with a
more exacting commitment to prevent exploitation, a more immedi116. This was done through four statutes: Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1950; Hindu Majority and Guardianship Act, 1956; Hindu
Succession Act, 1956. For an analysis of the future of Hindu Law at the brink of this
change, see Derrett, Hindu Law: Past and Present (1957).
117. Section 6, Hindu Succession Act, 1956. See further, Gurpad v. Hirabhai
A.I.R. 1978 S.C. 1239.
118. Bigamy was finally abolished by the Hindu Marriage Act, 1955. A constitutional challenge on an earlier statute failed (State of Bombay v. Narasu Appa, A.I.R.
1952 Born. 85). For the unions case of the civil servant who was prevented from taking on a second wife because his application was being processed during the period of
statutory change, see Ram Prasad v. State of U.P., A.I.R. 1961 All. 33, and note the
strong emphasis on social reform.
119. For a very interesting review and analysis, see Derrett, Critique of Modern
Hindu Law (1970). Yet as the 'Code' progresses through courts, there is a tendency
to subordinate "Sastric learning" to home-made intuition and new social drives; see
Derrett, Death of MarriageLaw: An Epitaphfor the Rishis (1976).
120. See Derrett, "The Want of Legal History in the Supreme Court," 1 ML.J. 3945 (1971).
1987]
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,121 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. 122
If change was to be
achieved in this area, social acceptance would have to precede statutory fatwah.123 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.
244
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"conjugal greed". 124 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
126
of neglected wives and discarded divorcees", apply to Muslims?
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,128 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 ftwari 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.I.L.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).
1987]
exegetical preoccupations of later judges.

If the wife were divorced, would she be entitled to maintainance
under Islamic law during a short period of iddat?131 Could she still
claim maintenance under the Criminal Procedure Code? With these
questions answered affirmatively, the Supreme Court was called
upon to respond to a more difficult fact situation. What would happen if the husband paid the wife her dower (mahr-asum that the
husband agrees to pay as part of the marriage contract) at the time
of dissolution? 132 The Criminal Procedure Code required a magistrate to cancel his order of maintenance where the wife had been
paid "the whole of the sum due under any customary or personal
law applicable to the parties". 133 In the past, some Indian judges
made awards to the wife on the ground that the right to maintenance did not depend on the personal law. 34 In a sense, this meant
accepting the 'regulatory' power of the State where husbands defaulted on their obligations. The statutory provisions concerning
customary payments at the time of divorce, combined with fundamentalists' appeals to the constitutionally-guaranteed 'freedom of
religion', complicated matters. But even these complications could
have been dealt with in a dignified way that did not challenge the
integrity of any religion but simply questioned the individual actions
of some of its followers.
However, some judges came to see this issue in more dramatic
terms. Judges like Justice Gajendragadkar had supported pro-State
reform in their decisions and by the introduction of new juristic
techniques. The new reformist judges, led by Justice Krishna Iyer,
more directly espoused social and distributive justice in favor of the
disadvantaged. The eradication of poverty and injustice was prominently profiled as a judicial responsibility, and was increasingly writ
large over all judicial pronouncements. A powerful jurisprudence
that enlarged all legal issues into socio-political drama was created.
While this had the benign effect of sensitizing people to the social
131. See Shah Bano, id. at pr. 13 p. 950, but (pr. 14 p. 980) all these obligations
must be interpreted in "the entire conspectus of Muslim Personal Law".
132. This occupied center stage in Shah Bano, id., which gave a new interpretation to the relationship between mahr and maintenance.
133. Sec. 125(3), Criminal Procedure Code, 1898.
134. Supra n. 127; see further Ghulam Mohd. v. Noora Bibi (1971) Crim. L.J. 1628,
citing In re Luddam Sinha (1982) 8 Cal. 736 (right of maintenance does not depend
on personal law); Ranchoddas Narottamdas v. Emp., A.I.R. 1949 Born. 56; Ram Singh
v. State, A.I.R. 1963 All. 355; Mahabir v. Gita Rov (1962) 2 Cr. L.J. 52; Nalini Ranjan
v. Kiran Rani, A.I.R. 1965 Pat. 42; For two interesting Allahabad reactions see Oak J.
in Badruddin v. Aisha Begum (1957) A.L.J. 300 at 301 column 2 (having more than
one wife not a part of religion); Deoki Nandan, J. in Iqbal Ahmad Khan v. State of
U.P. (1980) Crim. L.J. 80 (All), on maintenance provisions being secular and
constitutional.
246
[Vol. 35
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,135 Fuzlumbi,136 and Shah Bano137-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. 139 That would have been enough to dispose of
the case. But Krishna Iyer had long been a proponent of Muslim
law reform. 140 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
14 1
[the legislation].
3
Fuzlumbi142 would have followed Bai Tahira14
except for judicial
indiscipline on the parts of the lower courts.'" Krishna Iyer continued his valiant attack, concluding that the institution of 'divorce'
(talaq) in Muslim law also needed judicial reform. 145 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 Born. 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.
1987)
swatantramarhati"said Manu, The law giver: the woman

does not deserve independence. And, it is alleged that the
'fatal point in Islam is the degradation of woman'. To the
Prophet is ascribed the statement that "woman was made
from a crooked rib; and if you try to147
bend it straight, it will
break; therefore, treat wives kindly.
Put in this form, the Court seems to stress an inherent sexism that
lies at the root of Indian society. This is undoubtedly the case.
However, these effulgent statements also precipitate one other important social and political effect. They constitute a powerful indictment of Muslim society, and impliedly have the effect of suggesting
that Muslims treat their wives badly. What was probably intended
as a description of some erring husbands came to be seen as an indictment of a whole community.
This is not what the judges intended. Shah Bano seeks to argue
that the 'secular' law of maintainance can, in fact, be based on two
important ayats (verses) of the Holy Quran.148 Going further than
Krishna Iyer, the Court also argued the controversial, even though
socially salutary, proposition that mahr is paid independently of divorce and, presumably, cannot be taken into account to reduce payments decreed under the Code. But the Court, not content with a
conclusion that was demonstrably consistent with the Shariat (the
personal law of the Muslims), reverted to its accusatory posture by
continuing to urge a uniform civil code and judicial activism, having
just demonstrated that the rules of the Shariat obviated the need for
change. And so, perhaps unwittingly, Shah Bano engendered two
controversies. The first centered around its interpretation of the
Shariat on the obligation of Muslim husbands to maintain divorced
wives (arguing that the Shariat was progressive and modern). The
second called for the reform of all personal laws (arguing that personal laws were unjust and invidious).
Shah Bano's case led to an over-reaction all around. Feminists
hailed it as a landmark decision even though all it had done was confirm normal practice to provide marginal relief. Fundamentalists
argued for its repeal. 149 Liberals stressed its consistency with the
147. Id., pr. 1 p. 946.
148. Id., pr. 15-20 pp. 951-52 on Ayats 240-41 of the Holy Koran, emphasizing that
there is a duty of maintenance towards divorced women. This elaborate reference

does not wholly cover the situation envisaged by Sec. 125, Criminal Procedure Code
1973 or deal with cases of constructive desertion by the husband and a myriad of
other social situations. Apprehensive husbands need to note that the 'secular' maintenance provisions in Sec. 125 means test the husband's ability to pay and the wife's
circumstances: see esp. Justice Khalid in Muhammed v. Sainabi (1976) K.L.T. 711 at
pr. 8 p. 713.
149. For an account of the controversy see India Today, 31 March 1986 (pp. 3037); 31 Jan. 1986) (pp. 90-105); also The Week 18-24 May 1986 (pp. 18-22). That Shah
248
[Vol. 35
Shariat. Religious leaders perceived a threat to their supremacy.

The government, in a quandary about the electoral consequence of
this controversy, sponsored a Muslim Bill which guaranteed the woman's maintenance by passing on the residuary responsibility for
maintaining divorcees to the latters' relatives and to the Boards of
Muslim religious endowments (waqfs).150 The Bill was probably the
worst solution of all. Husbands could divorce their wives with impunity, leaving society to pick up the tab. Fundamental issues about
resolving the relationship between men and women in a dignified
and respectable way seem to have been overlooked.
The passion excited by Shah Bano's case raises deeper constitutional dilemmas. The original constitutional arrangement safeguarding freedom of religion was potentially quite dangerous. A wideranging religious freedom was juxtaposed against an equally wideranging regulatory power of the State to control administrative, financial and other matters, as well as against an extended power to
promote social reform. When dealing with religious and educational
institutions, most judges followed the path of least resistance by allowing the State's regulatory power to take virtual control over
these institutions in a relatively unobtrusive way. Thus, many
powerful institutions came under governmental control after considerable constitutional litigation, but without too much public controversy. While believers would have rushed to protect these
institutions if the latter were directly under attack, they were less
concerned with intricate power struggles located in these secondary
institutional settings.
Shah Bano's case created constitutional controversy. It emphasized a new duty for the State to go beyond the need to regulate 'secular' aspects of religion and cosmetic social reform. This new duty
obliged the State to identify and eliminate the socially and economically exploitative aspects of India's many religions. The Constitution-makers had anticipated this demand and responded by
including the reform of two important aspects of Hinduism in the
Constitution itself. The first of these was the abolition of Untouchability, the second was the opening of Hindu temples to all believers. 151 The introduction of affirmative action for educational and
Bano's case and the controversy surrounding it should excite books is inevitable; see
Janak Raj Jai, Shah Bano (1986).
150. The Muslim (Protection of Rights) Divorce Act (No. 10) 1986.
151. For some temple entry cases, see Swami Hariharnand Saraswati v. Jailor I/C
District Jail, A.I.R. 1954 Allahabad 601; Vishwanath Temple, P.-S. Acharya v. State
of Madras, A.I.R. 1956 Mad. 541; Sri Krishan Temple Udipi and its very complicated
case history (pr. 23 p. 580); Venkataramana Devaru v. State of Mysore, A.I.R. 1958
S.C. 255 (Gowda Saraswats); State of Kerala v. Venkiteshwara Prabhu, A.I.R. 1961
Kerala 55; (Towda Saraswats); Yajnapurushdasji v. Muldas, supra n. 68
(Swaminarayans); Kalyan Das v. State of Tamil Nadu, A.I.R. 1973 Mad. 264 (Sri
1987]
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. 15 3
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. 54
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" 155 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.1 5 6 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.
1987]
complex past, group life in India is constantly being transformed,

with old groups acquiring new identities and transactional styles as
they compete with other equally complex groups for status and
power. This process of change is forced by changes in the political
economy, including the desire to advance India's capitalism in an
equitable and socialist direction.
Western observes have an over-enlarged image of India run by
'factions', just as many of India's 'secular' politicians and ideologists
combine apology and explanation to communicate false explanations
of socio-political behavior. Although India has no choice but to
maintain a fundamental unity (which is, in fact, forged by a myriad
of traditional and modern elements), such optimism invites disbelief
when there are glaring inconsistencies between secular rhetoric and
political practice. But this is not peculiar to India. Although Western observers are quick to point to rapid transformations in India's
political economy and to the adaptive genius of many of India's allegedly traditional groups, such discoveries have not intimidated
their tenaciously-held view of India as a static compartmental society that eventually resolves itself in terms of its traditional biases.
This fundamental misconception-convenient to the ideologists of
the Empire and their successors-prevents reconsideration of the
caste and 'curry power' image of India. It also prevents a proper
political and constitutional assessment of the role of religious groups
in a modern political economy.
The constitutional precautions against the religious domination
of politics and the political domination of religion is largely the
product of specific historical circumstances. Fashioning a distinction
between 'civil' and 'political' society, and building a 'wall of separation' between the state and some (i.e., religious) groups drew support from a new intelligentsia, which supported rationalism as an
ideological commitment for general consumption. 15 7 But this dealt
only with one species of groups perceived to be dangerous; other
powerful groups were either allowed political domination or were
checked, delegitimated or criminalized on the basis of the broad argument that the existence and activities of such groups were either
158
intrinsically or operationally not conducive to the public good.
Religious groups may have been worse off as a result of their prefer157. For a good example, see Nehru, An Autobiography 507-08 (1982).
158. Thus while the Constitution defends freedom of assembly (Art. 19(1)(b) and
association (Art. 19(1)(c), it is subject to public order, morality and the sovereignty
and integrity of India (Art. 19(3) and (4)). On this basis, the State has 'disciplined'
unions within a statutory framework, prevented some associational freedom to civil
servants (see Kameswar v. Bihar A.I.R. 1962 S.C. 1166), and put pressure on those it
has deemed or amplified as criminal (cf. State of Madras v. V.G. Row, A.I.R. 1952
S.C. 196 which resists the government doing this to its subjective satisfaction) or
Communist (Balakotiah v. Union, A.I.R. 1958 S.C. 232).
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[Vol. 35
ential treatment. A direct attack on their political integrity might

have produced strong reactions from believers and supporters. By
the State's earmarking religious groups for special attention, depoliticizing them and denying them crucial State support in various
areas, religious groups were placed at a social and political disadvantage. In return, they were granted only such civil rights (including
right to free speech and belief, collective identity, freedom from discrimination and the capacity to own property and set up institutions) which were granted to other civil groups. In a sense, religious
groups have struck back to obtain by civil and political methods precisely those gains that their constitutional segregation had denied
them.
These retrospective reflections should not be taken to countenance a plea for the political representation of religious minorities.
Such a course of action could lead to demands for the further fragmentation of India as a political entity. It certainly leads to a revision of Ambedkar's iconoclastic liberal view that the individual, and
not the group, was the basis of India's Constitution. The group is
not only an important feature of Indian secularism but contains the
capacity to assert itself in a multiplicity of social, political and legal
arenas. This should help us to refine our intuitions about the kind
of expectations we can have of Indian secularism. Earlier we made a
distinction between assimilative and pluralist secularism, with the
former seeking to destroy group identities and loyalties or reduce
them to a purely formal or functional significance. Taken to its logical conclusion, assimilative secularism would also de-reify modern
groupings, including trade unions and political parties, and would
ascribe a limited role and function to them. Yet the uniqueness of
Indian life has been its dual capacity to recognize the idiosyncratic
and colorful nature of individual existence while continually emphasizing the multiplicity of networks of relationships within which
such individual existence is defined. That some of these relationships entrap as well as liberate calls for a continuing social critique
and struggle on the part of those who may be entrapped. But it does
not require adherence to a ruthless policy of assimilation that could
threaten the very foundation of Indian life.
The precariousness of Indian secularism is a reflection of the
fact that it continues to accept the primacy of a range of civil groups
in society rather than to insist on the separation of the civil, political
and legal. This has resulted in a considerable lack of discipline in
public life. Rather than seeking to reduce the power of these
groups, successive governments have sought to regulate their existence. The higher judiciary has supported this process of regulation
of both Hindu and Muslim religious endowments, as well as of
Christian and other educational institutions. Although such regula-
1987]
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 SrirurMath 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
tutional compact between the State and religious and minority

groups. Made at a time when it was being split into several political
units, India made the pragmatic choice of promising protection and
fulfillment to people from a myriad of faiths and backgrounds. It
was faced with a choice between two political alternatives. The first
was to pursue the policy of the Raj, giving political and administrative representation to as many of these groupings as possible. Rejecting religion as a basis for political federalism, Independent India
gave partial recognition to regional and other identities in its geographical distribution of political power. Political power was also
given on a traditional basis to some disadvantaged and other community groups. To go further would have been as disastrous as it was
impossible. The second constitutional solution concerned the rights
of religious groups in civil society. The American solution had been
to give virtual autonomy to such religious groups (subject to a narrow police power), immunizing them from any kind of State control
or support. The Constitution-makers also rejected this solution.
The State was permitted to celebrate religion and enter into partnership with minority institutions over the education of the Indian
people as long as it did not act in a discriminatory way. The autonomy of religious groups was respected, subject to various regulatory
controls and programs of social reform. Imbued with common sense
as well as a sense of political reality, this vision was infinitely more
complex and more difficult to give shape to than the more absolutist
categories of American secularism. It is on the basis of this understanding that various social, religious and minority groups willingly
relinquished political power and influence and agreed to participate
in a new constitutional compact. Freedom of religion and the rights
of minorities were not intended to be transitional in nature, in the
expectation that they would disappear as traditional India gave way
to a new modernism. The object of this constitutional compact was
not to assimilate all Indians into a new kind of secular and scientific
socialism. Rather, it was to protect the infinite variety and strength
of group life so long as India's essential unity was not threatened
and group life was not organized to permit or sustain the exploitation of any particular citizen or group. It is important that India's
rulers-no less its judges than any others-understand these unique
features of India's experiment with secular democracy.

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Citation: 35 Am. J. Comp. L. 209 1987

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Religious Freedom in India

THE AMERICAN JOURNAL OF COMPARATIVE LAW

Although attractive on paper, the theory collapses in real life.

DHAVAN: RELIGIOUS FREEDOM IN INDIA

larism did not extend to the 'personal laws' of various communities

THE AMERICAN JOURNAL OF COMPARATIVE LAW

Although India's Constitution borrowed greatly from the U.S.

DHAVAN: RELIGIOUS FREEDOM IN INDIA

indulge the intellectual excess of wholly disentangling the State

THE AMERICAN JOURNAL OF COMPARATIVE LAW

DHAVAN: RELIGIOUS FREEDOM IN INDIA

minority groups need not only to be assuaged but uncompromisingly

THE AMERICAN JOURNAL OF COMPARATIVE LAW

DHAVAN: RELIGIOUS FREEDOM IN INDIA

The careful deliberations in the Constituent Assembly left too

THE AMERICAN JOURNAL OF COMPARATIVE LAW

of British India were replete with examples of such social disputes

DHAVAN: RELIGIOUS FREEDOM IN INDIA

of determining the extent of any specific legal right without delving

THE AMERICAN JOURNAL OF COMPARATIVE LAW

siderable political complexity when proponents of agrarian reform

'essential' to that religion. 42 To restore some objectivity into this

DHAVAN: RELIGIOUS FREEDOM IN INDIA

THE AMERICAN JOURNAL OF COMPARATIVE LAW

promises through judicial pronouncements. For example, faced with

a secular way of remembering Bhagwan Mahavir is de-

vised by the government to suit all people irrespective of

If this rationale is extended, it is surely not unconstitutional for

was explained by interveners, but regarding the Muslim position the

DHAVAN: RELIGIOUS FREEDOM IN INDIA

But, if the petitioners had requested the Court to hear their

are no indicators as to what kind of evidence should be considered

THE AMERICAN JOURNAL OF COMPARATIVE LAW

throwing open Hindu temples to all 'classes of people'. But the

DHAVAN: RELIGIOUS FREEDOM IN INDIA

THE AMERICAN JOURNAL OF COMPARATIVE LAW

in respect of seven enumerated freedoms in Article 19), and eminent

DHAVAN: RELIGIOUS FREEDOM IN INDIA

THE AMERICAN JOURNAL OF COMPARATIVE LAW

DHAVAN: RELIGIOUS FREEDOM IN INDIA

right to propagate religion, various States enacted legislation, based

THE AMERICAN JOURNAL OF COMPARATIVE LAW

DHAVAN: RELIGIOUS FREEDOM IN INDIA

judges continue to exude sympathy for preserving religious freedom.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

not to discriminate among competing private institutions but also

DHAVAN: RELIGIOUS FREEDOM IN INDIA

THE AMERICAN JOURNAL OF COMPARATIVE LAW

DHAVAN: RELIGIOUS FREEDOM IN INDIA

about the right to educational institutions as they were about the

THE AMERICAN JOURNAL OF COMPARATIVE LAW

protected minority institutions from the full impact of these policies.

DHAVAN: RELIGIOUS FREEDOM IN INDIA

lege awards and degrees be denied on an arbitrary basis. While the

THE AMERICAN JOURNAL OF COMPARATIVE LAW

'assimilate' colleges of the Arya Samaj community within the

DHAVAN: RELIGIOUS FREEDOM IN INDIA

previous decisions of the Supreme Court were "theoretically and

200 p. 1448 (Beg, J.).