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Religion and Equality in Liberal Constitutionalism

Liberal Constitutionalism has been a driving force in modern time theorizing justice and democracy. Liberal Constitutionalism suggests that justice and democracy can be intertwined into a cohesive political order. But, one may ask is it possible? According to Liberal Constitutionalism, it certainly is. Firstly, Liberal Constitutionalism is defined by a political order which is based on a Constitution outlining the framework of a political system characterized by the bundle of civil and political rights derived from the principle of justice. Secondly, it regards individual as sovereign in them and democracy in a political framework.

The marriage of justice based on pre-political rights in tandem with the idea of democracy where people are fully sovereign seems contradictory and untenable. This leads to a dichotomy in Liberal Constitutionalism due to the polar principles it seeks to amalgamate. The tension between justice and democracy questions the theory of Liberal Constitutionalism to choose justice over democracy or democracy over justice. Justice requires pre-political rights outside the reach of democracy which undermines the sovereignty of individual and on other hand democracy excludes pre-political rights which undermine liberal justice. This tension interplays in each and every aspect of the political system.[1]

This tension is most profound in freedom of religion and equality. One of the major reasons why religion poses a threat to equality is the former's tendency of claiming itself rightful enough to possess benefits and subsidies. The conflict intensifies because of the plurality of minority groups which flares the disparity of polar principles of equality and religion. Due to religious pluralism, there are abound differences across the world and is a threat to the concept of equality which is recognized and respected.The Indian Constitution though framed in 1951 is regarded as a progressive document. The preamble to the Constitution guarantees ‘justice-social, economic and political'. Article 14guarantees equality to all individuals before the law and equal protection of the law. Article 15states that the State shall not discriminate amongst any citizen on the ground of religion, caste, sex or place of birth. Article 25states that individuals are free to profess any religion of their choice. Liberal Constitutions, in essence, are ‘secular' and our Constitution is no exclusion. The idea of secularism is varied from the prevalent ones in the United States, United Kingdom, and France which contemplates complete demarcation of State and religion whereas our Constitution contemplates that State shall work for the equal promotion of all religion. Secularism is defined aptly by Justice Chinnappa Reddy as "Indian Constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity…."[2]

Secularism mandates that State has no religion of its own and the right to citizenship is not restricted by adherence to any particular religion or State prescribed religion in a Liberal Constitution around the world. But, all Liberal Constitutional democracies prescribe restriction on what activities may be regulated by States, includingof coursereligious activity which a State may enforce as its own. The plurality of religious groups demands State inactivity in matters of religion. But, there is bound to be conflict as the political system culminates favoring one over the other thereby violating the mandate of Article 14 & 15. The Liberal Constitution mandates that canons of equality and freedom or justice and democracy be followed. In this light, we shall look into some instances of divergence in the basic principles of our Constitution.

One of the early proponents of Liberal Constitutionalism, John Rawls while outlining his idea for political liberalism propounded the ‘reasonable comprehensive doctrine'. He explained the doctrine as reasonable persons are not moved by general good as such but desires for its own sake a social world in which they, as free and equal can cooperate with others on terms. He insisted on reciprocity which should exist so that each can benefit from others. By contrast, individuals are unreasonable when they seek fulfillment of their desires but fail to cooperate with others in their rights. The liberal State need not, according to his view, accommodate those that are unreasonable and are not prepared to respect the rules of society that determine the basis upon which we co-operate.[3]

In United States of America, Nelson Tebbe [4]pointed out the conflicting nature of religious traditionalists after the apex court affirmed the legal right of same-sex couples to marry and promoted the advancement of LGBTQ rights. He stated that "Expansion of equality law has contributed to a sense among some religious traditionalists that there has been an inversion. They feel they are now the minorities who require protection from an overweening liberal orthodoxy".[5]But as religious traditionalists do not affirm equality to individuals; in view of John Rawls the State should not accord protection and freedom to such associations.

Beef Ban

To highlight the dichotomy between religion and equality one analogy that can be drawn is ‘beef ban'.Article 48[6]remains one of the most contentious provisions in present times due to its interpretation to impose the draconian ban. If one was to trace the root of Article 48 in the Constituent AssemblyDebates, one finds there were certain reservations on the inclusion of such a provision in the Constitution. Dr. BR Ambedkar, the architect of the Constitution was reticence and the provision found back door entry in Part IV which isDirective Principle of State Policy.Despite it not being a fundamental right, the article has superseded fundamental rights as seen from various decisions. The Hon'ble Supreme Court inHanif Qureshiv.State of West Bengal[7]held that an effective total ban on cow and its progeny is valid but a with regard to other milch animal such as she-buffalo, bull,bullocks who have ceased to be draught or milch is invalid. Further,InState of Gujaratv.Mirzapur Moti Kureshi Kassab Jamat[8], the Hon'ble Supreme Court held that total ban on cow slaughter is valid as cow never becomes useless. In my opinion, the logic behind such reasoning is flawed. Many critics have termed it as State policing in matters of food choices which is a violation of Article 21. Nevertheless, 24 States in our country have banned beef.[9]

Women Rights

Though we advocate egalitarianism, but it is hardly implemented to several religious conflicts. In certain instances, the State unshackles inequality with its authoritative power that hinders equality but in other instance, it fails to do so. One such example is the apex court's judgement on Triple Talaq. In Shayara Bano v. Union of India[10], the Supreme Court declared the practice ofTalaq-e-Biddat[11]as an unessential religious practice which is against the basic tenements of Quran. Through this, the Supreme Court aimed to protect women from any discrimination by the archaic and unfounded practice but it lacks measure to fully promote equality for women. For instance, even though Quran permits the women to choose Khula, but delegates excessive powers in the hands of spouse which promotes inequality. According to clerics, women can chose Khulabut this procedure requires consent of her husband and if it is only affirmed by her husband, the marriage can be annulled by a Maulvi. Thus, what we observe from such a practice is that the religious association promotes inequality for females whereas excessive powers are vested in their counterparts. This particularly goes against their pre-political rights and liberal justice.

Also, the women's right of entry to religious places during menstruation is denied in almost all the religions. Hindu women are not are not allowed to enter the temple during menses. The Sabarimala Ayyappa temple conditioned the entry of women only if detectors are installed at the entrance to check if a woman is menstruating to curb it.[12]Not only is it a violation of human rights but also threat to privacy. Further, in Muslim women are not allowed to pray when they're bleeding. They are not only denied entry but are discriminated from becoming a religious head. In the Abrahamic religions (Christianity, Judaism and Islam), a woman is not allowed to become a religious head which makes them a minority among minority. Any religious association which acts discriminatory fail to honour diversity should not be allowed to claim any protection unless they co-operate and honour others right in a liberal system.

Hajj Subsidy

Furthermore, Article 27 of the Constitution expressly restricts the State from collecting tax for purpose of promoting or maintaining expense of any particular religion or its denomination. However, our government provides subsidy to different religion for various reasons. InPrafull Goradiav.Union of India[13], the Supreme Court dealt with the question if the Government violates Article 27 while granting fund for religious subsidies from taxpayers' money. The court observed that "in our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose 25 percent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, which, in our opinion, would be violative of Article 27 of the Constitution".[14]

In 2012, the constitutionality of Hajj subsidy provided by the Government was called in question inUnion of Indiav.Rafique Shaikh Bhikan[15]. Justice Alam stated "we also take note of the fact that the grant of the subsidy has been found to be constitutionally valid by this court. We are not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of State funds and State resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with."[16]The Supreme Court while interpreting the case found out the number registration for Private Tour Operators (PTO) has increased in recent years and predicted that in coming years that such subsidy can be burden to the State fund.[17]The Government decided such fund shall be slowly shifted from Hajj subsidy to promotion of education. But, now the question arises why only Hajj subsidy was compromised among all. As per Article 290A, the State of Kerala provides Rs. 46.5 lacs annually to Travan core Devaswom Fund; Tamil Nadu provides Rs. 13.5 lacs to the Devas wom fund for maintenance of Hindu Temples. The Centre and the Uttar Pradesh Government also spent Rs. 1,150 crore and Rs. 11 crore respectively on the Allahabad Kumbh[18][19][20]. Having examined all of these, now if you ask a question to yourself- Does not these subsidies possess similar features for which the Government decided to stop funding for Hajj pilgrims? Why cannot be these subsidies be exchanged for other purposes like education and other allied sectors?

Uniform Civil Code

Another issue is with regard to the introduction of ‘Uniform Civil Code' (UCC). Article 44 of our Constitution obligates the State to endeavour to bring in a political climate that would be conducive to enacting the code. After several decades and umpteen failed attempts in fulfilling the directive policy, the radical liberals question it on the ground of religious freedom. Due to religious pluralism, there exists a conflict between different religions. On determining such cases, the Supreme Court has in several instances expressed its concern with regard to upholding of article 44. The apex court observed that"there is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their persona law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies"[21]. In another case, the apex court stated "When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India."[22]

Now, let's look into the changes that will take place after the enactment of Uniform Civil Code. Firstly, it would lead to abolishment of Hindu undivided family institution which entitles them for certain tax benefits. Secondly, the provisions of Indian Succession Act applicable to Christians and Parsis with respect to egalitarian and gender justice would be applicable to all with certain amendments. Thirdly, the law regarding testamentary succession for disposal of property to outsiders shall be changed (which exist in Muslim law) and such unbridled power shall be made limited (one third only), thus leading the disposal of property to the legal heirs only. Fourthly, there will be balance made between the marriage law of Hindu (who considers it as sacramental) and Muslim (who considers it as a contract). Apart from these, there exist issues like polygamy, maintenance, laws on domestic violence etc.[23]If these changes are incorporated and at last we have Uniform Civil Code, wouldn't it be violative of the freedom to practice and profess religion. Respect for diversity is the key reason underlying the protection to freedom of religion and the government by implementing Uniform Civil Code would violate the principle of secularism which forms part of the basic structure doctrine as laid down in S.R. Bommai v. Union of India[24]. Article 44 is to be re-thought in light of the basic structure doctrine.

Conclusion
The theory of Liberal Constitutionalism finds itself fraught with the polar principles of freedom and justice. Tension arises between freedom of religion and equality which finds the political system trapped in such a situation where it has to choose one over the other. Thus, where the judiciary is approached to strike a balance, it should give regard to the principles of reciprocity, protection of diversity, avoiding harms and balance the religious freedom with the overall constitutional scheme. Also, the State's religiously guided action be taken into strict scrutiny to protect the democratic fabric of the society for the promotion of harmony and peace.

End-Notes
[1]Andrew Heywoods – "Political Ideologies: An Introduction", (5thEdition) Palgrave Macmillan 2015, Page: 39
[2] Prof K Nageshwar – " Constitutional Perspective of Secularism" Dated: Aug 13, 2016, Website:http://www.thehansindia.com/posts/index/Editors-Desk/2016-08-13/Constitutional-Perspective-on-Secularism/248263. Last accessed on: March 10, 2018
[3]John Rawls. Published: March 25, 2008. Website:https://plato.stanford.edu/entries/rawls/. Last accessed on: March 8, 2018
[4]Nelson Tebbe is a Brooklyn Law Professor, who previously worked for the ACLU, author of the Book - "Religious Freedom in an Egalitarian Age"
[5]Nelson Tebbe - "Religious Freedom in an Egalitarian Age". Harvard University Press
Website:http://religionandpolitics.org/2017/03/28/the-clash-between-religious-freedom-and-equality-law/
Last accessed on March 8, 2018.
[6]Article 48 states that‘the State shall endeavour to organize agriculture and animal husbandry……. and in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle'.
[7]1959 SCR 629 : AIR 1958 SC 731
[8]AIR 1998 Guj 220, (1999) 3 GLR 2007
[9]Kumar Uttam – "Cattle Slaughter Ban", Hindustan Times, Date: June 1, 2017, Website:https://www.hindustantimes.com/india-news/cattle-slaughter-ban-5-reasons-why-the-beef-ban-controversy-is-good-for-bjp/story-lH6TqOyH2FI2Bj8nQB8nLO.html. Last accessed on: March 6, 2018.
[10](2017) 9 SCC 1
[11]Triple Talaqis instant, irrevocable, unilateral divorce by husband by formula of pronouncing divorce three times.
[12]Krishnadas Rajgopal –"Do you have a constitutional right to prevent women's entryat Sabarimala? SC to Devaswom",Date:September 11, 2016. Website:http://www.thehindu.com/news/national/Do-you-have-a-constitutional-right-to-prevent-womens-entry-at-Sabarimala-SC-to-Devaswom/article13995792.eceLast accessed on: March 9, 2018.
[13](2011) 2 SCC 568
[14]Prafull Goradia v The Union of India, (2011) 2 SCC 569, para 6
[15](2012) 12 SCC 459
[16]Union of India v Rafique Shaikh Bhikan, (2012) 12 SCC 459, para 38
[17]Union of India v Rafique Shaikh Bhikan, (2012) 12 SCC 459, para 8
[18]See alsoexpenditure of States like Kerala, Tamil Nadu, Chhattisgarh, Delhi, Karnataka, Madhya Pradesh and Uttarakhand.
[19]Faizan Mustafa - "Cancelling Haj Subsidy Is a Good Step, Now the Government Should Stop Spending on All Religions", dated: January 17, 2018, website:https://thewire.in/214770/haj-subsidy-government-spending-on-religion/Last accessed on March 7, 2018
[20] Ipshita Chakravarty - "Apart from the Haj, India subsidises a range of pilgrimages – most of them Hindu", dated: Jan 14, 2017, Website:https://scroll.in/article/826656/apart-from-the-haj-india-subsidises-a-range-of-pilgrimages-most-of-them-hinduLast accessed on March 8, 2018
[21]Mohd. Ahmed Khan v Shah Bano Begum and Ors., (1985) 2 SCC 556, para 36
[22]Kuldeep J's judgment inSmt. Sarla Mudgal & Ors vs. Union of India & Ors, (1995) 3 SCC 635
[23]Flavia Agnes - "The Modi Government's Hindutva Ideology Could Stall Any Progress on the Uniform Civil Code",dated: July 7, 2016, website:https://thewire.in/49580/bjp-uniform-civil-code/, Last accessed on: March 9, 2018
[24]Supra7

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