Summary: In this piece, we continue the discussion on Dr Data’s paper, the summary of which can be accessed here. In this response, Prof. Mathew John critically engages with Darshan Datar’s paper on the Indian Supreme Court’s jurisprudence on religion, exploring the tension between expansive definitional approaches to religion and their selective constitutional protection, while inviting deeper reflection on the political and doctrinal stakes of this judicial disjuncture.
In his thought provoking paper Darshan Datar explores the manner in which constitutional adjudication in India has demarcated religious freedom and the State’s commitment to neutrality or even handedness towards forms of religious practice. Datar’s core argument is organised around what is termed the concept of religion across these distinct doctrinal forays into religious freedom and equal treatment of religions. In particular he argues and demonstrates that a broad conception of religion in the treatment of religious freedom stands juxtaposed with a much narrowed conception of religion when deciding questions of state obligation towards equal treatment, neutrality, or disestablishment.
The Free Exercise Problem
Since the thrust of the paper seeks to demonstrate the distinction between the ‘concept of religion’ as it takes shape across free exercise provisions and the disestablishment provisions, my response will also be organised around the examination of these illustrative claims. In addition, this response will also consider what might be at stake examining the disjunctions in understanding religion that the paper brings to our attention.
The paper starts with the problem of defining religion by noting that under inclusive definitions often run the risk of leaving out certain types of religions that do not answer to standard definitions. Equally over-inclusive definitions run the risk of limiting the state’s power to regulate and intervene in matters of religion. Taking this cautionary advice to the doctrinal interpretation of Articles 25 and 26 of the Indian Constitution, the author seems to suggest that the courts conduct a three stage test to demarcate religious freedom elaborated in these provisions. That is, the courts first examine whether the belief or practice before it fits within a conception of religion; second, whether this conception of religion is a fit case for constitutional protection; finally, whether the belief or practice must be subject to limitations in Articles 25 and 26 such as public order, morality, health and so on.
Based on this three step account, Datar concludes that Indian Constitutional adjudication recognises a broad conception of religion. However, assuming that this is the form in which religion is best understood, the author also makes the puzzling claim that this broad conception of religion is not necessarily defended or protected by the court. As the author rightly points out in cases like Yagnapurushdasji or Shayara Bano, the court may indeed follow this three staged process of demarcating the scope of religious freedom. However, as the scholarship has pointed out in an overwhelmingly large number of cases, the courts have not been inclined to grant protection to the assertions of the community on the nature of their religion. Thus for example, the claims of the Satsangis that they are a separate denomination, the claims of the Khadims of Ajmer to specific offerings made at the Dargah by devotees, the claims of the Anand Margis that dancing with skeletons and the trishul was part of their religious tradition and numerous other such similar claims by religious denominations were all shot down by the Indian Supreme Court.
It may well be, as the author says, that the Supreme Court’s definition of religion through this three step test is aware of ‘the difference between a definitional filter and a filter based on the scope of protection given to religious beliefs, practices, or symbols.’ However, if it is true that the filter of actual protection granted to religious beliefs and practices is considerably narrower than the definition of religion, then why should it matter that religion is defined broadly? How exactly does Datar make salient what is at stake in the court’s distinction between definition and evaluation of what is worthy of constitutional protection? This is a question that one feels the author could have picked up and addressed a little more closely than he has.
Consider for instance the following quote that Datar draws from the Yagnapurushdasji case:
“saints and religious reformers attempted to remove from the Hindu thought elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founder Jainism; Basava became the founder of Lingayat religion, Dhyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic forms. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views: but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.”
This may be a broad conception of religion but it is an express repudiation of the claims that the mainstream of the satsangi tradition were making in court that they ought be treated as a sui generis denomination and not a denomination within the Hindu religion. Therefore, across the first two steps of judicial scrutiny religion is being sociologically rendered legible to the law and, it is only at the third step that questions on whether religion so defined across the previous steps ought to be subject to constitutional restrictions like public order morality and so on are considered. What then are the implications of this broad definition of religion in step one as Datar outlines it? In particular, how does it bear on the narrow conception of religion that is finally demarcated and recognised in step two by the court (and seemingly still at a definitional stage of its enquiry)?
Like with all matters constitutional, an easy place to start would be the domain of politics. In the Constituent Assembly for instance, there was a concern that far too much of much of Indian social and cultural life was religious and therefore needed to be subjected to the regulatory oversight of the state which then crystallised as Article 25(2) of the Constitution which permitted the state to regulate secular aspects of religious practice as also intervene in matters of social reform. But this raises further questions about whether courts are being directed by the reformatory provisions of the constitution when reducing their broad definitions of religions to a narrower conception of religion that is deemed worthy of protection. And even if that were the case, is this significant reduction of the definitional ambit of a religion by judicial fiat or pronouncement permitted by the scheme of Articles 25 and 26? Datar of course could push further exploration of his intuitions in these and other directions, but since he has not in this paper, perhaps this conversation is an opportunity to invite him in his response to consider some of these possibilities.
Establishment Clause issues
Shifting attention to the state’s interest in intervening in religion through some version of establishment clauses regulating religion, Datar details the manner in which the Indian Constitution might be understood to present provisions that feature non-establishment. Drawing on provisions like Articles 27 and 28, the preamble which emphasises the secular character of the Constitution, and also statutes like the Representation of Peoples Act, 1951 and the Places of Worship Act, 1991 he presents the Constitution as having a recognisable conception of the disposition to maintain a secular state that does not establish religion and is not entangled in religious practice.
This secularism however, is defined by a very narrow conception of religion which is outlined in the paper through the idea of inculturation. That is, the paper claims that judges reduce religion to an aspect of culture which narrows the scope of religion and as a consequence renders a considerable amount of potentially religious activity beyond the pale of secular state regulation. Inculturation has two strategies – one which argues that the Indian disposition to tolerate and to be secular is born of its Hindu culture and second, to argue that Hinduism is not a religion but a way of life. Thus whether it be the Aruna Roy case or the Hindutva cases, inculturation seems to exclude much that is religious from the domain of religion when deciding how the state ought to approach major policy issues such as education, election campaigning, inter-religious harmony and so on. As a result, the narrowing of religion results in Hindu practice being reinforced and even supported by the Indian state’s efforts to defend its conception of a secular state.
The narrowing of the idea of religion to exclude significant aspects of religious experience from the scrutiny and control of secular public policy concerns is an important finding of Datar’s paper but we are left unsure of what to make of this claim. In turn this raises a few questions – Should religion be treated in a similar fashion across the free exercise provisions and the establishment provisions of the Indian Constitution? What does this difference in approach to religion across these classes of provisions tell us about the manner in which religion finds itself as an object of constitutional state practice, intervention and regulation? It would be wonderful if Datar could address these kinds of questions and bring the two parts of his paper into a more engaged conversation; perhaps he will do so in his response in this blog and that might be a note on which to draw this comment to a conclusion
Alternative Judicial Visions of Religion
Thus to conclude, in pointing readers to the disjunction between the free exercise accounts of religion and the establishment clause related accounts of religion, Datar points to different visions for the regulation of religious practice. If I were to take suggestions from Datar and bring in some of my own intuitions, the broad definition of religion subjected to a very different filter of protection in free exercise clauses could point to a concern for the need to reform the overwhelming force of religion in Indian social and political life. On the other hand the attempt to narrow religion and especially the Hindu religion through inculturation stems from a nationalism that has explicitly and implicitly sought to deepen the imprint of a nationalist Hindu conception of India in Indian public life and its institutional practice. These are both dispositions that have inflected Indian constitutional adjudication. But this is a political reading of doctrinal practice. Perhaps Datar does not want to steer readers toward such an overtly political reading of his material. His mention of the Sabarimala case in relation to the different inflections of religion in judicial practice could have a bearing on how courts view that case when it comes up for review. However, this is work that remains undone in Datar’s important paper. Even if my suggestions may not find room in a revised version of Datar’s paper that is the provocation for our conversation, I hope this blog exchange could begin a conversation in that direction.
Dr. Mathew John is faculty at the School of Law, BML Munjal University.
[Ed Note: This piece was edited by Saranya Ravindran and Thejalakshmi Anil. It was published by Baibhav Mishra]