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.
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
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, including of course religious 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.
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
In United States of America, Nelson Tebbe 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.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.
To highlight the dichotomy between religion and equality one analogy that can be
drawn is beef ban'.Article 48remains 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 Assembly Debates, 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 is Directive Principle of State Policy. Despite it not being a fundamental
right, the article has superseded fundamental rights as seen from various
The Hon'ble Supreme Court in Hanif Qureshi v/s State of West
Bengalheld 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,In State of Gujarat v/s Mirzapur
Moti Kureshi Kassab Jamat, 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.
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
Bano v. Union of India, the Supreme Court declared the practice
ofTalaq-e-Biddatas 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.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.
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. In Prafull Goradiav.Union of
India, 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
In 2012, the constitutionality of Hajj subsidy provided by the Government was
called in question inUnion of Indiav.Rafique Shaikh Bhikan. 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.
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.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. 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
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.
common Civil Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. 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.
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
- 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
Apart from these, there exist
issues like polygamy, maintenance, laws on domestic violence etc.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
Bommai v. Union of India. Article 44 is to be re-thought in light of the
basic structure doctrine.
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.
- Andrew Heywoods Political Ideologies: An Introduction, (5thEdition) Palgrave Macmillan 2015, Page: 39
- 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
- John Rawls. Published: March 25, 2008. Website:https://plato.stanford.edu/entries/rawls/.
Last accessed on: March 8, 2018
- Nelson Tebbe is a Brooklyn Law Professor, who previously worked for the
ACLU, author of the Book - Religious Freedom in an Egalitarian Age
- 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.
- 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.
- 1959 SCR 629 : AIR 1958 SC 731
- AIR 1998 Guj 220, (1999) 3 GLR 2007
- 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.
- (2017) 9 SCC 1
- Triple Talaq is instant, irrevocable, unilateral divorce by husband by
formula of pronouncing divorce three times.
- Krishnadas Rajgopal Do you have a constitutional right to prevent
women's entryat Sabarimala? SC to Devaswom,Date:September 11, 2016.
accessed on: March 9, 2018.
- (2011) 2 SCC 568
- Prafull Goradia v The Union of India, (2011) 2 SCC 569, para 6
- (2012) 12 SCC 459
- Union of India v Rafique Shaikh Bhikan, (2012) 12 SCC 459, para 38
- Union of India v Rafique Shaikh Bhikan, (2012) 12 SCC 459, para 8
- See also expenditure of States like Kerala, Tamil Nadu, Chhattisgarh,
Delhi, Karnataka, Madhya Pradesh and Uttarakhand.
- 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
- 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
- Mohd. Ahmed Khan v Shah Bano Begum and Ors., (1985) 2 SCC 556, para 36
- Kuldeep J's judgment inSmt. Sarla Mudgal & Ors vs. Union of India & Ors,
(1995) 3 SCC 635
- 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
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