Religious Liberty, Secularism and 'Constitutional Morality'

The concept of secularism with the backing of the constitution has curbed the freedom of religious institutions by interfering constantly.

Religious Liberty, Secularism and 'Constitutional Morality'

The Indian Constitution is quite a labourious work to comprehend. It has 395 Articles in 22 parts, along with 12 schedules. It is the world’s longest written Constitution, & that is merely the text of the Constitution. Considering the amount of case-law that has been produced on the Constitution over the course of the last 70 odd years, fully comprehending it is a massive task that whole lifetimes can be devoted up on. It is in the truest sense, ‘A lawyer’s document’. Many of the articles have been read down, changed and altered by the Constitutional Courts over the years. Much of this is due to the idea that the Constitution is a ‘living breathing document’ that can be fitted unto the social reality of the times, but also due to the Judiciary’s tendency to read into the document what in its opinion is the best outcome possible.

There is also this persistent idea of ‘Constitutional Morality’ that seems to dominate the theme of many an intellectual while dealing with religion in public affairs. The author has written about this before, in an article dealing with Triple Talaq apologia titled “The case against ‘the case against abolitionists‘”:

Back to the article:

‘The point is “religion and the Constitution” and not “religion versus the Constitution,’ the author argues, taking on PB Mehta’s notion which he had expressed in his Indian Express article. I broadly agree with the idea that religion and constitution must be read in a complimentary fashion and not in the adversarial method of “religion versus constitution” that Mehta proposes. But to read the constitution and religion in a complimentary fashion is only possible to a said limit, not to the extent that Ms. Rajkotia proposes. When the religion and constitution is in conflict, what will one do?’

It is quite clear that Mr. Mehta is somewhat of a constitutional absolutist. He wants religion to be replaced by this ‘constitutional morality’ in the minds of citizens. That is why he argues that the state should positively intervene to secure ‘individual liberty and equality’:

“Few articulations of secularism are directly concerned with the value of individual liberty. Those who advocate the disentanglement of the state from religion as far as is possible are clearly motivated by a concern for freedom. They believe, rightly, that the coercive power of the state should not be used to advance the cause of any religion; that such use of coercive power violates fundamental freedoms because it forces adherents of other religions to go along with practices that they have, given their beliefs, no reason to go along with.

But mere disentanglement cannot avoid the thorny problem that historically religious communities can (and do) exercise coercive power over its members as well. These communities can deny their members basic freedom and equality and the state will have to massively intervene in ‘religious’ practices to ensure that freedom and equality are enjoyed by all individuals. Principled distance is never an option for any state interested in securing the rights of its citizens, sometimes against the traditions of particular religious communities. The principled distance metaphor is misleading in so far as it suggests that the state can lay its hands off religion. But the state should be principled all right. It is justified intervening only in so far as these interventions secure the conditions of individual liberty and equality.”

He, and many others imagine the constitution as a revolutionary organ that is supposed to transform society and culture in the country, by intervening in religious affairs to ‘secure individual liberty and equality’. The is of course not what a secular state should do. That is not what a state that supports religious freedom should do. The state’s duty is to keep to itself in the matter of religion, and the duty of the religious institution is to keep to itself, if a state claims to be secular. The fundamental idea of religious freedom, has been, and always will be that the practices and beliefs of the religion would be protected – from others, and the state itself.

Those who do not understand this simple idea – that separation of church and state means SEPARATION of church and state, seem to be aplenty.

From an old @pbmehta piece that talks about a secular state. Separation of state and church DOES NOT mean that the state will not intervene to ensure liberty and equality in matters related to faith. It should.— Ankur Bhardwaj (@Bhayankur) July 24, 2018

The concepts of liberty and equality are ‘modern’ concepts, that were transplanted into India, and that is supposed to govern our political life and not our religious life. Those dictates of religion (of Sanatana Dharma, or Buddhism, or Jainism) did not evolve with this preconceived notion in mind. Nor, in fact did Christianity or Islam. No Western European State can claim that it is secular while actively intervening in the appointment of Catholic Priests for example. NO Supreme Court in Western Europe or otherwise, have intervened to secure the ordination of women priests. If it has happened in any religious denomination, it has happened due to internal machinations, not due to some grand constitutional morality, omnipresent and omnipotent.

In the United States, the Civil Rights Act of 1964, which attempt to outlaw various forms of discrimination, had an exemption for religious employers, namely that the state cannot force them to employ members of another religious denomination. Neither did the state force any Church to open up ordination for women on the basis of sexual discrimination. As a matter of faith and belief, it is the right of the church to self-regulate. The state cannot and should not force them to go one way or another; it is a slippery slope that can lead to persecution and discontent.

In India, it is a matter of right for religious institutions to manage their own affairs. This is clearly spelled out  in Article 26 of the Constitution:

Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

Matters of faith, in other words are not matters of state. It is not within the powers of the state to regulate my affairs with any god or goddess. That is solely my right. That is the right of the community that regulates the matter. Reforms, if any, has to come through the community itself, not from the state. Why? Because once the state gets its hands on it, then it opens itself for more and more intervention, corrupting the practice, diluting it.

The rights secured to us by the Constitution are those against the state, not against private citizens, organizations or religious organizations. The court’s duty is to protect the rights of citizens against state, not to secure ‘rights’ against religious institution. There has been a misplaced emphasis that ‘social reform’ can be secured through intervention in religious affairs.

There has been a singular exception, and this intervention is one that can be fully agree with, the abolition of untouchability via Article 17 and the Protection of Civil Rights Act, 1955. This combined with Article 25 (2) permits the state to make law to throw open temples to all classes and sections of Hindus. This should be, in my opinion, a celebrated and singular intervention to the matters of religious affairs. That however, is the beginning and the end of it. There is nothing more to be said about it.

Now we come to the issue of Sabarimala, which all this is leading to, as you might have guessed at the beginning. There was this article that Gautam Bhatia, a lawyer in the Supreme Court, wrote about how the Supreme Court is setting out to ‘right a wrong’. “The struggle for entry to Sabarimala” he writes, should be understood “not as a struggle to defeat religious faith or to undermine Lord Ayyappa’s vow of celibacy, but as a struggle to ensure that we do not remain a society that, in very public and demonstrable ways, continues to deny women equal moral membership of the community by invoking ideas of purity and pollution.”

But by its very nature, the Supreme Court if it rules for entry, is undermining faith. It is an egregious violation of Article 26, a violation of secularism, a denigration of religious liberty. The Supreme court has no authority to rule on matters of faith and belief.  That is not the providence of the court, that is that of the divine. Article 15 (Prohibition of Discrimination) does not and should not apply to religious institutions, nor does Article 25 (2). The grounds for intervention are non existent with a textual understanding of the Constitution & the underlying Constitutional principles. A violation of religious freedom is inevitable if the court grants entry, and that represents a sad day for our rights.

The court’s duty is to protect, as stated earlier, is to protect against the violations of Fundamental Rights by the state. Alas, there is no recourse to Ayyapa Devotees if the court goes against them. The Court cannot be called upon by them to protect them against the court itself, sadly.
References / Footnotes

About Author: Ananth Krishna

Ananth Krishna is a student at the National University of Advanced Legal Studies, Kochi. He is particularly interested in constitutional law as well as politics and history.

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