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(Saumitra Shrivastava, a core member of PCLS-HNLU Chapter is a fifth year student at HNLU, Raipur)
When a central legislation is 'struck down' by a particular High Court under Article 226, does the statute become non-operational for the rest of the country as well? This is a very pertinent question for the federal republic, which surprisingly has still not been settled in the country. A 2004 SC judgment's obiter dicta (Kusum Ingots v. UOI) is mostly followed by the courts of the country which essentially says that once a statute is held unconstitutional by the High Court under Article226, it becomes unconstitutional for the rest of the country. But this does not go down with the settled proposition of law that one High Court's decision is not binding on the High Court of another state. HERE IS KUSUM INGOTS PROPOSITION AND HOW I ARGUE AGAINST IT: PROPOSITION: An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act. (Kusum Ingot v. Union of India AIR 2004 SC 2321, P22) B: ARGUMENTS IN FAVOUR X: POSSIBLE RESPONSES TO ARGUMENTS B.1: Article 13(2) provides that any law inconsistent with Part III of the Constitution would be void to that extent. No limits of territoriality have been provided in the provision. X.1: Article 13 could not be read in isolation. Article 226 has to be read simultaneously with it. Further, the legislative history of Article 226 has to be also taken into consideration. 226(2) was the result of a constitutional amendment before which the jurisdiction of a High Court was limited to the territorial jurisdiction, which is more or less the state in which it was situated. Only the Supreme Court could have invalidated a parliamentary law under the original scheme of the Constitution and thus it was void throughout the country. For a High Court, such central law should be void throughout the state. Only after the 15th Amendment in 1963, High Courts had got jurisdiction to issue writs, orders against any government (including the central government). This power to issue orders does not seem to suggest that any order declaring a law unconstitutional extends to the entire territory of India. B.2: When a law is invalidated for infringing the fundamental rights of its subjects, it becomes void for everyone (spatial metaphor for law). It does not matter if the invalidating body is High Court or the Supreme Court. X.2: This is mere extension of the first argument. In fact, this is not even always true for the Supreme Court, let alone for a High Court. When a law is invalidated by the Supreme Court on the ground of fundamental rights which are applicable only against its citizens, such law would still exist for the non-citizens i.e. it would still not become non-est for everyone. This is because the Supreme Court could not provide relief to non-citizens of those fundamental rights which are only available for the citizens. Now to understand the jurisdiction it is important to read the scheme of the Article: The general rule for jurisdiction of the High Court is given by 226(1) which limits it to its territory. Article 226(2) is an exception to the general rule which empowers the High Court to issue directions against any government/ authority/ person when the cause of action arises wholly or partially within its territorial jurisdiction. It is submitted that to bind all High Courts, authorities and person throughout the country under this provision, whenever there is a striking down of a central legislation (and not for any other purpose) is bit of a stretch. B.3: Non-compliance of the proposition would lead to inconsistency and consequentially absurdity as this would result in a central statute being operational in one state and not in another. X.3: High Courts interpret central laws from time to time and such interpretation is applicable merely within its territorial jurisdiction (mostly, the state in which it is situated). It would be logically untenable to argue that inconsistency should compel other states to follow the dictum of one High Court only when the central legislation is invalidated by the HC and not when given a different interpretation by the same HC. It is submitted that such a conclusion is more absurd than the mere inconsistency, which is again already in place due to varied interpretations on the High Courts and state amendments on various central laws throughout the country.
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(Ayush Kashyap is a fourth year student at Hidayatullah National Law University and a member of the Progressive Constitutional Law Society.)
The Hon’ble Member of Parliament Mr. Ranjan Gogoi in one of his last decisions as the Chief Justice of India delivered the majority opinion for the Supreme Court in Kantaru Rajeevaru v Indian Young Lawyers Association (Sabarimala Review judgement). He referred the earlier 5-judge bench decision in Sabarimala to a 9-judge bench. While doing so in nine short paragraphs, he tersely captures the contention of the parties seeking review as follows: “The individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion.” It is a most unusual judgement. Consigning a sound judgement which has no apparent error to the ignominy of review would raise eyebrows in the old days but it is perhaps an indicator of versatility and genius today. It is a long-drawn path that brought the Supreme Court to this point. In some ways, the Court started digging its own proverbial grave in 1954. The Constitution of India – a startling document produced by the liberal elites of an illiterate nation – had subjected an individual’s freedom of religion to the other fundamental rights. However, as most liberal constitutions do, it also granted autonomy to religious denominations in matters concerning their religion. TWO CASES AND A BAND-AID What matters concern a particular religion? This was a question the framers hadn’t clearly answered. When the Supreme Court was left to grapple with the question for the first time in 1954 in The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (Shirur Mutt case), a seven judge Bench sought to find a way out by distinguishing between the essential and non-essential practices of a religion. Since then, the Court in its largely liberal pronouncements has used the so-called Essential Religious Practice Test as a panacea for all the problems at the intersection of religion and law. Let us sample the Sabarimala issue to understand this better. The practice of banning menstruating women from the presence of a deity who has manifested as a ‘naisthik brahmachari’ (celibate) was called into question. There are meritorious arguments on both sides here. In defence of the ban, it was contended that this is not a discriminatory practice as temples of the same deity where he is not manifested as a celibate are open to menstruating women. While attacking the ban, it was contended that the followers of the naisthik brahmachari Lord Ayyappa are not a religious denomination, in any sense of the word. Further, it was argued that even if they were, this would not be an essential practice. The Supreme Court endorsed the latter viewpoint. The flip side of the coin is a judgement like the one delivered in 2004 in Commissioner of Police & Ors v Acharya J Avadhuta & Anr (Anand Marg case). The Court accepted that the Anand Margis were a denomination. The State had a problem with the Anand Margis practicing their tandava dance in public. A Three Judge Bench split on the issue. The majority decided that the Tandava dance with skulls and tridents was not essential to the religion. This was not the same as Sabarimala. In Sabarimala, the judges acting as part-time religious philosophers barely had anything solid to go on except the word of the followers of Lord Ayyappa. It is, in a way, easy to postulate a judicial theory of religion in such a case. The Anand Marg case was different. The ‘religion’ was established in 1955. Around a decade later, the founder of the religion initiated the practice of Tandava dance. The dance with skulls and tridents was not conducive to public order in the opinion of Calcutta Police. By an order under Section 144 of the Criminal Procedure Code, it was banned. The matter reached the Apex Court in 1983 where it decided that the dance is not an essential practice. Imagine Jesus or the Prophet Mohammed declaring something to be an essential part of Christianity or Islam and the Supreme Court of India overruling that! It would perhaps have been more convenient to ban the practice on grounds of public order contained in Article 26. However the Court seemed inclined to use the Essential Religious Practice test. The incredulity does not stop here. It appears that the founder Shri Prabhat Ranjan Sarkar, also known as Anandamurti sought to reassert his authority over the adherents of the religion founded by him. In 1988, two years before his demise, his teachings were compiled and published once again. It documented once again that Tandava was to be performed publicly. There was a fresh battle in the courts. Once again the matter ended up in the Supreme Court. In 2004, the majority of the three judge bench once again negated the founder’s assertion. These two cases are emblematic of the Supreme Court’s rather curious approach. On one hand, it wields the doctrine with fervour and gusto whenever the practice under question impinges on the rights of non-adherents (Mohd Hanif Quareshi case where it upheld a cow slaughter ban and held the practice under challenge to be non-essential) or disturbs public order (Anand Marg case where once again the practice in question was held to be non-essential). However whenever it has been approached by an individual complaining of discrimination at the hands of her religion’s ruling elites, the Supreme Court sees and hears no evil. A quick glance at the Constitution tells us why. An individual’s right to religion has been subjected to public order, morality, health and critically, other fundamental rights. A religious denomination’s right to manage religious affairs has the same restrictions under Article 26. Except one. It does not have to take care of other provisions of Part III of the Constitution, i.e., other fundamental rights. It takes us back to where we started. Can an individual’s fundamental right not subsume her religion’s right to manage its ‘religious’ affairs? In light of this seemingly clear dictum from the framers, the Supreme Court has accorded immense breathing space to the religious groups to do as they please. The Essential Religious Practice Test is essentially a band-aid in this situation. When the Supreme Court sees minor bleeding – an easy case where law and public opinion is on its side – it slaps the band-aid on collects the bouquets that come its way. When it sees a hit-and-run, say, the excommunication of an individual by her religious leader and the concomitant social exclusion, it prefers to look away and drive on. THE SERMON OF SABARIMALA In Sabarimala, the majority once again invoked the Essential Religious Practice test to hold that the exclusion of menstruating women could not be considered essential to the religion. Chief Justice Mishra, Justice Khanwilkar and Justice Chandrachud among the majority took this view. Justice Nariman, while joining the majority, based his arguments on the assumption that the practice was essential. Justice Chandrachud offers an alternative to his future colleagues. After ticking off the ERP box, he goes on to criticize it (without overruling it) and hold the practice ultra vires Article 17 of the Constitution which prohibits untouchability ‘in any form.’ It is pertinent to note here that this is not the majority judgement. Had this been the majority judgement, it would be a five judge Bench countering the seven judge Shirur Mutt bench. Interestingly, Justice Malhotra – the sole dissent – also speaks against this test. With the judges in the majority approaching the problem from various angles, a look at the ratio is in order. Justice Nariman has extracted the ratio of the majority judgement in his scathing dissent in the Sabarimala Review judgement.Firstly, the devotees of Lord Ayyappa are not a denomination. Secondly, the practice was contrary to Article 25(1). Thirdly, the rule under question was ultra vires its parent legislation which took after Article 25(2). Article 25(1) equally entitles all persons to freely profess, practice and propagate religion. Had the worshippers of Lord Ayyappa been a denomination, then they would possibly be able to shield the practice of ban on menstruating women under Article 26. That, in essence, is the failure of the essential practice test. A practice that impinges on an individual’s dignity has no legs to stand on. Article 26 should not be allowed to become a crutch for religious denominations to flout the fundamental rights of their adherents. It could not have the framers’ intention. It is a very restrictive reading of the Constitution to argue that the exclusion of the phrase ‘other provisions of this Part’ from the list of restrictions contained in Article 26 gives the religious denominations the freehand to violate the provisions of Part III. The provisions of Part III, i.e., the fundamental rights, are mostly meant for individuals. They were drafted with the individual in mind. Where State action could be a source of violation, the framers circumscribed its limits. In cases where individuals themselves were capable of violating the rights of others, the framers outright prohibit it. Article 17 or Article 25(1) are a case in point. To gauge their intent with respect to religious practices, it is important to realise that the Constitution was drafted in a milieu of social, political and religious reform. It abolishes caste-based discrimination and goes on to impose an outright ban on untouchability. It gave universal adult suffrage to a largely illiterate population. There is no discernible reason why the same document would turn a blind eye to religious practices that would derail the project that the framers had embarked on. It appears that the Supreme Court has over the last six and a half decades interpreted Articles 25 and 26 in a way that appears to respect the text but cares little for the spirit of the Constitution. CONCLUSION It is a debate as old as time in any constitutional democracy. To what extent can courts interpret constitutions in a way that’s seemingly at odds with the text? Almost all constitutional courts grapple with the question and oscillate between a transformative and an originalist reading of their constitutions. It is a philosophical question too. It helps to ask what the Constituent Assembly would do if it could see the future. As detailed in the previous paragraph, there is every indication that they would ring-fence the freedom of religious denominations from the fundamental rights of its adherents. The nine judge bench constituted for Sabarimala and other similar issues has its task cut out. It might have assembled in unusual circumstances but it has the proverbial once in a lifetime opportunity to nudge the Court’s future jurisprudence in the right direction. The Essential Religious Practice test should be euthanized, making way for the Anti-Exclusion principle adopted by Justice Chandrachud in the Sabarimala judgement. It should not matter whether a religious practice is essential or not, whether it is followed by a denomination or not; if it negates the promise of dignity of the individual laid down in the Preamble, then it can not sustain. |
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