The I N D I A N J O U R N A L

OF C ONSTITUTIONAL L AW
2024
Volume 11 & 12

THE M.K. NAMBYAR SAARCLAW

CONSTITUTIONAL CHAIR IN COMPARATIVE
L AW S O C I E T Y CONSTITUTIONAL STUDIES

NALSAR UNIVERSITY OF LAW

The I N D I A N J O U R N A L
OF C ONSTITUTIONAL L AW
2024
Volume 11 & 12

PATRON
PROF. SRIKRISHNA DEVA RAO K. K. VENUGOPAL

ADVISORY BOARD
JUSTICE B. P. JEEVAN REDDY JUSTICE ZAKERIA M. YACOOB
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UPENDRA BAXI AMITA DHANDA
S.L. DESHPANDE

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JUNIOR EDITORS
ADITI BHOJNAGARWALA ADISHREE KRISHNAN
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THE M.K. NAMBYAR SAARCLAW

CONSTITUTIONAL CHAIR IN COMPARATIVE
L AW S O C I E T Y CONSTITUTIONAL STUDIES

NALSAR UNIVERSITY OF LAW

Published by
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NALSAR University of Law
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11 &12 INDIAN J. CONST. L. <PAGE NO.> (2024)
 CONTENTS
Editorial i

Justice (Ret’d) B. Sudarshan Reddy 1

Some Select Aspects of the Constitutional Philosophy of Justice
Chinnappa Reddy

Aymen Mohammed 29
Globalized Electoral Democracy in India and the Natural Individual
Citizen

Shrutanjaya Bhardwaj 57
Habeas Corpus in the Supreme Court’s docket

Rushil Batra 71
The Essential Religious Practice Test: A Sorry Tale of Judicial
Misreading

Sachin Dhawan 111

Karnataka High Court Ruling On Content Blocking: A Setback For
User Rights

Aditya Rawat 131

Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous
Constitutional Identity in India

Aurif Muzafar 155

Conversations on Article 370 of the Constitution of India: A Critical
Response

Vivasvan Gautam 183

Tying the Knot: A Comparative Analysis of LGBT++ Marriage
Rights in India, USA and Canada
Archit Sinha 241
Expanding Article 17: Logic & Equality

Zia Uddin Ahmed 283

Rohingya and Bangladesh Constitution: Constitutional obligation to
protect refugees
 Editorial

The previous editorial note of the Indian Journal of

Constitutional Law (“IJCL”) spoke about how “at 7[4],
only Constitutions, tortoises, and whales are dubbed
‘young,’”. With two more years passing by, our
Constitution has aged well. It has been transformative
and marks a significant departure from the colonial past.
The Constitution reflects a nation’s identity and the
values of its people. As the supreme law of the land, it
demands adherence from both the state and its citizens.
Constitutional values cannot be compromised by those
entrusted with the authority to govern. Ensuring
constitutional order is the state’s foremost responsibility,
and this order must be maintained through a genuine
commitment to the rule of law and the internalization of
constitutional values by public officials. However, this
internalization requires concerted effort from the political
class.
For the Constitution to remain relevant in a constantly
changing world, it must be adaptable. The judiciary plays
a pivotal role in ensuring this adaptability, balancing the
original intentions of the legislature with the evolving
values of society. The task of interpreting the
Constitution is, therefore, an ongoing endeavor—one that
ii Editorial

seeks to uphold the enduring principles of justice while

responding to the needs of a dynamic, diverse nation.
This is an important challenge for the Indian Constitution
– to be up to date with societal change and to create a
safe and inclusive place for all its citizens. The fluidity of
society and how societal moralities change necessarily
keep even the Constitution guessing. The judiciary has a
co-relative obligation to recognize and enforce newer
manifestations of rights. Sometimes, the structural limits
of the Supreme Court prevent it from doing the kind of
substantial justice that the Constitution imagined for
itself.1 Sometimes, the Supreme Court dives back into its
own jurisprudence to fish out seemingly unnecessary
elements in the spirit of the same substantial justice. 2
The one thing we can say with certainty is that the
Supreme Court has certainly chosen to lend its ears wide
open to matters of constitutional importance. In the span
of 2022 to 2024, the scope of this journal, a number of
important Constitutional Law judgments were passed by
the Supreme Court. These include the Economically
Weaker Sections, Demonetisation, Marriage equality,
Article 370, Electoral Bonds among many others. In fact,
in 2023, the Supreme Court gave a
1
Supriyo alias Supriya Chakraborty and Another v. Union of India, 2023
SCC OnLine SC 1348.
2
State of Punjab v. Davinder Singh and Others, 2024 SCC OnLine SC 1860.
INDIAN J. CONST. L. iii

record 18 constitutional bench judgments, which are only

bound to increase this year.3
Yet, as American political scientist Charles Howard
McIlwain observed decades ago in Constitutionalism:
Ancient and Modern, the very principle of
constitutionalism has never been more questioned or
under threat.4 From a liberal perspective, the ultimate aim
of a constitution is to uphold the rights and dignity of
individuals, with the government as merely the means to
achieve this. Without the spirit of constitutionalism, a
constitution is reduced to an empty shell, devoid of
meaning.
Legal academic Hilaire Barnett identifies four core
components of constitutionalism.5 First, the principle of
intra vires, which holds that those who exercise
governmental power must be accountable to the law.
Second, that power must be exercised with respect for the
rights of individuals and citizens, regardless of the
authority vested in those in power. Third, the separation
of powers among state institutions—legislative,
executive, and judicial—ensures that power is not
abused. Finally, the government and legislature must

3
Kohli T, ‘Supreme Court Review 2023: Constitution Bench Decisions’
(Supreme Court Observer, 16 January 2024).
4
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
5
Barnett H, Constitutional and Administrative Law (Routledge 2024).
iv Editorial

remain accountable to the electorate, from whom they

derive their authority. These cardinal principles of
constitutionalism are increasingly being questioned in the
modern day and age. Some owing to the kind of
technological and sociological developments, other
owing to the kind and manner of governance that
continue to dictate us.
This combined volume of the IJCL seeks to understand
the developments in Indian Constitutional Law and
address them through academic, comparative and global
lens. To this end, we have pieces strictly focusing on
Indian Constitutional Law, while also accommodating
scholarship from the neighbouring country of
Bangladesh.
Contributions
As earlier noted, the Supreme Court has been extremely
active during the scope of this journal. This journal was
able to significantly cover some of the more controversial
developments, and provide readers with an accurate
overview. It also threads a delicate balance between the
past, the present and the future.

This edition starts with a delightful look at the past with

(Retd.) Justice Subhash Reddy talks about the
INDIAN J. CONST. L. v

constitutional philosophy of Justice Chinappa Reddy. He

points towards the intellectual brilliance of Justice
Chinappa Reddy, and his ability to remain steadfast in his
commitment towards fundamental rights and political
freedoms. He exemplifies his point through a discussion
of Justice Reddy’s role in Mohd. Yusuf Rather and Bijoe
Emmanuel. His critique of Golaknath and his views on
merit-based reservation system continue to occupy a
central part of jurisprudence to this day.
Mr. Aymen Mohammed argues that the integrity of
electoral democracy in India is under threat due to the
increasing influence of corporate donations and
globalized election campaigning methods. He
emphasizes the importance of individual citizenship in
electoral democracy and argues that corporate donations
can distort electoral competition and marginalize the
voices of individual citizens. Finally, he calls for a
constitutional prohibition on corporate donations in
political finance to safeguard the integrity of electoral
democracy. In the postscript, he reflects upon the latest
developments in relation to the political financing.

Mr. Shrutanjaya Bharadwaj undertakes an empirical

analysis of all the 1,171 habeas corpus petitions, which
he received through a Right to Information (RTI)
vi Editorial

petition, filed in the Supreme Court from 2000 to 2023.

He notes that the proportion of Writ Petitions decreased
significantly after 2011. He tracks the average disposal
time for cases to be resolved within a year to be 75.27
days. He suggests that the Court should aim to resolve
cases within two weeks, given the importance of habeas
corpus petitions to personal liberty.
Mr. Rushil Batra argues that the Supreme Court’s
framework for determining Essential Religious Practices
(ERPs) is doctrinally unsustainable and practically
impossible. The court creates a three-step inquiry –
firstly, whether a claim is religious at all; secondly,
whether the claim is essential to the religion; lastly,
whether it satisfies constitutional restrictions. He believes
that the court lacks expertise and authority to determine
what practices are essential to a religion. He wholistically
engages with literature on cultural rights and the
conceptions of Indian securalism. He aims to prove his
assertion through a doctrinal and statistical analysis of
relevant Supreme Court and High Court judgements.

Mr. Sachin Dhawan addresses the lacunae left by the

Karnataka High Court in the X Corp v. Union of India
concerning users/originators. He argues that the
judgement should have upheld the principles laid down
INDIAN J. CONST. L. vii

in Shreya Singhal and should have extended robust due

process protections to individuals before depriving them
of fundamental rights. More centrally, he highlights the
role of Shreya Singhal in the evolving law on content
blocking.
Mr. Aditya Rawat explores the concept of a
homogenous constitutional identity in India by focusing
upon the recent Supreme Court cases such as Hijab Ban
and the political discourse. He argues that the pursuit of
such an identity, as exemplified by the Hijab Ban and the
push for Hindi as the national language, can lead to
intolerance and discrimination. He criticizes the
“Eurocentric liberal constitutionalism” that underpins
these efforts and calls for a decolonial approach to
constitutionalism in South Asia. He also questions
whether a homogenous identity is desirable or even
possible in a pluralistic society. Finally, he explores
alternative ways of understanding and practicing
constitutionalism.

Mr. Aurif Muzafar criticizes the dominant narratives

surrounding Article 370 of the Indian Constitution, which
have been shaped by liberal and right-wing perspectives.
These narratives often view Article 370 as a symbol of
special status or autonomy for Jammu and Kashmir, and
viii Editorial

they fail to address the larger Kashmir problem. The

author argues that these narratives are restrictive and do
not offer any solutions to the ongoing conflict. The
article calls for a more transformative approach to
understanding Article 370 and its implications for the
future of Kashmir.
Mr. Vivasvan Gautam compares the progress of same-
sex marriage rights in India, the USA, and Canada. He
highlights that Canada was one of the first countries to
legalise same-sex marriage, while India is still in the
early stages of this process. This emphasizes the
importance of institutional dialogue in Canada’s journey
towards recognizing same-sez marriage rights, and
argues that India could benefit from adopting a similar
approach. He notes that India has the opportunity to learn
from Canada’s experience and create a more inclusive
society by recognizing marriage rights for the LGBTQ+
community.
Mr. Archit Sinha argues for a broader interpretation of
Article 17 of the Indian Constitution, which prohibits
untouchability. He criticizes the current jurisprudence
that often links social discrimination to religious rights,
leading to a narrow focus on issues related to religion. He
suggests that Article 17 should be interpreted more
expansively to protect against all forms of social
INDIAN J. CONST. L. ix

discrimination, regardless of their basis. He also

introduces a new concept, the "exclusionary effect," to
highlight the ways in which social discrimination can
occur without direct reference to religion. Overall, the
paper aims to provide a new framework for
understanding and addressing social discrimination in
India.
Finally, Mr. Zia Ahmed argues that Bangladesh has a
constitutional obligation to protect Rohingya refugees,
despite not being a signatory to the 1951 Refugee
Convention. It highlights that Bangladesh has provided
refuge, rations, and basic services to over a million
Rohingya who have fled Myanmar since 2017. While
Bangladesh is not legally bound to protect refugees under
international law, the author contends that its constitution
still mandates the protection of human rights for those
residing within its territory. The article emphasizes the
need for awareness of these constitutional protections
among the Rohingya and those seeking to assist them, as
well as the financial resources to utilize the Bangladeshi
legal system.
Acknowledgments
We extend our most sincere thanks to Dr. Aditya Sondhi,
Dr. Kamala Sankaran, Mr. Raghav Shankar, Mr.
Sreenath Khemka, Mr. Vetha Philos, Mr. Talha Abdul
x Editorial

Rahman, Mr. Shubham Jain, Dr. Surbhi Shukla, Ms.

Vandita Khanna, Dr. Balu Sunilraj, Ms. Aishwarya Birla
for taking time out of their busy schedules to peer-review
shortlisted pieces for this journal. Beyond that we would
like to specially thank Mr. Siddharth Chauhan and Mr.
Alok Prasanna Kumar for reviewing multiple pieces for
this edition of the journal. We also thank Prof. Arun
Thirunvengadam and Prof. Amita Dhanda for their
guidance in finding peer-reviewers.
We are indebted to Mr. K.K. Venugopal as well as
the M.K. Nambyar SAARCLAW Charitable Trust, and
will always be grateful to them for their assistance, which
has been critical to the IJCL's continued publication. We
thank Prof. Murali Karnam for his continuous support to
the journal in various capacities. We are incredibly
grateful to our registrar and faculty editor, Dr. Vasanthi
Nimushakavi, for always supporting us in undertaking
this endeavour. We also thank Utkarsh Mani Tripathi
from the previous editorial board for his continuous
guidance which made this edition possible. Finally, we
would like to express our gratitude to the administrative
personnel for their continued support.
 SOME SELECT ASPECTS OF THE CONSTITUTIONAL PHILOSOPHY
OF JUSTICE CHINNAPPA REDDY1
Justice (Ret’d) B. Sudarshan Reddy
Supreme Court of India
At the very outset, let me express my deepest sense of honour
at being asked to deliver this Justice O. Chinnappa Reddy Memorial
lecture, on the occasion of the hundredth anniversary of his birth. This
privilege is greater, on the account that I also happened to serve this
country as a judge of the Supreme Court of India. That, in no way can
ever mean that I was even remotely as worthy as the great man in
whose memory this lecture is being delivered. I did not, I wish to
emphatically state, in my wildest dreams ever imagine that I would hold
the same position that he did. In comparison to the accomplishments
of Justice Chinnappa Reddy, both before and after his appointment as
a judge of the Supreme Court, let me state that my occupation of the
same position has to be deemed, a simple twist of fate.
While I could not have avoided accepting this invitation from
the legal fraternity, I must confess to a great deal of trepidation. And
how could I not feel diffident? After all, I am talking about a person
who was my hero in the judicial firmament, as he indeed was for so
many of us who began our study of law, while he rose to prominence
through his intellectual brilliance and his unparalleled capacity to
combine it with empathy for the weakest among us. Let me place it on
record that one of the reasons I joined law college was Justice
Chinnappa Reddy. In my early years as a member of the bar, seniors in
the profession spoke of him with unalloyed appreciation. We avidly
followed his judgements, and afternoons spent in the courts where he
presided were unforgettable lessons in graceful deportment, incredible

1 Justice Chinnappa Reddy Memorial Lecture, 22nd October, 2022 Hyderabad

2 INDIAN J. CONST. L.

legal and sociological insights and above all, a palpable concern for
justice with solicitous concern for the most vulnerable.
A special mention must be made of Justice Chinnappa Reddy’s
contributions as a judge of the A.P. High Court. As many of you may
be aware, in the dark days of the Emergency, even as the judiciary of
the Apex Court buckled and delivered the constitutional abomination
that was ADM Jabalpur, a few Justices – indeed a mere handful across
the country – insisted that Emergency powers could not be interpreted
to mean the abandonment of core fundamental rights. Justice
Chinnappa Reddy was one of the leading lights and a beacon of hope,
when political and constitutional darkness enveloped the polity. In
these times, I would suggest that Justice Chinnappa Reddy’s tenure as
a judge of the then united A.P. High Court should be taken as an
example and guide for those serving on High Courts who might be
tempted to yield to the executive, setting aside their moral obligation
to uphold the values of an independent judiciary, the Constitution and
the cause of justice.
As a member of the then younger cohort of the Bar, I can attest
to the fact that Justice Chinnappa Reddy’s unwavering protection of
political freedoms and Indian democracy electrified and infused us
with a great sense of idealism, engendering an understanding that there
is a larger purpose to the practice of law. At the same time, we were
also very dismayed, when the then regime considered him to be defiant
and difficult and he was transferred to another High Court. When the
Emergency period ended, Justice Chinnappa Reddy was offered the
position of Chief Justice of the AP High Court, indicating an
institutional atonement. He declined and chose to stay back at the
High Court he was transferred to. The reason? Because he was also
committed to the idea of protection of the dignity of the Court, and
his moral framework would not allow something as trivial, in his mind,
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 3

as personal vindication to hint a mistake by the institution. What one

of the leading jurists of India wrote about him is worth recounting
here:
“Chinnappa Reddy occupies a secure and exalted place in the Indian
judicial pantheon. The judicial virtues he pursued on the High Bench
helped enormously to restore the bruised legitimacy…. of the Supreme
Court of India….. the notion of avatar… never appealed to him. For
Chinnappa, the virtue of rectitude assumed a concern for
collegiality…. He strove to enhance the collective competence of the
Court as an Institution of co-governance of the nation and contributed
greatly to the sustenance of its collective constitutional wisdom….” 2
I believe that Justice Chinnappa Reddy’s concern about the
enhancement of “collective competence of the Court” is best
exemplified by his discussion of the celebrated Minerva Mills3 case in
the Sanjeev Coke4 case. The principal question for consideration was
whether the Coking Coal Mines (Nationalisation) Act, 1972 was
entitled to the protection of Article 31-C of the Constitution. In his
arguments, Shri A.K. Sen had relied on certain sweeping observations
of Justice Bhagwati, which effectively held that the “connection has to be
between the law and the directive principle and it must be a real and substantial
connection”. A.K. Sen had creatively used the prolix language of Justice
Bhagwati in Minerva Mills to submit that a “law founded on discrimination
is not entitled to the protection of Article 31-C, as such a law can never be said to
be to further the Directive principle on Article 39(b)”.
How Justice Chinnappa Reddy addressed the rather creative
manner in which A.K. Sen had sought to subvert the main principle of

2 Baxi, Upendra: “Foreword – The Court and the Constitution: Summits and Shallows”, Reddy, O.
Chinnappa R, pg xi.
3 Minerva Mills v Union of India, (1980) 3 SCC 625.
4 Sanjeev Coke Manufacturing Company v M/S Bharat Coking Coal Limited & Anr,
(1983) 1 SCC 147.
4 INDIAN J. CONST. L.

Minerva Mills ought to be taken as an essential lesson for judges writing

on constitutional values that seemingly contradict each other. It is
worth citing from the judgement at length:
“We have some misgivings about the Minerva Mills decision, despite
its rare beauty and persuasive rhetoric…. We confess the case has left
us perplexed. In the second place, the question of constitutional
validity of Article 31-C appears to us to be concluded by the decision
of the Court in Keshavananda Bharati5 case…. the protection of
Article 31-C was, at that time, confined to laws giving effect to the
policy of clauses (b) and (c)….”
Justice Chinnappa Reddy then brilliantly analysed the dialectics of the
Constitutional structure in setting aside A.K. Sen’s assertions as to
what Minerva Mills stood for:
“While we broadly agree with much that has been said by Bhagwati,
J ………. to accept the submission of Shri Sen that a law founded
on discrimination is not entitled to the protection of Article 31-C as
such a law can never be said to further the directive principle affirmed
in Article 39(b), would indeed be, to use a hackneyed phrase, to put
the cart before the horse. If the law made to further the directive
principle is necessarily non-discriminatory or is based on a reasonable
classification, then such a law does not need any protection such as
that afforded by Article 31-C. Such law would be valid on its own
strength, with no aid from Article 31-C. To make it a condition
precedent that a law seeking the haven of Article 31-C must be non-
discriminatory or based on reasonable classification is to make Article
31-C meaningless.”

5 Keshavananda Bharati v State of Kerala, (1973) 4 SCC 179.

Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 5

Possibly realizing that the very prolixity of the language of

Justice Bhagwati that made Minerva Mills a case of “rare beauty” was
also leading to avenues for misinterpretation, and subverting the very
principle that the Constitution sought to strike a balance between –
that the legislation, for the achievement of progressive goals could not
be set aside on the anvil of a simplistic and limited reading of
egalitarianism – Justice Chinnappa Reddy rehabilitated both Minerva
Mills and in the gentlest of, and yet effective, terms criticised Justice
Bhagwati:
“If Article 14 is not offended no one need give any immunity from
any attack based on Article 14. Bhagwati, J. did not say anything to
the contrary. On the other hand he was at great pains to point out
that the broad egalitarian principle of social and economic justice for
all was implicit in every directive principle, and therefore, a law
designed to promote a directive principle, even if it came into conflict
with formalistic and doctrinaire view of equality before the law, would
most certainly advance the broader egalitarian principle and desirable
constitutional goal of social and economic justice for all. Never for a
moment did Bhagwati J., let in by another door the very controversy
which was shut out by Article 31-C.”
And then he continued:
“While we agree with Bhagwati J. that the ……. connection with
directive principle must not be some ‘remote or tenuous connection’, we
deliberately refrain from the use of the words “real and substantial”,
“dominant”, “basically and essentially necessary” and “closely and
integrally connected” lest anyone chase after the meaning of these
expressions…….and what we have now said about the qualifying
words is only to caution ourselves against adjectives getting the better
6 INDIAN J. CONST. L.

of the noun. Adjectives are attractive forensic aids but in matters of

interpretation they are diverting intruders.”
And finishing the lesson on the need to be careful of what one writes,
and not let eloquence get the better of the need to be very careful in
uttering more than what is necessary, the master of terse formulation
ended with a gentle arm over the shoulder of his fellow judge:
“These observations have the full concurrence of Bhagwati, J.”!
Notwithstanding such mastery over the Constitutional
imperatives, and a deep and abiding concern for judicial statecraft,
Justice Chinnappa Reddy was allowed to write for the majority in only
a few five judge Constitution benches. This is often thought of as a big
mystery, which hushed whispers suggested ought to be unravelled.
Especially, given that scholars like Gadbois and Baxi have opined that
Justice Chinnappa Reddy must surely rank as one of the few towering
intellects to have graced the Supreme Court of India.
One does not have to posit or subscribe to a theory that the
judges of the Supreme Court overtly discriminate against fellow judges
on the basis of their social background to begin to untie the strings of
this mystery. Given that a majority of the judges of the Supreme Court
have come from social back grounds in which lyricism of the written
text is a paramount virtue, the emphasis placed by Justice Chinnappa
Reddy – hailing from the hardscrabble peasant social background – on
moral urgencies of the consequences for the weakest may have been
less palatable. Moreover, for those hailing from social backgrounds in
which equivocation of reality of the social condition of the masses was
an inherent cultural imperative, the terseness of his articulation may
have engendered an uncomfortable level of cognitive dissonance.
Whatever the forces that may have conspired or conjugated to
prevent a brilliant humanist from setting the parameters of modes of
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 7

constitutional adjudication, contents and contours of constitutional

identity, and inscribing a framework of discourse that was always
mindful of moral urgency in the efforts to achieve a more progressive
and socially just state of affairs without allowing the State to turn
authoritarian or fascist, we also necessarily have to wonder whether the
predicament that our democracy finds itself could be attributed to an
undertheorized and undercooked progressive liberalism, making it
shallow. Notwithstanding the eloquent exegesis of egalitarianism and
social justice by favoured mandarins that was put on show, less
emphasis was placed on the material consequences for the less
fortunate, and how that might impact the ability of the masses to
understand and protect the project of democracy in India. If only
Justice Chinnappa Reddy had been allowed to clearly articulate the
main contours of constitutional identity, and if the moral urgency that
he felt animated the Indian Constitution had been allowed to be the
central focus, maybe we would have had the benefit of a more
brilliantly and persuasively articulated as well as a lasting constitutional
jurisprudence- something that would have cautioned us that unless the
nation heeds and acts upon the moral urgency of establishing
conditions of social justice in which the inherent dignity of the hitherto
deprived masses is reasserted and protected, political equality will be
of mere platitudinal value and potentially unprotected from
depredations by the elite classes. This would be because those very
masses, due to their continued material and cultural deprivations –
relative and absolute – would be left with limited social capacities,
individually and as groups, to defend the substantive aspects of even
political freedoms.
This was the very fear that Babasaheb Ambedkar pointed out
so presciently when our Constitution was ratified. The continuing of
vast and graded socio-economic inequalities with just notional equality
8 INDIAN J. CONST. L.

in the political sphere may be argued as having created the current crisis
of our democracy marked by a strident, and evil, discourse against
political freedoms of those who seek to speak for the weakest.
Normally, in speeches such as this, the speaker would move
towards a rendering of issues of more current purport and may refer
to the person being honoured only parenthetically. But, Justice
Chinnappa Reddy was no ordinarily great man. It would be an
unpardonable mistake, intellectually, to not recount the many warning
bells he had sounded, most of which we as a nation did not fully heed,
which inevitably wound our way to our current predicaments.
Of course, in a long and distinguished career as a judge, Justice
Chinnappa Reddy delivered many hundreds of judgements of exquisite
logic, redolent perspicacity and deep clarity. Hence, the very process
of choosing a few to talk about would necessarily begin to be a bit
arbitrary. However, the following few cases that I wish to highlight are
those which have deeply influenced me, and as I sketch them, I am
hoping that the audience will pick up on the deep strains of
constitutional angst we must all feel with the current status of
constitutional jurisprudence in India.
The first case I wish to describe and discuss is Mohd. Yousuf
Rather v. State of J & K.6 In this particular case, the main issue was about
how irrelevant grounds in an order of preventive detention vitiate it.
Justice Singhal authored the majority opinion for himself and Justice
Sarkaria. Justice Chinnappa Reddy was flabbergasted “by a good deal of
vehement argument …. advanced by Dr. Singhvi to sustain the order of detention”
and chose to add a brief note with his concurrence. He begins with a
characteristically brilliant formulation that encapsulates the

6 Mohd Yousuf Rather v State of Jammu and Kashmir, (1979) 4 SCC 370.
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 9

constitutional anxieties and constitutional checks. As always, it is worth

citing him extensively:
“[T]he Constitution of India recognizes preventive detention as a
necessary evil, but, nonetheless, an evil. So, we have by Constitutional
mandate, circumscribed the making of laws providing for preventive
detention…….. The law is now well settled that a detenu has two
rights under Article 22(5)…. (1) To be informed, as soon as may
be, of the grounds on which the order of detention is based, that is, the
grounds which led to the subjective satisfaction of the detaining
authority, and (2) to be afforded the earliest opportunity of making a
representation against the order of detention, that is to be furnished
with sufficient particulars to enable him to make a representation
which on being considered may obtain relief for him. The inclusion of
an irrelevant or non-existent ground among other relevant grounds is
an infringement of the first of the rights, and the inclusion of an
obscure or vague ground among other clear and definite grounds is an
infringement of the second of the rights. In either case there is an
invasion of the constitutional rights of the detenu entitling him to
approach the Court for relief. The reason for saying that inclusion of
even a single irrelevant or obscure ground… is an invasion of the
detenu’s constitutional rights is that the Court is precluded from
adjudicating upon the sufficiency of the grounds …….”
With regard to Dr. Singhvi’s argument that all the other
purported charges that are vague and inchoate should be disregarded
and only the last one be taken into account, the following observation
of Dr. Chinnappa Reddy was so characteristic of the great man’s
capacity for a brilliant metaphor, that is both precise and also
compelling: “The last straw which breaks a camel’s back does not make
weightless the other loads on the camel’s back.”
10 INDIAN J. CONST. L.

As I re-read the case of Mohd. Yousuf Rather in preparation of

this lecture I smiled wryly to myself. Just a few days ago we read in the
newspapers that the Union of India declared in the Supreme Court that
“jail is the only place for all ‘urban naxals’”. In the newspaper reports there
was no indication that the Supreme Court asked about the meaning of
that expression. Anyone following the current socio-political
discourse, even with a modicum of effort, would probably be aware
that the expression is now used for any one and all who voice any kind
of support for the weaker segments or engage in criticism of authorities
or of a particular socio-political stance.
In Mohd Yousuf Rather, one of the first grounds cited was that
the detenu was a “Naxalite”, which on closer examination only
involved the detenu believing that meant no more than that he was a
believer in the Marxist-Leninist ideology and Dr. Singhvi confessed
that the expression Naxalite was too imprecise and vague. The other
ground pressed for detention was that the detenu made a speech in
which he asked the audience to shun the life of dishonour and rise in
revolt against oppression. As he always did, Justice Chinnappa Reddy’s
observations convey the correct constitutional position, which we all
can then compare with what we are seeing and hearing now:
“Some think of Naxalites as blood thirsty monsters; some compare
them to Joan of Arc. It all depends on the class to which one belongs,
one’s political hues and ideological perceptions…….. Dr. Singhvi
had, ultimately to confess that the expression…. was as definite or
vague as words describing ideologies…….It is enough to say that it
is just a label which can be as misleading as any other and is, perhaps,
used occasionally for that very purpose…..Now, expressions like
“revolt” and “revolution” are flung about by all and sundry….Every
turn against the establishment is called a “revolt” and every new idea
is labelled as “revolutionary”……. Neither paragraph three nor four
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 11

of the grounds of detention specifies the particular form of revolt or

revolution which the detenu advocated. Did he incite people to violence?
What words did he employ? What, then, is the connection between
these grounds and ‘acting in a manner prejudicial to the maintenance
of the public order”? There is no answer to be gleaned” and hence the
alleged grounds are “held to be both irrelevant and vague.”
Lest some misguided souls engage in a knee jerk criticism of
the foregoing as the response of a judge who was a socialist, we can
reassure them that Justice Chinnappa Reddy’s defense of political
freedoms – of conscience, of ideological persuasions and of expression
– was equally felicitously extended to those who could be deemed to
hold entirely opposing socio-political opinions. In the case of
Ramashankar Raghuvanshi and Anr7 the Supreme Court was dealing with
the legality of termination from a government job on the grounds that
the appellant, Ramashankar Raghuvanshi, had taken part in “RSS and
Jan Sangh” activities. And I must again repeat, as always citing Justice
Chinnappa Reddy extensively is worthwhile:
“India is not a police state. India is a democratic republic. More than
30 years ago, on January 26, 1950, the people of India resolved to
constitute India into a democratic republic and to secure to all its
citizens "Liberty of thought, expression, belief, faith and worship;
Equality of status and opportunity", and to promote "Fraternity,
assuring the dignity of the individual". This determination of the
people, let us hope, is not a forgotten chapter of history. ……… All
that is said is that before he was absorbed in Government service, he
had taken part in some 'RSS or Jan Sangh activities.' What those
activities were has never been disclosed. Neither the RSS nor the Jan
Sangh is alleged to be engaged in any , subversive or other illegal

7 State of Madhya Pradesh vs Ramashankar Raghuvanshi and Anr, (1983) 2 SCC 145.
12 INDIAN J. CONST. L.

activity; nor are the organisations banned. Most people, including

intellectuals, may not agree with the programme and philosophy of the
Jan Sangh and the RSS or, for that matter of many other political
parties and organisations of an altogether different hue. But that is
irrelevant. Everyone is entitled to his thoughts and views. There are
no barriers. …….. What then was the sin that the respondent
committed in participating in some political activity before his
absorption into Government service?...... The whole idea of seeking a
Police report on the political faith and the past political activity of a
candidate for public employment appears to our mind to cut at the
very root of the Fundamental Rights of equality of opportunity in the
matter of employment, freedom of expression and freedom of
association…… Politics is no crime. Does it mean that only True
Believers in the political faith of the party in power for the time being
are entitled to public employment ? Would it not lead to devastating
results, if such a policy is pursued by each of the Governments of the
constituent States of India where different political parties may happen
to wield power, for the time being ? Is public employment reserved for
"the cringing and the craven"…? We do not have the slightest doubt
that the whole business of seeking police reports, about the political
faith, belief and association and the past political activity of a
candidate for public employment is repugnant to the basic rights
guaranteed by the Constitution and entirely misplaced in a democratic
republic dedicated to the ideals set forth in the preamble of the
Constitution. We think it offends the Fundamental Rights
guaranteed by Arts. 14 and 16 of the Constitution to deny
employment to an individual because of his past political affinities,
unless such affinities are considered likely to affect the integrity and
efficiency of the individual's service. To hold otherwise would
be to introduce 'McCarthyism' into India.
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 13

'McCarthyism' is obnoxious to the whole philosophy

of our constitution. We do not want it.”8
Apart from laying out, with his usual felicity, the correct
constitutional position, Justice Chinnappa Reddy also pointed to
another aspect of constitutionalism and constitutional values. If the
power vested in a particular regime, due to electoral victories, were to
be used to illegally target people and opponents holding opposing
views, then reciprocation by others who may come to power at a later
date would lead the country to chaos of mutually aided destruction.
The caution that Justice Chinnappa Reddy urged, when the Congress
party was in power – both at the Centre and in the State of Madhya
Pradesh- should be borne in mind by all political parties now holding
or aspiring to hold political power.
We have heard often, especially over the past decade or so, of
vigilante justice being promoted by some political factions, and
enforced by spontaneously forming mobs of a particular politico-
religious formation, demanding that individuals belonging to other
denominations prove their patriotism by singing the National Anthem
or another poem deemed by many to be the National Song. In Bijoe
Emmanuel9, the Supreme Court was dealing with the issues raised on
behalf of three school children who belonged to a denomination
“Jehovah’s Witnesses” and who refused to sing the National Anthem
even though they always stood up whenever the anthem was played.
Justice Chinnappa Reddy wrote:

8 Also read the commentary of R. Venkataramani, recently appointed as the Attorney

General of India, on this case in his book “Judgements by Chinnappa Reddy – A Humanist”,
pb. International Institute of Human Rights Society, New Delhi (1983). Indeed that book
is a small treasure trove of commentaries and insights into various decisions by Justice
Chinnappa Reddy.
9 Bijoe Emmanuel & Ors v State of Kerala & Ors, (1986) 3 Supreme Court Cases 615.
14 INDIAN J. CONST. L.

“We are afraid the High Court misdirected itself and went off at a
tangent. They considered, in minute detail, each and every word and
thought of the National Anthem and concluded that there was no
word or thought…. Which could offend anyone’s religious
susceptibilities. But that is not the question at all. The objection of the
petitioners is not to the language or sentiments of the National
Anthem wherever….. In their words ‘[T]hey desist from actual
singing only because of their honest belief and conviction…..” we have
to examine whether the ban imposed by Kerala education authorities
against silence when the National Anthem is sung on pain of
expulsion from the school is consistent with the rights guaranteed by
articles 19(1)(a) and 25 of the Constitution….. we have no option
but to hold that the expulsion of the children from the school for not
joining the singing of National Anthem, though they stood
respectfully… was violative of Article 19(1)(A)”.
Continuing further, and examining Article 25, he wrote:
“Article 25 is an article of faith in the Constitution, incorporated in
recognition of the principle that the real test of a true democracy is the
ability of even an insignificant minority to find its identity under the
country’s Constitution. This has to be borne in mind interpreting
Article 25….. Therefore, whenever the Fundamental Right to
freedom of conscience and to profess, practice and propagate religion is
invoked, the act complained of as offending the Fundamental Right
must be examined to discover whether such an act is to protect public
order, morality and health, and whether it is to give effect to other
provisions of Part III of the Constitution or whether it is authorized
by a law made to regulate or restrict any economic, financial, political
or secular activity which may be associated with religious practice for
social welfare and reform. It is the duty and function of the
Court to so do.”
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 15

While Bijoe Emmanuel is justifiably celebrated as a blow for

religious freedoms, we must also not jump to the conclusion that
Justice Chinnappa Reddy held the view that all religious views, even if
held genuinely, are beyond the pale of the law. In particular, if the law
is to promote other provisions of Part III or for social welfare and
reform, then protections of Article 25 may not be extended. I am sure
many of you would agree that such a balanced perspective between the
ideas of “religious freedom and their protections” and the need for
“social welfare and reform”10 have been relatively rare, and even rarer
has been the clarity of language and conviction. It is no wonder that
Justice Chinnappa Reddy was one of the judges concurring with the
views of Justice Y.V. Chandrachud in the Shah Bano case (which upheld
the views of Justice Krishna Iyer in both Bai Tahira11 and Fazlunbi12
(Justice Chinnappa Reddy was a member of the three-judge bench in
the latter case).
It is inevitable that patriarchal attitudes (or unquestioned or
unexamined beliefs influenced by patriarchy), religious views and
beliefs would often clash with the more modern value structures
(arguably more aspired for than achieved) in which women are deemed
to be equal in every way with men. Justice Chinnappa Reddy was
definitely of the opinion that Article 25 ought not to be a hindrance
for social welfare and reform. For instance, in the chapter on Women
and Women’s rights, in his book “The Court and the Constitution of India:
Summits and Shallows”13. He wrote:

10 Attorney General R. Venkataramani points out that many Members of Parliament,

including one from the largest minority, had reacted very sharply to the Bijoe Emmanuel
decision, and had used extreme language against Justice Chinnappa Reddy. Supra n. 7, at
page 15.
11 1979 AIR 362.
12 1980 AIR 1730.
13 Reddy, O. Chinnappa, OUP, New Delhi 2008, pages 115 and 117.
16 INDIAN J. CONST. L.

“One of the outstanding unresolved problems of humanity is that of

the liberation of women, humanity’s oppressed half…. In the ultimate
analysis the measure of democracy in a country’s polity and the
measure of the general emancipation of the people is the degree of
emancipation of its women…. Much has been said; not so much has
been achieved….. [T]hese special provisions” such as Articles 14,
42, 44 etc., “have made no impact whatsoever on the general condition
of Indian women, although it may have produced here and there a few
professionals like doctors, lawyers, teachers etc.,. Notwithstanding the
equality clauses of the Constitution, the gender bias against women of
all religions in matters of succession to property, marriage and divorce
still persist….. [T]hen there are the laws, laws to be made, laws to
be abolished, laws to be amended. Instead of ad hoc revision of some
provisions here and another provision there, the Law Commission
may be asked to take up a comprehensive revision of all laws where
women are discriminated against, where women need protection and
where women need advancement….. the need has become urgent with
the passage of time but political games and conveniences seem to
prevent the government from bringing forward any legislation to
implement the Directive Principles”
Justice Chinnappa Reddy’s unabashed, eloquent and
persuasive stance that equality clauses of the Indian Constitution
necessarily also encode a socially progressive agenda to undo
unconscionable damages in the past, continuing in the present and
which might continue or re-emerge in the future, could be fruitfully
studied as one of truest renditions of Constitutional identity. It is such
a travesty that even the so-called progressive voices of the left have not
borrowed his reference frame to articulate and build a moral
movement. Few have expressed as clear views as the following:
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 17

“Golaknath was a tragedy. The judges led by Chief Justice

Subba Rao, otherwise a liberal judge, showed a near obsessive
percipience of the Fundamental Rights in the
Constitution…. But no perception of the Directive
Principles which were also part of the Constitution. There was a
flow of high-sounding rhetoric about the ‘transcendental’
nature of the Fundamental Rights but hardly a thought for
the welfare of the ‘People of India mentioned in the
Preamble…. [T]here was then no indigenous jurisprudence in the
making. Judges…. Were steeped in British jurisprudence and where
“that “did not help them, they were ready to look to American
jurisprudence…. concepts of ‘reasonable classification’, ‘police
power’…. Were needlessly borrowed… to” narrowly “construe some
of the Fundamental Rights instead of giving them an expansive
interpretation in the light of the Directive Principles and the
Preamble…… and an individual as a member of society
was displaced by an individual, pure and simple.”14
He continues:
“They failed to realise the great truth that in Constitutional
Law more than elsewhere, there are no absolutes which are absolutely
true. They waxed eloquent on the ‘great freedoms’ of the right to
property and the right to compensation, but denied to the whole
people of the country freedom of choice, the freedom
from the tyranny of archaic dogma, the freedom to
make a new and different choice to alleviate
poverty…. Concerned as they were with the ‘great
freedoms’, they showed little awareness of the great
problems of the millions of little men…….. [T]hey were

14 Ibid, page 48.

18 INDIAN J. CONST. L.

highly conscious that it was a Constitution that they were expounding

but appeared to be unconscious that simultaneously it was the right to
property in an economy of scarcity they were expounding. It was as if
the right to property was the centre of the constitutional universe
around which other Fundamental Rights including the right to
equality revolved. The effect of Golaknath was to stop
constitutional progress and to fossilize the
Constitution”.
I am sure many of you would immediately appreciate that the
so called “neo-liberal agenda”, often times fusing with (and sustained
by a socio-political discourse painting) an extreme form of “laissez
faire free markets” (bordering on being “anarcho-capitalist”) rhetoric,
which has come to increasingly dominate the Indian polity for the past
three decades, is on course to eviscerate the idea of an “individual as a
member of society” and displace it with “an individual, pure and
simple”. Pushed forward by “I, Me, Mine” mindsets of the elite classes
(and increasingly and shockingly now the middle classes too), there is
seldom any thought about what is to be done about the masses – the
hundreds of millions suffering from absolute as well as relative poverty
that leaves them unable to self-actualize their potential – who are left
behind. Are we on our way to establishing a policy framework that the
Supreme Court once described as “tax break after tax breaks for the
rich, and the gun for the poor” to man the “security state” protecting
the gated communities for the “few”?
As the neo-liberal agenda was being heralded in 1991, my good
friend and a distinguished parliamentarian, Shri. S. Jaipal Reddy,
cautioned the then Prime Minister and the then Finance Minister that
they must at least be careful that their policy agendas do not lead to
the emergence of a dystopia in which the “state behaves like the
market, and the market behaves like the state”. Many reasonable
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 19

people are apprehending that that might be where we are headed, if we

aren’t already there. This is the inevitable consequence of a neo-liberal
agenda – all over the world – in which the right to property is deemed
to be the sole purpose and center of the Constitutional universe and
of the socio-economic spheres of human action. This view necessarily
engenders a fascist “security state” with a remit of protecting not just
the borders of the nation, but also the borders of “the gated
communities” of the few. But we need to ask ourselves- What would
the support of the “security state” be limited to? As many discuss in
whispers of the nation’s policing powers and agencies being used to
aid the rapid accumulation of assets and wealth of the very few, and to
brow beat even those with considerable wealth (but not possessing the
same level of patronage of those wielding political power), what should
we expect of our constitutional future? Would the effect again be the
stoppage of “constitutional progress and to fossilize the
Constitution”? And fossilize the lives of hundreds of millions, with a
view that accumulation of unlimited wealth by the very few is the
primordial national purpose, some being given the gun to protect the
very few, and the rest to remain silent (and if some of the more
irresponsible and strident commentary on social media is to be
believed) or even allowed to disappear?
The above uncomfortable questions are seldom asked, as the
very foundations of notions of welfare of all communities are
decimated, as the views and reality that human beings are also social
animals are removed from consideration, and the expectations that
there is great merit in serving others in the society, especially the
weakest scorned (and even potentially subject to criminalization).
The decisions of Justice Chinnappa Reddy in the areas of
socio-economic policies are too well known to be repeated here in
extenso. Nevertheless, a brief recounting of his brilliant articulation in
20 INDIAN J. CONST. L.

at least a few of the cases is necessary, at least, to find some emotional

and intellectual relief for ourselves.
As the Covid pandemic raged, and millions were likely to
perish, two judges of the Supreme Court observed that it may be
necessary for the Union of India to provide free testing to save lives.
This raised the hackles of the neo-liberal coterie, and some went so far
as to deride the judges in most contemptuous and un-parliamentary of
language on social media. Their gripe was that any kind of attempt at
moderating prices, even with the threat of millions dying, was
unacceptable. The cost to the society, of potential death of millions,
was apparently of no consequence to them. In the case of Union of India
v Cyanamide India Ltd15, Justice Chinnappa Reddy wrote:
“Profiteering, by itself, is evil. Profiteering in the scarce resources of
the community, much needed life sustaining foodstuffs, and lifesaving
drugs is diabolical…. It must be remembered that Article 39(b)
enjoins a duty on the State towards securing ‘the ownership and control
of material resources of the community are so distributed as best to
subserve the common good…… No doubt the order as made on
November 25, 1981 has the manufacturers on terms, but the
consumer public has been left high and dry. Their interests have in no
way been taken care of. In matters of fixation of price”, once a
determination of essentiality is made “it is the interest of the consumer
public that must come first”.16
In the Sanjeev Coke case, Senior Counsel, Shri. A.K. Sen
asserted that “neither a coal mine nor a coke oven plan owned by private parties

15 (1987) 2SCC 720.

16 It must be noted that Justice Chinnappa Reddy was very careful in using the word
“profiteering” and not “profits”. Cambridge Dictionary defines profiteering as: “the act
of taking advantage of a situation in order to make a profit, usually by charging
high prices for things people need: The pharmaceutical company has been charged
with profiteering from the AIDS crisis.”
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 21

was a ‘material resource of the community…. According to the learned counsel they
would become material resources of the community only after they were acquired by
the State”.
Further, Shri A.K. Sen also used Krishna Iyer, J’s prolixity in
State of Karnataka v. Ranganatha Reddy17…. to urge that if the word
‘distribute’ was given its proper emphasis (based on what Krishna Iyer,
J wrote), it would inevitably follow that “material resources must belong to
the community as a whole, that is to say, to the State or the public, before they could
be distributed as best to subserve the common good.”
As I have said again and again in this speech, Justice Chinnappa
Reddy could make short work of specious arguments. His response
was classic “Chinnappa” (as he himself would occasionally ask people
to address him as):
“We are unable to appreciate the submission of Shri Sen. The
expression ‘material resources of the community’ means all things
which are capable of producing wealth for the community. There is no
warrant for interpreting the expression in so narrow a fashion……
The expression involves no dichotomy. The words must be understood
in the context of constitutional goal of establishing a sovereign,
socialist, secular, democratic republic. Though the word ‘socialism”
was introduced in the Preamble by an amendment…. That socialism
has always been the goal is evident from the Directive Principles of
State Policy. The amendment was only to emphasise the urgency”.
And then he continued:
“……. everything of value or use in the material world is material
resource and the individual being a member of the community his
resources are part of those of the community. To exclude ownership of

17 (1977) 4 SCC 471.

22 INDIAN J. CONST. L.

private resources from the coils of Article 39(b) is to cipherise its very
purpose…. A directive to the State with a deliberate design to
dismantle feudal and capitalist citadels of property must be interpreted
in that spirit and hostility……”
And finally, let us take the case of K.C. Vasantha Kumar & Anr
v State of Karnataka18, which involved the question of legality of
reservations in the context of Articles 15(4) and 16(4). Justice
Chinnappa Reddy’s opinion in this case, covered a wide gamut of
issues. But what he said about the so-called argument “from merit” is
of particular importance, as that is always brought forth, again and
again, in a very glib fashion, by purveyors of the opinions of upper
classes, whenever the topic of reservations is brought forth:
“Over three decades have passed since we promised ourselves “justice,
social, economic and political” and equality, of status and
opportunity”…… the social and economic disparities are indeed
despairingly vast. The Scheduled Castes and the
Scheduled Tribes and other socially and educationally
backward classes have long journeys to make…….
Their needs are their demands. The demands are
matters of right and not of philanthropy. They ask for
parity and not charity…….”
And he continues:
“Before we attempt to lay down guidelines for the Commission….. we
will do well to warn ourselves and the commission against the
pitfalls of the ‘traditional’ approach towards the
question of reservations…. which has generally been
superior, elitist and therefore ambivalent. A duty to

18 1985 (Supp) SCC 714.

Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 23

undo an evil which has been perpetrated through the generations

is thought to betoken a generosity….. so a superior and
patronizing attitude is adopted. The result is that the claim…. to
equality as a matter of human and constitutional right
is forgotten and their rights are submerged in what is described as
the ‘preferential principle’ or ‘protective or compensatory
discrimination’…. Unless we get rid of these superior, patronizing
and paternalist attitudes…. it” would be “difficult to truly appreciate
the problems involved in the claim of Scheduled Castes, Scheduled
tribes and other backward classes for their legitimate share of
the benefits arising of their belonging to humanity
and to a country whose Constitution preaches justice,
social, economic and political and equality of status
and opportunity for all”.
After setting the context as to why reservations are to be
advanced, not as charity but as a matter of right owed on account of
inherent human dignity of the beneficiaries, he addresses the
pernicious meritorian argument of the elites:
“One of the results of the superior, elitist approach is that the
question of reservation is inevitably viewed as the
conflict between the meritorian principle and the
compensatory principle. No, it is not so. The real
conflict is between the class of people, who have never
been in or who have already moved out of the desert
of poverty, illiteracy and backwardness and are
entrenched in the oasis of convenient living and those
who are still in the desert and want to reach the oasis.
There is not enough fruit in the garden and so those who are in, want
to keep out those who are not. The disastrous consequences
of the so called meritorian principle to the vast
24 INDIAN J. CONST. L.

majority of under-nourished, poverty stricken, barely

literate and vulnerable people of our country are too
obvious to be stated”.19
“And what is merit? There is no merit in a system
which brings about such consequences. Is not a child of
the Scheduled Castes, Scheduled tribes or other backward classes who
has been brought up in an atmosphere of penury, illiteracy and anti-
culture, who is looked down upon by tradition, no books and
magazines to read at home, no radio to listen, no T.V. to watch, no
one to help him with his his homework, who goes to the nearest local
board school and college, and whose parents are either illiterate or so
ignorant and ill-informed that he cannot even hope to seek their
advice……… has not this child got merit if he, with all his
disadvantages is able to secure the qualifying 40% or 50% …..
surely, a child who has been able to jump so many
hurdles may be expected to do better and better as he
progresses in life.20 If spring flower he cannot be,
autumn flower he may be. Why then, should he be
stopped at the threshold on an alleged meritorian
principle?...... Mediocrity has always triumphed in the past in the
case of the upper classes. But why should the so called meritorian
principle be put against the mediocrity when we come to the” weaker
sections?”

19 At that point of time, in 1985, the prevailing cultural zeitgeist was still at least that of
acknowledgement that these were real problems, even if sufficient moral courage was not
always forthcoming to address them with great moral vigour and urgency. In our current
denouement, the approach seems to be a cultural zeitgeist to ignore or deny any such
problems (at best) or bitterly attacked as being an “anti-national discourse”.
20 Kenneth Arrow, a Nobel laureate, speaks of how empirical evidence (sometime in 2004
or so) has shown that those who suffer early childhood deprivations, can make up and
approach higher levels of achievements of the non-discriminated if they are allowed to
pursue their studies for a longer period of time.
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 25

The ontological blunder of removing the individual from

within the context of her belonging to a social context, and coupling
that with locating human beings as nothing more than individuals has
led to a metaphysical tragedy with significant consequences to our
ability to cooperate and undertake collective action necessary to solve
many structural and consequential problems. The problem lies with
the value frame we have chosen, which is based on the neo-liberal
frameworks of thought that an individual is capable of greed, and
hence must only be expected to strive for personal aggrandizement. By
removing the individual from the society and eliminating the duty to
also be considerate of the social context and welfare of others, we have
effectively created an atmosphere of accumulating negative
externalities that can devastate the physical and the social world. And
in the “I, Me, Mine” world, “merit” is only all about the individual and
not the commonality of purpose. This is what agitated Justice
Chinnappa Reddy, and what he repeatedly warned against.
Some of what Justice Chinnappa Reddy cautioned us, many
decades ago, is now being spoken of with great concern by major
philosophers. For instance, Michael Sandel writes, in the “Tyranny of
Merit21”:
“The debate over who is a maker in today’s economy, and who a
taker, is ultimately an argument about contributive justice……
thinking this through requires public debate about what counts as a
valuable contribution to the common good…. My broader point is
that renewing the dignity of work requires that we contend with the
moral question underlying our economic arrangements, questions that
the technocratic politics of recent decades have obscured….”

21 Sandel, Michael J: “Tyranny of Merit: What’s Become of the Common Good?”, pages
221 -222.
26 INDIAN J. CONST. L.

“One such question is what kinds of work are worthy of recognition

and esteem. Another is what we own one another as citizens. These
questions are connected. For we cannot determine what counts as a
contribution worth affirming without reasoning together about the
purposes and ends of common life we share. And we cannot deliberate
about common purposes and ends without a sense of belonging,
without seeing ourselves as members of a community to which we are
indebted. Only insofar as we depend on each other, and recognize our
dependence, do we have reason to appreciate their contributions to our
collective well-being. This requires a sense of community….. to enable
us to say…. “we are all in this together” ….. Over the past four
decades, market driven globalization and meritocratic conception of
successes, taken together have unraveled these moral ties……..
Meritocratic sorting taught us that our success is our own doing, and
so eroded our sense of indebtedness. We are now in the midst of the
angry whirlwind this unraveling has produced.”
Which again brings us to what Justice Chinnappa Reddy meant
when he wrote “Golaknath was a tragedy……. and an individual as a member
of society was displaced by an individual, pure and simple”. While Michael
Sandel’s concerns in Tyranny of Merit are still within the framework of
“utilitarian calculus”, Justice Chinnappa Reddy combined that with
notions of (i) “inherent dignity” of a human being that needed to be
protected for their own sake by an unwavering commitment to
complete justice – identified in the Preamble as being comprised of
social, economic and political , (ii) equality of opportunity and status,
and the (iii) existential need for fraternity – both from the perspective
of utilitarian fraternity and also human dignity that flows from such
fraternity. His lament, about Golaknath fossilizing the Constitution, has
to be understood from that perspective.
Some Select Aspects of the Constitutional Philosophy of Justice Chinnappa Reddy 27

We have to ask: Given the reluctance, over the past few

decades, to talk about the Directive Principles as being sine qua non for
realizing the national purpose, have we effectively brought back the
tragedy of Golaknath to play itself out in the lives of hundreds of
millions of our fellow citizens? And we must also ask ourselves in these
times, given that he was such a passionate soldier for the progressive
agenda of the Constitution and his ever-present concern for the
weakest, whether Justice Chinnappa Reddy might have also been
labelled an “urban naxal”.
In this lecture, I have tried to weave a narrative taking into
account just a small portion of the work of a truly remarkable mind.
A much more nuanced, and exhaustive rendering of the true scale and
complexity of his work is probably in hundreds of cases – which I
submit, without hyperbole, might be some of the finest works in law
and jurisprudence. Consequently, this lecture must necessarily be
viewed as a tentative foray and hence, might also be susceptible to
error. However, I hope that this would engender interest amongst the
legal fraternity, especially among the young scholars, to research his
works, his life story and his written notes (if they have been preserved).
This would serve the purpose of bringing back to life Justice
Chinnappa Reddy, and also bring greater vigour to our life as
practitioners of the law.
And let me end my speech here the way he ended his book,
“Shallows and Summits”:
“Endaro mahanubhavulu
Andariki Vandanamulu”
And on a personal note, let me say –
“Naa kritagnathulu
Ee saati leni mahanubhavudiki”
Jai Hind.
 GLOBALIZED ELECTORAL DEMOCRACY IN INDIA AND THE
NATURAL INDIVIDUAL CITIZEN
Aymen Mohammed 
I. INTRODUCTION
Theories of electoral law in scholarship have been limited in
1
scope. This is perhaps because the electoral law itself has been ‘sired
by administrative law and constitutional law’2 and therefore, is studied
in a limited manner. However, as demonstrated above, the law relating
to elections has strong philosophical underpinnings in India.
Therefore, as a “core” value of the Constitution, protecting the
universal franchise is closely bundled with the integrity and health of
electoral democracy.
While the role of money in politics has been an essential site of
judicial oversight, little attention has been paid to the increasing role
of corporate donations in financing political parties and election
campaigns. Furthermore, the role of ‘Big Data’ in influencing electoral
outcomes has only begun to be discussed.3 This paper argues that
globalized models of election campaigning and management have
potentially corrosive effects on the integrity of electoral discourse and
process, and without definite safeguards, the viability of this
constitutional method takes a significant backseat.


Aymen Mohammed is an assistant professor at NALSAR University of Law. This essay
was originally written in 2018 for Prof. Upendra Baxi’s course “Law and Justice in a
Globalizing World.” I thank Prof. Baxi for his feedback on the original paper. The essay
has been revised to include a Postscript to include important developments that have
occurred since then.
1 Graeme Orr, ‘Ritual in the Law of Electoral Democracy’, Contemporary Questions, ed.,
Glenn Patmore and Kim Rubenstein, (2014) ANU Press.
2 ibid.
3 “George Monbiot, ‘Big data’s power is terrifying. That could be good news for
democracy’ (Guardian, 6 March, 2017) <https://www.theguardian.com/commentisfree
/2017/mar/06/big-data-cambridge-analytica-democracy>.
30 INDIAN J. CONST. L.

At the heart of safeguarding electoral democracy is ensuring

that individual citizenship is the critical determinant of who exercises
political power in the country. Therefore, this conception of individual
citizenship in electoral democracy must not be corroded by notions of
‘corporate citizenship’ that allow corporations to disproportionately
distort electoral competition and marginalize the speech of ‘natural
citizens.
This paper argues that there is a constitutional imperative to
prohibit corporate donations in political finance. The paper focuses on
the rise of globalized forms of political finance – for example,
increased reliance on corporate donations through complex legal
structures – and its influence on electoral politics. Secondly, it focuses
on the role of globalization in fundamentally challenging electoral
democracy as we know it. This is reflected not only in recent allegations
of ‘foreign meddling’ in the US elections4 but also in the links between
global capital and political finance.5
This paper begins by outlining the close ties between universal
franchise and the practice of citizenship that informed the drafters of
the constitution of India. It then proceeds to look at the extant law of
electoral democracy in India. The law of electoral democracy centers
the natural individual citizen as its basis.
II. UNIVERSAL ADULT FRANCHISE AND PERSONHOOD
In the history of electoral democracy, India has a significant
place. Unlike most Western liberal democracies, Indian electoral

4 For a fairly comprehensive coverage of the ongoing controversy over Russia’s alleged
intereference in US elections, see New York Time’s “Russian Hacking and Influence in the
U.S. Election” at <https://www.nytimes.com/news-event/russian-election-hacking>.
5 Ed Pilkington and Jon Swaine, ‘The seven Republican super-donors who keep money in
tax havens’ (Guardian, 7 November, 2017) <https://www.theguardian.com/news/2017
/nov/07/us-republican-donors-offshore-paradise-papers>.
Globalized Electoral Democracy in India and the Natural Individual Citizen 31

democracy was premised, ab initio, on universal suffrage.6 More

importantly, the demand for universal adult suffrage was integral to the
modern Indian nationalist movement.7 This principle finds an
important place within the Constitution of India. During discussions
pertaining to universal adult suffrage in the Constituent Assembly,
certain members did raise objections to universal suffrage, arguing that
an overwhelmingly illiterate mass could not be trusted to make rational
electoral decisions.8 However, universal adult suffrage found
overwhelming support in the Constituent Assembly.
“Instant universal suffrage”9 is rare in the history of modern
global democracy. In most Western democracies, suffrage was
restricted on the basis of gender, class, property and race.10 While
various theories exist to explain the expansion of suffrage in Western
democracy,11 the need to mitigate a significant possibility of revolution
played an important role12. Historically, demands for the expansion of

6 Swati Ramanathan and Ramesh Ramanathan, ‘The impact of instant universal suffrage’
(2017) 28 (3) Journal of Democracy, <http://janaagraha.org/files/The-Impact-of-
Instant-Universal-Suffrage-by-Swati-and-Ramesh-Ramanathan.pdf>.
7 For example, the Motilal Nehru Committee Report (1928) recommended adult suffrage
on the grounds that it is the only definite means of achieving parity between voting
populations across communities. The Committee also refused to consider restricting
franchise on the basis of literacy or property or gender. Available at:
<https://archive.org/details/in.ernet.dli.2015.212381>.
8 For example, see, Das Bhargava in Constituent Assembly Debates: “In regard to the rest, I
also wanted to propose an amendment to clause (6) that illiteracy should also be regarded as one of the
grounds for not giving a vote on the basis of adult suffrage. If a person is illiterate, he should not be
granted the right to vote.” VII Volume, 4th January 1949, para. 104.
9 Supra 1.
10 See, for example, Neil Johnston ‘The History of Parliamentary Franchise’, House of
Commons Library <https://archive.org/details/in.ernet.dli.2015.212381>.
11 Daron Acemoglu and James Robinson, ‘Why did the West Extend the Franchise?
Democracy, Inequality and Growth in the Historical Perspective’ (2000) 115 (4)
Quarterly Journal of Economics, 1167-1199
<https://scholar.harvard.edu/jrobinson/files/jr_west.pdf>.
12 ibid.
32 INDIAN J. CONST. L.

the franchise have often been articulated in terms of exercising political

agency or in broader terms, such as personhood13 and full citizenship14.
In other words, a key indicator of personhood and citizenship
in the modern nation-state is the ability of individuals to exercise the
right to vote or contest in elections. These underlying considerations
of recognizing individual agency (and, therefore, personhood) and
finding alternatives to ‘revolution’ are important themes in the
Constituent Assembly (CA) debates. While various members referred
to the egalitarian aspects of universal suffrage, an important principle
was recognizing the potential conflict of excluding any section. A.
Thanu Pillai, a member of the CA from Travancore, responded to
those opposing universal franchise, arguing that it “is really the core of our
Constitution and it is but just and right that we have adopted it. I am
really surprised that even today objections are raised to Adult
Franchise. Not only from the standpoint of democratic principles but from the
facts of the situation in the country, it is clearly indispensable. We must look at the
temper of the nation today. Will anything other than adult franchise satisfy the
people? I am definitely of the view that nothing short of it could have
formed the basis of our Constitution.”15 (emphasis supplied). Another
key justification, that of individual agency, was made by O. V.

13 August v. Electoral Commission 1999 (4) BCLR 363 (1 April 1999)

<http://www.saflii.org/za/cases/ZACC/1999/3.html> “Universal adult suffrage on a
common voter’s roll is one of the foundational values of our entire constitutional order.
The achievement of the franchise has historically been important both for the acquisition
of the rights of full and effective citizenship by all South Africans regardless of race and
for the accomplishment of an all-embracing nationhood. The universality of the franchise
is important not only for nationhood and democracy. The vote of each and every citizen is a
badge of dignity and of personhood. Quite literally, it says that everybody counts.”. Also see, Robert
J. Sharpe and Patricia I. McMahon, The Persons Case: The Origins and Legacy of the Fight for
Legal Personhood (Toronto: University of Toronto Press, 2007) as cited by Colleen
Sheppard in (2008) 53 McGill Law Journal p. 367-373.
<http://lawjournal.mcgill.ca/userfiles/other/3816560-Sheppard_Book_Note1.pdf>.
14 Irma Sulkunen and Seija-Leena Nevala-Nurmi and Pirjo Markkola, Suffrage, Gender and
Citizenship, ‘Introduction’ (Cambridge Scholars Publishing, 2009).
15 Constituent Assembly Debates, Vol. XI, 24th November, 1949, paragraph 136.
Globalized Electoral Democracy in India and the Natural Individual Citizen 33

Alagesan, who was responding to certain demands for

institutionalizing ‘village republics’:
“There is another criticism that the village as a political unit
has not been recognized. I fear that behind the back of this
criticism is distrust of adult franchise. What was conceived under
the village unit system was that the village voters would be
called upon to elect the Panchayats and only the members
of the Panchayats were to take part in the elections to the
various assemblies, Provincial and Central. But now, it is the
village voter himself who will be called upon to weigh the issues before
the country and elect his representative, and so he will directly
participate in the election. I claim this to be a more progressive
arrangement than having village units which elect the electorate
indirectly” (emphasis supplied).
In the CA debates, universal adult franchise was seen as
something central to the working of the Constitution.16 The debates
also reflect that universal adult franchise was closely linked to
operationalizing the egalitarian objectives of the Constitution.17
Therefore, another key theme during debates on adult franchise was
guaranteeing personhood and unconditional citizenship to those
individuals previously excluded from the political process. Recognizing
the vast social and political disparities in the country, Ambedkar
asserted that “power in this country has too long been the monopoly
of a few and the many are only beasts of burden, but also beasts of prey. This

16 For example, ibid paragraph 204, Sarangdhar Das, in the CA argued that “Although I
have pointed out a few of the very great defects, in as much as adult franchise has been
conceded by this Constitution, I have no doubt, that the mass of people who will exercise
the franchise in the future, can change the entire Constitution, if they so desire, and they
will desire. So I do not condemn, nor disapprove, of the Constitution, as some of my friends have said
that nobody has condemned it. It is no use condemning it. When adult franchise is there, by exercising
that right, we can change the Constitution according to the needs of our society in the future.”
17 ibid.
34 INDIAN J. CONST. L.

monopoly has not merely deprived them of their chance of betterment,

it has sapped them of what may be called the significance of life. These down-trodden
classes are tired of being governed. They are impatient to govern themselves.”
(emphasis supplied).
Furthermore, Ambedkar asserted that with the enactment of the
Constitution, an important aspect of democracy, “not merely in form,
but also in fact”18 would be to:
“…. hold fast to constitutional methods of achieving our
social and economic objectives. It means we must abandon
the bloody methods of revolution. It means that we must
abandon the method of civil disobedience, non-
cooperation and satyagraha. When there was no way left for
constitutional methods for achieving economic and social objectives,
there was a great deal of justification for unconstitutional methods.
But where constitutional methods are open, there can be no
justification for these unconstitutional methods.”19
Therefore, the key philosophical underpinnings in incorporating
adult franchise were that political power and the ability to self-govern
were now accessible to even those belonging to the “down-trodden
classes”. More importantly, the enactment of the Constitution meant
that certain ‘constitutional methods’ were available to citizens that
allowed them to pursue socio-economic emancipation. It is possible to
envisage that the provision of justiciable fundamental rights was one
of these constitutional methods. However, the emphasis on ensuring
political power for the marginalized indicates the importance of the
principle of ‘one person one vote’ (and therefore, electoral democracy)

18 Constituent Assembly Debates, Vol. XI, 25th November, 1949, paragraph 329.
19 ibid.
Globalized Electoral Democracy in India and the Natural Individual Citizen 35

as an important constitutional method of furthering social and

economic objectives.
III. PROHIBITING CAMPAIGN FINANCE BY JURISTIC ENTITIES
1. Background
India’s constitutional framework recognizes the rights of
citizens to participate in the country’s parliamentary democracy. These
rights include the right to vote, contest and campaign in various
elections. In various judgments, the Supreme Court of India has held
that rights in relation to elections are constitutional and statutory
rights,20 and the import of Fundamental Rights guaranteed in the
Constitution is limited in scope. Therefore, the exercise of rights in
relation to elections is subject to the limitations placed by the
governing statute.
In this context, it must be noted that the Supreme Court of
India has addressed the question of campaign finance and the role of
money in elections in various judgments, including People’s Union of Civil
Liberties21 and Association for Democratic Reforms.22
The Supreme Court was primarily addressing questions
pertaining to ensuring the integrity of representative parliamentary
democracy. The Supreme Court, in Association for Democratic Reforms
held that free and fair elections are an essential part of parliamentary
democracy, and parliamentary democracy forms part of the basic
structure of the constitution. Therefore, maintaining and protecting
the integrity of the electoral process is essential to safeguarding
constitutional and statutory guarantees pertaining to elections.

20 Shyamdeo Prasad Singh v Nawal Kishore Yadav (2000) 8 SCC 46, Javed v State of Haryana &
Others (2003) 8 SCC 369.
21 People’s Union for Civil Liberties (PUCL) v Union of India (2003) 4 SCC 399.
22 Union of India v Association for Democratic Reforms 2002 (5) SCC 294.
36 INDIAN J. CONST. L.

2. Legislative Changes to Political Finance Framework

The Finance Act of 2017 amended certain provisions of the
Companies Act, 2013 that governed corporate donations to political
parties. Section 182 of the Companies Act capped corporate political
donations at seven and a half per cent of the company’s average net
profits during the three immediately preceding financial years.23
However, the amendment removed the cap on the quantum of
donations and further provided anonymity to political donations by
removing the requirement of naming political parties in the company’s
accounts.24 Furthermore, the Finance Act also amended Section 29C
of the Representation of the People Act, 1951. Section 29C imposes
reporting requirements on political parties and mandates disclosure of
high-value donations. The Act exempted such declarations in cases of
contributions made through anonymous ‘electoral bonds.’25
Similar dilutions to political finance laws were made by the
Finance Act of 2016 to the Foreign Contribution (Regulation) Act,
2010 (“FCRA”). The amendment essentially allowed political parties
to receive funding from subsidiaries of foreign-owned companies.
Prior to the amendment, FCRA prohibited the receipt of “foreign
contributions” from “foreign sources”. However, following the
amendment, contributions from foreign owned companies, as long as
the ownership structure of such companies is in compliance with
FEMA,26 would not be considered as “foreign contributions”.27

23 Proviso to s.182(1) of the Companies Act 2013 (omitted by Finance Act 2017).
24 Part XII of the Finance Act, 2017
25 Jagdeep Chhokar, ‘Much Ado About Nothing: Electoral Bonds and an Unapologetic
Lack of Transparency’, (The Wire, 4th January, 2018)
<https://thewire.in/210430/electoral-bonds-transparency-in-political-funding/>.
26 Foreign Exchange (Management) Act 1999.
27 Part XIII, Finance Act 2016.
Globalized Electoral Democracy in India and the Natural Individual Citizen 37

While the receipt of “foreign contributions” is subject to a

relatively complex regime under the FCRA, the Foreign Direct
Investment (FDI) regime under FEMA has seen continuing relaxation
of norms and expansion of “automatic and direct routes” for foreign
capital. Ironically, this amendment, to some extent, streamlines this
anomalous treatment of foreign capital as “problematic” when it is in
the form of contributions, but “necessary” when it is in the form of
investments.
Taken together, these legislative changes expand the potential
field of activity of corporations in electoral politics. Furthermore,
corresponding amendments limiting disclosure and declaration norms,
increase the opaqueness of how political parties, campaigns and
candidates are funded.
In this section, I argue that there is a strong constitutional
imperative to prohibit corporate donations to political parties. I argue
this on three grounds. Firstly, the Supreme Court’s jurisprudence on
freedom of speech and expression has recognized that the right to
receive information about the antecedents of candidates and political
parties forms an inherent part of “speech and expression”. 28 Secondly,
essential rights of participation in electoral democracy, the rights to
vote or to contest elections or to form a political party, are exclusively
available to citizens.29 The Supreme Court has held that juristic persons

28 Supra 22, 23.

29 This proposition of law, interestingly found relevance in a recent judgment of the
Brazillian Supreme Court (ADI 4.650, 24th February 2017, On the merits, the Court held that
the exercise of citizenship, in the strict sense, presupposes three modalities of procedure: the right to vote;
the right to be voted; and the right to influence the formation of political will by the instruments of direct
democracy. The Justice Rapporteur emphasized that such rules are inherent to singular individuals and
therefore they could not be extended to companies, whose main purpose is obtaining profit. The Court
pointed out that article 14.9 of the Federal Constitution prohibits the influence of economic power over
the elections and that the participation of legal entities may turn the campaign costs very expensive, without
causing, on the other hand, the improvement of the political process. Judgment summary at
<http://www2.stf.jus.br/portalStfInternacional/cms/verConteudo.php?sigla=portalStf
Jurisprudencia_en_us&idConteudo=159922>.
38 INDIAN J. CONST. L.

cannot exercise Fundamental Rights that are only guaranteed to

citizens. Thirdly, the integrity of the electoral process is contingent on
safeguarding it from distortive effects of capital on political discourse.
In the absence of such safeguards, the possibility of a free and fair
election is subject to serious skepticism.
Article 325 of the Constitution prohibits discrimination on the
basis of religion, race, caste and sex in the inclusion of electoral rolls.
More importantly, Article 326 of the Constitution provides that
elections to the House of People and respective Legislative Assemblies
of every State shall be on the basis of adult suffrage. Adult suffrage
extends to “every person who is a citizen of India and who is not less than
eighteen years of age….” (emphasis supplied). Similarly, another key
aspect of electoral democracy, candidature, is subject to a person being
a citizen of India.30
Therefore, we see that the two key aspects of electoral
democracy, the right to contest and the right to vote, are premised on
citizenship. Therefore, a brief discussion of the legal framework
applicable to citizenship may be necessary.
3. Citizenship and Rights: Constitution of India
The term “citizen” has not been defined in the Constitution.
Part II of the Constitution deals with Citizenship, and lays down that
citizenship shall be by birth, by descent, by migration and by
registration. The Constitution of India does not envisage any other
means by which citizenship may be acquired by any person. As is clear,
it is only natural persons that can acquire citizenship and enjoy the
rights of citizenship.

30 For example, see Article 84 and 173, Constitution of India.

Globalized Electoral Democracy in India and the Natural Individual Citizen 39

The Constitution empowers Parliament to regulate the right to

citizenship. The Citizenship Act, 1955 provides for the various means
through which citizenship may be acquired (or terminated). The Act
defines “person” by excluding juristic or corporate personhood from
within its scope.31
The Supreme Court of India, while interpreting the scope of
the meaning of “citizen” as used in the Constitution held that, on the
basis of section 2(1)(f), “[i]t is absolutely clear on a reference to the provisions
of this statute that a juristic person is outside the purview of the Act”.
4. Right to Freedom of Speech and Expression and Electoral Democracy
The right to freedom of speech and expression under Article
19(1)(a) is guaranteed to all Indian citizens. It is clear from a plain
reading of the constitutional framework that certain protections are
available to “persons” (such as Article 14) and certain rights are
exclusively meant for citizens alone (such as the freedoms under
Article 19). Therefore, rights under the Article 19(1) are solely available
for citizens, who can only be natural persons under the existing
constitutional and legal framework.
The expression “freedom of speech and expression” in Article
19(1)(a) has been held to include the right to acquire information and
disseminate the same. In People’s Union for Civil Liberties,32 it was
recognized that the right of citizens to obtain information on matters
relating to public acts flows from the Fundamental Right enshrined in
Article 19(1)(a). Securing information on the basic details concerning
the candidates contesting elections promotes freedom of speech and
expression and therefore forms an integral part of Article 19(1)(a).

31 Section 2(1)(f), Citizenship Act 1955.

32 (2003) 4 SCC 399.
40 INDIAN J. CONST. L.

Furthermore, while noting that a ballot is the instrument by

which the voter expresses his choice between candidates, the Court
held that while the initial point of conferment of the right to vote
would not attract the protections of 19(1)(a), the final act of casting a
ballot itself would attract the protections of 19(1)(a), and therefore, it
is crucial that citizens have the right to have essential information of
candidates contesting an election.
Therefore, it is important to recognize that electoral rights,
despite being constitutional and statutory in nature, do have an import
of protections of Fundamental Rights. These protections are primarily
sourced from the right to information jurisprudence that has been
developed by the Supreme Court. Exercise of these rights are primarily
sourced under Article 19(1)(a), which is solely available to citizens.33
Moreover, it must be noted that the right to seek essential
information pertaining to a candidate and a political party would
include the right to know the source of funding of a political party and
a candidate. It is essential for a voter to know the source of campaign
funds to determine a candidate’s or a political party’s suitability for a
voter.
In the case of campaign finance by juristic persons, a citizen is
not in a position to identify the actual source of funding. In this context,
an average citizen would require to pierce the corporate veil and
navigate complex corporate structures to determine the actual
ownership and management of a corporation that has made a donation
to a political party. In practice, citizens would have no identifiable and
accessible mode by which they would be able to understand the
sources of campaign finance being utilized by a political party or a
candidate.

33 State Trading Corporation v Commercial Tax Officer 1963 AIR 1811.

Globalized Electoral Democracy in India and the Natural Individual Citizen 41

5. Political Parties, Citizenship and Corporate Funding

The Representation of the People Act, 1951, similar to the
provisions contained in the Constitution, is geared towards
recognizing the rights and obligations of individual citizens vis-à-vis
elections. For example, a political party is defined as follows:
“political party” means an association or a body of
individual citizens of India registered with the Election
Commission as a political party under section 29A.
The purpose of the Representation of the People Act, 1951, is
to “provide for the conduct of elections of the Houses of Parliament and to the
House or Houses of the legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and other
offences….”. When read together with provisions of the legislation, it is
clear that the Act is aimed at enabling free and fair elections to the
Parliament and State Legislations. Furthermore, it is clear from the
nature of the provisions that the rights and obligations envisaged in
this framework are focused on ensuring that individual citizens enjoy
their rights to participate in the electoral process in a free and fair
manner.
In Rama Kant Pandey,34 the Court observed that political parties
are a vital part of parliamentary democracy (which forms part of the
basic structure of the constitution) and cannot be ignored.
Furthermore, in Thampy35 the Court recognized that political parties
wield power “in the administration of government affairs” and are
therefore provided with certain special benefits.
Therefore, it must be understood that political parties play an
important and distinct role in electoral democracy. In this regard, the

34 Ram Kant Pandey v Union of India 1993 AIR 1766.

35 P Naila Thampy v Union of India AIR 1985 SC 1133.
42 INDIAN J. CONST. L.

RPA explicitly recognizes political parties solely as entities constituted

by individual citizens. Therefore, if the control and management of
political parties is subsumed by interests of corporations rather than
individual citizens, the very nature of political parties would stand
changed. Thus, effecting a break from the centrality of the natural
person as the basis of parliamentary democracy. It would be possible
that the extent of corporate funding would evaluate the independence
and nature of functioning of political parties – in effect, political parties
could become mere conduits for corporate activity despite the fact that
they are excluded from forming political parties.
6. Safeguarding the “purity of elections”
In Kanwar Lal Gupta,36 the Supreme Court observed that the
“pernicious influence of big money would then play a decisive role in
controlling the democratic process in the country. This would
inevitably lead to the worst form of corruption and that in its wake is
bound to produce other vices at all levels.”
As stated earlier, the right to freedom of speech and expression
includes the right to receive information. In Ministry of Information and
Broadcasting vs. Cricket Association of Bengal,37 the Supreme Court
observed that “one-sided information, disinformation, misinformation and non-
information will equally create an uninformed citizenry which makes democracy a
farce…freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions.”
The Court’s finding in Kanwar Lal Gupta clearly recognizes that
the source of political funding has a significant impact on the electoral
process and “big money” reduces the scope of a free and fair election.
Moreover, the Supreme Court’s jurisprudence on the freedom of

36 [1975] 2 SCR 259.

37 1995 AIR 1236.
Globalized Electoral Democracy in India and the Natural Individual Citizen 43

speech and expression clearly identifies a right to receive information

as an essential feature of “speech and information”.
In addition, the Ministry of Information and Broadcasting also
recognizes the need to ensure safeguards against distortive information
and misinformation to ensure the integrity and quality of parliamentary
democracy. When read together, the propositions in Kanwar Lal Gupta
and Ministry of Information and Broadcasting focus on providing the
integrity of the democratic process, for which citizens (as voters) must
be informed about those whom they choose to elect. It is insufficient
that voters merely have a theoretical right to receive information but
also that the information is accessible and available.
The prohibition or regulation of corporate funding is sourced
from the overarching principle of ensuring the “purity of the electoral
process”. Successive Supreme Court judgments, including Association
for Democratic Reforms38 and A. Neelalohithadasan Nadar vs. George
Mascrene,39 have recognized that for maintaining the “purity of elections
and a healthy democracy, voters are required to be educated and well informed about
the contesting candidates”.40 The court recognized that the antecedents of
the candidate, their economic situation and their criminal background
are all important and that there is “no necessity of suppressing the relevant
facts from the voters”.41
As has been demonstrated, there have been significant findings
linking the role of “big money” to the broader electoral process.
Furthermore, it is also clear that, in the presence of complex corporate
ownership and management structures, it is extremely difficult for a
citizen to exercise their right to receive information in any significant

38 2002 (3) SCR 294.

39 A. Neelalohithadasan Nadar v George Mascrene 1994 SCC, Supl. (2).
40 Para 22, Association for Democratic Reforms.
41 ibid.
44 INDIAN J. CONST. L.

manner. These two factors indicate substantial harm to the purity of

elections, and preventing such harm is essential to safeguard the rights
of individual voters, as well as the overall health of the democratic
process in the country.
IV. GLOBAL ELECTORAL DEMOCRACY: CAPITAL AND
CAMPAIGN FINANCE
1. Overlapping themes
One of the key recurring themes in global discussions
surrounding electoral reforms focuses on ‘electoral integrity’ – a phrase
indicating the overall health of electoral processes in a particular
jurisdiction. In this context, concerns pertaining to transparency and
accessibility are key priorities. More importantly, sourcing of political
finance is closely linked to outcomes: ‘Who has the voice to participate in
political discourse? and ‘who can determine policy?’.42 Therefore, a key focus
is setting standards and embedding ‘integrity’ within broader electoral
frameworks.43
Closely linked to this is the role of third-party campaigning
elections and the kind of regulatory frameworks they are subject to.
Third-party campaigns are political campaigns operated by persons or
associations or entities that are not political parties and may not be
supporting candidatures, but instead endorsing specific issues. In the
United States, “SuperPACs” supported by large corporate donations
have played an increasingly distortive role in domestic electoral
politics.44 While certain countries, such as Canada, regulate third-party

42 “Financing Democracy: Funding of Political Parties and Election Campaigns and the
Risk of Policy Capture”, (2016) OECD Publishing
<http://dx.doi.org/10.1787/9789264249455-en>.
43 Elin Falguera, et al., “Funding of Political Parties and Election Campaigns”, (2014)
International Institute for Democracy and Electoral Assistance.
44 Alex Slater, ‘Super PACs' distortion of democracy’, (Guardian, 4th October, 2017)
<https://www.theguardian.com/commentisfree/cifamerica/2010/oct/04/superpacs-
political-funding-midterms>.
Globalized Electoral Democracy in India and the Natural Individual Citizen 45

campaigning, most jurisdictions are yet to address this significant gap

in electoral oversight.45
2. Globalization of Political Finance
Authoritative links between political finance and the
determination of policy are difficult to make unless they are explicitly
transactional in nature. Therefore, perhaps, Teachout suggests we
understand corruption as a “description of emotional orientation, rather than
description of contract-like exchange”. Such a view would allow us to look at
larger structures and draw reasonable inferences, rather than meet the
cynical requirement of formally linking finance to outcomes. In other
words, Teachout’s approach allows us to analyze corruption as more
than just quid pro quo. It allows us to expand it to not just look at
corruption but also to develop frameworks that prevent the appearance
or possibility of it.46
In India, the logic of globalization – especially the policies of
disinvestment and deregulation – has simultaneously transformed and
accentuated the electoral system. Like many developing countries,
political financing in India has become closely linked to illicit financing,
i.e., undisclosed cash and proceeds of crime.47
With disinvestment, privatization (outsourcing of obligations
previously discharged by the government) and deregulation,
opportunities opened up for “policy capture” through political
finance.48 In more immediate forms, this nexus between political

45 S. 353, Canada Elections Act 2000

46 Zephyr Teachout, “Corruption in America” (Harvard University Press, 2014), as cited in:
“Private funding of political campaigns: comparative analysis of the law in the United
States and in Brazil”, Alberto Monteiro, 2015
47 See generally, “Reforming India’s Party Financing and Election Expenditure Laws”,
Rajeev Gowda and E. Sridharan, Election Law Journal, 2012
<https://casi.sas.upenn.edu/sites/casi.sas.upenn.edu/files/upiasi/Reforming%20India
%27s%20Party%20Financing%20and%20Election%20Expenditure%20Laws.pdf>.
48 Michael W Dowdle, ‘Public accountability: Conceptual, historical and epistemic
46 INDIAN J. CONST. L.

finance and globalization is reflected in corruption cases involving

public procurement.49
In other ways, it reflects the possibilities of an overarching
‘policy capture’ by financiers: determining, not just qualifications for
tendering, but also the scope of (de)regulation, and deprioritizing
concerns emanating from citizenry.
In India, for example, an important study showed a close
correlation between a decline in construction activity during the
election cycle. Kapur and Vaishnav demonstrated that there was a
strong indication of a nexus between real estate interests and
legislators.50 Similarly, donors to important Republican Party
SuperPACs were also closely linked to having large sums in offshore
tax havens.51
The globalization of certain aspects of electoral democracy –
especially the manner in which complex corporate structures are being
utilized for campaign finance and how similar forms and modalities of
corruption are reflected across diverse jurisdictional contexts.52
Furthermore, the role of globalized professionals and intermediaries
such as financial consultants and lawyers in developing complex
structures that underpin the movement of global capital53 furthers the
understanding of embedded “lawyers as brokers”.54

mappings’, “Regulatory Theory” Ed., Peter Drahos, ANU Press. (2017)

<http://www.jstor.org/stable/j.ctt1q1crtm.20>.
49 Supra 46. Also, see “Money In Politics: Sound Political Competition And Trust In
Government”, OECD Background Paper, 2013
<http://www.oecd.org/gov/ethics/Money-in-politics.pdf>.
50 Supra 46.
51 Supra 20.
52 Supra 41.
53 For example, see “Role of advisors and intermediaries in the schemes revealed in the
Panama Papers”, Directorate General for Internal Policies, European Parliament.
Available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/602030/
IPOL_STU(2017)602030_EN.pdf
54 Yves Dezalay and Bryant Garth, “Introduction”, ‘Lawyers and the Era of Globalisation’
Globalized Electoral Democracy in India and the Natural Individual Citizen 47

3. Big Data and Electoral Integrity

Political communications have seen rapid transformation in
the era of social media. With rapid growth of the Big Data, its
deployment in elections was only natural. Reports of the use of Big
Data in the Brexit referendum and the 2016 Presidential elections,55
while exaggerated, do point to a possible electoral future where ‘micro-
targeted’ political campaigns can be run on the back of measuring
citizens’ personality from their digital footprints.56 Furthermore, the
fact that only a limited proportion of the Indian electorate is presently
online has not dissuaded Big Data and micro-targeting finding their
way into Indian electoral politics.57 The deployment of Big Data in
electoral politics has serious consequences for political discourse: Big
Data can be (and has been) technologies that have been used to craft
‘fake news’ and manipulate voters.58
This distortion in political discourse is obviously harmful as it
results in altering a level playing electoral field. Furthermore, the role
that global capital takes – sometimes as technology and sometimes as
finance – further enmeshes policymaking and electoral considerations.
For example, the role of Facebook – which attempts to represent itself
as a politically agnostic platform – in actively assisting political
campaigns (not merely ‘passively’ hosting advertisements) reflects the

(2011) Routledge
55 “The Data That Turned the World Upside Down”, Hannes Grassegger & Mikael
Krogerus (Motherboard, January 28, 2017),
<motherboard.vice.com/en_us/article/mg9vvn/how-our-likes-helped-trump-win>.
56 ibid.
57 Michael Safi, ‘India's 'big data' election: 45,000 calls a day as pollsters target age, caste and
religion’ (Guardian, February 2017) <https://www.theguardian.com/world/2017
/feb/16/india-big-data-election-pollsters-target-age-caste-religion-uttar-pradesh>.
58 “Russians used Facebook the way other advertisers do”, USA Today, November 2017
https://www.usatoday.com/story/tech/news/2017/11/01/russians-used-facebook-
way-other-advertisers-do-tapping-into-its-data-mining-machine/817826001/
48 INDIAN J. CONST. L.

varied ways in which global capital, Big Data and electoral democracy
intersect:
“In the U.S., the unit embedded employees in Trump’s
campaign. (Hillary Clinton’s camp declined a similar offer.) In
India, the company helped develop the online presence of
Prime Minister Narendra Modi, who now has more Facebook
followers than any other world leader. In the Philippines, it
trained the campaign of Rodrigo Duterte, known for
encouraging extrajudicial killings, in how to most effectively
use the platform. And in Germany, it helped the anti-
immigrant Alternative for Germany party (AfD) win its first
Bundestag seats, according to campaign staff.”59
Besides distorting political discourse, globalized forms of
election systems also institute an accelerated cooption of policymaking.
As discussed earlier, ‘policy capture’ can severely limit the scope of
independent policymaking. For example, Facebook, following the
2014 Indian elections, trained “more than 6,000 government officials”.
Therefore, globalization has produced newer models of political
finance that have now been imported or adapted in various
jurisdictions. While harms stemming from these models remain similar
– distortive discourse, risks of policy capture and reduced trust in
electoral democracy – the processes by which they manifest may vary.
Moreover, it was not merely the globalization of models. Liberalizing
controls on foreign capital and the transnational nature of technology
and data has meant that globalization has produced newer challenges
to the integrity of electoral democracy.

59 Lauren Etter et. al., ‘How Facebook’s Political Unit Enables the Dark Art of Digital
Propaganda’ (Guardian 21 December 2017)
<https://www.bloomberg.com/news/features/2017-12-21/inside-the-facebook-team-
helping-regimes-that-reach-out-and-crack-down>.
Globalized Electoral Democracy in India and the Natural Individual Citizen 49

V. CONCLUSION
One could argue that the threat of money and the role of
misinformation in elections precedes the era of globalization.
However, globalization produced very specific models through which
political finance would be channeled and technology could be used to
distort political discourse. Furthermore, neo-liberal economic policies
created newer opportunities for capital to capture decision-making
processes, and in the process, expand its economic power as well.
Like most processes associated with globalization, the
consequence of globalized elections has been to accentuate disparities
in political and economic power, and to enable a framework where
economic and political power perpetuate each other.60 In the absence
of frameworks that allow for alternative means of political finance,
economic and gender disparities disproportionately hurt the
“dispossessed and deprived”. Perhaps the best example of this in India
is how the Dalit party, Bahujan Samaj Party accesses its political
finance: the party is the only major political party in the country to
have not received a single corporate donation.61 Where political actors’
key interests are fundamentally at odds with interests of capital, parties
that aim to raise issues of marginalized communities can do little to
position themselves as “pro-business”. This is another warning that
Ambedkar made in his speech before the CA:
“[We] must begin by acknowledging the fact that there is
complete absence of two things in Indian Society. One of these

60 Elmer E. Schattschneider, The Semi-Sovereign People (Fort Worth, TX: Harcourt Brace
Jovanovich College Publishers, 1975 [1960]) as cited in supra note 47. “When political power
is merely a mirror image of economic power, the principle of “one person, one vote” is rendered meaningless,
and democracy ceases to be an “alternative power system, which can be used to counterbalance the economic
power.”
61 PTI, At Rs 706 Crore, BJP Got Maximum Corporate Donations: Report (The Quint, 19
August 2017) <https://www.thequint.com/news/politics/bjp-received-maximum-
donations-from-corporates-says-report>.
50 INDIAN J. CONST. L.

is equality. On the social plane, we have in India a society based on the

principle of graded inequality which we have a society in which there are
some who have immense wealth as against many who live in abject poverty.
On the 26th of January 1950, we are going to enter into a life
of contradictions. In politics we will have equality and in social
and economic life we will have inequality. In politics we will be
recognizing the principle of one man one vote and one vote one value. In
our social and economic life, we shall, by reason of our social and economic
structure, continue to deny the principle of one man one value. How long
shall we continue to live this life of contradictions? How long
shall we continue to deny equality in our social and economic
life? If we continue to deny it for long, we will do so only by
putting our political democracy in peril.” (emphasis supplied).
If, indeed, Ambedkar’s argument – that, with the constitution,
all methods involving ‘bloody revolution’ are now unconstitutional –
then, it is also time that we recognize this: what happens when
‘constitutional methods’ are hollowed out processes that do not allow
their genuine deployment? Will methods involving ‘bloody
revolutions’ still be considered unconstitutional?
Electoral integrity or “purity of elections” is at the heart of
protecting the key ‘constitutional method’ of elections. When
discourse at the electoral site is distorted to drown out other voices, or
worse, when the only voices that are heard are of juristic (rather than
natural) persons, it negates the first premise of India’s constitution: one
person, one vote, one value. Any dilution of this standard deprives the
large mass of people from mobilizing for “self-realization”62 to find
again their “significance of life”.

62 Supra 13.
Globalized Electoral Democracy in India and the Natural Individual Citizen 51

Postscript
Since this essay was written, some significant developments
must be acknowledged. Firstly, in 2024, the Supreme Court of India
struck down the electoral bonds scheme and unlimited corporate
donations to political parties.63 The court grounded its judgement on
grounds of the right to information and the need to protect electoral
integrity. It is important to note that writ petitions challenging these
changes to the electoral framework were pending since 2017, during
which time various state general elections and one national election
had taken place. The Court’s orders required disclosure of electoral
bonds data. The data showed that the ruling BJP received the lion’s
share of donations through electoral bonds.64 This is a trend consistent
with the fact that the BJP has also been the single largest recipient of
corporate funding.65
Secondly, fundamental changes have been made to the
overarching framework pertaining to digital governance in India. The
‘triangle’ of universalization of Aadhaar, ‘digital public infrastructure’
and detailed citizen data66 has enabled governments to profile voters
and to target them at an unprecedented scale.67 Added to this triangle
is the linkage of voter identity cards (“EPIC”) with Aadhaar, allowing

63 Association for Democratic Reforms & Anr. v. Union of India & Ors, 2024 INSC 113
64 The Hindu Data Team, “Electoral bonds data | BJP received Rs. 6,060 crore, highest
among all parties” (The Hindu, 14 March 2024)
<https://www.thehindu.com/data/electoral-bonds-data-bjp-received-rs-6060-crore-
highest-among-all-parties/article67951830.ece>
65 The Hindu Bureau, “BJP received nearly 90% of all corporate donations to national
parties in 2022-23” (The Hindu, 14 February 2024)
<https://www.thehindu.com/news/national/bjp-received-nearly-90-of-all-corporate-
donations-in-2022-23/article67845754.ece>
66 Shikhar Singh, “When Does Welfare Win Votes in India?” (Carnegie, 25 January 2024)
<https://carnegieendowment.org/research/2024/01/when-does-welfare-win-votes-in-
india >
67 “There are increasingly blurred lines between the data available for political campaigning and data
available for governance.” Safina Nabi, “Government data in political hands: Aadhar citizen
ID and the 2024 Indian election campaigns” (The Influence Industry Project, 20 December
2023) <https://influenceindustry.org/en/explorer/case-studies/india-nabi-
government-data/>
52 INDIAN J. CONST. L.

political actors to not only reach out to voters at a large scale, but to
also personalize their outreach at a granular level.
The linking of EPIC and Aadhaar was first carried out without
any legal sanction, resulting in the collection of 3 crore Aadhaar
numbers.68 Following the Election Laws (Amendment) Act, 2021, the
Commission was empowered to seed connect Aadhaar with EPIC.
Despite claims that it was ‘voluntary’ to link EPIC with Aadhaar, 60%
of voters’ data was already linked.69 The creation of such interlinked
databases in the hands of public bodies has raised serious concerns.70
These are about the possible dangers to individual privacy and
governmental surveillance. However, these also raise serious concerns
pertaining to electoral integrity. Since Aadhaar and beneficiary data is
now effectively connected, voters can be identified and targeted by
parties in power.71 These suspicions have been confirmed in instances
where political parties, through private corporations, have not only
been found to have collected such data but to have illegally accessed
public records in order to build voter profiles in order to run
campaigns.72

68 Anuj Srivas, “How Did the EC Link 300 Million Voter IDs to Aadhar in Just a Few
Months?” (The Wire, 9 November 2018) <https://thewire.in/political-economy/how-did-
the-election-commission-link-300-million-voter-ids-to-aadhaar-in-just-a-few-months>
69 The Hindu Bureau, “Over 54 crore voters have linked Aadhaar with electoral rolls, Law
Minister says in a reply in the Rajya Sabha” (The Hindu, 15 December 2022)
<https://www.thehindu.com/news/national/over-54-crore-voters-have-linked-
aadhaar-with-electoral-rolls-law-minister-says-in-a-reply-in-the-rajya-
sabha/article66268396.ece,>
70 “Then there is beneficiary data from the state and central government databases,” said
Venkatanarayanan. “But to build a complete picture of a voter, you need a common connector to link
all these databases. That is why you need Aadhaar.” Kumar Sambhav, “Govt Has Cleared
Linking of Aadhar & Voter Data. Past Experience Reveals How it Can Be Manipulated”
(Article 14, 27 December 2021) <https://article-14.com/post/govt-has-cleared-linking-
of-aadhaar-voter-data-past-experience-reveals-how-it-can-be-manipulated-
61c937a621c09>
71 Disha Verma, “Your personal data, their political campaign? Beneficiary politics and the
lack of law” (Internet Freedom Foundation, 10 April 2024)
https://internetfreedom.in/personal-data-political-campaigning/>
72 Srinath Vudali, “Aadhar details of 7.82 crore from Andhra Pradesh and Telangana found
in possession of IT Grids (India) Pvt Ltd” (The Times of India, 13 April 2019)
https://timesofindia.indiatimes.com/city/hyderabad/aadhaar-details-of-7-82-crore-
from-telangana-and-andhra-found-in-possession-of-it-grids-india-pvt-
Globalized Electoral Democracy in India and the Natural Individual Citizen 53

Another important development has been reportage over the

role of multinational digital platforms in the electoral space. There is
now more information available to understand the connections
between new technologies, data collection practices and how they are
being deployed in the electoral space.
Despite being privately owned, they play an undeniably public
role. Reports indicate a close proximity between parties in power and
large digital platforms.73 Parties have used digital platforms to not only
conduct routine outreach, but to actively seed disinformation and
misinformation. This is primarily carried out through surrogates and
‘diffuse’ actors that are not subject to the law that parties and
candidates are subject to.74 The result is an ecosystem dedicated to
spreading hate speech and disinformation. In combination with
publicly collected data, the use of digital platforms has allowed political
parties to distort the level playing electoral field.
Thus, corporations have increasingly transformed from being
mere ‘interest groups’ whose financing of political speech is to be
regulated. Rather, in their role as owners of digital platforms, they are
expected to play the role of neutral ‘regulators.’ For example, social
media platforms and the ECI agreed to a ‘voluntary code of ethics.’ 75
Yet, reports indicate that social media platforms not only permitted
electoral hate speech, but also allowed for its lopsided monetization.76

ltd/articleshow/68865938.cms; Srishti Jaiswal, “The data collection app at the heart of

the BJP’s Indian election campaign” (Rest of world, 20 January 2024)
<https://restofworld.org/2024/bjp-saral-app-data-gathering/>
73 Billy Perrigo, “Facebook’s Ties to India’s Ruling Party Complicate Its Fight Against Hate
Speech” (Time, 27 August 2020) <https://time.com/5883993/india-facebook-hate-
speech-bjp/>
74 Amber Sinha, “Regulating Diffuse Actors in the 2024 Indian Elections” (The Influencing
Industry Project, 20 December 2023) <https://influenceindustry.org/en/explorer/case-
studies/india-sinha-diffuse-actors/>
75 PIB Delhi, “Voluntary Code of Ethics” by Social Media Platforms to be observed in the
General Election to the Haryana & Maharashtra Legislative Assemblies and all future
elections” (PIB, 26 September 2019)
<https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1586297>
76 For example, a report on the online political advertisements not only indicated that a
particular party received cheaper ad-rates on Facebook, that surrogate advertising for a
54 INDIAN J. CONST. L.

While it may be possible to regulate the electoral space using

pre-existing models, such as regulation of campaign finance, the
outsized role played by social media platforms might need more
sustained interrogation. There is not only a need to balance
informational privacy with electoral integrity but to also investigate
traditional categories such as the idea of a ‘campaign period.’
Misinformation campaigns, microtargeting of welfare beneficiaries, or
hate speech are not strictly things that happens in the run up to polling
day. Nonetheless, .their purpose is geared towards electoral victories.
Therefore, as India’s electoral democracy globalises even
further, there will be a need to devise regulatory frameworks that keep
up with such developments. This is even more pronounced as the 2024
general elections saw the first widespread use of synthetic media.77 It
must also be noted that the transformations in India’s electoral
democracy are not absolute. Rather, these changes have been built on
existing structures. As one former campaign manager remarked:
“Everyone who wants to know how the BJP operates looks
for hi-fi, extraordinary tech, and some of that exists. But
the reality is, it’s mostly brute, manual labor.”78
This indicates a need for electoral law to renew its focus on
protecting the natural individual citizen, and to actively reduce the role
of juristic persons that are able to distort the political field by virtue of
their hold over global capital. Perhaps one way in which the law may
be reoriented is to distinguish between the ‘collective’ from the
‘corporate.’ A ‘collective interest’ is premised on individuals coming

particular party was permitted by Meta and that when surrogate advertisements were
targeted, it was primarily the opposition party’s surrogates that were most targeted
<https://www.reporters-collective.in/projects/eyeballpolitics-facebook-investigation>
77 Fahad Shah, “AI companies are making millions producing election content in India”
(Rest of world, 30 April 2024) <https://restofworld.org/2024/india-elections-ai-
content/>
78 Gerry Shih, “Inside the vast digital campaign by Hindu nationalist to inflame India, (The
Washington Post, 26 September 2023) <https://www.washingtonpost.com/world/2023
/09/26/hindu-nationalist-social-media-hate-campaign/>
Globalized Electoral Democracy in India and the Natural Individual Citizen 55

together and designing a political agenda: political parties and labour

unions may be a good example. In contrast, a corporate interest is
premised on shareholder ownership and the furtherance of possible
commercial interests. A political party is premised on voluntariness of
association, a certain degree of deliberation and compromise.
However, when parties become corporatised:
The questions posed are not democratically inspired. Rather,
formulating initiatives and referenda are typically the work of
independent political entrepreneurs and special interest groups
unconnected to established, broad-based political groups.
They are promoted through privately funded campaigns
organized by political professionals employing targeted direct
mailing, market testing, and paid signature gatherers.79
With newer technologies and increased corporate influence,
the ‘collective’ is even more thoroughly subsumed by the ‘corporate.’
Thus, the centrality of the natural individual citizen must be
the guiding light for laws protecting electoral integrity. In contrast, laws
merely regulating personal data are inadequate. Especially in the case
of India, where the party in power may exempt itself from data
protection law80 while simultaneously being in a position to access and
repurpose large amounts of citizen data collected on behalf of the
government.81
Lastly, the overlaps between new technologies and electoral
democracy can be found in how India’s elections are conducted. For
example, the Election Commission of India itself deploys facial

79 Nancy L. Rosenblum, Primus Inter Pares: Political Parties and Civil Society, 75 CHI.-
KENT L. REV. 493 (2000).
80 Apar Gupta, “An Act to cement digital authoritarianism” (The Hindu, 17 August 2023)
<https://www.thehindu.com/opinion/lead/an-act-to-cement-digital-
authoritarianism/article67202493.ece>
81 Safina Nabi, “Government data in political hands: Aadhar citizen ID and the 2024 Indian
election campaigns” (The Influence Industry Project, 20 December 2023)
<https://influenceindustry.org/en/explorer/case-studies/india-nabi-government-
data/>
56 INDIAN J. CONST. L.

recognition technology to identify “similar entries” in electoral rolls.82

It has also used the technology – the accuracy and impartiality of which
is questionable83 – to verify voter identity at polling stations.84 Attempts
were also made to use these technologies to surveil polling stations.85
The ‘purity’ of elections is no more just a concern with the
design of electoral frameworks, or with the conduct of election
management bodies. Rather, the fundamental transformations in how
elections are increasingly carried out makes it essential that the law
responds to the intrusion of newer actors, and the kind of power they
have come to exercise. This paper outlined the constitutional
underpinnings of representative democracy in India. The
constitutional framework pertaining to electoral democracy centers the
individual citizen, and the purpose of electoral democracy is to provide
for constitutional means to achieve political objectives. The
fundamental transformations to the law and practice of electoral
democracy fundamentally reduces the scope of such constitutional
means. Therefore, the concern with ‘electoral integrity’ must center the
individual citizen at its heart.

82 “ECI is taking a host of initiatives to leverage new and emerging technologies for improving voter
experience and electoral management. It is working on launching a new version of ERONET, making
NVSP portal and all citizen mobile apps even more accessible and voter friendly, using facial recognition
and artificial intelligence technology to purify electoral rolls, linking Aadhar with EPIC for identification,
authentication and deduplication purposes, GIS tagging of polling booths, households and public facilities
to enhance voter friendliness, launching e-learning platform to enhance electoral literacy and developing
robust booth monitoring systems for ensuring free and fair poll.”
https://ceodelhi.gov.in/PDFFolder/Publications/SVEEP_Strategy_2022_25.pdf
83 Aishwarya Jagani, “No facing away: Why India’s facial recognition system is bad news
for minorities” (The unbiased the news) <https://unbiasthenews.org/no-facing-away-why-
indias-facial-recognition-system-is-bad-news-for-minorities/> ; Marissa Gerchick and
Matt Cagle, “When it Comes to Facial Recognition, There is No Such Thing as a Magic
Number” (American Civil Liberties Union, 7 February 2024)
<https://aclu.org/news/privacy-technology/when-it-comes-to-facial-recognition-
there-is-no-such-thing-as-a-magic-number>
84 Reuters, “Telangana tests facial recognition in local polls as privacy fears mount” (The
Hindu, 22 January 2020) <https://www.thehindu.com/sci-tech/technology/telangana-
tests-facial-recognition-in-local-polls-as-privacy-fears-mount/article30623453.ece>
85 Damini Nath, “After EC intervention, NICSI cancels tender for facial recognition of
voters” (The Indian Express, 20 January 2024)
<https://indianexpress.com/article/india/after-ec-intervention-nicsi-cancels-tender-
for-facial-recognition-of-voters-9118075/>
 HABEAS CORPUS IN THE SUPREME COURT’S DOCKET

Shrutanjaya Bhardwaj
I. Introduction
This is a scoping study of all ‘habeas corpus’ matters filed in the
Indian Supreme Court from 2000 to August 29, 2023. Habeas corpus is
a writ that is issued to set a person free from illegal detention. The
detention which is challenged to be ‘illegal’ may be of several kinds:
a. Preventive Detention: The State detains an individual
apprehending that she is likely to commit an offence in the near
future.
b. Enforced Disappearance: A State authority, such as the police
or an armed force, picks up an individual without the authority
of law.
c. Continued arrest: Despite being acquitted of criminal charges
by a competent court, the individual continues to be detained
in jail for no reason.
d. Detention by private actors:1 A child is removed from the
custody of its parent(s), an individual is forcibly confined to
prevent her from exercising her choice of marriage or
relationship, etc.


Advocate, Supreme Court of India. I would like to thank G. Srivar Venkat Reddy, KV
Vinaya, Aditi Kanoongo, Gayatri, Harsh Jain, Jahnavi Y, Pranav Shidhaye, Sneha, Tanvi
Chhabra and Ishaan Sharma (students of NALSAR, Hyderabad), Ramsha Khan (student,
Aligarh Muslim University), Rohan Mishra and Amish Gulzari (students, GGSIPU) for
their research assistance in data collection for this project from the website of the
Supreme Court of India.
1 E.g. Nirmaljit Kaur (2) v. State of Punjab, (2006) 9 SCC 364; Rashmi Ajay Kumar
Kesharwani v. Ajay Kumar Kesharwani, (2012) 11 SCC 190; Tejaswini Gaud v. Shekhar
Jagdish Prasad Tewari, (2019) 7 SCC 42.
58 INDIAN J. CONST. L.

In an earlier paper, I examined the Supreme Court’s behaviour

in a specific kind of habeas corpus matters—i.e., those involving
preventive detention.2 It was found that by the time a preventive
detention case was decided by the Supreme Court, the detenu would
already have spent about 9-10 months in detention on an average.3 The
statistics in that paper are based on data obtained from judgments
reported on ‘SCC Online’, a privately-owned online legal research
tool.4 However, no similar empirical study is available for habeas corpus
matters as a class. As the above list would show, all habeas corpus matters
implicate the fundamental right to personal liberty under Article 21 of
the Indian Constitution. Therefore, Indian courts have traditionally
accorded great importance to habeas corpus matters—for instance, the
ordinary rule that writs are issued only against the State has been
relaxed for habeas corpus matters.5
II. Methodology
On July 20, 2023, I applied to the Central Public Information
Officer, Supreme Court of India (“CPIO”) under the Right to
Information Act, 2005 seeking a list of all Writ Petitions and Special
Leave Petitions filed in the Supreme Court in or after the year 2000
under the category ‘habeas corpus’. The CPIO responded on August 29,
2023 with a list of Diary Numbers and Case Titles of all habeas corpus
matters for the indicated period (total 1171).6 Accordingly, this scoping
study was conducted on the data received from the CPIO.

2 Shrutanjaya Bhardwaj, ‘Preventive Detention, Habeas Corpus and Delay at the Apex
Court: An Empirical Study’, 13 NUJS L. Rev. 2 (2020).
3 Id.
4 See ‘About Us’, SCC Online, available at https://www.scconline.com/about-us, last
accessed March 7. 2024.
5 Mohd. Ikram Hussain v. State of U.P., (1964) 5 SCR 86, ¶12.
6 The response received from the CPIO is available on OneDrive
https://onedrive.live.com/?authkey=%21AHR5McYz%5FnAflV4&id=C7D445193D6
E97A7%2119262&cid=C7D445193D6E97A7&parId=root&parQt=sharedby&o=One
Up
Habeas Corpus in the Supreme Court’s docket 59

Using the Diary Numbers in the CPIO’s reply, the researchers

collected further information from the website of the Supreme Court
of India (main.sci.gov.in): Case Type, Date of Filing, Date of
Registration, Date of Disposal, and Number of Hearings. The
following parts of this paper discuss the findings of the scoping study.
Readers may note that the dates of ‘Filing’ and ‘Registration’ are
different because after a case is ‘filed’ in the Supreme Court, the
Court’s registry scrutinizes the case file for defects, and if any defects
are found, communicates them to the filing advocate. The case gets
‘registered’ once the defects are cured (or if none are found). Owing to
the steps involved in this process, the date of ‘Registration’ is mostly
different from the date of ‘Filing’.
III. Case Types
Of the 1171 cases studied, there are 674 Writ Petitions, 402
Appeals/SLPs,7 61 Review Petitions, 32 Contempt Petitions, 1
Curative Petition and 1 Transfer Petition.

Review
Petitions and Other, 0.17%
Contempt
Petitions, MAs, 5.21%
2.73%

Writ
Appeals, Petitions,
34.33% 57.56%

7 A Special Leave Petition (‘SLP’) is filed under Article 136 of the Indian Constitution
seeking permission from the Supreme Court to appeal against a judgment passed by
another court, typically a High Court, because no right to appeal exists from such
judgment.
60 INDIAN J. CONST. L.

One striking aspect is the small number of appeals and SLPs

(402). In other empirical studies focussing on High Courts,
approximately 9,000 judgments passed by High Courts in preventive
detention matters in or after the year 2000 have been examined.8 The
figure of ~9,000 only pertains to judgments that are reported on SCC
Online and is probably smaller than the actual number of judgments
passed by the High Courts. In contrast, merely 402 appeals/SLPs were
filed in the Supreme Court. In other words, most judgments rendered
by High Courts in habeas corpus matters generally, and preventive
detention matters specifically, are not carried in appeal to the Supreme
Court. The reason for this is not clear. To speculate, however, this is
likely because the High Courts allowed most of the aforesaid 9,000
petitions,9 and the State may not have felt the need to detain the
concerned individual for any further period. Alternatively, since most
laws do not allow preventive detention for more than one year, and
since High Courts also take more than six months to decide habeas
corpus petitions, litigants may feel that any appeal or SLP filed before
the Supreme Court may become infructuous before it is decided.
Another interesting aspect is the dominance of Writ Petitions
in the docket (57.56%). Writ Petitions are filed under the Supreme
Court’s original jurisdiction under Article 32 of the Indian
Constitution, which provides that the right to move the Supreme
Court for the redressal of any fundamental right is “guaranteed”.10 The
Supreme Court’s understanding of this provision has changed

8 Shrutanjaya Bhardwaj, ‘Empirical Study: Delay at the Madras High Court in Preventive
Detention Cases’, National Law School of India University Review (forthcoming 2024),
available as an advance article at https://www.nlsir.com/advance-articles, last accessed
March 7, 2024; Shrutanjaya Bhardwaj, ‘High Courts, Habeas Corpus and Preventive
Detention: Law and Practice’, National Law School of India University (forthcoming
2024).
9 Id.
10 Constitution of India, 1950, Article 32.
Habeas Corpus in the Supreme Court’s docket 61

drastically over time. In 1950, a six-judge bench rejected the argument

that a petitioner challenging a Madras law must first approach the
Madras High Court “as a matter of orderly procedure”.11 In view of
the text of Article 32, the bench declared that the Supreme Court
“cannot, consistently with the responsibility so laid upon it, refuse to entertain
applications seeking protection against infringements of such rights”.12 Another
Constitution Bench affirmed this understanding in 1959, despite
explicitly noting the concern that litigants may flood the Supreme
Court with writ petitions.13 Curiously, however, a new trend emerged
in 1987 when smaller benches of the Supreme Court, without even
referring to the earlier Constitution Bench judgments, held that writ
petitioners must be relegated to High Courts.14 In respect of habeas
corpus petitions, a divison bench in 2002 went one step further,
observing that petitioners invoking Article 32 in habeas corpus matters
are “unscrupulous”.15 The Court held as under:
“Another aspect which has been highlighted is that many
unscrupulous petitioners are approaching this Court under Article 32
of the Constitution challenging the order of detention directly without
first approaching the High Courts concerned. It is appropriate that
the High Court concerned under whose jurisdiction the order of
detention has been passed by the State Government or Union
Territory should be approached first. In order to invoke the
jurisdiction under Article 32 of the Constitution to approach this
Court directly, it has to be shown by the petitioner as to why the High
Court has not been approached, could not be approached or it is futile
to approach the High Court. Unless satisfactory reasons are indicated

11 Romesh Thappar v. State of Madras, 1950 SCR 594 ¶3.

12 Id.
13 K.K. Kochunni v. State of Madras, 1959 Supp (2) SCR 316 ¶12.
14 Kanubhai Brahmbhatt v. State of Gujarat, 1989 Supp (2) SCC 310 ¶3; P.N. Kumar v.
Municipal Corpn. of Delhi, (1987) 4 SCC 609.
15 Union of India v. Paul Manickam, (2003) 8 SCC 342 ¶22.
62 INDIAN J. CONST. L.

in this regard, filing of petition in such matters directly under Article

32 of the Constitution is to be discouraged.”16
In view of these pronouncements, it is interesting to see the
trend of filing of writ petitions over the years. The next part of this
paper will study the year-wise number of habeas corpus cases filed in
the Supreme Court. It will also specifically study as to what proportion
of the filings every year were writ petitions.
IV. Year-wise filings
The year-wise number of habeas corpus cases filed in the
Supreme Court are:
Year Total cases Writ petitions
2000 57 56
2001 19 19
2002 19 19
2003 27 27
2004 28 28
2005 65 65
2006 44 43
2007 37 35
2008 31 30
2009 35 33
2010 32 30
2011 36 35
2012 23 13
2013 37 26
2014 63 19
2015 63 22

16 Id.
Habeas Corpus in the Supreme Court’s docket 63

2016 63 16
2017 60 13
2018 97 28
2019 55 24
2020 62 31
2021 70 23
2022 89 9
2023 59 19

Speaking roughly, the total number of habeas corpus filings every

year seem to have increased since the year 2014. However, no general
observation is forthcoming from this data. What is more interesting is
the proportion of writ petitions every year, which consistently seems
to decrease after the year 2011. Until 2011, writ petitions constitute
almost the entirety of habeas corpus cases filed in the Supreme Court.
In the subsequent years, they are reduced to less than half—sometimes
even close to only 10%—of the total cases. The following graph
demonstrates this fluctuation:

120
100
80
60
40
20
0
2000

2010

2020
2001
2002
2003
2004
2005
2006
2007
2008
2009

2011
2012
2013
2014
2015
2016
2017
2018
2019

2021
2022
2023

Total Cases WPs

There are, of course, two lessons from this data. The first is
that prior to 2012, litigants barely filed appeals/SLPs against High
64 INDIAN J. CONST. L.

Court judgments in habeas corpus matters. That trend seems to emerge

only 2012 onwards, though it is not clear why. The second is that the
Supreme Court’s avowed aim of “discouraging” habeas corpus
petitions appears to be working.
V. Disposal time
Given that all habeas corpus matters implicate personal liberty in
some way, it is critical for the Supreme Court to dispose of these
matters with alacrity. The previous study revealed that the Supreme
Court took about 5-6 months in deciding a preventive detention matter
which, in most cases, was half of the maximum period of detention
permitted under the relevant law.17
The larger dataset reveals a somewhat different picture. Taking
all 1104 cases for which both the Date of Filing and the Date of
Disposal were available,18 the Supreme Court takes 213.35 days on an
average to decide a case. The average figure for Writ Petitions is 225.42
days while that for Appeals/SLPs is 204.19 days. But these ‘average’
figures are somewhat distorted by a few cases with unusually large
disposal periods, possibly because they involve questions of law that
are to be decided by the Supreme Court after a detailed hearing. For
example, the petitions challenging the twin bail conditions in the
Prevention of Money Laundering Act, 2005 are also habeas corpus
petitions which were filed in 2017 and are pending till date.19 Readers
may note, however, that it is not necessary for the detenu in all such
cases to remain in illegal detention until the Court decides the matter.

17 Shrutanjaya Bhardwaj, ‘Preventive Detention, Habeas Corpus and Delay at the Apex
Court: An Empirical Study’, 13 NUJS L. Rev. 2 (2020).
18 The other cases are either pending as on the date of writing this report, or have been
‘lodged’ by the registry for non-rectification of filing defects, which means that there is
no official date of ‘disposal’ in these cases.
19 Vijay Madanlal Choudhary v. Union of India, Diary No. 21763/2017.
Habeas Corpus in the Supreme Court’s docket 65

To get a more realistic picture of the Court’s alacrity, therefore,

we can reduce the dataset to study only the 938 cases where the case
was disposed of within one year. A chronological plotting of these
cases on a bar graph produces the following result:

400
350
300
250
200
150
100
50
0

The average figure for these set of cases is 75.27 days, i.e., two
months and a half. For Writ Petitions, the average figure is 74.40 days,
and for Appeals/SLPs, it is 70.12 days. In fact, most cases are decided
in less than 50 days. At the same time, many cases touch the 350 day-
mark as well. There does not seem to be any consistent increase or
decrease in the Court’s speed with the passing years. The information
in the above graph can be re-plotted in increasing order of the number
of days taken by the Court to dispose of the matter (as opposed to
chronologically) to give a clearer picture of the number of cases in
which the time taken is relatively higher. The following picture would
emerge after the re-plotting:
66 INDIAN J. CONST. L.

400

350

300

250

200

150

100

50

0
457

723
1
39
77
115
153
191
229
267
305
343
381
419

495
533
571
609
647
685

761
799
837
875
913
While these figures present a better picture than the figures
revealed in the previous study focussed on preventive detention, there
is significant scope for improvement. A Court that prioritises habeas
corpus matters should endeavour to dispose them of within two weeks.
Two months and a half are too long a time for any person to spend in
potentially-illegal detention. Further, many of these cases are
Appeals/SLPs filed against High Court judgments, and so the total
time spent by the detenu/ person in illegal detention is likely much
more than simply two months and a half. Equally so in preventive
detention cases in which the detenu would have spent a few months
before the Advisory Board prior to approaching the Court, even
though approaching the Court is not strictly barred pending
proceedings before the Advisory Board.20
VI. Number of hearings
Another parameter to measure the Court’s alacrity is the
number of hearings taken by the Court to decide a habeas corpus case.
Of the 1171 cases, 984 cases were found to be disposed of. In these

20 Prabhu Dayal Deorah v. Distt. Magistrate, Kamrup, (1974) 1 SCC 103 ¶16.
Habeas Corpus in the Supreme Court’s docket 67

984 cases, the average number of hearings taken by the Court to

dispose of a matter is 3.07, which could appear reasonable at first
blush. If these values are plotted on a graph in ascending order, the
following picture emerges:

45
40
35
30
25
20
15
10
5
0
77

343

533

799
1
39

115
153
191
229
267
305

381
419
457
495

571
609
647
685
723
761

837
875
913
951
However, on closer inspection, it emerges that most cases (504
out of 984 cases) were disposed of on the very first hearing, thus
bringing down the average number of hearings for the entire dataset.
It is only from the 505th case in the dataset that the number of hearings
rise above 1. Equally, there are some cases with unusually large number
of hearings (close to 40) which would pull the overall average in the
other direction. If all the single-hearing orders are removed from the
dataset, the average number of hearings in the balance cases (480 cases)
is 5.25 hearings, while the median value is 4 hearings.
At least as far as preventive detention is concerned, the Court
can very well decide the matter in two hearings. There should be no
requirement of a “counter-affidavit” in these matters other than a
simple production of the grounds of detention. This is because a
counter-affidavit cannot supplement or add to the grounds of
68 INDIAN J. CONST. L.

detention.21 In fact, if the counter-affidavit discloses new material

which was not communicated to the detenu even though he was
detained based on such material, the detention would breach Article
22.22 As such, the requirement of filing a “counter-affidavit” should be
dispensed with entirely in preventive detention proceedings, and the
case law to the contrary should be revisited.23
VII. Conclusion
The purpose of this scoping study was to provide a
springboard for further research into the Supreme Court’s habeas corpus
docket. Information obtained from the Supreme Court’s CPIO was
analysed based on the case types, year-wise distribution of case filings
(including the proportional distribution of writ petitions), disposal time
taken by the Supreme Court in habeas corpus cases over the years, and
the number of hearings ordinarily spent by the Court in such cases.
Some broad observations made in this paper are:
1. Most habeas corpus cases filed in the Supreme Court in or after
the year 2020 are ‘writ petitions’ filed under the Court’s original
jurisdiction.
2. In the initial few years up to 2012, hardly any appeals/SLPs
were filed in the Supreme Court against judgments passed by
High Courts in habeas corpus matters. In and after 2012, the
number of appeals/SLPs has suddenly shot up.

21 State of Bombay v. Atma Ram Sridhar Vaidya, 1951 SCR 167 [Kania, C.J. (for himself
and 2 others)] ¶¶9-10,17; Ramveer Jatav v. State of U.P., (1986) 4 SCC 762 ¶2.
22 Sk. Hanif v. State of W.B., (1974) 1 SCC 637 ¶¶11,14; Sasthi Keot v. State of W.B., (1974)
4 SCC 131 ¶2; Fogla v. State of W.B., (1974) 4 SCC 501 ¶¶3-4.
23 See, e.g., Sebastian M. Hongray v. Union of India, (1984) 1 SCC 339 ¶31, holding that
the normal practice in habeas corpus proceedings is to issue notice and seek a counter-
affidavit from the respondents. These observations should be read only as implying that
notice is essential and the matter would ordinarily not be decided ex parte.
Habeas Corpus in the Supreme Court’s docket 69

3. The Supreme Court’s deliberate “discouragement” of writ

petitions appears to have had some effect on the number of
writ petitions filed after 2011-12.
4. The disposal time of habeas corpus cases, along with the number
of hearings being spent by the Court on each case, does not
paint an ideal picture and leaves a lot to be desired in terms of
judicial alacrity.
Unfortunately, the brevity of the Court’s orders in most cases
makes it tricky to identify the precise category of habeas corpus case
being studied (e.g., preventive detention, enforced disappearance,
prolonged custody, unlawful confinement, etc.). Further research can
be conducted by accessing the actual case files in these cases and
studying the facts of the cases.
 THE ESSENTIAL RELIGIOUS PRACTICE TEST: A SORRY
TALE OF JUDICIAL MISREADING

Rushil Batra
‘Religion is too personal, too sacred, too holy to permit its “unhallowed
perversion” by a civil magistrate’1
Abstract
The Essential Religious Practice Test has been consistently applied
by the Supreme Court of India in almost all cases revolving around
Article 25 and 26 of the Indian Constitution. It has been argued by
scholars that the ERP test makes it impossible for any practice to be
protected under the Constitution. This paper aims to prove this
assertion by a doctrinal and statistical analysis by analyzing all cases
decided by various High Courts post-2015 and Supreme Court post
2004. The conclusion obtained from an analysis of these cases
supports the assertion that the ERP test reduces the scope of religious
freedom without any textual or logical basis. This paper also attempts
to highlight how the birth of the ERP test itself was a result of judicial
misreading. In conclusion, it argues that as it stands, the ERP test
must be withered down or done away with.
Introduction
The Constitution of India provides to all its citizens the
freedom of religion as a fundamental right. The Constitution protects
the freedom of religion under Articles 25 and 262 (‘A-25’ and ‘A-26’)


The author is a fourth-year student at the National Law School of India University,
Bengaluru. The author would like to thank Professor Aparna Chandra for her comments
and guidance on the paper. The author would also like to thank Ananya Tangri, Areeb
Nabi, Manhar Bansal, and Shruti Jain for reading multiple versions of this paper.
1 Engel v. Vitale 370 U.S. 421, 432 (1962).
2 The author uses Article 25 and Article 26 synonymously in certain places. That is purely
for the reason that the ERP inquiry remains the same in both.
72 INDIAN J. CONST. L.

subject to public order, morality, and health.3 While it does not provide
any limitation on the scope of the right per se, it does provide
restrictions for the same. However, in the course of judicial
interpretation, the Supreme Court (‘SC’) has held that what is protected
under the freedom of religion is not all religious practice but only
‘essential religious practices’ (‘ERP’). By doing so, the SC has restricted
the scope of the right without any textual basis. Various scholars have
criticized this approach by arguing that the Court has neither the
expertise nor the right to determine what practices constitute the
essential religious practices of a given religion.4 As some put it ‘with a
power greater than that of a high priest, maulvi or dharmasastri, judges
have virtually assumed theological authority’.5
The ERP framework requires a three-step inquiry. First, an
inquiry is made to check if a claim is religious at all; second, if it is
‘essential’ to the faith; and last, even if essential, if it satisfies the
restrictions placed in the Constitution.6 This paper argues that the
second step in the process, i.e., to evaluate if any given practice is
essential to the religion is doctrinally unsustainable and practically
impossible.7 This paper aims to prove this assertion by doing a
doctrinal and statistical analysis of all relevant SC judgments post-2004
and High Court judgments rendered post-2015.8 However, such a
claim cannot be comprehensively made without first providing the

3 The Constitution of India 1950, arts 25-26.

4 Rajeev Dhawan and Fali S Nariman, ‘The Supreme Court and Group Life: Religious
Freedom, Minority Groups, and Disadvantaged Communities’ in B.N. Kirpal, Ashok
Desai, Rajeev Dhawan and Raju Ramachandran (eds), Supreme But Not Infallible: Essays in
Honour of the Supreme Court of India (OUP 2004) 259.
5 ibid.
6 ibid 260.
7 Akilesh Meneze and Priyanshi Vakharia, ‘To Practice What is Preached: Constitutional

Protection of Religious Practices vis-à-vis Reformative Secularism’ (2020) 7(1) NULJ

Law Review 211, 216.
8 A detailed research methodology can be found in the Annexure.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 73

relevant context and discourse in which debates on protecting religion

in constitutional democracies take place.
Thus, this paper first, underscores the debates in the current
literature on the vexed question of protecting religious freedom in the
Indian Constitution and argues that the ‘rationalization of religion’ has
long been understood and criticized by various scholars. Second, it
highlights that the essential religious practice test came about due to a
case of judicial misreading. Third, it looks at the standard of essentiality
itself and how it has undergone a change over time especially post the
case of Acharya Jagadishwarananda9 (‘Acharya’) in 2004, and has now
reached a point where practically no practice can be given protection.
This is done by doing an empirical analysis of all relevant cases post a
given time period. Fourth, it analyses the possible reasons behind the
unflinching acceptance of the ERP test by the Courts and analyses the
reasoning of Dhulia J. in Aishat Shifa v State of Karnataka that moves
away from the ERP jurisprudence.10 Lastly, it concludes by saying that
the SC has the perfect opportunity now to reconsider the ERP test in
the Sabarimala Review Petition and that the test should either be
withered down or done away with.
CONSTITUTIONAL SECULARISM: THE DISCOURSE SO FAR
India is admittedly following an innovative model of
secularism when compared to Europe or America.11 It promises to
protect religious freedom, while in the same breath trying to implement
social welfare legislation to bring about reforms and implement the
promise of equality.12 Numerous such ‘anomalies’ have been

9 Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770 (‘Acharya’).

10 Aishat Shifa v. State of Karnataka (2022) SCC OnLine SC 1394.
11 Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court (OUP 2019)
22.
12 Donald Eugene Smith, India as a Secular State (Princeton University Press 1963) 14.
74 INDIAN J. CONST. L.

documented by scholars since the framing of the Constitution and

interpreted and rationalized in different ways.13
Various commentators writing in the early 1960s were hopeful
that the forces of westernization and modernization would triumph
over religious claims. For instance, Donald Eugene Smith concluded
that “many of the constitutional anomalies regarding the secular State
would have disappeared” in the early years of the Indian Constitution.14
Smith was writing at a time when theories concerning the decline of
religion were dominant and the implicit hope was that religious reform
embedded in secular thought would triumph over religious freedom.15
Marc Galanter went so far as to argue that the Indian State was
primarily concerned with religious reform as opposed to being in the
‘business’ of religious freedom.16 Similarly, Jacobsohn calls this the
‘ameliorative model’ of secularism which embraces the ‘social reform
impulse’ of Indian nationalism.17
Unfortunately, the impact of religion on society has turned out
to be much more complicated than imagined by Smith. Peter Berger,
who once was the leading proponent of ‘secularisation of society’ has
changed his view and admitted that the world is ‘as furiously religious’
as it has ever been.18 In hindsight, it is fair to say that such hopes of
religion fading away in the backdrop of ideas of secularism were

13 In the early years after independence, social reform was prioritized over religious freedom
even by scholars. See P.K Tripathi, ‘Secularism: Constitutional Provisions and Judicial
Review’ (1966) 8(1) Indian Law Review 165, 192.
14 Donald Eugene Smith, India as a Secular State (n 13) 14.
15 Nikki R. Keddie, ‘Secularism and Its Discontents’ (2003) 132(3) Daedalus 14, 16.
16 Marc Galanter, ‘Secularism: East and West’ (1965) 7 Comparative Studies in Society and
History 133, 136.
17 Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional
Context (OUP 2003).
18 Peter Berger, The Desecularization of the World: Resurgent Religion and World Politics (William
B Eerdmans Publishing Co. 1999) 2. For a comprehensive analysis of the fall of
secularism see: Dylan Reaves, ‘Peter Berger and the Rise and Fall of the Theory of
Secularization’ (2012) 11 Denison Journal of Religion 11, 15.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 75

unlikely to be true, given how ‘religious and secular life is entangled’ in

India that the idea of the indifference of the State cannot be justified
to either side politically.19
How then does one interpret the ideas of Indian secularism?
Rajeev Bhargava in his work had rationalized the Indian model of
secularism to be that of a ‘principled distance’, i.e., “the secular State
neither mindlessly excludes all religions nor is it merely neutral towards
them.”20 Such a ‘principled distance’ interpretative model which
attempts to highlight the ‘essential-secular’ binary has however been
criticized, especially in light of specific Articles in the Constitution
concerning religious reform and prohibiting certain religious
practices.21 Bhargava would perhaps argue that the ERP test was a
necessity given that the construction of the ‘essential-secular’ was both
a pragmatic and counter-majoritarian choice to pave the way for social
reform of religious institutions. When, however, one might be able to
say ‘thus far and no further’ is a question that haunts us all even in this
paradigm.
Motivated by such concerns, Ronojoy Sen highlights that a
‘better description’ of the Indian model of secularism is offered by
Rajeev Dhavan wherein he highlights the three components of Indian
secularism.22 Dhavan argues that Indian secularism can be summed up
in the three ideas of religious freedom, celebratory neutrality, and
reformatory justice. In this paper, we are concerned with the two
seemingly incompatible ideas of religious freedom and reformatory

19 Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional
Context (n 18) 10.
20 Rajeev Bhargava, ‘Reimagining Secularism: Respect, Domination and Principled
Distance’ (2013) 48 Economic and Political Weekly 79, 86.
21 Ronojoy Sen, ‘Legalising Religion: The Indian Supreme Court and Secularism’ (Policy
Study 30, East-West Centre Washington 2007) 5.
22 Rajeev Dhavan, The Road to Xanadu: India’s Quest for Secularism’ in Gerald Larson
(ed.,) in Religion and Personal Law in Secular India: A Call to Judgement (Indiana University
Press 2001).
76 INDIAN J. CONST. L.

justice. Sen has concluded in his work that these two ideas are, more
often than not, in conflict with each other and it is such conflict that
has often led to ‘homogenization’ and ‘rationalization’ of religion by
the Court.23
The ERP test is one manifestation of such rationalization and
homogenization of religion which is inimical to internal variations in
the practice of religion.24 It is rationalization insofar as the Court
believes its version of the religious practice to be forming the core (or
essential part) of the religion, which deserves constitutional protection,
and homogenization insofar as only one way (the Court’s way) of
practicing a religion is protected. Such unusual powers arrogated by
the Court to itself have been a subject of criticism for a long time. For
instance, J.D.M Derret has highlighted the paradoxical role of the
Court in the following words:
“Courts can discard as non-essential anything which is not proved to
their satisfaction – and they are not religious leaders or in any relevant
fashion qualified in such matters –to be essential with the result that
it (such practices) would have no constitutional protection”.25
Similarly, Galanter questions whether the Constitution gives
the Court the power to ‘actively participate in the internal re-
interpretation of Hinduism’ that eventually leads to the demise of
religious pluralism and diversity.26 More recently, Baxi has helpfully

23 Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court (n 12) 33.
Similarly, Bhikhu Parekh argues that “the modern state is a ‘deeply homogenizing
institution’ because it ‘expects all its citizens to subscribe to an identical way of defining
themselves and relating to each other and the state. See Bhikhu Parekh, Rethinking
Multiculturalism: Cultural Diversity and Political Theory (Harvard University Press, 2000) 8–9.
24 ibid.
25 Upendra Baxi, ‘Commentary: Savarkar and the Supreme Court’ in Ronojoy Sen, Legalising
Religion: The Indian Supreme Court and Secularism (n 22) 48.
26 Marc Galanter, Law and Society in Modern India (OUP 1993) 251; Mary Kavita Dominic,
'Essential Religious Practices' Doctrine as a Cautionary Tale: Adopting Efficient
Modalities of Socio-Cultural Fact-Finding' (2020) 16(1) Socio-Legal Review 46.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 77

distinguished the kinds of cases concerning religious freedom

jurisprudence into rights-oriented secularism (ROS) and governance-
oriented secularism (GOS).27 In ROS, the principal concern remains
how to best realise ‘the normative proclamation of the right to freedom
of conscience to religious belief and practice’. GOS is linked to ROS,
but is more concerned with the ‘integrity of the secular structure and
reformatory justice’.28 Thus, when religious reform is given precedence
over religious freedom, it is actually a preference of GOS over ROS.
Some scholars like Robert Braid have highlighted that the
primary (if not only) reason for utilizing the ERP test is to widen the
reformatory powers of the State.29 In other words, the preference of
GOS over ROS is an intentional choice keeping in mind the promise of
reformatory justice, even if it comes at the cost of religious freedom.
Others like Pratap Bhanu Mehta have also concurred with this
and argued that the ERP test has been useful for the Court as it can
minimize the conflict between the free exercise of religion and the
secular purposes of the State by constructing an argument to the effect
that the practices being regulated were not essential to that religion in
any case.30 Such reasoning, that the loss of religious freedom is
attributable in some measure to concerns of religious reform, while
intuitively correct, is questioned by the findings in this paper.
No doubt such arguments of attaining reformatory justice at
the cost of religious freedom are valid to some extent. However, there
are numerous cases where petitioners have claimed constitutional
protection for religious practices, and the Court has denied protection

27 Upendra Baxi, ‘Commentary: Savarkar and the Supreme Court’ (n 26) 50.
28 ibid.
29 Robert D. Baird, ‘Religion and Law in India: Adjusting to the Sacred as Secular’ in Robert
D Baird (ed), in Religion and Law in Independent India (Manohar Publishers 2005).
30 Pratap Bhanu Mehta, ‘Passion and Constraint: Courts and the Regulation of Religious
Meaning’ in Rajeev Bhargava (ed), Politics and Ethics of the Indian Constitution (OUP 2008).
78 INDIAN J. CONST. L.

even when there are no corresponding social reform measures being

brought by the State.31 The Supreme Court has also now recognized
that applying the ERP test in all cases, even when no reformatory
measure is being pushed by the State, is questionable in itself.32 Thus,
this paper, with an analysis of all cases over the past few years, argues
that the Court is doing something more than just preferring GOS over
ROS, or more broadly social reform over social freedom.
In short, there is almost a consensus that the restriction on
religious freedom and usage of the ERP test is because of, and has a
causal effect on religious reform.33 Many commentators have already
highlighted the problems with the ERP test from the lens of separation
of powers, judicial propriety, and the reducing contours of religious
freedom.34 This paper goes one step forward in attempting to
empirically prove whether such claims have been true by exhaustively
looking at all HC and SC cases during a given period. Surprisingly, even
with the vast literature on this subject, there has never been a critique
of the origins of the test. This paper attempts to add to the current
literature by questioning the dubious origins of the ERP test and
arguing that such jurisprudence is a result of judicial misreading and

31 South Central India Union of SDA v. Government of Karnataka (2016) SCC OnLine Kar 8342;
Riza Nahan v. State of Kerala (2021) SCC OnLine Ker 9861. The Annexure has a detailed
factual matrix of all cases.
32 Aishat Shifa v. State of Karnataka (n 11) [235]. Dhulia J. made a distinction between cases
where the State intervenes to bring forth reformatory measures under Article 26 and
cases where no reformatory measures are pushed by the State. He held, “The test of ERP
has been laid down by this Court in the past to resolve disputes of a particular nature,
which we shall discuss in a while. By and large, these were the cases where a challenge
was made to State interference on what was claimed to be an “ essential religious
practice”.
33 In the early years of the ERP jurisprudence, many scholars felt the approach of the Court
was justified. See Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme
Court (n 12) 33.
34 Gautam Bhatia, ‘Freedom From Community: Individual Rights, Group Life, State
Authority and Religious Freedom under the Indian Constitution’ (2016) 5(3) Global
Constitutionalism 351.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 79

further providing an empirical analysis of the claims made regarding

the final impact of the ERP test.
ERP – A Case of Judicial Misreading
There is nothing in the Constitution that can be used to limit
the scope of the right envisioned in Article 25.35 Yet, the scope of
Article 25 has consistently been narrowed down over the years due to
judicial misreading. The misreading here is two-fold, one has already
been pointed out by Gautam Bhatia where Courts refer to Ambedkar’s
speech in the Constituent Assembly to infer the meaning of ERP. 36
However, as Bhatia points out, the speech was made in a particular
context where Ambedkar used the word ‘essentially religious’ to qualify the
nature (whether a practice is religious or secular) of a given practice and not its
importance (whether it is essential or not). This is the only reference to ERP in the
Constitution or the Constituent Assembly Debates. Since that has been
analyzed by Bhatia in detail elsewhere, this paper is more concerned
with pointing out the second misreading i.e., of interpreting Shirur
Mutt37 which has been curiously ignored by scholars.38

35 Article 25: ‘Freedom of conscience and free profession, practice and propagation of
religion.—(1) Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion. (2) Nothing in this article shall affect the
operation of any existing law or prevent the State from making any law—(a) regulating
or restricting any economic, financial, political or other secular activity which may be
associated with religious practice; (b) providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public character to all classes and
sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed
to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b)
of clause (2), the reference to Hindus shall be construed as including a reference to
persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.’
36 Constituent Assembly Debates, December 2, 1948, Speech by Dr. B.R. Ambedkar,
available at
<https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/194
8-12-02> accessed 20 August 2022.
37 Commissioner, Hindu Religious Endowment Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur
Mutt 1954 SCR 1005 (‘Shirur Mutt’).
38 Gautam Bhatia, ‘Essential Religious Practices” and the Rajasthan High Court’s Santhara
Judgment: Tracking the History of a Phrase’ (Indian Constitutional Law and Philosophy,
80 INDIAN J. CONST. L.

The first major case on freedom of religion is that of Shirur Mutt39 where
there was a challenge to the Madras Hindu Religious and Charitable
Endowment Act. During the arguments, the Attorney General (‘AG’)
while defending the Act made the ERP argument as one of his
submissions. He argued that all secular activities which may be
associated with the religion, but do not constitute an ‘essential’ part of
it, are amenable to State regulation. The Court responds to this by
observing:
“The contention formulated in such broad terms cannot, we think, be
supported. In the first place, what constitutes the essential part
of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself…”40 (emphasis supplied)
A plain reading of this observation indicates that while the AG
submitted that only essential religious practices are protected, the
Court explicitly rejected that contention. Interestingly, the cases that
were decided after Shirur Mutt interpret this case to mean that Article
25/26 only protects ERP.41 The first few lines of the paragraph, where
the Court expressly rejects the contention are simply, on purpose or
otherwise, either ignored or left out in all future cases. Also, the use of
the words ‘in the first place’ after the Court rejected the AG’s
contention indicates that the Court rejected employing the ERP test
since what is essential would be determined by the religion itself and
not by the Court.

August 2015) <https://indconlawphil.wordpress.com/2015/08/19/essential-religious-

practices-and-the-rajasthan-high-courts-santhara-judgment-tracking-the-history-of-a-
phrase/> accessed 28 August 2022.
39 ibid. Although Mohammad Qureshi was decided before Shirur Mutt, it did not elaborate on
how the test evolved.
40 Shirur Mutt (n 38) [20].
41 For a comprehensive review of case law after Shirur Mutt, See M Mohsin Alam,
‘Constructing Secularism: Separating ‘Religion’ and ‘State’ under the Indian Constitution’
(2009) 11 Asian Law 30, 31-34.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 81

The next major case on this point is that of Durgah Committee42

where the Khadims of the Moinuddin Chistia order challenged the
Dargah Khawaja Saheb Act of 1955. Here the Court interpreted Shirur
Mutt to mean that only essential practices of the religion shall be
protected. It was also held that it was the Court that was to make the
distinction between what is superstitious and what is religious.43 In
Durgah, the Court simply assumes that Shirur Mutt stands for the ERP
proposition by ignoring the part where the Court explicitly rejects the
said contention. M.C. Setalvad, former Attorney General, also notes in
his extra-curial writings that the position of law as laid down by Justice
Mukherjea in Shirur Mutt was “sought to be modified” in Durgah
Committee and how doing so would be “contrary” to the principle of
deference laid down in the former.44
There are, therefore, two issues with the cases of Shirur Mutt
and Durgah Committee. One is pointed out by the SC in the Sabrimala
Review Petition,45 i.e., even if one reads Shirur Mutt to argue that the
ERP test was laid down in the case, it was held that the Court would
have to defer to the views of the religious institutions. Durgah Committee
on the other hand carves out a role for the Court to exclude the
practices that might be superstitious or secular. This precise issue has
been referred to a nine-judge bench to consider. Both these cases were
in the context of State intervention in religion - this becomes relevant
in the decision of Aishat Shifa v State of Karnataka which is discussed in
the last section of this paper.46

42 Durgah Committee Ajmer v Syed Hussain Ali (1962) 1 SCR 383 (‘Durgah’).
43 Rajeev Dhawan and Fali S Nariman, ‘The Supreme Court and Group Life: Religious
Freedom, Minority Groups, and Disadvantaged Communities’ (n 5) 260.
44 M.C. Setalvad, My Life: Law and Other Things (Universal Book Traders, 2019) 218.
45 Kantaru Rajeevaru (Sabrimala Temple Review) v Indian Young Lawyers Association (2020) 2 SCC
1 (Ranjan Gogoi, J.) [7] (‘Sabrimala Review’).
46 Aishat Shifa v. State of Karnataka (n 11).
82 INDIAN J. CONST. L.

However, this paper points out a more fundamental

contradiction, i.e., contrary to popular perception, a closer reading of
Shirur Mutt highlights that it did not lay down the ERP test but rejected
its application. It is important to note that Shirur Mutt was a 7-judge
bench and it is argued that Dargah Committee and all other ERP cases47
may be considered per-incuriam. The birth of the ERP test, is thus, due
to judicial misreading and therefore is liable to be done away with.
Standard Employed to Determine ERP
As pointed out, the ERP test is a result of judicial misreading.
However, now that the ERP test is in existence, it is important to
inquire as to what standards Courts employ to determine if a practice
is to be declared as an ERP. Therefore, this section of the paper
assumes that the ERP test was laid down in Shirur Mutt, for that is what
Courts have done. There have been different tests devised to
determine if a practice is an ERP and therefore to be granted
protection under Article 25-26 which is discussed in this section.
In Mohd. Hanif Quareshi v State of Bihar,48 the question of
whether Muslims had a fundamental right to slaughter cows on the
religious festival of Bakra Eid was before the Court. A five-judge
bench of the SC introduced the optionality test within the ERP
framework. It was held that since Muslims had an option of
slaughtering either cows or goats, the same could not be protected as
an ERP. Hence the takeaway from this case, which has been used in
many other cases,49 is that if a practice is an optional one, i.e., not
mandated/obligatory then it cannot qualify to be an ERP.50

47 Sardar Swarup Singh v. State of Punjab 1959 AIR 860; Tilkayat Shri Govindlalji v. State of
Rajasthan 1963 AIR 1638
48 Mohd. Hanif Quareshi v. State of Bihar 1959 SCR 629 (‘Qureshi’).
49 Hifzur Rahman Choudhury v. Union of India MANU/GH/0575/2022 [8].
50 Post Qureshi High Courts often hold that cow slaughter laws are per se valid. See Ramavath
Hanuma v State of Telangana MANU/AP/0276/2017 where it was also held that ‘cow is a
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 83

The second major case on this point is Durgah Committee, which

has been discussed above. Had the SC followed the Shirur Mutt
reasoning, they should have given deference to the opinion of the
religion for ‘what constitutes the essential part of a religion is primarily
to be ascertained with reference to the doctrines of that religion itself’.
Interestingly, the SC on the other hand observed that the practice in
question in this case was superstitious and not essential to the religion,
thereby going against the views of those practicing the religion. This
essentially meant that the SC now acted as a clergy,51 determining what
was superstitious and what wasn’t, even if that meant going against the
views of the religious community. This has been argued to be
antonymous to Shirur Mutt since it substitutes the view of the religious
denomination with the view of the Court. This position was
categorically affirmed in Govindlalji Maharaj52 when the Court held that
what constitutes essentiality is to be determined by the Court itself.
The next major case on this point was Acharya.53 This test
added another dimension to the ERP inquiry, i.e., the recency test. A case
was filed before the SC to declare the tandava dance as an ERP but the
Court refused to do so since it lacked a scriptural basis.54 Interestingly,
since the religion was new and the founder was alive, there was an
explicit mention made in the scriptures to negate the basis of the
verdict. Thus, the tandava dance was explicitly considered to be
essential according to the religion’s holy book. The case again reached
the SC. Finally, in Acharya-II55 the SC again held that the tandava dance

substitute to mother and god.’

51 Faizan Mustafa and Jagteshwar Singh Sohi, ‘Freedom of Religion in India: Current Issues
and Supreme Court Acting as Clergy’ (2017) 4 Brigham Young University Law Review
915.
52 Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan (1964) 1 SCR 561 [57].
53 Acharya (n 10).
54 Acharya Jagdishwarananda Avadhuta v. Commissioner of Police, Calcutta (1983) 4 SCC 522.
55 Acharya (n 10).
84 INDIAN J. CONST. L.

was not an ERP but due to different reasons. The Court employed the
recency test to argue that if a practice is recent and not followed from the
start of the religion then it cannot be categorized as an ERP. The SC
also went on to hold that unless a practice is so important that there is
a fundamental change in the nature of the religion56 without that practice, only
then can it be considered essential. The author refers to this as the ‘but
for test’ in this paper, i.e., but for a given practice, the character of the
religion would change. It also ruled that once the Court declares a
practice to be an ERP, that cannot be changed. This absurd logic
implied that there can be no change in religious practices over time.57
Therefore, Acharya convoluted the field by introducing the
recency test alongside holding that once a Court deems a practice not
to be an ERP, it is set in stone. Hence the standard to determine ERP
includes the optionality test, the recency test, the fact that once
something is declared as not an ERP that is immutable, and whether
the absence of a given practice would cause a fundamental change in
the character of the religion. It is the Court that will determine all these
questions.
It is now a mixture of all these tests that Courts employ to
determine questions of ERP. For example, in the case of Shayara
Bano,58 Nariman J. adopted a two-step inquiry into determining what
an ERP was. One was the ‘but for test’ in Acharya. He also adopted the
test laid down in Javed59 to hold that if a practice is merely permissible
but not obligatory (similar to the optionality test) then it cannot be
considered an ERP. Using these two tests it was held that the practice
of triple talaq is not an ERP.

56 Acharya (n 10) [9].

57 Faizan Mustafa and Jagteshwar Singh Sohi, ‘Freedom of Religion in India: Current Issues
and Supreme Court Acting as Clergy’ (n 52) 936.
58 Shayara Bano v. Union of India MANU/SC/1031/2017 (Nariman, J.) [252].
59 Javed v. State of Haryana (2003) 8 SCC 369.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 85

Lastly, in the recent case of Indian Young Lawyers Association,60

after holding that the practice which excluded women in the age group
of 10-50 from entering the Ayappan temple at Sabarimala was not an
ERP, the Court held that even if a religious group can perform the
impossible task of proving that practice is an ERP that does not by
itself imply constitutional protection. The ERP then has to satisfy the
test for not violating Part III of the Constitution by arguing that
morality implies constitutional morality in Articles 25 and 26.61 This
means that even if one somehow achieves the herculean task of
showing that the practice in question is an ERP, it will then be tested
on the anvil of constitutional morality, and other limitations laid down
in Article 25/26.
Therefore, what emerges from these cases is as follows – first,
to determine essentiality the Courts look at the optionality test to
consider if the practice is obligatory; if it is not then it cannot be an
ERP. Second, they look at the recency of the practice; if the practice
started recently and not from the start of the religion it cannot be an
ERP. Thirdly once the Court decides whether a practice is an ERP it is
fixed in time and cannot be changed. Fourthly, even if a practice is
obligatory and practiced from time immemorial, the ‘but for test’ is
employed, i.e., if it does not change the ‘fundamental character of the
religion’ it can still not be considered an ERP. Whether any one single
practice can be so integral that without it the nature of the religion
changes is open for debate.
Hence this paper argues that in practice there is a very high –
almost impossible – burden on religious groups to prove that a practice
is an ERP. This claim is empirically proved in the following section.

60 Indian Young Lawyers Association v. State of Kerala MANU/SC/1094/2018 (Mishra, J.) [106]
(‘Sabrimala’).
61 ibid.
86 INDIAN J. CONST. L.

Proving ERP – Mission Impossible?

The previous sections theoretically argue the standard to
determine ERP is so high that it is nearly impossible to get protection
under Articles 25-26. This section aims to empirically prove this claim.
This paper analyses all Supreme Court judgments post-Acharya in 2004
and all High Court judgments post-2015 to see how Courts react to
the ERP question. A summary of all these cases can be found in
Annexure I.
First looking at the SC, there were eight relevant cases decided
post-Acharya which involved the question of whether a practice is an
ERP or not. In none of those eight cases did the Supreme Court declare
that the practice in question was an ERP. In almost all cases, there
seems to be a combination of the optionality and the ‘but for test’.
In the case of Mirzapur Moti,62 there was a 7-judge bench of the
SC to decide whether the case of Qureshi was correct post the
jurisprudential changes in how the Court views Directive Principles of
State Policy vis-à-vis Fundamental Rights.63 In deciding the case the
Court categorically held that an optional religious practice is not
covered by Article 25. Thus, this gives the optionality test an
endorsement by a bench of no less than seven judges. While they rely
on other cases64 to hold the optionality test to be good law, being a 7-
judge bench, the Court missed an opportunity to relook at whether
previous cases like Qureshi, Durgah, and Acharya were actually correct in
law. In the other cases too, the Court at times went against the view of
the religious group to hold that a practice is not an ERP, a case in point
being Sabrimala.

62 State of Gujrat v. Mirzapur Moti Kureshi Kassab Jamat MANU/SC/1352/2005.

63 Vikramaditya S Khanna, ‘Profession, Occupation, Trade or Business’ in Sujit Choudhry,
Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian
Constitution (OUP 2016) 875.
64 State of West Bengal v. Ashutosh Lahiri (1995) 1 SCC 189.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 87

Coming to the decisions rendered by various High Courts, the

same trend is seen, i.e., only three cases out of twenty-three held that
the given practice is an ERP. In all three cases, protection was accorded
to religious activities because the Acharya standard was not used. Apart
from the three almost all HC judgments cite Acharya and employ the
‘but for test’. At times Shirur Mutt is not even cited thus implying that
the core case on the point of ERP as of today is Acharya.
Interestingly, one of the judgments that held that a given
practice was an ERP was a single judge bench of the Kerala HC which
held that wearing the Hijab is an ERP for Muslim women.65 The Court
here ignores the ‘but for test’. This, of course, being a single-judge
bench has little to zero binding value as was evident in the case of
Resham66 and Zainab Abdul Qayyum Choudhary67 where the question was
identical, i.e., the Court was to determine whether the practice of
wearing a Hijab was an ERP. In Resham the Karnataka High Court
simply held that since the facts were different, the ratio of the case does
not apply, while in Zainab, the Bombay High Court chose to prioritize
discipline and uniform over religious freedom.
In the second case of Qualified Private Medical Practitioners
Association v Union of India68 decided by a division bench of the Kerala
HC, it was held that the practice of the Eucharist is an ERP. The Kerala
High Court ignored Acharya and held the practice to be an ERP even
though they specifically pointed out how it is not an obligatory practice.

65 Amnah Bint Basheer v. Central Board of Secondary Education MANU/KE/0470/2016.

66 Resham v. State of Karnataka 2022 LiveLaw (Kar) 75.
67 Zainab Abdul Qayyum Choudhary v. Chembur Trombay Education Society (2024) SCC OnLine
Bom 1925.
68 Qualified Private Medical Practitioners Association v. Union of India (2020) SCC OnLine Ker 295
[18].
88 INDIAN J. CONST. L.

In the third case decided by the Karnataka HC, it was held that
the appointment of the chief pontiff of the Shirur Mutt is an ERP.69
Even in this case the Court again ignores Acharya and does not employ
the ‘but for test’. Hence, the only way to declare a religious practice as
an ERP is to either ignore the ‘but for test’ laid down in Acharya or
distinguish it on facts.
Interestingly, another view seen in some of the cases is that of
reasonable accommodation. The author believes that this is perhaps
something the Courts have not looked at enough and other
jurisdictions have shown the usefulness of the doctrine in the context
of religious freedoms.70 For example, in the case of DSGMC v. Union
of India,71 Ravindra Bhat J., speaking for the Delhi HC, held that
wearing Kara/Kirpans in NEET would be permitted during
examinations. However, in case there are concerns regarding cheating,
the students may be called earlier for inspection. In cases where an
individual challenges State action to argue for religious freedom (as
opposed to with a religious denomination), the principle of reasonable
accommodation may be an option worth exploring. By incorporating
reasonable accommodation as a principle, the scope of the right shall
not be limited as is the case with the ERP test.72

69 P. Lathavya Acharya v. State of Karnataka MANU/KA/4599/2021 [64].

70 MEC for Education, Kwazulu-Natal v. Pillay (CCT 51/06) [2007] ZACC 21.
71 DSGMC v. Union of India MANU/DE/1651/2018 [9].
72 While mostly invoked in the context of disability rights, there is a growing consensus on
the usefulness and validity of RA in other spheres as well. See Aart Hendriks and Lisa
Waddington, ‘The Expanding Concept of Employment Discrimination in Europe: From
Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’
(2002) International Journal of Comparative Labour Law and Industrial Relations 404.
Most recently, the Indian Supreme Court has shown its willingness to extend its
application to religious freedom in Aishat Shifa v. State of Karnataka (2023) 2 SCC 1. Similar
arguments are made in other jurisdictions as well. See Joshua Malidzo Nyawa,
‘Reasonable Accommodation of Religious Beliefs at the Workplace – An Account from
Kenya’ (Indian Constitutional Law and Philosophy, 23 July 2023)
<https://indconlawphil.wordpress.com/2023/07/23/guest-post-reasonable-
accommodation-of-religious-beliefs-at-the-workplace-an-account-from-kenya/>
accessed 26 April 2024.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 89

As is seen in DSGMC, reasonable accommodation would allow

Courts to be deferential to the views of the religion and at the same
time incorporate the reformatory concerns of the State. Recall that in
Acharya, the people following the Ananda Margi faith were willing to
follow any reasonable conditions being imposed upon the conduct of
the tandava dance. If this principle was followed, chances are the
decision in Acharya would have been different.73 Thus, reasonable
accommodation seems to be a meeting point where claims by both
parties may be satisfied.
Another surprising factor noted during the analysis was that
many of these cases are PILs. This points towards an increasing trend
of PILs being used to challenge the rights of religious groups. This
takes us back to the question of the floodgate theory that Indu
Malhotra J. raised in Sabrimala.74 It is a debatable point as to whether
her prediction is already a reality.
Therefore, to conclude, it is each Court to its own, for there is
no single standard employed and it is, to put it bluntly, judicial
interpretation gone nuts. However, in most cases, the Acharya standard
was seen to be the prominent one. The author believes that practically,
it is impossible to prove in unequivocal terms that the absence of any
one religious practice can change the nature of a religion. Hence,
simply put, it is close to impossible to prove that a given practice
qualifies as an ERP.
Thus, the ERP test, as conceived of in Shirur Mutt, is not
principally incoherent. However, the reasoning in nearly every case
following Shirur Mutt has led to an anomalous situation that effectively
renders Article 25-26 redundant. In that light, the Court may choose

73 Acharya (n 10) (Lakshmanan, J.) [66].

74 Sabrimala (n 61) (Malhotra, J.) [303.7].
90 INDIAN J. CONST. L.

to discard the ‘judicial misreading’ in the Sabrimala Review, or

alternatively, discard the ERP test in toto – which is discussed in the
next section.
Aishat Shifa v. State of Karnataka – The Beginning of the End?
Is there any justifiable reason for the continuance of the ERP
test given the blatant judicial misreading of Shirur Mutt? One possible
reason is the internal politics of the Court and the role played by one
particular judge, Gajendragadkar J., in the entrenchment of the ERP
jurisprudence.75 As the key architect of the doctrine, in his extra-curial
writing, Gajendragadkar J. has expressed how he conceives religion to
be based on logic and a spirit of scientific inquiry.76 His approach in
his book, titled Secularism and Constitution of India, is mirrored in his
judgments and can be succinctly summarized as follows:
“Religion, it is also argued, tends to be scholastic and
deductive, and does not accept the validity of a rational and
scientific approach…These points no doubt have a certain
amount of validity; but they seem to overlook the fact that
in its best and highest sense, religion should and must recognize
the validity of reason and the relevance of the spirit of inquiry,
unhampered by the letter of scripture.”77 (emphasis mine)
Thus, the rationalization and homogenization of religion is not
an unintended impact of the ERP test, but its primary cause and
reason. In his other extra-curial writings, he has highlighted how the
role of a judge is that of ‘social engineering’ and his judgments on
religious freedom underscore a ‘predominantly reformist role’ to be

75 Ronojoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court (n 12) 175.
76 P.B. Gajendragadkar, Secularism and the Constitution of India (Bombay University Press
1971).
77 ibid 43.
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 91

played by the judge.78 Matthew John concludes by highlighting that it

was only after following Gajendragadkar’s lead, that the Supreme
Court, acting almost as theologians, entrenched the ERP test. Mohsin
Alam Bhatt has also concluded that Gajendragadkar’s personal beliefs
were an important factor in the shaping of the ERP jurisprudence.79
In any event, the more pertinent question now is how the
Court can move away from the ERP test. While writing this paper, the
SC gave its much-awaited decision in Aishat Shifa v State of Karnataka.80
This decision was the result of an appeal of Resham v State of Karnataka
which had held that the wearing of the Hijab is not an ERP relying on
the Acharya standard. While the division bench gave a split verdict and
the case is now likely to be referred to a three-judge bench, the
reasonings of both judges gain importance. Interestingly, this case
deviates from the usual practice of Courts using the ERP test to deny
the protection of religious rights.
In this regard, Dhulia J.’s reasoning is of particular importance
and allows us to look at one possible way forward to get away from
the ERP test by restricting the application of the test in certain specific
circumstances. Dhulia J. points out how the ERP test was developed
in a particular context, i.e. when there is a question of State
intervention and both a question of A-25 and A-26. This proposition
had been suggested by Farrah Ahmed and others even before the
Karnataka HC started hearing the petitions but went unnoticed.81 The
context in which the ERP test was developed was when the State

78 P.K Tripathi, ‘Mr. Gajendragadkar and Constitutional Interpretation’ (1966) 8 Journal of

Indian Law Institute 479, 480.
79 M Mohsin Alam, ‘Constructing Secularism: Separating ‘Religion’ and ‘State’ under the
Indian Constitution’ (n 42).
80 Aishat Shifa v. State of Karnataka (n 11).
81 Farrah Ahmed, Aparna Chandra and Others, ‘Prohibiting Hijab in Educational
Institutions: A Constitutional Assessment’ (LiveLaw, 17 March 2022)
<https://www.livelaw.in/prohibiting-hijab-in-educational-institutions-a-constitutional-
assessment> accessed 1 September 2022.
92 INDIAN J. CONST. L.

sought to defend its policies on the ground that the legislation was
bringing either social reform or regulating secular or financial aspects
of religious institutions. Justice Dhulia held that the ERP test was never
meant for situations where individuals claim their Article 25 rights.
Instead, the ERP test was meant for situations only when there is an
element of social reform on the part of the State.
This finding is significant – for this leaves space for a
deferential approach to be taken by the Court at least in cases where
reformatory measures are not imposed by the State. While the
normativity of the sincerely held belief test is outside the scope of its
paper, Aishta Shifa points out one possible way forward wherein the
scope of the ERP test is restricted and the sincerely held belief test
might be adopted.
Conclusion
This paper has attempted to analyse how the genesis of the
ERP test itself is flawed and is a result of judicial misreading. It then
highlighted how the standard to determine ERP has gone from bad to
worse over the years with the SC donning the role of a clergy,
determining what practices are to be protected – even if it means going
against the views religious group itself. From the last section, via an
empirical analysis, it has been proved that it is almost impossible for a
religious group or an individual to seek protection under Article 25 if
the ‘but for test’ laid down in Acharya is followed.
The Supreme Court now has the perfect opportunity to
reconsider the ERP test in the Sarbimala Review Petition. But if not ERP,
then what? There can be two possible answers to this question based
on two possible situations. The first is when the State intervenes in the
matters of a religious group (Durgah Committee) and the other is when
an individual claims his right against the religious denomination
The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 93

(Sabrimala). The former can be easily dealt with by the proportionality

analysis with the four-pronged test.82 Doing so would not restrict the
scope of the right but shall still allow for the State to intervene where
necessary.83 The latter is where the scenario gets complex. One
possible answer to that could be the sincerely held belief test84 which
puts the individual at the center of the debate.85 Other alternatives
might involve either going to the initial idea of ERP where the Courts
defer to the religious views or bringing in the idea of reasonable
accommodation.
This paper does not argue that these alternatives are flawless
but simply wishes to highlight that these are alternatives that could be
considered by the Supreme Court in the Sabrimala Review. The
‘essentiality test’ strikes at the very foundation of religious freedom in
India by restricting the scope of a right without any basis.86 There might
be a difference of opinion about what to replace the ERP test with,
but one thing is certain, it is time to give the ERP test a well-deserved
burial.

82 Jaclyn L. Neo, ‘Definitional imbroglios: A critique of the definition of religion and

essential practice tests in religious freedom adjudication’ (2018) 16(2) International
Journal of Constitutional Law 574, 580.
83 Farrah Ahmed, Aparna Chandra and Others, ‘Prohibiting Hijab in Educational
Institutions: A Constitutional Assessment’(n 86).
84 Anup Surendranath, ‘Essential Practices Doctrine: Toward an Inevitable Constitutional
Burial’ (2016) Journal of the National Human Rights Commission 173. This is similar to
the sincerely held belief test employed in Bijoe Emmanuel v. State of Kerala (1986) 3 SCC
615.
85 This aligns with what the judges held in Sabrimala while recognising that ‘all persons’ are
‘equally’ entitled to their freedom of religion.
86 Faizan Mustafa and Jagteshwar Singh Sohi, ‘Freedom of Religion in India: Current Issues
and Supreme Court Acting as Clergy’ (n 52) 938.
 94 INDIAN J. CONST. L.

Annexure I
RESEARCH METHODOLOGY
All SC Cases post-2004 and all HC cases post-2015 (13 and 51
cases respectively) were analyzed as of 2022. This was done by using
the SCC Boolean Seach Operator. The search was done by using the
10-word cap with the following – ‘Essential NEAR Religious NEAR
Practice’. The focus was on cases where a given practice was sought
protection under A-25/26. The author after reading all cases during
the given period picked only those where there was a serious reliance
on Article 25 by either party which came down to 31 cases. In cases
where there was a passing reference to ERP or cases simply affirming
an old judgment have not been taken into account. Color coding has
been used where red indicates that the Court has rejected the ERP claim
being made, grey indicates that the Court did not respond to the ERP
claim and green indicates that the Court declared the practice as ERP.
The Supreme Court (2004-2022) and High Courts (2015-2022)
Name Facts Standard ERP/Not ERP Other Comments
Employed

State of This case involved a Does not Not ERP - The The case depended on whether
Gujrat v challenge to a cite Shirur Court held that it Qureshi is good law. This challenge
Mirzapur Prevention of Cow Mutt or is settled law was due to a change in how the Court
Moti Kureshi Slaughter Act. Earlier Acharya – no post-Ashutosh viewed the role of DPSPs. Quareshi
Kassab bulls and bullocks over detailed Lahiri that since it saw Directive Principles of State
Jammat the age of 16 could be inquiry on is an optional Policy to be unenforceable and
(2005) 8 slaughtered. By an the issue of practice, it subservient to the Fundamental
SCC 534 [7 amendment, i.e., the ERP. cannot be ERP. Rights and, therefore, refused to
J] Bombay Animal Interestingly, that assign any weight to the Directive
Preservation (Gujarat Ashutosh Lahiri a Principle contained in Article 48 of
Amendment) Act, the 3J bench and this the Constitution. This logic stands
age restriction was being a 7J bench discarded by a series of subsequent
taken away. This meant could have decisions of the SC. Also, Article
that no bull and reconsidered that 48A and Article 51A(g) were not
bullock, irrespective of question. Rather noticed as they were introduced later.
age could be this was a lost
slaughtered. But the opportunity to
Court also goes on to reconsider the
address the argument
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 95

of cow slaughter being ERP test as a

an ERP for Muslims. whole.
Advi Saiva In 1970, an Cites Shirur Upheld Seeshmal In Seeshmal, the Court held that while
Nalasangam amendment to the Mutt and to say that while the appointment of Archakas on the
v State of Tamil Nadu Hindu Acharya. the State is principle of “next in line” is a secular
Tamil Nadu Religious and exercising a practice, the particular denomination
(2016) 2 Charitable secular power in from which Archakas are required to
SCC 725 [2 Endowments making be appointed as per the Agamas
J] abolished the practice appointments, embody a long-standing belief and
of appointing religious the Court (In such belief/practice constitutes an
office holders on Seeshmal) found essential part of the religious
hereditary basis. The that the criteria practice. The Court is not an 'outside
Court upheld the prescribed under authority' to determine ERP. The
amendment’s the Agamas was Court reiterated that though the
constitutionality in essential to the appointment was a secular function,
1972, in the Seshammal practice of the the denomination of the Archakas
Case. However, in religion, and was must be in accordance with the
2006, a government therefore Agamas. The Agamas restricted the
order was issued inviolable. But appointment of Archakas to
directing that the the Agamas must particular religious denominations.
Archakas of the be within the However, the Court held that the
temples were to be constitutional Agamas must conform to the
appointed without any mandate (Similar constitutional mandate and not
discrimination to Chandrahud J. practice exclusion on the basis of
stemming from in Sabrimala) constitutionally prohibited criterion
customs on the basis of like caste.
caste or creed. The Gogoi J. suggested checking
question was whether appointments on a case-to-case basis
the following of the for Article 14 violations. Hence, any
Agamas was an ERP in selection made in the future would
the appointment of have to be in consonance with the
Archakas. Agamas. However, in cases of
appointments on the basis of any
constitutionally unacceptable
parameter, it would be open to
challenge under Article 14. There is
no finding in the judgment on
whether the criteria fixed in the
Agamas constitutes “law” within the
meaning of Article 13(3). If the
Agamas fall within what are generally
regarded as “personal laws”, they
would fall outside the scope of
Article 13(3), and therefore not be
amenable to an Article 14
challenge.87

87 Suhrith Parthasarathy, ‘Religious Freedom and Archaka Appointments in the Supreme

Court’s Recent Decision’ (Indian Constitutional Law and Philosophy, December 2015)
<https://indconlawphil.wordpress.com/?s=Adi+Saiva> accessed 12 August 2022.
 96 INDIAN J. CONST. L.

Shayara A challenge to the Shirur Mutt Triple talaq was Khehar and Nazeer JJ. (Dissent) held
Bano v practice of triple talaq. and Acharya not an ERP. The that none of the forms of ‘talaqs’
Union of The contention is ‘but for’ test in have their origin in the Quran. On
India. whether triple talaq is Acharya alongside the question of determining if triple
MANU/S an ERP and is as such the optionality talaq is approved by Hadiths, the
C/1031/20 protected by A-25. test (re-iterated in Court explicitly states that it will not
17 [5 J] Javed) was go into that question and held, “We
employed. truly do not find ourselves, upto the
task. We have chosen this course,
because we are satisfied, that the
controversy can be finally
adjudicated, even in the absence of
an answer to the proposition posed
in the instant part of the
consideration…The practice
originated 1400 years ago and was
widespread. It was therefore clear
that practice of ‘talaq-e-biddat’ was
very much prevalent, since time
immemorial.” It is considered
integral to the religious
denomination in question, i.e.,
Sunnis belonging to the Hanafi
school and forms part of their
personal law. They hold that the Act
neither lays down nor declares the
Muslim personal law- ‘Shariat’.
Therefore it cannot be tested for Part
III violations. Thus, the two-judges
did not decide on the practice being
an ERP, but instead stated that the
practice is ‘integral’ to the faith. The
Court used use A-142 to direct the
legislature to make a law on this
subject and till then Muslim
husbands are ‘injuncted’ from
practicing triple talaq for 6 months.
Joseph J (Concurring) –Agrees with
Khehar J. to say the Act does not
regulate talaq and, hence cannot be
tested on Part III grounds. Disagrees
with him to say that triple talaq is not
an integral part of Islam. Also
disagrees with injuncting a
fundamental right on A-142. Relies
heavily on the case of Shamim Ara to
say that what is bad in the Holy
Quran cannot be good in law and
upholds Shamim Ara to say the
practice of triple talaq lacks the
approval of Shariat and is opposed to
the Quran.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 97

Nariman J and U.U Lalit JJ

(Concurring) – All forms of talaq are
recognized and enforced by the
Shariat Act therefore it is necessary
to check for Part III violations.
Holds it not to be an ERP. Acharya
test (alongside the optionality test)
was employed. The Court held,
“Talaq which is permissible in law,
but at the same time, stated to be
sinful by the very Hanafi school
which tolerates it” and “the
fundamental nature of the Islamic
religion, as seen through an Indian
Sunni Muslim's eyes, will not change
without this practice” (i.e., te Acharya
test). Also held that since triple talaq
is instant and irrevocable it shall be
hit by manifest arbitrariness under
Article 14.
Indian Whether the practice of Both Shirur Not ERP Mishra J and Khanwilkar J held that
Young excluding women in Mutt and Ayyappan’s do not constitute a
Lawyers the age group of 10-50 Acharya. religious denomination under A-26.
Association v from entering the There is no identifiable group called
State of Ayyappa temple in Ayyappan’s and they are categorised
Kerala Sabarimala constitutes as Hindus. Under Article 25, the right
(2017) 10 an ERP. is not just for inter-faith parity but
SCC 689 [5 also intra-faith parity. It cannot be
J] restricted under religious sects’
morality, since morality means
constitutional morality. The test is
the Acharya test -- “if nature of Hindu
religion is altered”. The Court held
the practice to not be an ERP in the
absence of scriptural evidence. Also
relies on Acharya to say practices that
come about recently cannot be ERP
since women were earlier allowed
(recency test). Also, “all persons” in
A-25 means women and men have
equal rights under A-25.
Nariman J (Concurring) –Held that
the Ayappans were not a religious
denomination, and consequently A-
26 does not get attracted. Does not
discuss the ERP test but points out
how A-25 says everyone is “equally
entitled” which includes women.
Chandrachud J. (Concurring) held
that morality is not social morality
but constitutional morality - which is
based on justice, equality, fraternity,
 98 INDIAN J. CONST. L.

etc. There is a multiplicity of

constitutional values that should be
used to determine the essentiality of
a practice.
Held that the practice was not an
ERP. Documents show the celibate
nature of the deity but no connection
is shown as to how women should
not be allowed to maintain celibacy.
Relies on Acharya to say it is not
obligatory since women used to go
earlier so it will not result in a
fundamental change in the character
of the religion. Also relies on the A-
17.
Indu Malhotra J (Dissent) –Held the
practice is an ERP simply because
the community says so (i.e., the
original Shirur Mutt deference
standard). Also holds that Ayappans
are a religious denomination under
A-26. Holds that one cannot apply
rationality to religious practices. Also
points out the role of PILs in such
cases.
M Siddiq v As a response to Ismail No ERP Did not disagree Not a case of ERP per se but the
Mahant Faruqui which held that inquiry was with the Court could have gone into the
Suresh Das the “mosque is not an conducted. observation question of mosques being essential
(2019) 18 essential part of Islam But Shirur made by the to the Muslim religion. In effect, it
SCC 631 [3 and Namaz can be Mutt cited. Court in Ismail. upheld the observation of mosques
J] offered, even in the Two out of the not being an ERP.
open.” three judges said
it was to be read
contextually and
Nazeer J.
dissented to say
that Courts have
relied on it so it
requires
reconsideration.
Arjun Gopal Can the Court Neither Do not comment The Court holds that Article 25 is
v Union of ban/restrict the use of cited. on ERP. Goes subject to Article 21. If a particular
India (2019) firecrackers during directly to the practice, even if religious, threatens
13 SCC 523 Diwali? A contention restrictions to say the health of the people, it cannot be
[2 J] was raised that it is a there is a serious permitted. Using the principle of
religious practice that health hazard. ‘balancing of rights’, A-21 was given
continues from time primacy.
immemorial and
therefore cannot be
banned.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 99

Chief Whether Jalikattu is an Cites Shirur Not ERP The petitioner argued that every
Secretary to ERP. Mutt but not festival has religious roots and since
the Acharya. this one is followed after harvest, one
government cannot ignore ‘religious ethos’. The
Chennai v Court held that Jalikattu is not an
Animal ERP so not liable to be protected
Welfare under A-25(1). It rejected the ERP
Board contention as no proof was adduced
(2017) 2 for the same since Jalikattu was
SCC 144 [2 considered to be more of a cultural
J] activity as opposed to a religious one.
Kantaru The Court agrees to None cited, Not mentioned - This could be a great opportunity for
Rajeevaru examine the ERP not required. sent it to nine- the Court to examine all relevant
(SabrimalaT doctrine as a whole judge bench for issues and as this paper argues, do
emple alongside the seeming review. away with the ERP test in its present
Review) v contradiction in Shirur form. Interestingly Khanwilkar J.
Indian Mutt and Durgah changed his stance i.e., while he was
Young Committee. in the majority in Sabrimala, he also
Lawyers agreed to the review of the same
Association judgment.
(2020) 2
SCC 1 [5 J]
3-2 Split
Aishat Shifa The Court examined Cited Shirur Split Decision – This decision comes against the
v State of the correctness of the Mutt and The ERP test was backdrop of growing criticism of the
Karnataka. decision of the Acharya not employed. ERP test. This allows Courts to
(2022) SCC Karnataka High Court differentiate Shirur Mutt and Acharya
OnLine SC in Resham v State of based on facts and hold the ERP test
1394 Karnataka. inapplicable in instances where there
is no element of social reform and
only individual rights are being
claimed. It allows the nine-judge
bench an opportunity to look at this
as an alternative to wither down the
ERP test.
 100 INDIAN J. CONST. L.

The High Courts (2015-2022)

Other
Standard of
Cases Facts ERP or Not Protected Comments/Evidence
Reasoning
examined
Allahabad HC
Afsal Ansari v Whether the recital Some cases are cited Not ERP. The Court The Court constantly
Union of India of the Azan over to put forward the held that the recital of talks about a “rights
MANU/UP/0 loudspeakers is point of loudspeakers the Azan is a versus rights”
995/2020 [2 J] protected as an and noise pollution. fundamental right but framework since
(PIL) essential/integral Shirur Mutt or Acharya recital on loudspeakers loudspeakers will
practice under A- is not cited. is not. impact the rights of
25. The recency test is minors and elderly
employed to argue persons. The entire
that the usage of focus remains on noise
loudspeakers during pollution.
Azan is a recent Interestingly, if the
practice and hence concern is noise
cannot be essential. pollution and the
adverse impact it has,
ideally the Court could
restrict the right under
‘health’. Instead, we see
the scope of the right
itself being diminished.
Gauhati HC
Hifzur Rahman The Animal Relied heavily on Not ERP - Agrees with The Court held that for
Choudhury v Union of Welfare Board is Qureshi and Mirzapur the view of Qureshi that lifting the ban it should
India asking the State to Moti to say it is well- the slaughtering of be shown that it is
MANU/GH/0575/ prevent cow settled that cow healthy cows on Bakra essential for a Muslim
2022. [2 J] (PIL) slaughter. The slaughter is not ERP. Eid is not essential or to sacrifice a healthy
State passes a Approves of the obligatory. cow on Bakra Eid and
communication optionality test. only then can an
under the Assam Either sacrifice a goat exemption under
Cattle Prevention for one person or a Section 12 be claimed.
Act to disallow cow or a camel for Additionally, they hold
slaughter on Bakra seven persons. It does that it is a settled legal
Eid. Petitioners not appear to be position that there is no
contend that the obligatory that a fundamental right to
Act under S.12 person must sacrifice insist on the slaughter
allows for a cow. Hence to claim of a healthy cow on
exemptions based an exemption under Bakra Eid.
on religious section 12, the
grounds. Hence the religious practice
order restraining must be an ERP.
cow-slaughter on
Bakra-Eid is
invalid.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 101

Rajasthan HC

Nikhil Soni v Union of Whether the Relies on Acharya and Held not to be an ERP The Court itself
India practice of Hamid Qureshi. The using the optionality highlights how religious
MANU/RH/1345/ Santhara/Sallekhan standard utilised is test. books and scriptures
2015. [2 J] (PIL) a is an essential that of Acharya. approve of the practice
religious practice in of Santhara. Multiple
Jainism and scriptures cited by
therefore entitled petitioners. Yet the
to protection under Court held that while
Article 25. there is a scriptural
This decision was basis to prove the
stayed by SC.88 religious aspect of the
practice, the obligatory
aspect has not been
proved. The Court
came down heavily on
PILs and how
petitioners had no locus
(similar to the criticism
of Malhotra J. in
Sabrimala).
Andhra Pradesh HC

Yellanti Renuka v Whether relocation Relies on Shirur Mutt Not ERP. The deity was installed
State of Andhra of the deity in and Durgah Committee by the Petitioner in
Pradesh (2022) SCC Mahakali 1976 keeping the
OnLine AP 688 [1 J] Ammavari Temple procedure of
at the time of the Agamashastras in mind.
reconstruction of Reconstruction of the
the temple violates temple is due to
ERP. highway expansion.
The temple is in a
dilapidated state.
Petitioners argued that
the State cannot
remove the deity. It was
held not to be ERP.
The Court held that the
petitioners have failed
to prove ERP using the
authoritative text of
Agama Shastra which
prohibits the relocation
of idols or other
material. It was also an
admitted fact that the

88 Dhananjay Mahapatra, ‘Supreme Court permits Jain community to practice Santhara’

(The Times of India, 1 September 2015)
<https://timesofindia.indiatimes.com/india/supreme-court-permits-jain-community-
to-practice-santhara/articleshow/48751751.cms> accessed 2 September 2022.
 102 INDIAN J. CONST. L.

deity was taken out of

the temple and traveled
through various parts
of India.
Delhi HC

DSGMC v. Union of Whether the Relies on Shirur Mutt Does not comment on The Court highlights
India wearing of and Acharya. ERP at all. It impliedly how there is a special
MANU/DE/1651/ Kara/Kirpan by uses the principle of mention for Kirpans in
2018. [2 J] students practicing reasonable A-25. CBSE says that
the Sikh religion in accommodation. the rule is to maintain
the NEET uniformity and prevent
examination malpractices.
conducted by Petitioners argued that
CBSE can be these articles are
prohibited. allowed elsewhere in
public spaces (flights
etc). It was held that it
is incumbent on CBSE
to make special
arrangements for the
petitioners if they want
to prevent malpractice.
They further held that
every practicing Sikh is
enjoined to wear the
Kara/Kirpan without
commenting on ERP.
(Reasoning is similar to
Amnah Bint Basheer).
Manisha Sharma v The police rejected Relies of Ismail The bursting of crackers The Court hints
Commissioner of Delhi the petitioner’s Faruqui and Javed but during Diwali is not an towards the fact that
2015 SCC OnLine request to assign not Acharya or Shirur ERP. The Court rejects even if it were to
Del 13254. [1 J] him a temporary Mutt. the argument by holding recognise the practice
firework license for that the bursting of as ERP, it would be
the occasion of firecrackers have no willing to restrict the
Diwali, which is sanctity in religious texts practice on the ground
being challenged. and there is nothing to of health. It was held
One of the grounds suggest that the bursting that Diwali is
is that firecrackers of firecrackers is even a historically a festival of
are related to religious practice. lights and is mainly
Diwali and the use associated with the
of firecrackers pooja that is done, and
during a religious not with the bursting of
festival should be firecrackers.
protected under A-
25.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 103

Tripura HC

Subhas Bhattacharjee v The Court frames Relies on Shirur Mutt Animal sacrifice in At the outset, the locus
State of Tripura (2019) the following and Acharya. Uses the temples is not an ERP. of the petitioner was
SCC OnLine Tri 441 question, ‘but for’ test in While the religious text challenged since he did
[2 J] (PIL) “Whether the age- Acharya and mentions the practice, it not make a
long practice of optionality in Qureshi. is not obligatory. representation to the
500 years of Moreover, it does not government and
sacrificing animals, change the essential directly came to the
after the stoppage character of the religion. Court. However, the
of the practice of Hence the Acharya Court approved it by
human sacrifice, in standard is used. saying that the social
Tripureswari Devi practice would have
Temple, Udaipur, continued if not for this
Gomati District, PIL (contrast with
Tripura can be Malhotra J in
construed as an Sabrimala). Apart from
essential and ERP, the Court holds
integral part of that animals have the
religion, as right to life after Animal
protected under Welfare Board
Article 25(1) of the Also, even if this is an
Constitution of ERP, post Sabarimala,
India?” the Court recognises
that this would violate
constitutional morality.
The Court also
attempted to restrict
the practice on the
grounds of health, and
observed that, “one
cannot deny the fact
that sacrifice of animal
in temple does affect
mental and physical
health of an individual”
and “the blood of the
animals is allowed to
flow in the open drains,
as a result, causing foul
smells”.
Madhya Pradesh HC

Aarsh Marg Seva The petitioners Cites Shirur Mutt and The Court held that The Court distinguishes
Trust v State of were women who Sabrimala but not celibacy of the idol is an this from Sabrimala by
Madhya Pradesh claimed they had a Acharya. ERP and, therefore, the arguing that Sabrimala
MANU/MP/1626/ right to perform restriction on women to was regarding the entry
2019 [2 J] Abhishek for God perform Jal Abhishek is of women into the
Bawangajaji in an ERP. But the very temples. Here, women
Jainism and the practice of Jalabhishek is are allowed entry and
Trust is restricting not ERP (so women only those practices
them from doing which go against the
 104 INDIAN J. CONST. L.

so. They claim that cannot claim an ERP for celibacy of deity/idol
women performing Jal Abhishek). are restricted, so
the Jal Abhishek is Sabrimala was
an ERP. They also distinguished on facts.
challenge it on A-
14 and A-15
grounds (this is
post-Sabrimala).
Interestingly, the
Trust also claimed
the restriction of
Abhishek for
women on the
grounds of ERP.
They argued that
the restriction on
women was to
maintain the
celibacy of the
naked idol.
Kerala HC

Muraledharan T v There was a Cites Shirur Mutt and Not ERP. The Court There was no material
State of Kerala (2020) challenge to the Acharya explicitly holds this to establish that
SCC OnLine Ker Kerala Animals based on the Acharya sacrificing animals and
2313 [2 J] (PIL) and Bird Sacrifices standard basis the fact birds was essential to
Prohibition Act, that the evidence is the religion. It was
1968. Similar to lacking (But for test). shown that the
Subhas Bhattacharjee scriptures permitted
in Tripura HC. sacrifice, but it could
not be proved that it
was obligatory.
Kannan KG v State of A decision was No inquiry on ERP. Not ERP - Participation It is also said that this
Kerala (2019) SCC taken in an all-party Bijoe Emmanuel cited. in a temple festival decision was taken so
OnLine Ker 6208) meeting that cannot be an ERP. public order is
[1 J]. persons who are maintained (which is
accused in criminal one of the limitations
cases shall not be under A-25). But no
engaged as connection is shown on
volunteers for how an accused
temple festivals. volunteering in temple
Petitioner has festivals might lead to
challenged this on the deterioration of
grounds of Article public order.
25.
Riza Nahan v State of The petitioner is an None cited. Does not say anything There is no inquiry on
Kerala (2021) SCC 8th-standard on ERP. Held that there the ERP doctrine.
OnLine Ker 9861 [1 student who was is no compulsion on the Moreover, the
J] selected for the student to join SPC and reasoning is simply
Student Police if you are not ready to absurd. If taken to its
Cadet (SPC). SPC logical conclusion, any
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 105

had a uniform that follow the dress code group can restrict the
prohibited the you need not join. religious rights as long
wearing of a Hijab as membership of that
and full-sleeved group is voluntary – a
dress. It was slippery slope
contended that this argument.
violated A-25 and
the wearing of the
Hijab was an ERP.
Qualified Private This case was a None. Acharya It is an ERP. It was held The Court held that the
Medical Practitioners result of a PIL by a Standard not that receiving the holy Food Safety Act has no
Association v Union of few doctors against followed. If the ‘but sacrament is a matter of role to play here and the
India (2020) SCC a practice in the for test’ was to be expressing your faith, no government using the
OnLine Ker 295) ]2 Church. Priests applied, the Court authority can interfere FSA cannot interfere in
J] (PIL) used to serve wine could not hold this as except according to the matters of the Church.
from a single an ERP. restrictions laid down in The doctors have no
spoon to the A-25 and A-26. It was instances of how the
mouth of every further held that if at all practice has impacted
communicant. This any changes are required health adversely.
practice is referred then they must come Additionally, even
to as the from within the Church though not obligatory
‘Eucharist’. It was itself. the practice was still
argued that there held to be an ERP.
was no cleaning of
the spoon which
gave rise to a very
high possibility of
saliva
contamination.
The Church says
the practice of the
Eucharist is
protected under A-
25.
Amnah Bint Basheer v Challenge to the Cites Shirur Mutt and The Court held that The Court does not
CBSE prescription of Acharya. wearing the headscarf is (rightly so) limit the
MANU/KE/0470/ dress code in All an ERP. The Quran scope of the right. The
2016 [1 J] India Premedical indicates that the Islamic Court holds that the
Entrance Test in dress code for women restrictions under A-25
2016 conducted by not only consists of a are not satisfied. To
CBSE. It argued scarf that covers the answer the question of
that people hide head, the neck, and the transparency and
electronic devices bosom but also includes credibility of the
so long sleeves are the overall dress that examination, the
not permitted. should be long and approach of the Court
Petitioners cannot loose. The Court does is always to
wear a headscarf not use the ‘but for test’. ‘harmoniously
and full-sleeved accommodate’. Held
dress as mandated that the invigilator can
by Islam. Hence be asked to frisk such
the question is of candidates including by
removing the scarf.
 106 INDIAN J. CONST. L.

whether Hijab is an However, this must be

ERP. done by honouring the
religious sentiments of
the candidates. Finally,
the board claims
practical difficulties in
implementing this.
However, the Court
held that practical
difficulty cannot be an
excuse to honour
fundamental rights.
Karnataka HC

South Central India The ‘Seventh Day Cites Shirur Mutt and Not ERP. The Court The judgment begs the
Union of SDA v Adventist’ group is Acharya. recognised that as per question as to whether
Government of a denomination of the religion, the god any scriptural
Karnataka (2016) Christians. They created the universe in documents can provide
SCC OnLine Kar are arguing on six days and rested on all the answers. There
8342 [1 J]. behalf of a student the seventh day, which is was also disagreement
whose exams are celebrated as the within the
scheduled on Sabbath Day. But the denomination itself on
Saturday. The faith Bible does not say the the question of when
is that members of week commences from the Sabbath Day was to
the group do not Sunday and ends on be celebrated.
take part in any Saturday - Sabbath Day
activity on all can be Saturday or
Saturdays (Sabbath Sunday or any other day
Day) from 6 AM to for that matter.
6 PM for doing so
would be an act of
sin. The question is
whether following
the Sabbath day is
an ERP.
Resham v State of If wearing of Hijab Cites Shirur Mutt and Not ERP. The Court They distinguish this
Karnataka (2022) by Muslim women Acharya. uses the 'but for' test in case from Basheer by
LiveLaw (Kar) 75 [3 constitutes an ERP Acharya to hold that saying the exam was a
J] and if the wearing the hijab was one-time affair and this
prescription of a only recommendatory. case concerns a regular
school uniform is a Held that, “it is everyday practice.
violation of A-25. not that if the alleged However, logically,
practice of wearing hijab even if the facts are
is not adhered to, those different, the practice
not wearing hijab being essential to Islam
become the sinners, cannot change. It can’t
Islam loses its glory and be that wearing the
it ceases to be a Hijab in an examination
religion”. is an ERP but not in a
school.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 107

P. Lathavya Acharya v The question is Cites Shirur Mutt but Held that the The system of
State of Karnataka whether the not Acharya. appointment of the Dwandwa Mutts (eight
MANU/KA/4599/ appointment of the pontiff was an ERP. The mutts are paired with
2021 [2 J] (PIL) pontiff of Shirur practice has been each other. If one mutts
Mutt is an ERP. performed for 800 years. head dies without
There was a 16- Also, Hindu religion nominating the
year-old minor as allows one to be a successor the head of
the Matadhipathi sanyasi before eighteen the paired mutt
(chief pontiff) of years of age. appoints the successor)
the Udupi Shiroor is an ERP. One of the
Mutt. The Court key challenges were due
held that Shirur to the fact that he was a
Mutt is a religious minor. The ‘but for’ test
denomination and was not employed here.
has A-26 rights. It was held that,
The contention “Courts are certainly
was that a 16-year- not meant to write
old cannot become religious text, however,
the chief pontiff. they are under an
The Court held obligation to follow
that the ERP of religious text in the
appointing heads matter of cases dealing
was being practiced with religious dispute
for 800 years in and to follow old
consonance with practices which are
the teachings of prevalent in the religion
Shriman so long as they do not
Madhwacharya. violate constitutional
rights of an individual”.
Bombay HC

Campaign against By previous Cites Acharya. The practice of having The Court recognises
Manual Scavenging v interim directions, bhajans/kirtan on the that even if the practice
State of Maharashtra the Court held that river bed specifically were to be an ERP, it
(2015) SCC OnLine the river bed of cannot be an ERP. The would nevertheless be
Bom 3834 [2 J] (PIL) Chandrabhagha standard used is of restricted on the
River shall not be Acharya - “by no stretch ground of health.
used for any of imagination, it can be
activity like said that act of imposing
temporary pandals, ban on erecting
booths, shelters, or temporary structures on
any prohibited the river bed will
activity. The amount to the change in
Warkari Sahitya the
Parishad contends character of the religion
that there is a long or its beliefs”.
custom/tradition
which exists for
700 years of
holding Bhajans,
Kirtans, and Gajar
on the river bed.
 108 INDIAN J. CONST. L.

Zahid Mukhtar v State The Maharashtra Acharya was not cited. Not ERP – Held that for Heavy reliance was
of Maharashtra Animal The Court relies on lifting the ban it should placed on Articles 48
MANU/MH/0670 Preservation Shirur Mutt be shown and 48A. The Court
/2016 [2 J] (PIL) (Amendment) Act, that it is essential for a relied on the case of
1995 which got person practicing Islam Ashutosh Lahiri to hold
presidential assent to sacrifice a healthy cow that it is, not obligatory
in 2015 is on for a person practicing
challenged. By the Bakra Eid. Islam to sacrifice a cow
Amendment Act, or progeny of a cow.
in addition to the
existing
prohibition on the
slaughter of cows, a
complete
prohibition was
imposed on the
slaughter of bulls
and bullocks in the
State. A ban was
imposed on
possessing the
flesh of cow, bull,
or bullock
slaughtered
within and outside
the State.
Noorjehan Safia Niaz Earlier the Both Shirur Mutt and The prohibition of The Court also held
and Another v State of petitioners could Acharya women from entering that Part III had to be
Maharashtra (2016) visit the sanctum the sanctum sanctorum satisfied in any case and
SCC OnLine Bom sanctorum where was not an ERP. The even if it was an ERP,
5394 [2 J] (PIL) the saint was buried standard used is whether the Court would not
(Reaffirmed by SC although through a the nature of Islam permit such practice.
in Haji Ali Dargah different entry for would change if women Since people from all
Trust case) men. In 2012, a were allowed i.e., the over visited the place
barricade was put ‘but for test’ in Acharya there was no right to
and women were was employed. discriminate under the
not allowed to guise of religion. What
enter the sanctum weighed heavily with
sanctorum. The the Court was the fact
Trust claimed that that women were
stopping women permitted to enter the
from entering the sanctum sanctorum
sanctum before 2012 (thereby
sanctorum was an employing the recency
essential part of test).
Islam and therefore
protected by A-25.
 The Essential Religious Practice Test: A Sorry Tale of Judicial Misreading 109

Mahesh Vijay Badekar Two issues were Ismail Faruqui (not Neither of the two was It was held that “no one
v State of Maharashtra raised. First Shirur Mutt of held to be an ERP. The has fundamental
(2016) SCC OnLine regarding the Acharya). Court held that the State right of offering prayers
Bom 9422 [2 J] (PIL) construction of must ensure roads are or worshiping on a
pandals or not blocked and remain street or footway by
temporary booths accessible to the public. obstructing free flow of
for religious Further, it was held that traffic as it is not an
festivals and the right to worship essential part of any
second, regarding does not extend to the religion”.
noise pollution right of worship at every
caused due to the place.
use of loudspeakers
at religious
festivals. The
question was
whether either of
these two was an
ERP.
Elmas Fernandes v The challenge is to None cited. Not ERP. The ourt held Under Article 19 of the
State of Goa Article 19 of that the power of the Decree, the procedure
MANU/MH/2912 Decree Number Ecclesiastical Courts is that Catholics who
/2019 [2 J] 35461. This related may have civil want to annul their
to the annulment consequences. Hence it marriage appeal to the
of marriage, the cannot be considered as Bishop in Panaji. Once
bishop appointed a an ERP. the appeal is decided by
judge in the the Tribunal, the same
patriarchal tribunal order is sent to the HC
to hear the case. for enforcement. The
The contention is same was challenged by
that the judge was the woman and the
biased. The judge church claimed it is an
decided to annul ERP and hence
the marriage. protected under A-25.
Thus, Catholics will
now have to file
separate petitions in
civil Courts for
annulment of
marriage.89

89 Lisa Monteiro, ‘Church tribunal decisions will not have any civil effect henceforth’ (The
Times of India, October 2019) <https://timesofindia.indiatimes.com/city/goa/church-
tribunal-decisions-will-not-have-any-civil-effect-
henceforth/articleshow/71640129.cms> accessed 1 September 2022.
 110 INDIAN J. CONST. L.

Madras HC

T Wilson v DC The petitioner is a Only Acharya but not The Court held that The Court held that,
Kanyakumari (2021) devout Christian Shirur Mutt. congregational prayers “Bible does not profess
SCC OnLine Mad who used to are indeed an ERP. But a prayer to be done or
1739 [1J] conduct prayer no protection was given conducted in a manner
meetings in his to the petitioner. that would warrant
residential house. gathering of people and
Prayers were usage of amplifiers of
conducted on any sort in the process”.
loudspeakers. This
was restricted by
the District
Collector since
people complained
of a possible law
and order situation.
The Petitioner
claimed that this
violated Article 25.
Ramaswamy Udayar v Religious Acharya but not Shirur No mention of ERP - With no inquiry into
District Collector procession of Mutt but allowed procession ERP, the Court instead
(2021) SCC OnLine Hindus was to be on A-25 grounds. They chooses to observe
Mad 1779 [2 J] carried through the do not go into any how a secular country
streets/roads of a inquiry about ERP. necessarily has to be a
Muslim-majority tolerant one. This
area. The claim is seems like a judgment
that such given on gut and
permission must be intuition and not the
granted. law.
 KARNATAKA HIGH COURT RULING ON CONTENT BLOCKING:
A SETBACK FOR USER RIGHTS

Sachin Dhawan
ABSTRACT
On June 30, 2023 the Karnataka High Court dismissed X's
[hereinafter Twitter] writ petition challenging several blocking orders
issued by the government in 2021 and 2022. It even imposed costs
on Twitter. The blocking orders - pertaining to both tweets and user
accounts - were issued under Section 69A of the Information
Technology Act, 2000, which empowers the government to block
content on several grounds. The government must follow a specific
process when it seeks to block content, laid down in the Information
Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009. One of the major contentions
raised by Twitter in this case was that the government did not follow
the required process. Twitter argued in part that the government was
required to involve users/originators in the blocking process, which it
did not. As per Twitter the government should have notified users
about the possible blocking of their content, given them a hearing, and
after blocking their content supplied them with a copy of the blocking
order along with reasons for the same.
The High Court however disagreed. It stated that there was no
precedent to suggest that the government had to make reasonable
efforts to notify users, give them a hearing and supply them with a
copy of the blocking order along with reasons. Moreover, it said that


Sachin Dhawan is a programme manager at Centre for Communication Governance,
National Law University Delhi. The opinions expressed in this article are personal to the
author. The National Law University, Delhi does not subscribe to the views expressed in
the article and does not take any responsibility for the same. The author would like to
thank Harshita Adari for her assistance.
112 INDIAN J. CONST. L.

aggrieved users had not approached the court despite being more than
capable of doing so. So the Court concluded that the fact that the
government did not involve users in the blocking process did not
invalidate the blocking orders. With respect, the High Court should
not have undermined the rights of users in this way. Binding law and
sound public policy dictate that users should be involved in the
blocking process. Thus, this article will focus on the decision’s lacuna
concerning users. It will make three points: (i) Notice should have
been given to users (ii) A hearing should have been given to users and
(iii) Blocking orders along with reasons for blocking of content should
have been conveyed to users.
PART 1: INTRODUCTION
On June 30, 2023 a Single Judge Bench of the Karnataka High
Court (Court) dismissed the online platform1 X’s writ petition
challenging ten blocking orders issued by the respondent Union of
India (Ministry of Electronics and Information Technology - MeitY)
in 2021 and 2022. It also imposed costs on X (Twitter). The blocking
orders - pertaining to both tweets and user accounts - were issued
under Section 69A of the Information Technology Act, 2000 (IT Act),
which empowers MeitY to block content on several grounds.2 MeitY
must follow a specific process when it seeks to block content, laid
down in the Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009 (Blocking Rules).3

1 The terms ‘platform’ and ‘intermediary’ are used interchangeably in this article.
2 The grounds are as follows: “sovereignty and integrity of India, defence of India, security
of the State, friendly relations with foreign States, or public order or for preventing
incitement to the commission of any cognizable offence relating to above.”; See: Section
69A, The Information Technology Act, 2000.
3 The process is as follows: Complaints requesting blocking of content are sent to Nodal
Officers of various ministries who forward them to the Designated Officer, Ministry of
Electronics and Information Technology (MeitY). A Committee for Examination of
Requests comprising the Designated Officer and other members of the Executive Branch
gives recommendations regarding the validity of such complaints, after hearing
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 113

One of the major contentions raised by Twitter in this case - X Corp v.

Union of India4 - is that MeitY did not follow the required process.
Twitter argued in part that MeitY was required to involve content
creators/uploaders (users/originators) in the blocking process, which
it did not. As per Twitter, MeitY should have notified users about the
possible blocking of their content, given them a hearing, and after
blocking content, supplied affected users with a copy of the blocking
order along with reasons for the same.
The Court however disagreed. It stated that there was no
precedent to suggest that MeitY has to make reasonable efforts to
notify users and give them a hearing. Moreover, it said that aggrieved
users had not approached the Court despite being more than capable
of doing so. As a result, the Court concluded that the fact that MeitY
did not involve users in the blocking process did not invalidate the
blocking orders.
With respect, the Court should not have undermined the rights
of users in this way. Binding law and sound public policy dictate that
users should be involved in the blocking process. Thus, in this article
I will focus on the decision’s lacuna concerning users/originators. I
argue that the decision should have upheld and followed Shreya Singhal

objections from intermediaries or originators of content, who receive a notice to

participate in the deliberations of the Committee (which deliberations must be held no
sooner than 48 hours after provision of notice to intermediaries/originators). These
recommendations are conveyed by the Designated Officer to the Secretary of MeitY,
who gives her/his approval/disapproval to them. If s/he approves, then the Designated
Officer directs the intermediary to block content. If s/he disapproves, then the
Designated Officer informs the Nodal Officer of the same; See: The Information
Technology (Procedure and Safeguards for Blocking for Access of Information by
Public) Rules, 2009.
4 X Corp. v. Union of India and Ors., MANU/KA/2230/2023 [refer to Manupatra
version].
114 INDIAN J. CONST. L.

v. Union of India5 (Shreya Singhal) and other rulings which clearly

articulate the need for extending robust due process protections6 to
individuals before depriving them of fundamental rights. I engage with
critiques that assert that Shreya Singhal is (i) not binding law and/or
(ii) impractical to implement. I also discuss what future courts can do
to more fully realize the promise of Shreya Singhal.
This article makes a contribution to existing literature by
highlighting the role of Shreya Singhal in evolving the law on content
blocking. Since the ruling was rendered in 2015, several critics have
sought to diminish its significance regarding user due process rights.
This article counters such a narrative in order to restore Shreya
Singhal’s status as a landmark decision bolstering user due process
rights that is binding on the Court.
The article proceeds as follows - Part 2 will discuss the main
contours of the Court’s decision. Part 3 will critique the decision’s
shortcomings regarding user rights. Part 4 concludes by emphasizing
the importance of integrating user due process rights into the content
blocking process.
PART 2: THE KARNATAKA HIGH COURT DECISION
A] Context and Background:
The passage of three ‘farm laws’7 in September 2020 led to
extensive protests in India. A significant degree of discontent was
expressed online, through platforms such as Twitter. During this time

5 Shreya Singal v. Union of India, [2015] 5 SCC 1.

6 The terms ‘due process’ and ‘procedural safeguards’ are used interchangeably in this
article.
7 The farm laws were: The Farmers’ Produce Trade and Commerce (Promotion and
Facilitation) Act, 2020; The Farmers (Empowerment and Protection) Agreement of Price
Assurance and Farm Services Act, 2020; The Essential Commodities (Amendment) Act,
2020; See: Three farm laws to be rolled back. What were they all about?, India Today
(20/11/2020), available at https://www.indiatoday.in/india/story/three-farm-laws-to-
be-rolled-back-what-were-they-all-about-1878746-2021-11-19, last seen on 12/11/2023.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 115

public frustration with the government’s response to the COVID

pandemic was also articulated on Twitter among other platforms.

MeitY concluded that some of these expressions of discontent violated

the law. Over the period of a year, from February 2021 to February
2022, it issued 10 content blocking orders to Twitter under Section
69A of the IT Act (Section 69A) read with the Blocking Rules. These
orders called for the blocking of 1474 accounts and 175 tweets.8
Twitter complied with these directions, under protest.
B] Court’s Ruling:
Eventually, Twitter challenged the legality of a few account and
tweet blockings from these 10 blocking orders (39 URLs were
challenged, but the exact number of accounts and tweets that comprise
these 39 URLs is undisclosed). It filed a writ petition in July 2022
before the Court arguing inter alia that i] Blocking of accounts in
addition to tweets is disproportionate and hence unconstitutional ii]
Blocking of accounts in addition to tweets is against a plain reading of
Section 69A and hence in violation of statutory law iii] MeitY failed to
provide reasoned blocking orders to Twitter, in violation of Section
69A iv] MeitY failed to provide notice to users in violation of
procedural safeguards contained in the Blocking Rules.
The Court dismissed the writ petition for the following reasons -
One, it stated that blocking of accounts in addition to tweets is
not disproportionate. The Court stressed that the blocking orders were
issued after due deliberation; they were not the product of hasty action.
Given the evenhandedness on display by MeitY, it is evident that the
blocking of accounts which contained legal and illegal tweets does not

8 Supra 4, at 4.
116 INDIAN J. CONST. L.

violate the proportionality principle. Moreover, restricting MeitY to

blocking tweets would have delayed efforts to stem the spread of illegal
content as sifting illegal tweets from legal ones is an onerous and time-
consuming task. In any event, the Court noted, the principle of
proportionality cannot be invoked by a “juristic person and a foreign
entity”9 such as Twitter.
Two, the Court said that blocking of accounts is permitted by
the language of Section 69A. It acknowledged that account blockings
will prevent legitimate content from being uploaded in the future. But
it stated that Twitter was incorrect to argue that Section 69A only
permitted blocking of already posted content. Twitter’s interpretation
of Section 69A, which focused on the past tense of the words used
therein, was in the eyes of the Court too rooted in a “linguistic
interpretation of statutes.”10 Such a reading failed to reflect the actual
intent of the statutory provision.
The Court elaborated that the intent of Section 69A is to
prevent harm caused by incendiary content that falls within the
proscribed grounds enumerated in the Section. The goal of prevention
is not served by an interpretation which waits for incendiary content
to be posted, for it to spread far and wide and only then for MeitY to
step in after a cumbersome procedure and block it. Only for the
malcontents involved to again post incendiary content while adopting
a “better luck next time”11 approach. It’s more effective to deter such
conduct by empowering MeitY to block accounts in addition to tweets.
Three the Court said that MeitY did provide reasoned blocking
orders to Twitter - in effect if not formally. This is because Twitter was
part of the process which culminated in the issuance of blocking

9 Ibid, at 30.
10 Ibid, at 19.
11 Ibid, at 20.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 117

orders. This was a deliberative process involving “high functionaries

of the government.”12 During this process, in fact, Twitter successfully
urged a Review Committee to unblock 10 user accounts.13 Thus,
overall, the blocking process was marked by “processual fairness”14
during which Twitter was made aware of the problematic nature of
the content at issue. So it is incorrect to assert that Twitter was not
provided with the reasons behind the blocking orders.
Four, the Court said that MeitY did not have to provide notice
to users. This is because the text of Rule 8(1) of the Blocking Rules
requires the Designated Officer of MeitY to provide notice to either
the user or the intermediary, not the user and the intermediary. MeitY
followed this rule by providing notice to the intermediary, Twitter.
The Court denies that the following words of Shreya Singhal
change this interpretation: “It is also clear from an examination of Rule
8 that it is not merely the intermediary who may be heard. If the
‘person’ i.e. the originator is identified he is also to be heard before a
blocking order is passed…”15 While dismissing Twitter’s reliance on
this portion of Shreya Singhal, the Court said “the observations in a
judgment cannot be construed as the provisions of a statute.”16 The
Court also noted that the details of affected users were with Twitter
but it never shared those details with MeitY or urged MeitY to contact
users. Finally the Court states that even if there was a failure to notify
users, this is an issue for users to raise, not intermediaries like Twitter.

12 Ibid, at 26.
13 Ibid.
14 Ibid.
15 Ibid, at 27.
16 Ibid.
118 INDIAN J. CONST. L.

PART 3: ASSESSMENT OF THE DECISION: A SETBACK FOR USER

RIGHTS

The Court’s analysis of the law on content blocking deserves

critical scrutiny. In this part I focus on how the Court erred on the
issue of user due process rights. I also discuss some potential critiques
of my position and suggest ways in which courts in the future can
better uphold user due process rights.
This decision is of considerable significance. If the law on
content blocking evolves in the direction laid down by the Court then
the free speech rights of users will suffer disproportionately. Whereas
platforms will still have access to basic due process safeguards [such as
notice, a hearing and some semblance however attenuated of reasons
behind a blocking order]17 users will have their content blocked
without recourse to even these safeguards.18
A] The Court Did Not Follow Shreya Singhal on User Due Process
Rights
Primarily, the Court errs in its interpretation of Shreya Singhal.
Shreya Singhal is binding law regarding user rights under Section 69A
and the Blocking Rules. It stresses the importance of robust due
process rights for users.
While interpreting the Blocking Rules, Shreya Singhal clearly
specifies that notice should be given to the intermediary and the

17 Twitter Inc. v. Union of India & Anr., W.P. No. 13710/2022, Intervention Application
(Aakar Patel), at 20. This application specifies that notice and a hearing is given to
platforms but not to users during the content blocking process.
18 This is not to assert that the outlook is rosy for platforms. But they emerge out of this
decision with slightly more rights and vastly more resources to push for these rights.
Twitter is a multi-billion dollar corporation that possesses the wherewithal to push back
against overbroad government action; ordinary users lack access to such resources. Such
a power differential signifies that a premium should have been placed by the Court on
doing more to secure the rights of ordinary users, to enable them to push back in the
future.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 119

user/originator where “the originator is identified.”19 Moreover, it

clearly lays out that after notice is given, a pre-decisional hearing i.e. a
hearing before a blocking order is passed should be provided to both
the intermediary and the user.20 Finally, it emphasizes that blocking
orders along with reasons must be conveyed to the user as well - not
just the intermediary. Doing so enables users to exercise their rights
and challenge the validity of blocking orders via writ petitions before
High Courts.21
Unfortunately, as explained above, the Court deprived users of
these due process rights. It ignored Shreya Singhal. As will be seen
later, the Court also ignored other precedent emphasizing the need to
extend due process protections to individuals before depriving them
of fundamental rights.22
B] Criticism of Shreya Singhal and User Due Process Rights
Several commentators have criticized Shreya Singhal’s
directions on user due process rights. They contend that the judgment
is not binding precedent23 and also that it is impractical to implement.24
As per this view, the Court may have been correct to dismiss Twitter’s
arguments. Specifically, critics contend that:

19 Supra 5, at ¶ 110.
20 Ibid: “It is also clear from an examination of Rule 8 that it is not merely the intermediary
who may be heard. If the "person" i.e., the originator is identified he is also to be heard
before a blocking order is passed.”
21 Supra 5, at ¶ 109.
22 Vasudev Devadasan, The Karnataka High Court on Twitter’s complaint: Carte blanche to the
government, Indian Constitutional Law and Philosophy (Jul. 2, 2023), available at
https://indconlawphil.wordpress.com/2023/07/02/the-karnataka-high-court-on-
twitters-complaint-carte-blanche-to-the-government/, last seen on 09/08/2024.
23 Divyansha Sehgal and Gurshabad Grover, Online Censorship: Perspectives From Content
Creators and Comparative Law on Section 69A of the Information Technology Act (Apr. 13, 2023),
available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4404965, last seen
on 09/08/2024.
24 Tanul Thakur v. Union of India, W.P. (C) No. 788 of 2023, Written Submission on Behalf
of Respondent, MeitY, p. 7.
120 INDIAN J. CONST. L.

i] Shreya Singhal is Not Binding Precedent: The Supreme Court did

not declare Section 69A and the Blocking Rules unconstitutional25 nor
did it read down the Section and the Rules.26 The Court echoes this
sentiment when it states that notifying users about the possibility of
their content being blocked is “not mandatory.”27
ii] Shreya Singhal is Impractical to Implement: Even if there is some
validity - on paper - to the Supreme Court’s comments on user due
process rights, the argument goes, it is difficult to implement them.28
They are in effect nugatory. Specifically, critics contend that it is
difficult to implement Shreya Singhal regarding a] notice to users and
b] reasoned order to users.
What if MeitY mechanically asserts that it is not able to contact
users? What has been seen since Shreya Singhal in cases like Tanul
Thakur v. Union of India29 (Tanul Thakur) is that when questioned MeitY
officials simply assert that efforts were made to contact users but they
were unsuccessful.30 In this way, there is no way to hold MeitY
accountable if it has not made reasonable efforts to contact users. So
far, courts have not pushed MeitY to substantiate its claims that efforts
were made with evidence of such efforts in the form of emails sent etc.

25 Supra 4, at 18: “In SHREYA SINGHAL, supra the challenge in a social action litigation
(u/a 32 of the Constitution), to the validity inter alia of section 69A of the Act & the
Website Blocking Rules came to be repelled by the Apex Court on the ground that Rule
8 provides for sufficient substantive & procedural safeguards.” See also, Merrin
Muhammed Ashraf, Reimagining Regulation of Speech on Social Media Platforms in India, 7(4)
NUJS JOURNAL OF REGULATORY STUDIES 21, p. 39 (2022).
26 Supra 23, at 8.
27 Supra 4, at 29.
28 Supra 24.
29 Tanul Thakur v. Union of India & Ors., W.P. (C) 13037/2019, Delhi High Court Order
(May 11, 2022).
30 Supra 24. See also Tanul Thakur v. Union of India & Ors., W.P. (C.) No. 13037 of 2019,
Counter Affidavit, at 17-18.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 121

It has also been contended that some users, if given notice, will be
stirred to post more unlawful content31 “through…[anonymous]
accounts”32 and accounts on other platforms. They will become aware
of the fact that MeitY knows about their online activities and so more
easily escape capture.33 As a result, MeitY should not give them notice.
Critics also contend that the Supreme Court in Shreya Singhal
failed to fully articulate user due process rights.34 While it stated that
reasoned orders have to be given to the user and intermediary, it left
untouched Rule 16 of the Blocking Rules35 (Confidentiality Rule)
which MeitY has since cited to deny giving copies of blocking orders
to users even when they request it.
Therefore, the argument goes that courts will not be able to
enforce the due process safeguards of Shreya Singhal even if they want
to because they will be told that a] reasonable efforts were made but
the user couldn’t be contacted b] reasonable efforts should not be
made in some cases because that will further encourage wrongdoers
and c] The Confidentiality Rule bars giving users a copy of reasoned
blocking orders. Courts will therefore have to conclude that Shreya

31 Supra 4, at 85-86.
32 Vasudev Devadasan, The Phantom Constitutionality of Section 69A: Part II (Twitter v the Union),
Indian Constitutional Law and Philosophy, available at
https://indconlawphil.wordpress.com/2022/10/24/the-phantom-constitutionality-of-
section-69a-part-ii-twitter-v-the-union/, last seen on 09/11/2023; See also, Supra 4, at 85-
86: “Informing the user by notice will only cause more harm. The user will get alert of
the same and get more aggressive, change his identity and will try to do more harm by
either getting himself anonymous and spread more severe content through multiple
accounts from the same platform or from other online platforms.”
33 Ibid.
34 Devdutta Mukhopadhyay, MeitY defends blocking of satirical Dowry Calculator website
#FreeToMeme, Internet Freedom Foundation (Mar. 16, 2020),
https://internetfreedom.in/meity-defends-blocking-of-satirical-dowry-calculator-
website/, last seen on 09/08/2024.
35 Rule 16, The Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009: “Requests and complaints to be
confidential. –– Strict confidentiality shall be maintained regarding all the requests and complaints
received and actions taken thereof.”
122 INDIAN J. CONST. L.

Singhal cannot be enforced in practice. So, the Court in this case did
not err by overlooking Shreya Singhal.
C] Countering the Critics of Shreya Singhal and User Due Process
Rights
(i) Shreya Singhal is Binding Precedent: It is true that the Supreme
Court did not strike down Section 69A and the Blocking Rules as
unconstitutional. But it clearly went beyond merely upholding the
validity of Section 69A and the Blocking Rules. It read them in a way
that enhanced the procedural safeguards contained therein. The
Supreme Court took pains to offer an interpretation of Section 69A
and the Blocking Rules that would make them comport with
constitutional strictures. That reading/interpretation is binding
precedent.36
Moreover, multiple commentators and even the Delhi High
Court have upheld the legitimacy of Shreya Singhal, its reading of
Section 69A and the Blocking Rules and followed its vision.37 For

36 Jyoti Panday, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary
Liability in India?, The centre for Internet & Society (11/04/2015), available at https://cis-
india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-
intermediary-liability, last seen on 09/08/2024. See also, Gautam Bhatia, The Supreme
Court’s IT Act Judgment, and Secret Blocking, Constitutional Law and Philosophy Blog
(25/03/2015), available at https://indconlawphil.wordpress.com/2015/03/25/the-
supreme-courts-it-act-judgment-and-secret-blocking/, last seen on 09/08/2024;
Vasudev Devadasan, The Karnataka High Court on Twitter’s complaint: Carte blanche to the
government, Constitutional Law and Philosophy Blog (02/07/2023), available at
https://indconlawphil.wordpress.com/2023/07/02/the-karnataka-high-court-on-
twitters-complaint-carte-blanche-to-the-government/, last seen on 09/08/2024; Kartik
Kalra, The Karnataka High Court’s Twitter Judgment – II: On nationalist rhetoric as legal reasoning,
Constitutional Law and Philosophy Blog (03/07/2023), available at
https://indconlawphil.wordpress.com/2023/07/03/guest-post-the-karnataka-high-
courts-twitter-judgment-ii-on-nationalist-rhetoric-as-legal-reasoning/, last seen on
09/08/2024.
37 Vrinda Bhandari et. al., Revising the Information Technology Act, 2000, p. 14-15, xKDR
(30/03/2024), available at
https://papers.xkdr.org/papers/20230330Baileyetal_itAct.pdf, last seen on
09/08/2024. See also, Vasudev Devadasan, The Phantom Constitutionality of Section 69A: Part
I (Twitter v the Union), Indian Constitutional Law and Philosophy, available at
https://indconlawphil.wordpress.com/2022/10/22/the-phantom-constitutionality-of-
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 123

instance, in round one of the Tanul Thakur litigation, Thakur’s writ

petition relied on Shreya Singhal to argue that his due process rights to
notice, a hearing and access to the Section 69A order blocking his
website had been denied. Subsequently the Delhi High Court directed
MeitY to grant him a post decisional hearing and access to the order
blocking his website dowrycalculator.com.38
(ii) Shreya Singhal’s Vision Can be Implemented: There are ways to
overcome the alleged practical difficulties in implementation. For
instance, Rule 15 of the Blocking Rules requires the Designated
Officer of MeitY to “maintain (a) complete record of the request
received (to block content) and action taken thereof.”39 If efforts have
been made to contact users, they will be reflected in this record. A
future court can thus call for and examine this record if it is in doubt

section-69a-part-i/, last seen on 09/11/2023; Vasudev Devadasan, The Phantom

Constitutionality of Section 69A: Part II (Twitter v the Union), Indian Constitutional Law and
Philosophy, available at https://indconlawphil.wordpress.com/2022/10/24/the-
phantom-constitutionality-of-section-69a-part-ii-twitter-v-the-union/, last seen on
09/11/2023; Sachin Dhawan & Ronika Tater, Tanul Thakur Case: Delhi High Court Should
Quash Blocking Order, Vindicate Legacy of Shreya Singhal, Medianama (09/06/2022), available
at https://www.medianama.com/2022/06/223-website-block-shreya-singhal-high-
court/, last seen on 10/08/2024.
38 Supra 29. See also, Vasudev Devadasan, The Phantom Constitutionality of Section 69A: Part II
(Twitter v the Union), Indian Constitutional Law and Philosophy, available at
https://indconlawphil.wordpress.com/2022/10/24/the-phantom-constitutionality-of-
section-69a-part-ii-twitter-v-the-union/, last seen on 09/11/2023: “In Tanul Thakur’s
challenge, the Delhi High Court directed the Government to provide the content
originator with a copy of the blocking order and a post-facto hearing as to why his content
should not continue to be blocked…the order is an acknowledgement of: (i) the need to
offer originators an opportunity to contest restrictions on their free expression…(ii) the
importance of supplying the originator with a copy of the blocking order…Thus, Tanul
Thakur’s case… should serve as valuable precedent mandating the disclosure of the
blocking order to the originator and the grant of a hearing, ultimately facilitating a
challenge under Article 226 before a High Court.”
39 Rule 15, The Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009: “Maintenance of records by
Designated Officer. — The designated officer to maintain the database of the records of the cases
of blocking of information by public access and the action taken by him in each case respectively. He shall
maintain both in electronic format and in the register.”
124 INDIAN J. CONST. L.

about whether reasonable efforts were genuinely made to contact

users.40
Moreover, if a user still cannot be contacted after reasonable
efforts have been made, then MeitY can direct the platform to contact
the user. In fact, platforms have been tasked with notifying users in the
recently enacted Digital Services Act (DSA) in the European Union and
in several other jurisdictions.41 Platforms in India usually do not take
the initiative to notify users because of the concern that doing so will
violate the Confidentiality Rule.42 MeitY has not provided clarity on
this point; further it has so far refused to seek the assistance of
platforms to contact users.
However, giving users notice in this way will not violate the
confidentiality of the complainant,43 which is the justification given by
MeitY for having the Confidentiality Rule.44 Specifically, MeitY has
argued that the Confidentiality Rule exists to protect the identity of the
individuals who make the complaints that trigger the blocking process.
But clearly, a complainant’s identity is not compromised if a user is
simply informed by a platform that their content may be blocked by
the government. A user doesn’t have to be informed of the identity of
the complainant to be given notice of the possibility of blocking (along
with a hearing regarding the same and a copy of the eventual blocking
order).

40 Sachin Dhawan & Ronika Tater, Tanul Thakur Case: Delhi High Court Should Quash Blocking
Order, Vindicate Legacy of Shreya Singhal, Medianama (09/06/2022), available at
https://www.medianama.com/2022/06/223-website-block-shreya-singhal-high-court/,
last seen on 13/11/2023.
41 Article 9(5), Digital Services Act, Regulation (EU) 2022/2065 (19/10/2022).
42 Supra 32.
43 The complainant is the person who initiates the blocking process by sending a complaint
to the concerned Nodal Officer; Supra 3.
44 Tanul Thakur v. Union of India & Ors., W.P. (C.) No. 13037 of 2019, Counter Affidavit,
at 22. See also, supra n. 37, p. 17-18.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 125

If MeitY wishes to maintain confidentiality for other reasons -

to the extent that users should not be notified by platforms - then its
“...rationale…should be testable by courts.”45 In other words MeitY
should have to make a viable case in favor of confidentiality and against
user notification. If it fails to do so, then the lack of notice (as a result
of MeitY refraining from directing a platform to notify users or
preventing a platform from notifying users on confidentiality grounds)
should render any subsequent blocking order void.
Wrongdoing users will become aware of the fact that MeitY is
aware of them even when their content is blocked; blocking will thus
have the same effect as a notice. It’s not MeitY’s responsibility to
capture wrongdoers; if the government wants to apprehend
wrongdoers without alerting them, it can rely on other powers in other
laws to do so.46 The relevant government agencies can request MeitY
to desist from sending notices to the concerned individuals while it
pursues its investigations into them.47
One concern remains. It is true that it is virtually impossible
for users to obtain copies of blocking orders even when they file Right
to Information (RTI) requests. Unfortunately, the Confidentiality Rule
is cited to deny many such requests.48 The hope is that recent rulings
like Tanul Thakur will clearly signal to authorities that the
weaponization of the Confidentiality Rule in this way is impermissible.
More needs to be done perhaps at the level of the Supreme Court to
restrict the pernicious deployment of this Rule to keep users in the
dark about how and why their content has been blocked. At the very

45 Supra 32.
46 Ibid.
47 Ibid.
48 Supra 17, at 10-11.
126 INDIAN J. CONST. L.

least, the Confidentiality Rule should be read down to assert that it will
not apply to users whose content has been blocked.49
D] Additional Precedent in Favor of User Due Process Rights
Even if the critics of Shreya Singhal are correct when they
assert that it lacks precedential value regarding user rights, there are
other precedents which call for the kind of safeguards it espouses.
Unfortunately, the Court did not consider these precedents. They are-
(i) Precedent on the Right of Judicial Redress and Right to
Transparency: The Court overlooks important precedent on judicial
redress and transparency. Two cases in particular bear mentioning -
Ram Jethmalani and Ors v. Union of India50 and Anuradha Bhasin v. Union of
India.51 Jethmalani, focusing on the importance of judicial redress,
specifies that “it is imperative that…petitioners are not denied the
information necessary for them to properly articulate the case and be
heard, especially where such information is in the possession of the
State.”52 Denial of blocking orders to users “impedes the(ir) ability to
contest them.”53 A user cannot exercise her right to judicial redress and
challenge a blocking order if she doesn’t have access to it or even
knowledge of it.
Bhasin condemns a similar lacuna in transparency – in the
context of internet shutdowns - as violative of the mandate of Article
19 of the Constitution. That is why this landmark ruling called for the
publication of internet shutdown orders. And it has rightly been argued
that such logic compels the publication of content blocking orders or
at least the provision of such orders to users.54

49 Supra 32.
50 Ram Jethmalani and Ors. v. Union of India, (2011) 8 SCC 1.
51 Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.
52 Supra 50, at ¶ 66; See: Supra 4, at 10.
53 Supra 17, at 10.
54 Ibid.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 127

(ii) Precedent on Article 21 and Due Process Rights: The Court also
fails to recognize that users have due process rights/natural justice
rights under Article 21 of the Constitution. These rights entail that they
be given notice, a hearing and a reasoned order55 - because the
government cannot deprive persons of their fundamental rights
without furnishing them with these basic due process safeguards.56
(iii) Precedent on the Principle of Proportionality: It is clearly laid
down in a number of judgments that the government cannot violate
fundamental rights including the fundamental right to speech without
adhering to the principle of proportionality.57 This requires the
government to use the least restrictive means to achieve the ends of a
given law. The Court did not engage in a discussion of whether denial
of user rights satisfies the principle of proportionality i.e. whether it
constitutes the least restrictive means to achieve the ends of Section
69A.58
E] Public Policy Arguments in Favor of User Due Process Rights
Finally, the Court is wrong from a policy perspective about
user due process rights. There are several important policy reasons why

55 Supra 17, at 13; Tanul Thakur v. Union of India & Ors., W.P. (C.) No. 13037 of 2019, at
6. See also Vasudev Devadasan, The Karnataka High Court on Twitter’s complaint: Carte blanche
to the government, Indian Constitutional Law and Philosophy (02/07/2023), available at
https://indconlawphil.wordpress.com/2023/07/02/the-karnataka-high-court-on-
twitters-complaint-carte-blanche-to-the-government/, last seen on 14/11/2023.
56 Maneka Gandhi v. Union of India, 1978 AIR 597; PUCL v. Union of India & Anr., AIR
1997 SC 568. Olga Tellis & Ors v. Bombay Municipal Corporation & Ors., 1986 AIR
180; Allauddin Mian & Ors. v. State of Bihar, 1989 AIR 1456.
57 Justice K S Puttaswamy (Retd.) & Anr. v. Union of India & Ors., W.P. (Civil) No. 494
of 2012; Madhyamam Broadcasting Limited v. Union of India & Ors., Civil Appeal No.
8130 of 2022.
58 Kartik Kalra, The Karnataka High Court’s Twitter Judgment – II: On nationalist rhetoric as legal
reasoning, Constitutional Law and Philosophy Blog (03/07/2023), available at
https://indconlawphil.wordpress.com/2023/07/03/guest-post-the-karnataka-high-
courts-twitter-judgment-ii-on-nationalist-rhetoric-as-legal-reasoning/, last seen on
09/08/2024.
128 INDIAN J. CONST. L.

the Court should have strengthened rather than weakened due process
protection of users. They are -
(i) Users Can Better Clarify the Context of their Content Than
Intermediaries: If a hearing is given to users, they will be able to
provide more context about the circumstances surrounding their
content and perhaps the legality of their content. In this way, MeitY
might, at the pre-decisional stage itself, be able to satisfactorily resolve
many cases.
Often intermediaries will not be able to provide such context
and clarification. They do not know the details surrounding why their
users posted content; indeed, it's virtually impossible for them to gain
such insights given that they host millions of users and given that they
receive hundreds of blocking requests every year.59
(ii) Platforms Have Little Incentive to Defend Their Users Before the
Government: Given their size, platforms hardly suffer if a few
thousand users get censored. In fact, if anything, platforms will be
more likely to over comply with government blocking requests and
engage in “collateral censorship.”60 It is true that Twitter attempted to
defend a few of its users before MeitY in this case. But it must be kept
in mind that Twitter challenged a minuscule percentage of the tweets
and accounts that MeitY ordered it to block. It is likely that users would
have responded more robustly in a hearing with MeitY and challenged
more tweet and account blockings in court, given that they had a lot
more to lose than Twitter.

59 Supra 17 at 10.
60 Jack M. Balkin, Free Speech is a Triangle, 118 Columbia Law Review 2011, at 2017 (2018),
available at https://columbialawreview.org/wp-content/uploads/2018/11/Balkin-
FREE_SPEECH_IS_A_TRIANGLE.pdf, last seen on 12/11/2023.
Karnataka High Court Ruling on Content Blocking: A Setback for User Rights 129

PART 4: CONCLUSION
The Court had an opportunity to make an important
contribution to the law on content blocking. It did not do so. This
article has detailed the reasons why, especially with regard to
overlooking Shreya Singhal and other Supreme Court precedent on
procedural safeguards that must be satisfied before fundamental rights
can be restricted. It has also discussed critiques of Shreya Singhal as
well as how such critiques can be resolved. It acknowledges that a
concern remains regarding Shreya Singhal, which hopefully can be
addressed soon in pending matters.
Several positive developments have taken place since the
Court’s ruling. Twitter has reportedly filed an appeal against the order
of the Single Judge Bench.61 The Division Bench should take this
opportunity to reverse course and uphold robust due process
protections for users.
Moreover, a similar matter - the Tanul Thakur case - is pending
before the Delhi High Court. In fact, this is the second round of
litigation in the Tanul Thakur case. In the first round, Thakur won
recognition of some due process rights like a post decisional hearing
and access to the Section 69A order that blocked public access to his
website dowrycalculator.com.62 After the post decisional hearing was
held, another blocking order was issued. However, Thakur was denied
access to this blocking order as well. Consequently, in the second

61 Aihik Sur, X, formerly Twitter appeals Karnataka court ruling on blocking orders: Sources, Money
Control (02/08/2023), available at https://www.moneycontrol.com/news/business/x-
formerly-twitter-appeals-karnataka-court-ruling-on-blocking-orders-sources-
11078421.html, last seen on 14/11/2023.
62 As discussed above, at p. 9: “For instance, in round one of the Tanul Thakur litigation,
Thakur’s writ petition relied on Shreya Singhal to argue that his due process rights to
notice, a hearing and access to the Section 69A order blocking his website had been
denied. Subsequently the Delhi High Court directed MeitY to grant him a post decisional
hearing and access to the order blocking his website dowrycalculator.com.”
130 INDIAN J. CONST. L.

round he’s fighting for his due process right to the latest blocking order
issued for his website, along with reasons for the same. If the Delhi
High Court rules in his favor again, it will further strengthen the legacy
of Shreya Singhal.
A future Supreme Court Bench can do even more to protect
user rights. Unlike High Courts, it can go beyond Shreya Singhal to
protect user rights. Specifically, it can strike down the Confidentiality
Rule to remove any doubt that MeitY cannot deny copies of blocking
orders (with reasons) to users. A future Supreme Court Bench can
thereby ensure that members of the general public also get access to
blocking orders so that they may challenge them. This is because when
content is blocked their right to receive speech (which is an integral
part of the right to free speech) is affected.63 And longstanding
principles of judicial redress dictate that they must be given some
recourse for the same.

63 The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal &
Anr, 1995 SCC (2) 161.
 TOWARDS CUL-DE-SAC: REFLECTIONS ON THE DESIRABILITY
OF HOMOGENEOUS CONSTITUTIONAL IDENTITY IN INDIA

Aditya Rawat
Abstract
Supreme Court’s split verdict on Karnataka State Government’s
Hijab ban on educational institutes brings out the dichotomous
understanding of Constitutionalism and its relationship with
plurality. Similarly, the Court in earlier case of Mohd. Zubair
Corporal No. 781467 Vs. Union of India & Ors. held that the
parameter for freedom to manifest one’s religion are not the same in
disciplined forces and secondly, maintenance of a beard is not an
essential tenet of religion. Both judgments emphasized the need for
homogeneity and uniformity as an aspirational path leading to
‘national unity’. Romanticization with homogeneous ‘national’
identity informed recent mainstream political discourses as well.
Indian Home Minister, Amit Shah’s aggressive and continuous push
for Hindi as the national language of India has generated an acutely
polarized understanding of what is our constitutional identity. His
commitment to ‘national’ assimilation despite the history of violent
linguistic sub-nationalism in the subcontinent countries (leading to the
breakdown of Pakistan and prolonged civil war in Sri Lanka) is
buttressed by aspirations for creating a homogenized national identity
and dissolution of cultural differences.
Consequently, aspirational ‘national’ identity is breeding intolerance
towards other ways of being. The intolerance is now resurging violently
in the form of a radical Hindutva ideologue. The provocative hate


Aditya Rawat is an assistant professor at School of Law (SOL), UPES Dehradun and a
doctoral scholar at NALSAR.
132 INDIAN J. CONST. L.

speech, call for arms, and “safai ayvam Myanmar jaisa” was asserted
as a need of the hour by powerful religious leaders in Dharam Sansad
which was held last year.
The contemporary milieu around identity discourses warrants pressing
questions about constitutionalism and its relationship with pluralism
in post-colonial societies of South Asian countries. The contemporary
politico-legal discourses surrounding the need for the decolonization of
‘Eurocentric liberal constitutionalism’ and its manifest failures to
confront the civilizational issues in the sub-continent require us to
reformulate, reimagine, and if possible, recalibrate the contours of
constitutional consciousness in South Asia.
The primary objective of this essay is to inquire (i) whether ‘imagined’
constitutional identity by institutional functionaries is premised on the
normative paradox in modern constitutionalism and secondly, (ii)
whether there are avenues for providing equal playing ground to
decolonial ontological, epistemological and theological systems?
I intend to do so by unpackaging how judicial understanding of
“constitutional” identity with aspirational western modernity
accentuated the chasm in India- civilization with plural ontological,
epistemological, and theological value systems.
Introduction
What is our aspiration for the future? Our aspiration is this.
Unfortunately, the country has been divided into so many classes and
communities. We should proceed in such a way that all the different
communities may vanish and we may have one nation, the Indian
nation. If we proceed as the British did, with this class and that class,
with this. area and that, we shall fail in the future.1

1 Babu Ramnarayan Singh speech, Constituent Assembly of India Debates (CAD) (Delhi:
Government of India Press, 1949), pp. 984.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 133

- Babu Ramnarayan Singh, Constituent Assembly (5th

September 1949)
The abstract idea of fraternity, …, has to be applied to the
ground realities wherein some students wearing headscarf in a secular
school run by the State Government would stand out and overtly
appear differently. The concept of fraternity will stand fragmented as
the apparent distinction of some students wearing headscarf would not
form a homogenous group of students in a school where education is
to be imparted homogenously and equally, irrespective of any religious
identification mark.2

- Justice Hemant Gupta in Aishat Shifa Vs. State of Karnataka

& Ors. (2022 case)
Indian Constitutionalism’s relationship with plurality is
chequered since its inception (the first quoted excerpt is a part of Babu
Ram Narayan Singh’s speech in Constituent Assembly wherein he
strenuously attacked the tribal autonomy provisions in the
Constitution)3 to the recent split verdict of Supreme Court concerning
Karnataka State Government’s Hijab ban on educational institutes
(The second quoted excerpt is part of Justice Gupta’s verdict; he
upheld the validity of Government’s order).4 Justice Dhulia’s
pronouncement in Hijab Ban case brings out this befuddled judicial
understanding acutely. His observations concerning intersectionality
between uniformity and dignity stands at a sharp contrast with Justice

2 Aishat Shifa Vs. State of Karnataka & Ors. [2022] SCC OnLine SC 1394 < https ://
www.livelaw.in / pdf_upload / 842-aishat-shifa-v-state-of-karnataka-13-oct-2022-
439216.pdf > accessed 2 March 2023 (Hijab Ban case).
3 For further reading on tribal autonomy premised conversations in Constituent Assembly,
see – Selma K. Sonntag, ‘Autonomous Councils in India: Contesting the Liberal Nation’
(1999) 24 Alternatives, 415-434; Valerian Rodrigues, ‘Citizenship and the Indian
Constitution’ in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford
university Press 2008).
4 Hijab ban case (n 1).
134 INDIAN J. CONST. L.

Gupta’s articulations regarding uniformity enabling fraternity. He

stated –
School is a public place, yet drawing a parallel between a school
and a jail or a military camp, is not correct. Again, if the point
which was being made by the High Court was regarding
discipline in a school, then that must be accepted. It is
necessary to have discipline in schools. But discipline not at the
cost of freedom, not at the cost of dignity. Asking a pre
university schoolgirl to take off her hijab at her school gate, is
an invasion on her privacy and dignity…This right to her
dignity and her privacy she carries in her person, even inside
her school gate or when she is in her classroom.5
Justice Dhulia’s pronouncement is widely celebrated but even
it has normative paradox concerning plurality especially his
comparative analogy with jail or military camp is illustrative of the
limits of pluralism.6
Romanticization with homogeneous ‘national’ identity
informed recent mainstream political discourses as well. Indian Home
Minister, Amit Shah’s aggressive and continuous push for Hindi as the
national language of India has generated an acutely polarized
understanding of what is our constitutional identity.7 His commitment

5 Ibid, Dhulia’s judgment (para 52). For analysis of Dhulia’s pronouncement, see, Vineet
Bhalla, ‘Decoding the Supreme Court’s split verdict on hijab ban’ (The Leaflet 13 October
2022) < https://theleaflet.in/decoding-the-supreme-courts-split-verdict-on-hijab-ban/
> accessed 3 March 2023;
6 Apex Courts have consistently set the limitations of plurality in terms of disciplined
forces – see Mohd. Zubair Corporal No. 781467 Vs. Union of India & Ors. [2017] 2 SCC 115;
Mohd. Farman Vs. State of UP through Principal Secretary [2021] SERVICE SINGLE No. -
17225 of 2021.
7 Express News Desk, ‘People from different states should speak in Hindi, not English:
Amit Shah’ (The Indian Express 9 April 2022) <
https://indianexpress.com/article/india/people-different-states-should-speak-hindi-
not-english-shah-7858861/ > accessed 3 March 2023; For disquisition over it, see
Editorial, ‘Undesirable and divisive: on Amit Shah's push for Hindi’ (The Hindu 17
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 135

to ‘national’ assimilation despite the history of violent linguistic sub-

nationalism in the subcontinent countries (leading to the breakdown
of Pakistan and prolonged civil war in Sri Lanka) is buttressed by
aspirations for creating a homogenized national identity and
dissolution of cultural differences. These disquisitions are also
reminiscent of the last decade’s Supreme Court’s jurisprudence
wherein the judicial test of ‘constitutional morality’ found itself at the
crossroads with cultural and religious pluralism (protest against
criminalization of instantaneous talaaq8 or the Sabarimala verdict9 or
Khap Panchayat’s open dismissal of the Court’s verdict10 concerning
honor killings11).
The contemporary milieu around identity discourses warrants
pressing questions about constitutionalism and its relationship with
pluralism in India especially when (i) constitutional values are used as
a rhetoric to justify religious persecutions or cow vigilantism12; and (ii)
Apex court becomes the contesting sites for such civilisational issues.
The contemporary politico-legal discourses surrounding the need for
the decolonization of ‘Eurocentric liberal constitutionalism’ and its
manifest failures to confront the civilizational issues in the sub-

September 2019) < https://www.thehindu.com/opinion/editorial/undesirable-and-

divisive/article59779520.ece > accessed 3 March 2023.
8 Shayaro Bano Vs. Union of India & Ors. [2017] 9 SCC 1.
9 Indian Young Lawyers’ Association & Ors Vs. State of Kerala & Ors. [2018] SCC online SC
1690 (Sabarimala case).
10 Shakti Vahini Vs. Union of India [2018] 7 SCC 192.
11 Ashutosh Sharma, ‘Love In The Crosshairs: Honour Killings Still Continue In India’
(Outlook 15 January 2022) < https: // www . outlookindia . com / magazine / story /
india - news-love-in-the-crosshairs-honour-killings-still-continue-in-india/305349 >
accessed 3 March 2023.
12 Constitution of India 1949, Art. 48 (Directive Principles); Prevention of Cruelty to
Animals (Regulation of Livestock Market) Rules (No. 3961 of 2017), <
http://www.egazette.nic.in/WriteReadData/2017/176216.pdf > accessed 5 April 2023;
See appendix of the report, Human Rights Watch (HRW), Vigilant Cow Protection in India
(19 February 2019), < https://www.hrw.org/report/2019/02/19/violent-cow-
protection-india/vigilante-groups-attack-minorities#_ftn21 > accessed 05 April 2023.
136 INDIAN J. CONST. L.

continent require us to reformulate, reimagine, and if possible,

recalibrate the contours of constitutional consciousness in South Asia.
Through this essay, I intend to inquire (i) whether ‘imagined’
constitutional identity by judiciary is premised on the normative deficit
in modern constitutionalism and secondly, (ii) whether there is a
possibility of providing equal playing ground to plural ontological,
epistemological and theological framework within constitutionalism?
The essay is structured in three parts. Through the first part, I
will engage with the thematic underpinnings of plurality, pluralism, and
national identity in the context of Indic civic society. In the second
part, I will locate competing understanding of pluralistic Indian identity
in the constitutional philosophy through prominent icons and
respective school of thoughts. In the last part, I intend to unpackage
judicial understanding of “constitutional” identity and how with its
aspirational western modernity accentuated the chasm in India. This
will be followed by my departing note concerning inevitability of cul-
de-sac in constitutional relationship with plurality.
PART I – UNDERSTANDING PLURALITY AND
NATIONAL IDENTITY
Plurality is not a simple question to answer especially in the
context of a civilization or modern nation. The dictionary meaning of
pluralism is – “a theory that there are more than one or more than two
kinds of ultimate reality”.13 In terms of the civilization, below stated
dictionary definition seems appropriate for our purpose –
A state of society in which members of diverse ethnic,
racial, religious or social groups maintain and develop their

13 Merriam Webster Dictionary, < https://www.merriam-

webster.com/dictionary/pluralism > accessed 05 April 2023.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 137

traditional culture or special interest within the confines of

a common civilization.14
On a related note, defining national identity is a herculean task
and it becomes more daunting in the post-globalization era.15 Benedict
Anderson in his seminal work, Imagined Communities conceptualized that
nation is “an imagined political community and imagined as both
inherently limited and sovereign”.16 He calls it ‘imagined political
community’ by asserting that members even of smallest countries does
not meet or even know each other but imaginatively share the image
of communion.17
Locating these questions in the context of Indian sub-
continent posits unprecedented complexities considering the
historicity of the region and pervasive effects of modernity inspired
colonial narrative of understanding plurality in colonized civilizations
in global south. The same has been rightly challenged in the recent
decolonial literature.18 Prof. Sudipta Kaviraj criticized the Colonial
construction of Indian religious plurality. He argued –
European authors were influenced by religious strife in
their own history in reading those of others. As the actual

14 Ibid.
15 Gal Ariely, ‘Globalisation and the decline of national identity? An exploration across
sixty-three countries’ 18(3) Nations and Nationalism (2012) 461, 482.
16 Benedict Anderson, Imagined Communities (first published 1983, Verso 2006) 06.
17 Ibid, Anderson argues that this imagination is (i) finite because there will always be other
or foreign, and (ii) sovereign because the construct of nation-state traces its origin to the
enlightenment inspired modernity; For similar arguments in the context of Britain, see,
Hugh Seton-Watson, Nations And States: An Enquiry Into The Origins Of Nations And The
Politics Of Nationalism (Westview Press 1977).
18 Walter D. Mignolo & Catherine E. Welsh, On Decoloniality: Concepts, Analytics, Praxis (Duke
University Press, 2018); Ashis Nandy, The Intimate Enemy: Loss And Recovery Of Self Under
Colonialism (Oxford University Press, 2009); Sudipta Kaviraj, The Imaginary Institution Of
India (Columbia University Press, 2010); Sudipta Kaviraj & Sunil Khilnani, Civil Society:
History And Possibilities (Columbia University Press, 2001); Aditya Nigam, Decolonizing
Theory – Thinking Across Traditions (Bloomsbury, 2020). For a brief discussion on this, see
Anibal Quijano, ‘Coloniality of power, Eurocentrism, and Latina America’, 1
NEPANTLA:VIEWS FROM SOUTH (2000) 533, 580.
138 INDIAN J. CONST. L.

history of relations between the two major religious

communities were understandably checkered, it was always
possible for historical interpreters to select elements and
construct a “history” and an accompanying social memory
according to the historians’ ideological preference…In this
kind of historical writing, the empirics of Indian history
was mediated through a history of secularism that the
modern West had given itself – in which tolerance in the
face of religious diversity was an exclusive achievement of
European modernity. In the face of this meta-history
underlying all history, empirical evidence was powerless.
Such colonial histories, starting from James Mill, declared
religious plurality an unresolved curse that premodern
Indian institutions were incapable of overcoming.19
How do we proceed amidst overwhelming colonial knowledge
traditions and its pervasive effects on our ‘self’ construction? In the
same work, Kaviraj argues that to understand the complexities
associated with unpackaging plurality in Indian context, we should be
cognizant that “Indian society is marked by a plurality of distinct faiths;
and second, these faiths are unequally distributed in numbers”.20
Rudolf and Rudolf argued in their work that historically
plurality existed and was successfully accommodated in Indic civic
society because of indigeneous principle that society consisting of
different social groups is “prior to the state and independent of it”
even when the inter-religious relationship was not characteristically

19 Sudipta Kaviraj, ‘Plurality and Pluralism – Democracy, Religious Difference, and Political
Imagination’ in Karen Barkey, Sudipta Kaviraj & Vatsal Naresh (eds), Negotiating
Democracy and Religious Pluralism – India, Pakistan, and Turkey (Oxford University Press
2021).
20 Ibid. He brings this out acutely through diverse sociological peculiarities within Hinduism
– Vaisnavas, Saivas, and Saktas and similar strand can be taken with regard to extension
of Indian origin religions such as Buddhism, Jainism, and Sikhism.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 139

mutual and reinforced inequality.21 Rochana Bajpai calls it hierarchical

pluralism.22 She stated –
In many respects, hierarchical pluralism was pluralist,
accommodating of religious and sociocultural plurality.
The precedence of the moral order of society implied that
the state would not seek to impose its preferred vision
throughout society, but respect the internal rules and
practices of social groups so long as taxes and revenues
were paid.23
However, Sudipta Kaviraj argued that such pluralism in India is
asymmetrical in comparison to western civilization wherein
symmetrical hierarchy existed (For him, caste system is a manifest
expression of such asymmetrical hierarchy).24 Bajpai argues that
modern state in India continued the hierarchal pluralism through its
legal structure (for family laws, religious authorities were given legal
recognitions).25
National identity conversations gained prominence and
traction during the anti-colonial struggle and influence of western
modernity with its liberal individualist ideas. Through next part, I will
scrutinize disquisitions pertaining to identity and plurality in terms of
Indian constitutional philosophy using the icons and their respective
entry points of understanding constitutionalism in India.

21 Rudolf, S.H. and Rudolf, L.I. Explaining Indian Democracy: A fifty year perspective, 1956-2006
(New Delhi Oxford University Press 2008).
22 Rochana Bajpai, ‘Religious Pluralism and the State in India’ in Karen Barkey, Sudipta
Kaviraj & Vatsal Naresh (eds), Negotiating Democracy and Religious Pluralism – India, Pakistan,
and Turkey (Oxford University Press 2021).
23 Ibid, 141.
24 Sudipta Kaviraj, The Trajectories of the Indian State (Permanent Black 2010) 15.
25 Bajpai (n 22).
140 INDIAN J. CONST. L.

PART II - LOCATING PLURALISTIC NATIONAL

IDENTITY IN INDIAN CONSTITUTIONAL
PHILOSOPHY
There are multiple ways of conceptualizing the relationship
between constitutional philosophy and plurality. Rajiv Bhargava,
Indian political scientist located the five competing visions of national
identity by historicizing making of Indian constitution.26 They are: (i)
Socio-democratic vision of Nehru; (ii) Gandhian Vision (non-
democratic, quasi communitarian); (iii) Liberal-democratic
Ambedkarite vision; (iv) KT Shah’s radical egalitarianism; and (v)
Hindutva ideology.27 For the purpose of this essay, I will frame
competing understanding of constitutional identity within his
segregation.
Nehruvian thought of national identity was deeply critical of
Coloniality and its pervasive effect on the civilizational values of India.
In his The Discovery of India, Nehru stated that greatest of all injuries
done by England to India was creation of “the slave mentality”.28
Similarly while addressing the constituent assembly, he lamented that
there “has been no imagination in the understanding of the Indian problem”.29
Bhiku Parekh argued that Nehruvian vision was “inclusive, secular,
culturally sensitive, based on the ethnic and cultural plurality of India, could be
owned by all Indians”.30 At the same time, Nehru’s Indian was one who

26 Rajeev Bhargava (edited), Politics and Ethics of the Indian Constitution (Oxford university
Press 2008) 7; For other models of conceptual understanding of this relationship,
Rochana Bajpai’s six models - (i) Hierarchical Pluralism; (ii) Integrationist Exclusionary;
(iii) Integrationist inclusionary; (iv) Weak Multiculturalism; (v) Strong Multiculturalism;
and (vi) Majoritarian Assimilationist. For her, restricted (weak) multiculturalism best
describes the overall approach of our constitution towards religious pluralism and
attitudinal inclination towards majoritarian assimilation post 2014.
27 Ibid.
28 Jawaharlal Nehru, The Discovery of India (first published 1946, Penguin 2004) 52.
29 Speech by Jawaharlal Nehru, Constituent Assembly of India, December 13, 1946, in
Constituent Assembly Debates, 12 Vols. (first published 1950, 2009) 64.
30 Bhiku Parekh, ‘The Constitution as a Statement of Indian Identity’ in Rajeev Bhargava
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 141

would put India above and beyond belongings of religious, linguistic,

caste, or tribal groups.
However, at the same time, Parekh critiqued Nehruvian vision
for being statist and elitist. He stated –
Its limitations were just as great. It was statist, elitist, did
little to speed up India’s economic development and tackle
poverty, paid only limited attention to primary education,
healthcare, and other basic needs of the masses, and was
insufficiently insensitive to rural India and the religious
aspirations of its people.31
Prof. Baxi ironically calls out Nehruvian vision for elevating
constitutional immiseration especially with regard to right of children
to education.32 The second civilizational reimagination of ‘Indian’
identity lies with Gandhian communitarian identity. I am deliberating
on two prominent themes of his approach. Firstly, it did not talk in the
language of rights. He gave primacy to duties and for him, rights were
emancipated from duty. He stated in his prayer meeting in the
backdrop of Constituent Assembly debates on Rights, “Rights cannot be
divorced from duties. This is how satyagraha was born, for I was always striving to
decide what my duty was”.33 Secondly, his understanding of Swaraj. In an
interview with journalists on March 6, 1931, while responding to the
question of what is Swaraj, he stated –
The root meaning of swaraj is self rule.‘Swaraj’ may,
therefore, be rendered as disciplined rule from within and

(ed.), Politics and Ethics of the Indian Constitution (Oxford university Press 2008)
31 Bhiku Parekh (n 30);
32 Upendra Baxi, ‘Outline of a Theory of Practice’ of Indian Constitutionalism in Rajeev
Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford university Press 2008).
33 MK Gandhi, Collected Works (Volume 95) 354, also available at: < http: // www .
gandhiashramsevagram . org/gandhi-literature/mahatma-gandhi-collected-works-
volume-95.pdf > accessed 26 February 2023.
142 INDIAN J. CONST. L.

purna means ‘complete’. ‘Independence’ has no such

limitation. Independence may mean licence to do as you
like. Swaraj is positive. Independence is negative. Purna
swaraj does not exclude association with any nation, much
less with England. But it can only mean association for
mutual benefit and at will.34
Gandhi’s concept of Swaraj and his dismissal of western
parliamentary sovereignty comes out very acutely in his celebrated
work, Hind Swaraj.35 He called Parliaments as “really emblem of slavery”
and asserted that –
Parliament is without a real master. Under the Prime
Minister, its movement is not steady, but it is buffeted
about like a prostitute. The Prime Minister is more
concerned about his power than about the welfare of
Parliament. His energy is concentrated upon securing the
success of his party. His care is not always that Parliament
shall do right.36
He strongly argued against western democratic model and its
application in India. He stated –
In effect it means this: that we want English rule without the
Englishman. You want the tiger's nature, but not the tiger; that is to
say, you would make India English. And when it becomes English, it

34 MK Gandhi, Collected Works (Volume 95) 354, also available at: < http: // www .
gandhiashramsevagram . org/gandhi-literature/mahatma-gandhi-collected-works-
volume-95.pdf> accessed 26 February 2023.
35 MK Gandhi, Hind Swaraj or Indian Home Rule (Navjivan Publishing House, 1910), also
available at: <https://www.mkgandhi.org/ebks/hind_swaraj.pdf > accessed 26 February
2023.
36 Ibid.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 143

will be called not Hindustan but Englistan. This is not the Swaraj that
I want.37
Gandhian constitutionalism is often categorized as antithetical
to parliamentary democracy with its strong premise around grassroot
village based democratic republic.38 Granville Austin in his seminal
work stated that Gandhian thought of village swaraj was tersely
dismissed in the Constitution of India. He goes further to argue that
provisions and principles of the Indian Constitution are ‘almost
entirely of non-indian orgin, coming as they had largely from the former
colonial power’.39 Contemporary Gandhian scholars like Thomas
Pantham disagrees with Austin stating that Gandhi was an original
emancipatory thinkers of post-colonial liberal democratic
40
Constitutionalism. He argues that Indian Constitutional philosophy
is misunderstood to be “dichotomous with, or exclusionary towards
the Gandhian Constitutional philosophy” .41 He argues –
They have a considerable range of overlapping and
complementary or compatible democratic values and
freedoms…I feel that we need to recognize and emphasize
those democratic overlappings and complementarities or
compatibilities if we are to appreciate the normative
originality and resourcefulness and the institutional vitality

37 Ibid, P. 27.
38 Granville Austin, The Indian Constitution: Cornerstone of a Nation (first published 1966,
Oxford University Press 1999) 31; for paradox of Gandhian Constitutionalism, see, Peter
Ronald deSouza, ‘Institutional Visions and Sociological Imaginations: The Debate on
Panchayati Raj’ in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford
university Press 2008).
39 Ibid, p.308.
40 Thomas Pantham, ‘Gandhi and the Constitution’ in Rajeev Bhargava (ed.), Politics and
Ethics of the Indian Constitution (Oxford university Press 2008).
41 Ibid, p.75.
144 INDIAN J. CONST. L.

and suppleness of the Indian post-colonial constitutional

democracy...42
Third civilization imagination of national identity is of Dr. BR
Ambedkar. Ambedkar’s lived experiences and corpus of work in a
deeply casteist civic society informed his vision of national identity. He
was discomfortable with the term as well as understanding of what
‘Swarajya’ entails. He believed that Gandhian swaraj was a paradox i.e.
it endorsed freedom from colonial political order but at the same time
reinforced the civic order with its graded inequalities and domination
on a hereditary basis. He was often cited to state that when Dalits hear
the upper caste speak on Swaraj, it seems to them (Dalits) like they are
hearing the Devil cite the scriptures.43 In Annihilation of Caste, he wrote,
“swaraj for Hindus may turn out to be only a step towards slavery”.44 His
criticism of Congress and Gandhian vision of swaraj comes out
strongly in his writings and speeches. He stated–
If the foreigner bears in mind these points he will realize
why the servile classes of India are not attracted by the
Congress brand of Swaraj. What good can the Congress
brand of Swaraj bring to them ? They know that under the
Congress brand of Swaraj the prospect for them is really
very bleak. The Congress brand of Swaraj will either be
materialization of what is called Gandhism or it will be
what the governing class would want to make of it. If it is
the former it will mean the spread of charkha, village
industries, the observance of caste, Bramhcharya
(continence), reverence for the cow and things of that sort.

42 Ibid, p. 75; Also see Ashutosh Varshney, Ethnic Conflict and Civic Life (New Delhi; Oxford
University Press, 2002).
43 Aakash Singh Rathore, Ambedkar's Preamble: A Secret History of the Constitution of India
(Vintage Books, 2020) 53.
44 BR Ambedkar, Annihilation of Caste (first edition in 1936).
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 145

If it is left to governing classes to make what it likes of

Swaraj the principal item in it will be the suppression of the
servile classes by withdrawing the facilities given by the
British Government in the matter of education and entry
in public services.45
Ambedkar’s reservation to Congress’/ Gandhian ‘swarajya’
nationalism foregrounds the importance of inclusivity in the
imagination of national identity by promoting ‘dignity’ and ‘fraternity’.
Recent works on Ambedkar argue that the term ‘liberty’ instead of
‘freedom’ and ‘dignity’ in the Indian preamble owes its authorship to
Ambedkar.46
In other words, Ambedkarite swaraj had an umbilical cord to
agency of the untouchables. The chronicles of his life story suggest
that his understanding of identity and ‘dalit swaraj’ led him to convert
to Buddhism, and pioneered Dalit Buddhist movement.
The fourth conception of national identity in the context of
constitutional philosophy is of Economics Professor KT Shah. His
conceptual framework of constitutional identity was heavily dipped in
the ink of socialism. Professor Shah throughout the Constituent
Assembly Debates urged for a progressive liberal constitution.47 Firstly,
he argued for strict separation of power between organs of the
Government – Legislative, Executive, and Judiciary emphasizing that
these are basic tenets of liberal constitution.48 On a similar note, he

45 Dr. BR Ambedkar, Dr. Babasaheb Ambedkar Writings and Speeches Vol. 9 (first published in
1979, Dr. Ambedkar Foundation 2019), also available at < http: // drambedkarwritings .
gov . in / upload / uploadfiles / files/Volume_09.pdf> accessed 26 February 2023.
46 Aakash Singh Rathore (n 43).
47 Sudhir Krishnaswamy, ‘Is the Indian Constitution liberal?’ (Friedrich Naumann
Foundation 2019), available at < https://www.sudhirkrishnaswamy.net/wp-
content/uploads/2019/04/Is-the-Indian-Constitution-Liberal.pdf > accessed 26
February 2023.
48 Ibid.
146 INDIAN J. CONST. L.

invoked that freedom of press and publication should be an express

fundamental right alongside freedom of speech and expression.49
However, often his amendments were rejected by Constituent
Assembly. For instance, he suggested proviso to right to property in
fundamental rights which goes as below:
"Provided that-no rights of individual private property shall be
recognized in forms of natural wealth, like rivers or flowing waters,
coastal waters, mines and minerals, or forests."50
However, he did not move the amendment considering the
complexities associated. Dr. Suresh Chandra Banerjee lamented on
impossibility of incorporating KT Shah’s amendment. He stated in his
speech –
Mr. President, Sir, I had naturally hoped that we would
make some progress towards socialisation at least when we
gained our independence within a few months, but in these
fundamental rights nothing has been put in regard to
socialisation. I would have been really happy, had the
amendment of Prof. K. T. Shah been accepted, because
there is an element of socialisation there.51
Coming to the last competing vision of Hindu nation. Rashtriya
Seva Sangh (RSS) has been aggressively asserting the need of “Gana
Rajya System” and is deeply critical of modern constitutionalism which
it argues is dipped in the ink of colonization. It becomes pertinent to
unpackage this understanding of decolonization and consequently its
rhetoric of national identity. One of the prominent assertions of Hindu

49 Ibid.
50 Constituent Assembly Debates (CAD), Volume III (2nd May 1947), available at < https: //
www.constitutionofindia.net/constitution_assembly_debates/volume/3/1947-05-02 >
accessed 26 February 2023.
51 Ibid.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 147

nationality was made by MS Golwalkar. In We or Our Nationhood Defined,

he stated:
The data rendered available to us through the history going
over thousands of years and the careful and dispassionate
observation of the present day conditions of the Hindus
enable us to maintain without any fear of contradiction that
the Hindus are a nation or nationality by themselves. They
have a distinctive characteristic culture. They have a
common cultural language and a common cultural
literature which regulate and govern their life even in
minute details. They have developed a common out-look
on life which is decidedly different from that of any other
people…No sane man can question the proposition that
Hindus are a nation. There will also be no difficulty to
concede that the Hindus constitute the vast majority of the
population. India is therefore pre-eminently a Hindu
nation, Hindusthan.52
On a similar note, another political figure who is coming at the
forefront of mainstream political discourse in India post 2014 is Veer
Savarkar, celebrated widely as an articulator of the term, Hindutva.53 He
defined Hindutva in Hindu Rashtra Darshan as –
Everyone who regards and claims this Bharatbhoomi
from, the Indus to the Seas as his Fatherland and Holyland
is a Hindu. Here I must point out that it is rather loose to
say that any person professing any religion of Indian origin
is a Hindu. Because that is only one aspect of Hindutva.

52 M.S. Gowalkar, We Or Our Nationhood Defined (Bharat Publications, 1939) 24.

53 Shashi Tharoor, ‘Veer Savarkar: The man credited with creating Hindutva didn’t want it
restricted to Hindus’ (The Print 26 February 2018) <
https://theprint.in/pageturner/excerpt/veer-savarkar-hindutva-india/38073/ >
accessed 26 February 2023.
148 INDIAN J. CONST. L.

The second and equally essential constituent of the

concept of Hindutva cannot be ignored if we want to save
the definition from getting overlapping and unreal. It is not
enough that a person should profess any religion of Indian
origin, i.e., Hindusthan as his Holyland, but he must also
recognise it as his Fatherland as well.54
For Savarkar, other faiths owing their origin to India, like
Sikhism, Buddhism, and Jainism also qualified to be Hindu and hence
part of Hindutva. This strand of thought believes in the Indic
civilisational virtues since antiquity and laments the colonial
consciousness embedded in our constitutional framework. J. Sai
Deepak’s recent work on decolonisation is premised around reclaiming
the position of Indic civilisational consciousness and presenting it to
act as counter-hegemonic to the western normative framework.55 In
this celebrated work, Sai Deepak acutely brings out the Christian
‘civilising’ intent and the way it culminated into legislative endeavours,
and ways in which Christian OET inspired our legal consciousness.56
Despite competing visions, all of them shared passionate
consensus and conviction that India is unique with its distinct world
view and values. In the next part, I will look at judicial attitude towards
plurality and ways through which it curtailed the plurality discourses.
PART III – JUDICIAL TRYST WITH PLURALISM
Hobbesian idea of commonwealth state posits that the
sovereign or state is the final authority to make judgments when society
is at the crossroads with regard to being harmed or injured. Judiciary
as one of the State authorities is a marker of Hobbesian State with its

54 Veer Savarkar, Hindu Rashtra Darshan (Prabhat Prakashan, 2015) 5.

55 J.Sai Deepak, India That Is Bharat – Coloniality, Civilisation, Constitution (Bloomsbury, 2021).
56 Ibid.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 149

powers to provide finality to civilizational issues using the

legal/constitutional langua-culture. Judiciary’s tryst with plurality is
marred with doctrinal inconsistencies as well as parental reformist gaze
with assimilationist aspirations of approaching plurality.57 Professor
PK Tripathi concurs that even constitutional text was apprehensive of
religious autonomy. He wrote –
Even the freedom of religion was guaranteed in this secular
state not out of concern for religions, generally, much less,
for any particular religion, but solely and unmistakably out
of concern for the individual, as an aspect of the general
scheme of his liberty, and as incidental to his well-being.58
One of the first post-independence case dealing with religious
autonomy, Commissioner of Hindu Religious Endowments, Madras Vs. Sri
Lakshmindra Tirtha Swaminar (popularly known as the Shirur Math case),
acknowledged the constitutional protection to practice of religion.59
However, the court categorically rejected the assertion test and laid
down its own judicial test of Essential Religious Practices (ERP Test).
Justice Mukherjea compared opinions in foreign judgments to support
his stand (especially concurred with Australian judge Latham’s
opinion)60 and stated that on questions of where to draw the line for
courts to inquire on validity of religious practices, it becomes
important to note that “essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself”.61 Justice Mukherjea’s dicta
is widely used as an entry point to understand Essential practices test.

57 Bajpai (n 22).
58 P.K. Tripathi, “Secularism: Constitutional Provision and Judicial Review” (1956) 8
Journal of The Indian Law Institute 1,29.
59 Commissioner of Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Tirtha Swaminar
[1954] SCR 1005 (Shirur Math case).
60 Adelaide Company v. The Commonwealth 67 C.L.R. 116, 127.
61 Shirur Math (n 59).
150 INDIAN J. CONST. L.

This test acquired critical importance and was used in catena

of cases concerning freedom of religion or of religious authorityies.62
Justice Gajendragadhkar further formulated the test in Durgah
Committee, Ajmer Vs. Syed Hussain Ali stating –
Whilst we are dealing with this point it may not be out of
place incidentally to strike a note of caution and Observe
that in order that the practices in question should be
treated as a part of religion they must be regarded by the
said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or
an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as
religious practices.63
Gajendragadhkar’s note of caution was skeptical towards
plurality. It also gave impetus to judges to inquire the legitimacy of
plural theological claims. He himself stated in later judgment that in
instances of a competing claim regarding essential feature of a religion,
courts should not go always go by what community states to be an
essential feature of a religion. It should have liberty to inquire and
decide whether conflicting feature is an actual integral characteristic
based on evidences produced before it.64 This logic or test give wide
amplitude to judges to define, interpret or regulate the meaning of
religion. J. Duncan Derrett succinctly puts forward the net result of
such test, he writes –

62 Venkataraman Devaru v. State of Mysore [1958] AIR SC 255; Saifuddin Saheb v State of Bombay
[1962] AIR SC 853; Bijoe Emmanuel & Ors. v. State of Kerala & Ors. [1986] SCR (3) 518;
and Ratilal Panachand Gandhi v. The State of Bombay & Ors. [1954] AIR SC 388; Acharya J.
Avadhuta & Ors. v. Commissioner of Police, Calcutta & Anr [1983] 4 SCC 522; and
Commissioner of Police & Ors. v. Acharya J. Avadduta [2004] 12 SCC 770.
63 Durgah Committee, Ajmer Vs. Syed Hussain Ali [1962] SCR (1) 383.
64 Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors [1963] AIR SC 1638
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 151

The Courts can discard as non-essentials anything which is

not proved to their satisfaction – and they are not religious
leaders or in any relevant fashion qualified in such matters…
The Constitution does not say freely to profess and
propagate the essentials of religion, but this is how it is
constructed.65
This test continues as I write despite multiple criticism from
different sections.66 Current CJI, DY Chandrachud expressed his
discomfort with ERP in Sabarimala stating that judges "lack both the
competence and legitimacy to pronounce on the importance of
specific doctrines or beliefs internal to religion" and any attempts at
interpreting religious texts by judges lead to imposition of an external
viewpoint. 67 Ironically, his formulation of ‘Constitutional Morality’ is
also criticized as a ‘top-down model of reformation with a whip’ and
imposition of judicial morality on retricting plurality. As recent as in
Hijab case, one of the issues before the High Court was whether
wearing hijab/headscarf is a part of Essential Religious practice in
Islamic Faith protected under Article 25 of the Constitution? While
dismissing the relevance of this question in Supreme Court, Justice
Dhulia also laments the frequent usage of ERP test.68 He states –
In my humble opinion Courts are not the forums to solve
theological questions. Courts are not well equipped to do
that for various reasons, but most importantly because there

65 J. Duncan Derrett, Religion, Law and the State in Modern India (New Delhi, Oxford
University Press 1996) 447.
66 Mathew John, ‘The limits of pluralism: A Perspective on Religious Freedom in Indian
Constitutional Law’ in in Karen Barkey, Sudipta Kaviraj & Vatsal Naresh (eds), Negotiating
Democracy and Religious Pluralism – India, Pakistan, and Turkey (Oxford University Press
2021); Anup Surendranath, ‘Essential Practice Doctrine: Towards an Inevitable
Constitutional Burial’ (2016) 15 Journal of the National Human Rights Commission,
India 159.
67 Sabarimala case (n. 8).
68 Hijab Ban case (n.1).
152 INDIAN J. CONST. L.

will always be more than one viewpoint on a particular

religious matter, and therefore nothing gives the authority to
the Court to pick one over the other.69
Pratap Bhanu Mehta argues that ‘courts seem committed to
some Ciceronian idea of relgio cleansed of supersititio, to the search for
a pure religion whose theology turns out to be compatible with the
civil theology of the Commonwealth’.70 Such pursuit often left bitter
taste in court’s relationship with plurality, to an extent, that it proved
detrimental to Courts’ legitimacy as a vanguard of rights. This got
sharply in forefront of mainstream discourse during Sabarimala case.
Empirical reality of judgment puts direct questions on such
impositions and consequently, led to a review petition which is now
referred to a nine-judge constitutional bench.71
To conclude this part, it can be stated that judicial
understanding (including innovative judicial jurisprudence such as
transformative constitutionalism and constitutional morality) of
plurality looks at plural ‘ways of being’ as a negative dimension to
liberal constitutionalism and is inevitably destined for what Professor
Anup Surendranath calls in a related context, ‘Constitutional burial’.
CONCLUDING REMARKS
Webb Keane, American anthropologist, posits a provocative
question as to why religious freedom should be given “either a
privileged or a peculiarly worrisome character different in kind from
artistic, political, or sexual freedom?”72 He concludes that the answer

69 Ibid, Para 36 (Dhulia’s judgment).

70 Pratap Bhanu Mehta, ‘Passion and Constraint – Courts and the Regulation of Religious
Meaning’ in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford
university Press 2008).
71 Kantaru Rajeevaru v Indian Young Lawyers’ Association [2020] SCC OnLine SC 158
72 Webb Keane, ‘What is Religious Freedom Supposed to be Free?’, in Winnifred Fallers
Sullivan et al. eds Politics Of Religious Freedom (University of Chicago Press 2015) 324.
Towards Cul-De-Sac: Reflections on The Desirability of Homogeneous Constitutional Identity in India 153

to it depends on understanding of “religion” as presupposed by the

laws that regulate and protect it.73 Myriam Henin-Hunter in her recent
work tries to follow this strand of inquiry and asserts that the court
adjudications concerning religious freedom in the UK and France
have often looked (especially in the twenty-first) at its negative
dimension i.e., negative liberty, to protect believers from State
intrusions and interferences.74 I have reviewed the work elsewhere.75
On a similar note, judiciary in India have historically
accommodated plurality and sets limits to it through its jurisprudence
of Essential Religious Practice (ERP), transformative constitutionalism
or even the more recent one, Constitutional morality. Mathew John
while examining the epistemic framework of ERP test concluded –
…the essential practice test that has structured the operation
of religious freedom in Indian law to constrain rather than
expand India’s plural traditions of religious practice.76
Much aggressive criticism vis-à-vis of transformative
constitutionalism and constitutional morality came from J. Sai
Deepak’s recent work wherein he attacked these tests to be pervasive
effect of colonial Onto-Epistemology and Theology.77 He wrote –
…modern day constitutional institutions serve colonial
constitutionalism and advance the cause of reformation of
native society in the image of the European Civilisation,
perhaps under the belief that the native society’s salvation
lies in Westernisation…If the premise is rooted in

73 Ibid.
74 Myriam Hunter-Henin, Why Religious Freedom Matters For Democracy: Comparative Reflections
From Britain And France For A Democratic “Vivre Ensemble” ( Oxford University Press
2020).
75 Aditya Rawat, ‘Book Review: Why Religious Freedom Matters For Democracy:
Comparative Reflections From Britain And France For A Democratic ‘Vivre Ensemble’
By Myriam Hunter-Henin (Non-West Reading Of Hunter-Henin’s Democratic
Approach)’ (2021) 6(1) CALJ 149.
76 Mathew John (n. 66).
77 J. Sai Deepak (n 55).
154 INDIAN J. CONST. L.

colonialized versions of indigenous history, it is but natural

that transformative constitutionalism constantly sees the
need to reform the native out of his/her identity.78
It leaves us in a suspended limbo wherein we are conscious of
immanent incapacitation of modern constitutionalism’s toolkit to
engage with plurality and our decolonial epistemology is on a bridge to
nowhere. Aditya Nigam pointed out this inherent lacuna in his work
stating –
However, one must underline that this ‘democratic dialogue’
is virtually impossible given that our language has no
vocabulary to understand the puranic, a necessary
consequence of modernity’s cognitive arrogance. This
democratic dialogue can be made possible by acknowledging
a certain equality between different ways of thinking and
being.79
This brings me back to title of the essay i.e. towards cul-de-sac.
Professor MP Singh & Dr. Niraj Kumar argued in their recent work
that non-state legal orders such as religion based, caste-based, village-
based, tribe-based are not operative in peripheries, but there is a strong
probability that the state legal system might be the one which is actually
at the peripheries.80 If we are serious about plurality, we should strive
towards epistemic reconstitution of our constitutionalism that sheds
the clothes of desirability of homogeneous constitutional identity.

78 Ibid, 114; It is tough to align with his conceptual challenges, but at the same time, he is
asking pressing questions which makes it imperative to engage with him without brushing
him aside because of his political idealogue. For my critique of his work, see, Aditya
Rawat, ‘Book Review: India that is Bharat-Engaging but Incongruent Decolonial
Epistemology to Understanding Indian Constitutionalism’ (2022) 7(1) COMP. CONST.
L. & ADMIN. L. J. 146.
79 Aditya Nigam (n 17).
80 M P Singh & Niraj Kumar, The Indian Legal System - An Enquiry (Oxford University Press
2019).
 CONVERSATIONS ON ARTICLE 370 OF THE CONSTITUTION OF
INDIA: A CRITICAL RESPONSE

Aurif Muzafar
Abstract:
This article brings forth transformative ways of thinking on Article
370 of the Constitution of India beyond the contours of the
predominant liberal and rightwing narratives. The narrative formed
around Article 370 as a site for India’s traditional, broadly accepted
liberal discourse on Kashmir, restricted in terms of interpretation and
devoid of any solution to the larger Kashmir problem, is unmasked.
The article thus criticises dominant narratives that have come to define
Article 370.
Introduction:
In a “unilateral” move, the Government of India, on August 5,
2019, revoked Article 370 of the Constitution of India(hereinafter
Article 370), a controversial provision steering the relationship
between the Union of India and the State of Jammu and Kashmir.1
Article 370 was framed as an interim arrangement that existed between
the newly formed Indian state and the princely state of Jammu and
Kashmir and would cease to exist “only when the Kashmir problem
[was] satisfactorily settled”2 and when the people of Jammu and


Aurif Muzafar is a Kashmiri lawyer and writer. He is a doctoral student at NALSAR University of
Law, Hyderabad. Note: The author wants to thank Dr Ahmed Memon, Lecturer, School
of Law and Politics, Cardiff University and Dr Hafsa Kanjwal, Assistant Professor,
Lafayette College, for their detailed feedback on the article.
1 ‘India revokes disputed Kashmir’s special status with rush decree’ (Aljazeera, 5 August
2019) <https://www.aljazeera.com/news/2019/8/5/india-revokes-disputed-kashmirs-
special-status-with-rush-decree > accessed 20 November 2023
2 Constituent Assembly Debates, vol 10, 17 October 1949 (10.154.293)
<https://www.constitutionofindia.net/debates/17-oct-1949/#135272> accessed 20
November 2023
156 INDIAN J. CONST. L.

Kashmir would be given the opportunity “to decide for themselves

whether they will remain with the Republic or wish to go out of it.” 3
With Kashmir unresolved for decades, this interim arrangement
crystallised into a widely accepted “constitutional arrangement” in
India’s federal political polity and tied Kashmir’s future to India
permanently. Legally and constitutionally speaking thus, Article 370
was the only link connecting the Indian Union with the erstwhile state.
In the liberal Indian imagination, however, Article 370 was understood
to be an instance of a “special status” or “autonomy” accorded to a
Muslim-majority state in a Hindu-majority country, and it was in
opposition to this idea that the Hindu nationalist parties have always
wanted to assert full control over Kashmir which would come in the
elimination of Article 370. When the Parliament of India was in the
process of abrogating Articles 370 and 35A, the whole of the
population in Jammu and Kashmir was put under siege, and there was
a complete communication blockade, including an internet shutdown
lasting many months.4 Taking note of the situation in Kashmir, the
United Nations called the internet shutdown a “collective punishment
of the people of Jammu and Kashmir.”5 The siege, however, was not
new to the people of Kashmir. In its modern history, Kashmir has had
a tumultuous past, with mass movements being suppressed by the
might of the state right from the year 1989 when the first armed
insurgency started to continuous peaceful demonstrations in the first
two decades of the 21st century.6

3 ibid (10.154.294)
4 ‘145 days of internet shutdown in Kashmir, no word on service restoration’ (The Economic
Times, 27 December 2019) <https://economictimes.indiatimes.com/news/politics-and-
nation/145-days-of-internet-shutdown-in-kashmir-no-word-on-service-
restoration/articleshow/72996839.cms> accessed 20 November 2023
5 ‘Kashmir communications shutdown a ‘collective punishment’ that must be reversed, say
UN experts’ (UN News, 22 August 2019)
<https://news.un.org/en/story/2019/08/1044741> accessed 20 November 2023
6 Sanjay Kak (ed), Until My Freedom Has Come (Haymarket Books 2013), see generally; See
also, Javid Iqbal, Kashmir: A State of Impunity (Gulshan Books 2015)
Conversations on Article 370 of the Constitution of India: A Critical Response 157

The situation in 2019 was unprecedented for numerous

reasons. One, it put Kashmir directly into the hands of the Hindu
nationalists, who have consistently opposed autonomy for Kashmir
and have demanded a “complete integration” of the State into the
Union of India.7 Two, it exposed the region to irreversible (and now
normalised) changes impacting the possibilities of long-term peace and
justice in the region. Aggrieved by the unilateral constitutional changes,
people from different walks of life, including lawyers and politicians,
approached the Supreme Court, praying to reverse all such changes,
including the revival of the “autonomy” and the invalidation of the
Presidential Orders passed in 2019 to reorganise the erstwhile state
into the territories of the Union. As a result, many conversations have
taken place on Article 370 and the BJP’s move to abrogate the
provision. While this article is being written, the hearings in the
Supreme Court are underway, and as this article argues, are
representative of the liberal democratic rhetoric on the one hand and
the right-wing discourse on the other. Keeping the hearings in the
Supreme Court at the centre of the discussion, I explore various ideas
defining Article 370. The premise of this article is that the “liberal-
secular” defence and right-wing opposition to Article 370 have
practically not had much of a difference as they have sustained the
propaganda of the state in one form or another and have denied to the
Kashmiri people the agency to decide their political future.
Even the Article 370 hearings in the Supreme Court were
representative of two entities: the liberal elite (inheritors of the
Congress party) and the right-wing Hindu nationalist Bharatiya Janata

7 Dibyesh Anand, ‘Kashmir Is a Dress Rehearsal for Hindu Nationalist Fantasies’ Foreign
Policy (Washington, 8 August 2019) <https://foreignpolicy.com/2019/08/08/kashmir-
is-a-dress-rehearsal-for-hindu-nationalist-fantasies/> accessed 20 November 2023
158 INDIAN J. CONST. L.

Party (BJP), leaving a void for the representations of the Indigenous

Kashmiri demands.
I thus open the discussion with the question of sovereignty in
Kashmir and seek to understand the indigenous meanings of
sovereignty, whether they come from the “mainstream” or the
“resistance” camp of politics.8 Keeping the hearings in the Supreme
Court at the centre of the discussion, I cite various documents,
scholarly works, and political speeches to understand the idea of
sovereignty and how Kashmiris grapple with it.
Similarly, the “development” narrative advocated by the BJP
has come as a justification for the revocation of Article 370. The
government has also vowed to bring “democracy” to Kashmir. I draw
parallels of the development narrative in colonial conquest and make
a case for its falsity and hollowness. I attempt to understand the role
development plays in colonial situations.
I then refer to the liberal Indian attitudes to understand their
approach towards Article 370. Citing one such lawyer, I go on to
understand the approach of the petitioners’ lawyers and their position
with respect to Kashmir. In my estimation, therefore, things become
more apparent, and I do not see much of a difference between the
lawyers representing the petitioners and the state, except the former
trying to preserve a liberal order of which they are the inheritors and
from which the promises made to the people of Kashmir flow.
Finally, I explain the interpretation of the basic structure
doctrine with respect to Article 370 from the liberal Indian perspective,

8 ‘Pro-India’ political parties or parties who take participation in the elections are generally
presented as ‘mainstream’ in the Indian media. See also, Samreen Mushtaq and Mudasir
Amin, ‘In Kashmir, Resistance is Mainstream’ (Himal SouthAsian, 16 April 2020)
<https://www.himalmag.com/comment/in-kashmir-resistance-is-mainstream-2020>
accessed 20 November 2023
Conversations on Article 370 of the Constitution of India: A Critical Response 159

which basically converges with the Hindu nationalist idea of denial of

“autonomy” to Kashmir. Attempting a ‘different’ analysis, I cite the
Jammu and Kashmir High Court to make a case for “referendum”
through the basic structure doctrine itself. I then refer to the statement
of a lawyer, which I refer to as the “liberal outrage” over justifying and
normalising the situation in Kashmir, even if it is illegal and
unconstitutional, to provide a different understanding of the basic
structure. The application of the basic structure doctrine, without
context, is a poor understanding of law and politics.
The Question of Sovereignty in Kashmir:
The question of sovereignty came to be discussed at length in
the Supreme Court during the Article 370 hearings. Sovereignty came
to be defined as anything short of sovereignty and was mostly
representative of the dominant Indian liberal conception of
sovereignty where, through different terminologies and arrangements,
the ultimate control of the territory lies with the Indian state and not
the people of Jammu and Kashmir. Dr Rajeev Dhavan, for example,
representing one of the petitioners in the case, used the term “internal
sovereignty” to define Kashmi’s status as an entity.9 “External
sovereignty”, he said, was lost by the Dogra monarch upon signing the
Instrument of Accession. Nitya Ramakrishnan, another lawyer
representing the petitioners, used the term “shared sovereignty” to
describe the relationship between the Union of India and the State of
Jammu and Kashmir.10 She claimed that this system of ‘political
sovereignty’ acted as a system of checks and balances reflecting the

9 ‘Supreme Court hearing on Article 370 abrogation | Day 6’ (The Hindu, 16 August 2023)
<https://www.thehindu.com/news/national/supreme-court-hearing-on-article-370-
abrogation-day-6/article67200270.ece> accessed 20 November 2023
10 Gauri Kashyap and R. Sai Spandana, ‘Abrogation of Article 370 | Day 9: What makes
the relationship between India and J&K binding, asks CJI’ (SC Observer, 23 August 2023)
<https://www.scobserver.in/reports/abrogation-of-article-370-day-9-what-makes-the-
relationship-between-india-and-jk-binding-asks-cji/> accessed 20 November 2023
160 INDIAN J. CONST. L.

power of the centre with respect to the state of J&K. Similarly, Sanjay
Parikh argued that sovereignty in Kashmir was interchangeable with
autonomy, and it translated into the form of the Constitution of
Jammu and Kashmir.11 While the Chief Justice of India rejected all
such propositions, we need to address the question of sovereignty in
scenarios such as Kashmir through a decolonial praxis. “Shared
sovereignty” and other such terms give an incomplete conception of
sovereignty and provide a strategic recognition of the less powerful
that will always be exploited to the advantage of the more powerful.
It is in this context that a critical appraisal of sovereignty
requires an appreciation of how the ‘dominated’ articulates the aspects
of sovereignty and not just how the ‘dominant’ envisions it.12 In
contrast to Indian liberal understandings, sovereignty in Kashmir is a
part of everyday life and language and defines the architecture of the
society as well. Sovereignty thus does not only become an idea that is
challenged(of the dominant or the coloniser) but also one that is
asserted(by the subject or the colonised).13 It is reflected in the food

11 R. Sai Spandana and Gauri Kashyap, ‘Abrogation of Article 370 | Day 8: On

reorganisation of J&K, misuse of President’s Rule and protection of minorities’ (SC
Observer, 22 August 2023) <https://www.scobserver.in/reports/abrogation-of-article-
370-day-8/> accessed 20 November 2023
12 See generally Philip Constable, ‘Kashmir Dispute since 1947’ [2018] The Encyclopaedia
of Diplomacy 1; see also Karen Heymann, ‘Earned Sovereignty for Kashmir: The Legal
Methodology to Avoiding a Nuclear Holocaust’ (2003) 19 American University
International Law Review 153. (India and Pakistan both claim sovereignty over the whole
of Jammu and Kashmir, while China also lays claims to certain parts. The present study
does not discuss the claims of these sovereign states but how sovereignty is imagined by
the indigenous political groups.)
13 Scholars have pointed out the lack of sovereignty in post-colonial states where
sovereignty could not be transferred directly to the people. See, for example, Adom
Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (Princeton
University Press 2019). Getachew disscets the Carribean development narrative as
basically colonial expansion allowing direct control to outside entities in opposition to
the aspirations of the people. See also, Antony Anghie, Imperialism, Sovereignty and the
Making of International Law (CUP 2005); Siba N’Zatioula Grovogui, Sovereigns, Quasi
Sovereigns, and Africans: Race and Self-Determination in International Law, vol 3 (University of
Minnesota Press 1996); Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns
in the International Legal Order (CUP 2004)
Conversations on Article 370 of the Constitution of India: A Critical Response 161

patterns of the people,14 in the streets when people claim their political
will,15 how people trade,16 in everyday conversations and aspirations of
the people, and in the life and death of the political subject.17 The
choices people make in their lives are deeply influenced by the broader
political happenings around them. In Kashmir, sovereignty has also
been asserted in the language of what is generally referred to as
“mainstream politics” and not just resistance politics. In this part, I will
demonstrate how sovereignty in Kashmir is historically informed and
how Kashmir’s political discourse has always centred around claims of
sovereignty over the land.
After the abrogation of Article 370, significant changes were
made to the land laws, and big corporations opened Kashmir for
investment, fearing claims of demographic change in the region.18 It
also meant amending land laws and making the transfer of land easy
for the corporates and the settlers. In October 2020, when the land
laws were being amended to suit the interests of the ruling party, Omar
Abdullah, the former Chief Minister of Jammu and Kashmir and one
of its foremost leaders, tweeted that the laws were unacceptable to the
people.19 He made another interesting remark, signifying not just a fear

14 Samina Raja and others, ‘Planning and Food Sovereignty in Conflict Cities’ [2022] Journal
of the American Planning Association 183. See also Omer Aijazi, ‘Textures of Violence:
Foraging, Cooking, and Eating in Kashmir’ [2023] PARISS, 106
15 Mohd Tahir Ganaie, ‘Claiming the Streets: Political Resistance Among Kashmiri Youth’
in Mona Bhan, Haley Duschinksi and Deepti Misri (eds), Routledge Handbook of Critical
Kashmir Studies (Routledge 2023)
16 Aditi Saraf ‘Trade, Boundaries, and Self-Determination’ Bhan (n 15) 127
17 Farrukh Faheem, ‘Interrogating the Ordinary: Everyday Politics and the Struggle for
Azadi in Kashmir’ in Haley Duschinski and others(eds), Resisting Occupation in Kashmir
(University of Pennsylvania Press 2018)
18 The changes made to the land laws have opened discussions on settler-colonialism and
how the revocation of the autonomy of Kashmir establishes India as a settler state. That,
however, is a debate for a different time. For a discussion, see ‘From Domicile to
Dominion: India’s Settler Colonial Agenda in Kashmir’, [2021] 134 Harvard Law Review
2530
19 ‘‘Jammu and Kashmir put on sale’: Omar Abdullah slams Centre for amendment in land
laws’, The Indian Express (27 October 2020)
<https://indianexpress.com/article/india/jammu-kashmir-land-laws-amendment-
162 INDIAN J. CONST. L.

but a lament of a loss that was too costly. He said, “J&K is now up for
sale…” Abdullah was lamenting the loss of sovereignty in his tweet. It
was a departure from how Kashmiris used to see themselves with
respect to the land that they considered themselves the only owners
of. The control over the land by the indigenous in Kashmir signified
their claims to sovereignty over the land. Once the liberalisation of
such land laws took place in a colonial fashion and the name of
neoliberal development,20 such a loss was huge. In fact, sovereignty as
a phenomenon had a huge role to play in the dispute over the legal
status of Jammu and Kashmir.21
In an extensive study titled Anatomy of the Autonomy: A
Comparative Study of some Documents related to the State of J&K, Arif Ayaz
Parrey details how different documents formed in the erstwhile State
viewed the idea of sovereignty.22 Parrey examines major ‘mainstream’
documents such as Naya Kashmir produced by Sheikh Abdullah’s
National Conference(NC) in 1944, Self-Rule Framework for
Resolution formed by the J&K People’s Democratic Party(JKPDP) in
2008, Sajad Lone’s, representing J&K People’s Conference(JKPC),
Achievable Nationhood formed in 2006, J&K Regional Autonomy
Report of 1999, and report of the Regional Autonomy Committee in
2000.
The Naya Kashmir document, the leftist manifesto of the
National Conference, which was formed some years before the
independence of India, views Kashmir as a sovereign state. Parrey

omar-abdullah-6902386/> accessed 20 November 2023

20 Nitasha Kaul, ‘Coloniality and/as Development in Kashmir: Econonationalism’ [2021]
Feminist Review 114
21 Priyasha Saksena, Sovereignty, International Law, and the Princely States of Colonial South Asia
(OUP 2023)
22 Arif Ayaz Parrey, ‘Anatomy of the Autonomy: A comparative study of some documents
related to the autonomy of J&K’, Centre for Dialogue and Reconciliation <https://cdr-
india.org.in/pdf's/Anatomy_of_the_Autonomy_2.pdf> accessed 20 November 2023
Conversations on Article 370 of the Constitution of India: A Critical Response 163

argues that even the drastic changes brought to this 1944 document in
1977 have failed to erase the strong Kashmiri nationalist tone prevalent
throughout the text.23 It remains one of the most important legal
documents in Kashmir’s modern history and is inspired by the Soviet
Constitution.24 It spoke the language of a territorially defined new
nation whose self-determination was necessary to perfect the union.25
The fact that there is scant or no mention of India and Pakistan in the
manifesto gives the idea that the framers envisioned a sovereign state
for themselves. PDP’s self-rule framework and PC’s Achievable
Nationhood both envision a system of “shared sovereignty” with India
and Pakistan. This means giving Jammu and Kashmir the power to
determine its political arrangements, with both countries currently
controlling its land and resources- perhaps a method to work out the
idea of a ‘shared sovereignty’. While the Self-Rule Framework gives
India control over defence, security, foreign affairs and
communications, Achievable Nationhood restricts it to defence and
foreign affairs.26 The State Autonomy Report does not mention the
parts of Jammu and Kashmir under the administration of Pakistan but
sees the solution of the part under Indian control in the pre-1953
position of autonomy.27 The Report shares the political vision in the
Naya Kashmir document, but the prevalent political circumstances of
the time make it subscribe to notions of autonomy or a federal scheme
that can translate to “shared sovereignty” between the two units.

23 ibid
24 Andrew Whitehead, ‘The Making of the New Kashmir Manifesto’ in Ruth Maxey and Paul
McGarr (eds), India at 70: multidisciplinary approaches (Routledge 2020)
25 “Union” here refers to the State of Jammu and Kashmir. Kashmir is referred to as a
“country” in Naya Kashmir and most of the major texts formed during that period. For a
discussion, see Suvir Kaul, ‘On Naya Kashmir’ Bhan (n15) 37
26 Parrey (n 22) 25.
27 Pre-1953 position refers to the position before the passage of the Basic Order of 1954.
The Constitution (Application to Jammu and Kashmir) Order 1954 made substantial
portions of the Constitution of India applicable to Jammu and Kashmir. The year 1953
was also marked by Sheikh Abdullah's dismissal and arrest under the Public Safety Act,
and much of what followed emptied Article 370 of its content.
164 INDIAN J. CONST. L.

National Conference used the plank of autonomy to contest the

assembly elections of 1996 and got a huge victory, leading to the
formation of the State Autonomy Committee.28 The Indira-Sheikh
Accord of 1975, understood as the final blow to Sheikh’s aspirations
of an autonomous state, was also marked by demands to restore the
pre-1953 position. This was not the only instance that the National
Conference was citing history to articulate its demands. In 1955, NC’s
plebiscite movement went to the extent of asking for a referendum and
the final settlement of the Kashmir dispute.29
When the report of the State Autonomy Committee
(commonly referred to as the Autonomy Report) was tabled before the
Jammu and Kashmir Legislative Assembly in the year 2000, the
discussions lasted a few days. While a few recalled Sheikh Abdullah’s
speeches, Choudhary Mohammad Ramzan, a member of the National
Conference, made an impassionate speech. He opened his speech with
an Urdu couplet, marking a complaint and dejection. He said: hum wafa
karte rahe, wo jafa karte rahe/ apna apna farz tha donon ada karte rahe.30 A
rough translation would mean the following: We (Kashmiri unionists)
kept remaining loyal to them (India), they kept betraying us/ Both of
us kept performing our duties.
Appalled at the injustices committed to the people of Kashmir
“in the name of legislation”, he urged everyone to leave party politics
and restore the constitutional rights of the people, which would restore
the “integrity and sovereignty of the State.”31 He warned the members
about the State becoming a ground of “international conspiracies” and

28 Rekha Chowdhary, ‘Autonomy Demand: Kashmir at Crossroads’ (2000) 35 EPW 2599

29 Farooq Ahmad Waza, ‘Special Position within Indian Union: Articles 370 and 35A of the
Indian Constitution’ in Aijaz Ashraf Wani and Farooq Ahmad Waza (eds), Government and
Politics of Jammu and Kashmir: From Princely State to Union Territory (SAGE India 2022)
30 Jammu and Kashmir Legislative Assembly Secretariat, Assembly Debates on Autonomy
Report, (Session 9, 2000) 161
31 ibid
Conversations on Article 370 of the Constitution of India: A Critical Response 165

reminded the members of the terms of the Instrument of Accession.

He said that apart from subjects such as defence, foreign affairs, and
currency, it was in terms of Article 370 that “residual sovereignty” was
retained. The special treatment of Kashmir, he said, was borne out of
the fact that Kashmir merely acceded to India and did not merge. His
party was elected on the agenda of restoring autonomy, and this hope
of restoration of autonomy sustained the people's trust.
The Development Narrative:
‘We must develop them with or without their consent.’32
To effect the complete annihilation of Article 370 and bring
other major changes, India’s Home Minister, Amit Shah, introduced
the Constitution (Application to Jammu & Kashmir) Order, 2019 and
Jammu & Kashmir (Reorganisation) Bill, 2019, along with the
Resolution for Repeal of Article 370 of the Constitution of India, he
made it clear that his government was only going to talk to those
“committed to peace and development in J&K.”33 It was the youth of the
State, he said, who needed development. Article 370, he said,
prevented development and strangulated democracy in Kashmir. He
appealed to the Members of the Lok Sabha to “join hands with the
Government to bring the people of J&K in the mainstream of
development.” He mentioned a number of central laws that could not
be applied to Jammu and Kashmir that hampered development in
Kashmir, prominent being the Prevention of Child Marriage Act, Right
to Education, and Land Accusation Act. This development was to
come in the form of liberalisation of land laws to “bring in investments

32 Quoted in Kaul (n 20)

33 ‘Government brings Resolution to Repeal Article 370 of the Constitution’, PIB, MHA,
GoI (5 August 2019, New Delhi)
https://www.mha.gov.in/sites/default/files/PressReleaseJ%26KDecisions_06082019.
pdf accessed 20 November 2023
166 INDIAN J. CONST. L.

from private individuals and multinational companies.”34 He also

talked about low land prices in Kashmir because of the restrictions on
land transfer to outsiders. This “development” paradigm must be
critiqued and put into context, given the unique nature of Kashmir. I
will use the following frameworks to put into perspective the narrative
of development that reeks of colonial pride and wants to assimilate the
“other”, even if the other feels robbed at every instance of such
practices and modes.
In an excellent article titled Deconstructing Development, Ruth E.
Gordon and Jon H. Sylvester question the idea of development as a
hegemonic construct of the West to destroy the societies, cultures,
communities and institutions of the “other” needing transformation.35
Development “presumes a universal and superior way of ordering
society, and that all societies are to advance toward the same goal.”36
This practice does not value cultures and ways of living as it wants to
“develop” the political subject into “something else”.37 It is a product
of a specific order that wants to assimilate or homogenise the other.38
Primary among these attempts towards assimilation is the colonisation
of legal systems.39 Adopting the coloniser's systems would thus
facilitate development and lead to the creation of better institutions.
There would be “increased equality, freedom and participation…”
benefitting “the poorest of the poor.”40

34 ibid
35 Ruth E. Gordon and Jon H. Sylvester, ‘Deconstructing Development’ (2004) 22
Wisconsin International Law Journal 1; See also, Luis Eslava, ‘The Developmental State:
Independence, Dependency and the History of the South’ in Jochen von Bernstroff and
Philipp Dann (eds), The Battle for International Law (OUP 2019)
36 ibid
37 ibid 5
38 ibid 8
39 ibid 18 (The authors in the cited material have used the word “Westernization”).
40 ibid 19
Conversations on Article 370 of the Constitution of India: A Critical Response 167

It may be helpful to situate the idea of development in an era

of decolonisation the world over, as even today, these very
justifications are employed to perpetuate colonialism. In her much-
needed article Decolonization, Development, and Denial, Natsu Taylor Saito
explains how the development narrative sustains colonisation and
emerges as a colonial construct.41 Taylor describes how even the
decolonisation process established by the United Nations produced
“an order privileging territorial integrity over the rights of non-self-
governing peoples.”42 Colonialism is presented as beneficial to the
colonised and for their “good.” Even as Spain was colonising the
Americas, legal justifications were provided for their colonisation as
they were found unfit to rule themselves, and it was to their advantage
that they were getting the benefits of “civilisation.”43 This order that
prefers territorial integrity over broad-based rights uses “guardianship”
to justify appropriation.44 The other narrative that is replicated is that
the colonised need to embrace a certain idea (perhaps a myth?) – “the
idea of India”, in our case, selling democracy and dreams, the idea of
“integrity”, the idea of constitutionalism, expansion of the “good” to
margins to civilise them- which all become the building blocks of
colonial rule and make the development narrative hollow.45

41 Natsu Taylor Saito, ‘Decolonization, Development, and Denial’ (2010) 6 Fla. A&M U.
L. Rev. 1; Critics argue that the claims of democratization are a historical continuity of
the Western standards of “humanizing” and “civilizing” non-European societies and
reproduce the notions of superiority of one race over the other. See, for example, Antony
Anghie, ‘Civilization and Commerce: The Concept of Governance in Historical
Perspective’ (2000) 45 Vill. L. Rev. 887; See also, Uma Kothari (ed), A Radical History of
Development Studies: Individuals, institutions and ideologies (Zed Books 2005)
42 ibid 21
43 Justus M. van der Kroef, ‘Francisco de Vitoria and the Nature of Colonial Policy’ (1949)
35 The Catholic Historical Review 129
44 Taylor (n 41) 22
45 Developmentalism in India has also had a devastating impact on indigenous and lower
caste communities. Tribal communities in Manipur, for example, have faced exploitation
of their resources and have been subjected to dispossession. However, what makes the
development narrative differ from the narrative on Kashmir is the discrimination that it
comes with as the “fruits of development” hardly reach the poorer, lower castes and
tribals while as in the case of Kashmir, the refusal of the people to be developed and seen
168 INDIAN J. CONST. L.

Viewed through the above prism, we see references being

made in the speech of the Home Minster to development and
democracy. A close scrutiny of the address would inform us of the
“development horror” associated with colonialism being reproduced
and replicated today. When he says that J&K would become a “true
part”46 of India by removing Article 370, it means a denial of every hint
of sovereignty to the people. The practice of sovereignty that was so
far being exercised in the form of state violence (touted as
“governance”)47 takes a different turn, as, without the appropriation of
lands, the coloniser seems incomplete. The coloniser cannot exist
without the colonised (reference is made to the claim of “integral part”
by the Indian state over the whole of Jammu and Kashmir) as the
erasure of pre-existing peoples is necessary, in the name of
development, of course, to further their annexation. The sovereign
interests of an occupying state, therefore, depend on the creation of
“social, political, legal, and economic institutions that would function
solely for their own benefit; and to determine who could or could
not—or would be forced to—live within their claimed borders and
exactly how they were to live.”48
The development aspect thus attains a unique framework in
the Kashmiri context. In Indian writings supporting the move of the
BJP government, “Kashmir was denied the fruits of Indian

as “developed” in the imagination of mainland Indians is seldom accepted. While the

policies of extraction of the resources are the same, the case of Kashmir also makes it a
point of pride for any government in power in New Delhi to sell their ways of controlling
Kashmir. However, the systemised dispossession of all the people existing in the
geographical margins of India continues to follow the same modus operandi of
‘development’ and ‘democracy’. Raile Rocky Ziipao, Infrastructure of Injustice: State and
Politics in Manipur and Northeast India (Routledge 2020). Despite India’s rapid economic
growth, lower castes and tribes in India continue to be marginalised. Shah and Lerche et
al., Ground Down by Growth (Pluto Press 2018). See also, Mukul Sharma, Caste and
Nature: Dalits and Indian Environmental Politics (OUP 2017)
46 MHA (n 33)
47 Suchitra Vijayan, Midnight’s Borders: A People’s History of Modern India (Westland 2021) 185
48 Natsu Taylor Saito, ‘Different Paths’ (2020) 1 JLPE 46
Conversations on Article 370 of the Constitution of India: A Critical Response 169

democracy.”49 With the removal of the “special status”, "all the

benefits of democracy will flow to Kashmir now.”50 This development
will include the development of narratives as the hearts and minds of the
people have to be won.51 This is a false depiction as the major portion
of the Indian Constitution was already applicable to Jammu and
Kashmir by what A.G. Noorani calls the “systematic hollowing out of
Art. 370.”52 Much of this propaganda falls flat, as we now see a
demotion instead in terms of the exercise of rights by the people.
Shrimoyee Nandini Ghosh notes that the rights framework, including
the right to gender equality, to work, to education, are now part of the
unenforceable scheme of the Directive Principles of State Policy,53
giving a blow to the historic Naya Kashmir manifesto, which gave the
right to education to all citizens free of charge covered under “a wide
system of State scholarships”… “in the higher schools and
universities.”54 It is interesting to note that the Naya Kashmir
manifesto has the right to work for women “in all fields of national
life, economic, cultural, political, and in the state services”… to “be
realised by affording women the right to work in every employment
upon equal terms and for equal wages with men.”55 There is also a
provision for leave during pregnancy.56 Even the development
indicators show that Jammu and Kashmir was doing better or at par

49 Syed Firdaus Ashraf, 'Kashmir was denied the fruits of Indian democracy- Tilak
Devasher Interview’ (Rediff.com 6 August 2019)
<https://www.rediff.com/news/interview/kashmir-was-denied-the-fruits-of-indian-
democracy/20190806.htm> accessed 20 November 2023
50 ibid
51 Aditya Gowdara Shivamurthy, ‘Building Indian narratives and battling new militancy in
Kashmir’ Hindustan Times (New Delhi, 8 August 2021)
52 A.G. Noorani, ‘Deception on Article 370’ Greater Kashmir (Srinagar, 4 July 2016) 9
53 Shrimoyee Nandini Ghosh, ‘One Nation, One Flag, One Constitution’ (Lok Samvad 7
November 2019) <https://populareducation.in/loksamvad/article/one-nation-one-
flag-one-constitution/> accessed 20 November 2023
54 New Kashmir, 1944, Article 11
55 ibid Article 12
56 ibid
170 INDIAN J. CONST. L.

with the rest of India in all the primary development indicators, mainly
because of the land reform policies initiated in the 1950s.57 It could,
therefore, easily qualify as a democratic backsliding- if democracy even
existed in any form- rather than democratic reform. Development in
Kashmir is basically “an end that justifies using any means,”58 including
moral blindness.
The mention of non-implementation of laws like the
Prevention of Child Marriage Act and Right to Education signals the
assumption that Kashmir is a backward society, primarily because it is
Muslim-majority, and needs intervention. In fact, the Jammu and
Kashmir RTI Act of 2009 was more robust than the Central Act of
2005 and was implemented a year before the Central Act.59 Child
marriage, for example, becomes another marker of identity for the
larger Muslim population, where the colonial construction of rescuing
the “other” from their self-imposed oppression comes in handy, and
the coloniser finds justification in imposing his systems of law.
Similarly, the changes in land laws pose unique questions about
property and rights and how they interact. In October 2020, sweeping
changes were made to land rules in J&K, paving the way for “the
Indian capitalists to invest and accumulate resources in the region.”60
These corporations will not be regulated and could possibly replace

57 Womic Baba and Anam Zakaria, ‘The false promise of normalcy and development in
Kashmir’ (ALJAZEERA 5 August 2020)
<https://www.aljazeera.com/opinions/2020/8/5/the-false-promise-of-normalcy-and-
development-in-kashmir> accessed 20 November 2023; see also Jean Dreze, ‘Article 370
helped reducing poverty in Jammu and Kashmir’ (National Herald 9 August 2019)
<https://www.nationalheraldindia.com/india/economist-jean-dreze-jandk-more-
developed-than-gujarat-special-status-helped-reducing-poverty> accessed 20 November
2023
58 Kaul (n 20)
59 Raja Muzaffar Bhat, ‘Replacing J&K RTI Act With Centre's Law Has Weakened People's
Right to Know’ (The Wire, 13 May 2021) <https://thewire.in/rights/jammu-and-
kashmir-rti-act> accessed 20 November 2023
60 Muhammad Mutahhar Amin, ‘Land Laws of Jammu and Kashmir: Material
Consequences and Political Ramifications’ (2021) 56 EPW 20
Conversations on Article 370 of the Constitution of India: A Critical Response 171

governance in a place like Kashmir, benefitting the already powerful

BJP government. Their partnership has already been a feature of
Indian politics. Enriching the companies at the cost of the resources
in Kashmir is also not recent.61 However, after the appropriation of
the lands, it will be made accessible, and any resistance will also be
conveniently crushed. By decrying low land prices, the land is rendered
“profitable”, similar to the colonial attitudes of European settlers
towards American Indians and Africans.62
The Crisis of a Liberal Democracy:
“India would bind Kashmir in golden chains.” ~ Jawaharlal Nehru
The relationship between Jammu and Kashmir and the Union
of India was based on liberal democratic principles endorsed by Sheikh
Abdullah, who was “enamoured of the high principles for which
[India] stood.”63 An artificial bond, it came to be sold to many
generations of Kashmiris. The comparison was mostly made with
Pakistan, which was presented as poor, undeveloped, and not so liberal
or democratic. The Jammu and Kashmir Constituent Assembly echoed
such comparisons and how the aspirations of Sheikh Abdullah
converged with those of the newly formed Indian state. In fact, he
brought about a list of differences, laying down the advantages of
joining any of the dominions between India and Pakistan or remaining
independent. It was the “kinship of ideals,” Abdullah said that

61 Haley Duschinski and Mona Bhan, ‘Third World Imperialism and Kashmir’s Sovereignty
Trap’ Bhan (n15) 332 This passage is reproduced from the above-cited chapter: “A 2016
Right to Information application revealed that India’s National Hydroelectric Power
Corporation (NHPC) has earned 3 million USD in the last 14 years from electricity sales,
while Jammu and Kashmir alone bought 115,636 million units of power from the NHPC
between 2001 and 2016 in order to fulfil its domestic energy requirements.”
62 Taylor, Different Paths (n 48)
63 Prem Shankar Jha, ‘Sheikh Abdullah in 1968: 'Accession Is of Minds, Hearts; Love &
Justice Are the Only Weapons You Need'’ (The Wire, 10 August 2023)
<https://thewire.in/politics/sheikh-abdullah-in-1968-accession-is-of-minds-hearts-
love-justice-are-the-only-weapons-you-need> accessed 20 November 2023
172 INDIAN J. CONST. L.

determined the strength of the ties between the two states. The
accession to India, he proclaimed, meant the death of feudalism and
autocracy. Speaking before the J&K Constituent Assembly on
November 5, 1951, Abdullah was confident that the Government of
India would not interfere in the internal autonomy of J&K as the last
four years had proven.64 Abdullah was equally impressed by “the goal
of secular democracy” that India had set to achieve for itself through
its constitution, and the “national movement” in Jammu and Kashmir
“naturally gravitate[d] towards these principles of secular
democracy.”65 A comparison was also made between “highly
industrialised” India, which could help the state with equipment,
technical services and materials, and Pakistan, where these economic
advantages could not be explored.
It was this mutual interest with the newly formed secular India
that tied Sheikh Abdullah to the “idea of India”, represented mainly by
the Indian National Congress.66 Critics have pointed out that the
Indian brand of secularism reinforces notions of exclusion of
Hinduness, Muslim exclusiveness and India being the homeland only
of Hindus. The opposition to Hindutva has not been able to counter
these problems, and the identity of India’s secular politics has rather
exacerbated Hindu nationalism and created a Brahminical, socialist,
secular order of the society.67 Now, for India also to exist as a secular
‘nation’ and heed the Nehruvian or Gandhian brand of ‘Hindu
inclusiveness’, Kashmir had to be part of it, giving it the reasons to
assume what Gowhar Fazili calls a “moral high ground relative to the
supposedly totalitarian regimes like China or feebler democracies like

64 Jammu and Kashmir Constituent Assembly, Assembly Debate, (JKCAD Part I, Vol 1)
1951-1955
65 ibid 106
66 Altaf Hussain Para, ‘Demystifying Sheikh Abdullah’ (2013) 48 EPW 23
67 Gail Omvedt, Understanding Caste: From Buddha to Ambedkar and Beyond (2nd edn, Orient
Blackswan 2012)
Conversations on Article 370 of the Constitution of India: A Critical Response 173

Pakistan?”.68 However, the liberal order he was subscribing to did not

prove to live long, as the Sheikh was soon arrested in the Kashmir
conspiracy case by his closest ally, Nehru, leading to the killings of
hundreds of civilians by the Indian troops.69 Sheikh’s dismissal and
arrest also marked a new beginning in which local client politicians
were installed to help Nehru consolidate his rule in Kashmir.70
The Indian liberal elite, represented mainly by the Indian
National Congress, was complicit in this process, resulting in the decay
of democracy in Kashmir. The importance of Article 370 was also
known to them as nothing apart from this provision tied Kashmir to
India. It has often been described as a “tunnel” responsible for the
passage of Indian laws to Kashmir. The Indian liberal elite understood
the treachery that had been done to rid Kashmir of its rights, including
the right to self-determination. However, Article 370(after it had been
emptied of all its content) was a cover hiding all such stealth. This
cover served dual purposes for the Indian liberal elite. One, it helped
India maintain its control over Kashmir, citing the ‘special privileges’
the State was allowed. Two, it prevented any meaningful engagement
on the larger political issue of Kashmir, thereby presenting Kashmir as
an ‘internal matter’ tied to its constitution. What made the 2019
changes different then? The 2019 changes the right-wing central
government made took the lid off of this arrangement, and it became
apparent that the constitutional commitments carried no meaning. In
that sense, Kashmir was really “special”.
I argue that the battle on Article 370 in the Supreme Court was
the one between the Indian liberal class and the right-wing section of

68 Gowhar Fazili, ‘Liberal Silence on Kashmir and the Malleability of Ethics in India’ Bhan
(n15) 278; see also Tariq Ali and others, Kashmir: The Case for Freedom (Verso 2011)
69 Hafsa Kanjwal, Colonizing Kashmir (Stanford University Press, 2023)
70 ibid 2
174 INDIAN J. CONST. L.

Indian society, thereby carrying little or no meaning for the subject

population of Kashmir. For the liberal side, it was not just about
keeping their promises made to the “mainstream” political
dispensation in Kashmir but also about preserving democracy and
constitutional values back home in the Indian mainland. This is
reflected in the line of arguments extended in the Supreme Court,
which I will explain in the following paragraphs. For the right-wing
side, representing the central government, the battle was about
removing every possible hint of Muslim representation, often dubbed
as “separatism.”
It goes without saying that the success of the petitioners relied
on subscribing to the dictates of the liberal order that exists vis-à-vis
Kashmir, thereby working under the framework of phraseology such
as “integral part.” However, such a framework lacks depth and
meaning and serves as a dialogue with the status quo or the state itself
that produces such depravity in the first instance. It negates the
political as the Schmidtian approach would inform us.71 On the
opening day of the arguments, Senior Advocate Kapil Sibal,
representing the petitioners, cleared the air, setting a caveat for the rest
of the arguments to follow. He said Kashmir was an “integral part” of
India, and the integration of Kashmir into the Union of India was
unquestionable, keeping himself in accord with the Indian liberal view
on Kashmir.72 Sibal invoked the Jammu and Kashmir Constitution to
say this.73 Similarly, Dushyant Dave submitted that Kashmir was an
“integral part” of India, arguing that the repeal of the provision does

71 Wanling Xiong, ‘Protecting Democracy from Liberalism: Defending Carl Schmitt’s

Critiques of Liberal Democracy’ (MA Thesis, Leiden University 2018-2019)
72 Aurif Muzafar, ‘Summary of ‘In Re: Article 370 Petitions’- Day 1’ (LAOT Blog, 3 August
2023) <https://lawandotherthings.com/summary-of-in-re-article-370-petitions-day-
1/> accessed 25 November 2023
73 The motive here is not to discredit Kapil Sibal for his approach or the line of arguments
but to point out the prevalence of the largely liberal rhetoric in such arguments.
Conversations on Article 370 of the Constitution of India: A Critical Response 175

not serve any purpose when the integration is already a fact.74 Other
petitioner representatives also put limitations on their observations (in
the form of arguments) and clarified their positionalities concerning
the matter. Why is this important for our discussion? This is important
because it prevents the court from critically reflecting on the issue
beyond the contours that it holds dear in the name of integrity,
sovereignty, and other such limiting phrases. An example of this is
when one of the main petitioners, Mohammad Akbar Lone, was asked
to submit an affidavit “stating that he would preserve and uphold the
provisions of the Constitution of India and protect the territorial
integrity of the nation.”75 This was after Tushar Mehta, Solicitor
General of India, asked the Court to demand such an affidavit from
Lone. For a constitutional court to permit such an illegality was not
surprising, given that it had already put limitations on the discourse.
At the same time, it is essential to understand the implications
of legitimising the J&K Constituent Assembly, with some even calling
it “Rousseau’s model of representative democracy.”76 Such arguments
have been met with objections by scholars with allegations of rigging,
lack of electoral representation, and a disregard for UN Resolutions. 77
All these political developments need to be questioned to arrive at a
logical conclusion, but the exaggeration of the liberal side seems like
an attempt to deny a deeper understanding of history.

74 Transcript of hearing, ‘Writ Petition (Civil) No.1099/2019 In re: Article 370 of the
Constitution’ (Record of Proceedings, Supreme Court of India) 17 August 2023
75 Padmakshi Sharma, ‘Article 370 Case Petitioner Files Affidavit In Supreme Court
Affirming Oath To Uphold Indian Constitution & Protect Territorial Integrity’ (Live Law,
5 September 2023) <https://www.livelaw.in/top-stories/article-370-case-petitioner-
files-affidavit-in-supreme-court-affirming-oath-to-uphold-constitution-protect-indian-
territorial-integrity-237066> accessed 20 November 2023
76 Aurif Muzafar, ‘Summary of ‘In Re: Article 370 Petitions’- Day 4’ (LAOT Blog, 10 August
2023) <https://lawandotherthings.com/summary-of-in-re-article-370-petitions-day-4-
9th-august-2023/> accessed 20 November 2023
77 ibid, see author’s notes
176 INDIAN J. CONST. L.

Your Basic Structure is Not My Basic Structure:

“What is true about [the]Constitution of India as regards, (sic)
[the]"Basic Framework of the Constitution" is true about [the] Constitution of
Jammu and Kashmir.” ~Justice Hasnain Masoodi
On August 5, 2022, three years after the writing down of
Articles 370 and 35A, Senior Advocate Arvind P. Datar was speaking
at the book release function of ‘Hamīñ Ast? A Biography of Article 370′.78
He claimed that nothing was wrong- even legally and constitutionally-
with what the central government did to Kashmir, as “there could be
different means of achieving an end.”79 He made another pertinent
point: “How far would Article 35A survive after the Basic Structure came?”80
He was referring to the Basic Structure doctrine laid down in the
Kesavananda Bharati case.81 The scheme of ‘special status’ was
unjustified, and the presence of Article 35A was “anachronistic or
paradoxical” in Part III(referring to the Fundamental Rights chapter in
the Constitution of India).82 The revolt in his statements no doubt
points to the majoritarian views on Kashmir and these constitutional
provisions, with a bit of technical phraseology, but how far are his
views justified? A more straightforward way of explaining this is that
if you submit your sovereignty to a larger sovereign, how is your claim
of sovereignty justified? It puts your integrity in question as a claimant
of something you demand of the larger sovereign. This question, of

78 Vidhi Centre for Legal Policy, ‘Launch of ‘Hamin Ast? A Biography of Article 370’ by
Navi Books’ (Vidhi, 13 August 2022) <https://vidhilegalpolicy.in/videos/launch-of-
hamin-ast-a-biography-of-article-370-by-navi-books/> accessed 20 November 2023
79 ibid (1:10:00 onwards)
80 ibid. If what Datar says is correct, it also means that the action of the BJP government
implied the furthering of the Basic Structure doctrine.
81 AIR 1973 SC 1461. The ‘basic structure doctrine’ was expounded by the Supreme Court
of India in the above-mentioned case and permits the parliament to amend any part of
the constitution without without destroying its basic features such as secularism,
democracy, constitutional supremacy, separation of powers, federalism, among other
features.
82 ibid
Conversations on Article 370 of the Constitution of India: A Critical Response 177

course, has its own merit, but when we problematise it in a situation

such as Kashmir, we arrive at what I call the “assimilation argument”.
Datar asks: if Kashmiris are citizens of India, how is Article 35A even
justified? In his argument, the upsurge points to the resolution of a
longstanding issue from the coloniser’s perspective, which comes in
different forms, including the “absolute and total destruction or
assimilation of original inhabitants.”83 It is a direct attack on the
language of the colonised, on how they want to assert themselves and
protect their identity and history, whose only wish is to be identified
differently from the broader sovereign to which they have submitted
by circumstance. But if the resolution culminated in the abrogation of
the “special status”, why does the state not stop there? It imposes
hegemonic nationalism, changes the curriculum, alters the education
system, the boundaries of the territory, and the belief systems of the
indigenous, and makes coloniality visible to the naked eye. The fact is,
the state does not stop, and there is no endpoint in extending its
presence in every facet of the life of the colonised. In the following
part, I explain how the central government’s argument on the “basic
structure doctrine” before the Supreme Court was similarly situated
and needs further explication.
Terming the abrogation a “step in the historical evolution to
achieve fraternity and unity of the nation”, Tushar Mehta, Solicitor
General of India, contended that the abrogation was in furtherance of
the basic structure doctrine.84 Fraternity and equality being the facets
of basic structure means that a “transitory provision” is “removed at
an appropriate stage”.85 Its removal thus “furthers the basic structure and
it enhances the equality and fraternity, which is the bedrock of the

83 Eve Tuck and K. Wayne Yang, ‘Decolonization is not a metaphor’ (2012) 1

Decolonization: Indigeneity, Education & Society 1
84 Record of Proceedings (n 74) 29 August 2023
85 ibid
178 INDIAN J. CONST. L.

Constitution.”86 The problem comes again as ideas like fraternity and

brotherhood(an extension of the “assimilation argument”?) are
employed to confer legitimacy to blatantly illegal actions. Some even
argued that the arrangement made as a result of Article 370 was in
“oddity” with the federal structure.87 The resurrection of Article 370,
V. Giri proclaimed, would “be violative of the basic structure of the
Constitution.”88 Similarly, the petitioners’ arguments, with the
exception of Dr Rajeev Dhavan, on the grounds of basic structure,
illustrate the implications of the illegality concerning the whole of the
country, with little attention to the purpose and effect of the move for
the people of Kashmir.89 Dhavan carefully located the basic structure
in the design of Article 370 itself.90 According to Dhavan, an analysis
that deserves careful reading, Article 370, a substitute for a “merger
agreement” not signed between the Union of India and the State of
Jammu and Kashmir, itself formed a part of the basic structure. 91 In
the absence of a merger agreement, sovereignty would continue with
Article 370 as a repository of both the standstill and merger
agreements. I conclude this paragraph with a question: does a
referendum attain the stature of basic structure in the absence of

86 ibid (emphasis mine)

87 Gursimran Kaur Bakshi, ‘On Day 15, quoting Ambedkar, V. Giri calls abrogation rightful
centralisation to prevent another loss of India’s independence’ (The Leaflet, 4 September
2023)<https://theleaflet.in/on-day-15-quoting-ambedkar-v-giri-calls-abrogation-
rightful-centralisation-to-prevent-another-loss-of-indias-independence/> last accessed
20 November 2023
88 Record of Proceedings (n 74) 4 September 2023
89 See, for example, Muzafar (n 76) (The lawyers argue that this action by the Government
is a threat to India's larger federal structure or poses a challenge to Indian democracy in
general. However, this is far from true, and this lens for comparison is not justified and
hardly serves the case at hand.)
90 Aurif Muzafar, ‘Summary of ‘In Re: Article 370 Petitions’- Day 6’ (LAOT Blog, 19 August
2023) <https://lawandotherthings.com/summary-of-in-re-article-370-petitions-day-6-
11th-august-2023/> accessed 20 November 2023
91 ibid
Conversations on Article 370 of the Constitution of India: A Critical Response 179

Article 370 when the conditions that have led to the formation of
Article 370 have either persisted or remained unfulfilled?92
The basic structure doctrine does not operate as a standalone
concept but needs the application of historical and normative
frameworks, particularly when evaluating a deeply political issue.93 It
cannot afford to miss the political and historical conditions of one
constituent part of the country that has been promised constitutional
accommodation and is caught in a profoundly complex political
situation. In 2015, the Jammu and Kashmir High Court had an
opportunity to explain the meaning of the basic structure doctrine
pertaining to J&K and had a passionate view in the context of history.
It was in Abdul Qayoom Khan Vs. State of J&K and Ors.94 that the
petitioner argued that the state officials and constitutional bodies’
failure to hoist the state flag of Jammu and Kashmir was a contempt
of the State Flag and breach of law. He also demanded that the
Republic Day of the State be celebrated “with dignity and honour
demonstrating the sanctity of the State Flag."95 What came as a result
of the petition was a lucid interpretation of the basic structure doctrine
by Justice Hasnain Masoodi. Justice Masoodi held that the
constitutional autonomy of the State of Jammu and Kashmir was the
“basic structure” of the State Constitution. It went further to say that
the “elected head of the state”, also called the Sadri riyasat, was part of
this basic structure framework.96 It called into question the
Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965,
which amended the State Constitution and replaced "Sadri Reyasat" by

92 Muzafar (n 72)
93 Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure
Doctrine (OUP 2009) 107
94 Abdul Qayoom Khan v State of J&K and Ors 2016 (1) JKJ 506
95 ibid para 5
96 ibid para 24
180 INDIAN J. CONST. L.

the Governor by saying that the “elective” status of the constitutional

post was part of the basic framework of the State Constitution and
therefore beyond amending power. Apart from asking the state
government to uphold the Constitution of Jammu and Kashmir, it
warned that any amendment of the basic structure is “void like a law that
offends the Constitution.”97 The Court thus brought both
constitutional amendments and legislative actions under the purview
of the basic structure doctrine. It applied a historical framework to say
the same.
It becomes clear from the discussion that the languages of
expression for the basic structure doctrine differ as we consider
different frameworks. The framework adopted by Justice Masoodi
locates the J&K Constitution at par with the Indian Constitution,
directs the government to correct the violations committed against the
Constitution of J&K, and attaches binding authority to the original idea
of constitutional autonomy. It is this return to the “original” that
makes me think of “referendum” as part of the basic structure doctrine
in the absence of Article 370. The understanding of the doctrine raises
complicated questions when we contrast the views of the institutions
of the liberal tradition and those that existed in Kashmir with a limited
sense of autonomy.
CONCLUSION:
In my article, I demonstrated the need for interdisciplinary
alternative conversations on Kashmir and the ‘constitutional promises’
made to the people of the erstwhile state. While the region has not
seen peace for decades, it’s essential for us to speak a clearer language
and put forward narratives that are agentifying to the people rather
than those that are hegemonic and make the language of the state and

97 ibid para 20 (emphasis mine)

Conversations on Article 370 of the Constitution of India: A Critical Response 181

the liberal elite thrive. Hindu nationalists may have perpetuated the
dispossession of Kashmiri Muslims through their so-called aggressive
approach towards Kashmir, but the liberal elite of India who generally
subscribe to the ‘Nehruvian tradition’ of politics have hardly honoured
the wishes of the people of Kashmir.
Note: This paper was written when the Supreme Court of India had
yet to pronounce its judgment on the matter. While it is difficult to
predict the fate of Article 370, given the Court's approach in recent
cases, a reversal of the government's actions seems impossible. In any
case, we must not stop imagining decolonial futures.
TYING THE KNOT: A COMPARATIVE ANALYSIS OF LGBT++ MARRIAGE
RIGHTS IN INDIA, USA AND CANADA
Vivasvan Gautam
Abstract
The article traces the historical development of these rights through
judicial decisions, with a focus on three provinces in Canada: Ontario,
British Columbia, and Quebec. It is noteworthy that Canada emerged
as one of the first nations globally to recognize same-sex marriage, a
milestone achieved in 2004. In contrast, India is still in the early
stages of recognizing such rights. The Canadian journey towards the
recognition of same-sex marriage is characterized by a dialogue that
transpired among institutions. This dialogue has played a pivotal role
in the evolution of LGBT rights, leading to the landmark decision(s)
between 2000-2004 A.D. However, in the case of India, a
comprehensive institutional dialogue is conspicuously absent. The
struggle for recognition of same-sex marriage in India is still in its
nascent stages, marked by numerous legal challenges and debates. A
recent judgment in India, the Supriyo Chakraborty v. Union of India,
provides hope that Indian institutions may adopt a more Canadian-
like approach. By taking inspiration from the Canadian experience,
India has the opportunity to foster a more inclusive and equitable
society. This article attempts to sheds light on the differing trajectories
of LGBT marriage rights in India and Canada, in the final section,
highlighting the importance of institutional dialogue and the potential
for India to learn from Canada's experience to pave the way for a
more inclusive society.


Vivasvan Gautam finished his LLM from West Bengal National University of Juridical
Sciences in 2024
184 INDIAN J. CONST. L.

1. Introduction
In the evolving landscape of human rights, the recognition of
same-sex marriage has to stand as a significant milestone for the
progress of gender equality norms and law. This paper embarks on a
comparative study of the journey towards legalizing same-sex marriage
in three diverse jurisdictions: India, the United States of America, and
Canada. Supreme Courts of all three countries have, over the years,
have developed rich constitutional jurisprudence.1 Since India is
located on a continent different from the USA and Canada, India may
not share common history, culture or festivals with the other two
nations. Nonetheless, all three countries possess common political and
legal traditions rooted in the governance system of English common
law. The similarities range from (1) the doctrine of the rule of law2, (2)
federalism3, (3) importance and value of democracy4, (4) protection of
minority rights5, (5) a strong and independent functioning judiciary6,
(6) respect for institutions and separation of power7. Both India and
Canada have adopted a parliamentary form of government with a
strong tilt towards a union of states or provinces, unlike the USA,

1 Vivek Krishnamurthy, ‘Colonial Cousins: Explaining India and Canada’s Unwritten

Constitutional Principles’ 34/207 .
2 In Reference re Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada) 76; Roncarelli
v Duplessis [1959] SCR 121 (Supreme Court of Canada); IRCoelho Vs State of Tamil Nadu
AIR 2007 SC 861; Madbury v Madison 5 US (1 Cranch) 137 (1803) (Supreme Court of
United States).
3 In Reference re Secession of Quebec (n 2) 5; SR Bommai And Others Etc v Union Of India And
Others (1994) 3 SCC 1 112; Printz v United States 521 US 898 (1997); (Supreme Court of
the United States) Supreme Court struck down Brady Handgun Violence Act as being
unconstitutional since it violated 10th Amendment of the Constitution of the United
Sates under which federal government could not force state officials to carry out federal
policies.
4 In Reference re Secession of Quebec (n 2) 252; Switzman v Elbling [1957] SCR 285 306; People’s
Union for Civil Liberties v Union of India (2013) 10 SCC 1.
5 Mahe v Alberta [1990] 1 SCR 342. The Canadian Supreme Court held that minority
language and education rights guarantees control of parents over education facilities in
which their children are taught. Loving v Virginia 388 US 1.
6 Valente v The Queen [1985] 2 SCR 673 697–707.
7 State of WB v Committee for Protection of Democratic Rights (2010) 3 SCC 571 589; Her Majesty
the Queen v Criminal Lawyers’ Association of Ontario 2013 SCC OnLine Can SC 39 43.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 185

where the framers of the Constitution made Federalism an end in

itself.8 These three nations each have a rich tapestry of multicultural
and multi-ethnic threads, alongside a shared commitment towards the
rule of law that is upheld by an independent and impartial judiciary.9
Endless comparative exercises from the legal standpoint can be
conducted between these nation-states under the vast terrain of
comparative studies. However, the focus of this article will be confined
to examining the recognition of marriage as a right, especially
concerning the LGBT++ community.
In Canada, we delve into the prominent cases before the
constitutional courts that shaped the legal framework for same-sex
marriage in three provinces: British Columbia, Quebec, and Ontario.
We will see through analysis of precedents that in the Canadian
jurisdiction, the recognition of the right of the LGBT++ community
to marry came about through constitutional dialogue between the
Judiciary, the Executive and the Parliament. Canadian courts, by the
dawn of the millennium, had little patience to tolerate the violation of
the provisions of the Canadian Charter of Human Rights,
1972(“Charter” after this). In 2004, two of the decisions by the highest
courts of the provinces, namely British Columbia and Quebec, held
that the “definition” of marriage (“union between a man and woman
to the exclusion of others”) was violative of the Charter. They gave the
Parliament two years’ time to bring required amendments to the laws
related to marriage. On the other hand, the Court of Appeal in Ontario
held the definition of marriage to be unconstitutional from immediate
effect, stating that striking it down would not cause any public order
issues. In the USA, our focus is on the landmark cases before the

8 Douglas V Verney, ‘Federalism, Federative Systems, and Federations: The United States,
Canada, and India’.
9 Martha A Field, ‘The Differing Federalisms of Canada and the United States’ (1992) 55 Law

and Contemporary Problems 107.

186 INDIAN J. CONST. L.

Supreme Court of the United States (SCOTUS), which played a pivotal

role in the nationwide recognition of same-sex marriage. This paper
has consciously limited its scope to the federal level, i.e., only to
SCOTUS, acknowledging that an exhaustive study of individual state
laws would be an immense task.
Turning to India, this paper examines the recent judgment of
Supriyo Chakraborty v. Union of India10 on same-sex marriage, casting it in
the light of the historical and legal contexts of the USA and Canada.
As we venture into the realm of recognition of the right to
marry for the LGBT++ (this paper will also use the phrase “same-sex
marriage” in certain places since precedents have analysed the issue by
employing such language), this article hopes to shed light on how
principles of equality have developed in each nation.
2. The Evolution of Marriage Equality: Canada’s Judicial
Journey to Inclusive Legislation
For the longest time, the LGBT++ community was
discriminated against based on Victorian morality. Historians and
scholars have considered marriage to be among the oldest social
institutions of the world, predating even law and significant religions
of the world. However, marriage as an institution has not remained
static and has continuously changed with time depending upon
cultures, traditions, beliefs, religion, and capitalism.11
The right to equality or the right to equal treatment without
discrimination finds its origin in Section 15(1) of the Charter of the
Canadian Constitution which came into force on 17 April 1985. It
states that:

10 Supriya Chakraborty and Another vs Union of India 2023 INSC 920 (Supreme Court of India).
11 Nicholas Bala, ‘The Debates About Same-Sex Marriage in Canada and the United States:
Controversy Over the Evolution of a Fundamental Social Institution’ 20.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 187

“Every Individual is equal before and under the law and has the right
to the equal protection and equal benefits of the law without
discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.”
This section has been the cornerstone, the fulcrum upon which
the whole structure of equal treatment of the LGBT++ community
has been built, and the right to marry comes within the scope of this
Section. The Supreme Court of Canada has laid down a three-pronged
test to find whether Section 15(1) of the Charter has been breached.
Firstly, the aggrieved person claiming the breach must prove
they have been treated unequally, discriminatorily, or differently. The
court will then scrutinize whether this type of unequal treatment
occurs because of some personal characteristic within the person or if
the government has failed to consider the aggrieved person’s
disadvantaged position within Canadian society.12 Further, the
aggrieved person has to prove that the unequal treatment is based on
a ground of discrimination enshrined in the Charter.13 Lastly, the
aggrieved person has to prove further that such unequal treatment has
substantially affected their human dignity due to unequal treatment.
2.1. Judicial Empowerment
Judicial empowerment has been vital in developing LGBT++
rights and jurisprudence in Canadian Law. One of the first cases to
break the ground was Canada (A.G) vs. Massop.14 Here, a same-sex
couple challenged discrimination based on “family status”. Brian
Massop was a gay man residing in Toronto who had sought leave from

12 Law vs Canada [1999] 1 SCR 497 (Sup Ct Can) ('Law’) (Supreme Court of Canada).
13 ibid 535–536.
14 Canada(AG) v Mossop [1993] 1 SCR 554 (Supreme Court of Canada).
188 INDIAN J. CONST. L.

work to attend funeral of his partner, Ken Popert’s father. However,

this bereavement leave was denied to Massop stating that Popert’s
father was not an “immediate family” member. Massop contested this
view before Canadian Human Rights Commission stating that sexual
orientation was not a prohibited ground of discrimination. Massop
argued that he was being discriminated against on basis of “family
status”, under section 3 of Canadian Human Rights Act. This case was
contested all the way to the Supreme Court of Canada. Although the
Supreme Court of Canada rejected his contention, it ended up making
an observation that many had not anticipated at the time. The Supreme
Court of Canada observed that there is a possibility to challenge
discrimination under Section 15(1) of the Charter. In fact, the Supreme
Court gave an indication that if the issues were contested under the
violation of equality provisions of the Charter, its decision could have
turned out differently.15 After the decision of Massop came the decision
of Miron v. Trundel16 which established a first-of-its-kind precedent in
common law. This case contested the rights of spousal benefits to
which a same-sex partners could be entitled after a car accident. The
court, in this case, ended up recognizing “marital status” as a potential
ground for discrimination under the Charter. This was a crucial first
step towards recognising same-sex relationships in Canada. The Court
observed that “marital status” was an analogous ground for
discrimination under Section 15 of the Charter. The case became the
first step towards same-sex relationship recognition in Canadian
jurisdiction.17
The quest of equality before law and equal protection of law
continued in another case of Egan and Nesbit v. Canada (“Egan v.

15 J Scott Matthews, ‘The Political Foundations of Support for Same-Sex Marriage in

Canada’ (2005) 38 Canadian Journal of Political Science 841, 848.
16 Miron v Trudel [1995] 2 SCR 418 (Canadian Supreme Court).
17 Matthews (n 15) 847.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 189

Canada”).18 James Egan and John Nesbit cohabitated for well over 40
years. James, in this case, sought to claim benefits from John’s old age
pension. While the court ultimately sided with the then-prevailing
definition19 of “spouse”, it unanimously declared sexual orientation to
be a protected category under the Charter. This meant that
discrimination based merely on a person’s sexual orientation would be
considered illegal in Canada.20 It is also important to note that Egan v.
Canada was not the only case at the time being fought in Canada; in
fact, fourteen21 others had already been fought under the Charter.
However, it was Egan v. Canada that marked a turning point in the
interpretation of the equality clause. It created ripples in the Canadian
jurisdiction and could be considered a period of “cooling off” until
2000s for the legislature at the federal and provincial levels.22 It brought
the issue of equality to the forefront, albeit momentarily. It also made
legislators, who wanted to act “cautious” or wanted issues related to
equality of LGBT++ people to remain on the back burner, wary that
such conduct could invite serious backlash from the public and
allegations of apathy towards the LGBT++ community.23
Unfortunately, the judicial voice did not reach the Canadian public as
clearly it should have.
2.2. The Air of Freedom and Equality
The journey towards equality in same-sex marriage rights in
Canada didn’t come about as a sudden shift because of legislative
actions or court decisions. Such shifts within society are often slow and

18 Egan v Canada, [1995] 2 SCR 513(Canada).

19 The common law case of Hyde v Hyde and Woodmansee [1866] 1 LRP & D 130, 133 (UK)
did not include same-sex couples in its definition of marriage as per the finding of
Canadian Supreme Court.
20 Egan v Canada (n 18) 528.
21 Miriam Catherine Smith, Lesbian and Gay Rights in Canada: Social Movements and Equality-
Seeking, 1971-1995 (University of Toronto Press 1999) 157.
22 Egan v Canada (n 18); Matthews (n 15) 848.
23 (n 15) 848–849.
190 INDIAN J. CONST. L.

happen over decades, fuelled by activities, strategic litigation, and

advocacy by scholars and educators that culminate into a shift in the
normative attitudes of people.24 The case of M v. H, 25 contested within
the providence of Ontario in 1999, was not limited to just law. It was
about the hearts and homes of a lesbian couple. In the factual matrix
of this case, two lesbian women who had been living together as a
couple for a decade were going through a split. Under the province of
Ontario’s Family Law Act.26 In this case, M sued H by challenging the
definition of the word “spouse” to obtain alimony after separation. It
was ruled that provisions of the Family Act clashed with the Charter,
which guaranteed equal rights for everyone. The Supreme Court of
Ontario gave the legislature a six-month period to bring amendments
to ensure same-sex couples would be recognised as spouses under the
law. The court’s message was loud and clear. Love is love, and the Law
needs to change to reflect this for LGBT++ people:
“The exclusion of same-sex partners promotes the view that M and
individuals in same-sex relationships generally are less worthy of
recognition and protection. It implies that they are judged to be
incapable of forming intimate relationships of economic
interdependence as compared to opposite-sex couples without regard to
their actual circumstances. Such exclusion perpetuates the
disadvantages suffered by the individuals in same-sex relationships
and contributes to the erasure of their existence.”27
In one stroke of a pen, the Canadian Court made it compulsory
to bring forth legislative amendments to give effect to the decision

24 Miriam Smith, ‘Social Movements and Judicial Empowerment: Courts, Public Policy, and
Lesbian and Gay Organizing in Canada’ (2005) 33 Politics & Society 327, 332.
25 M vs. H, [1999] 2 SCR 3(Canada).
26 Family Law Act, RSO 1990, c F.3, <https://canlii.ca/t/56763> accessed on 2024-08-19
27 M vs. H (n 25) para 73.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 191

immediately.28 This legislative activity throughout the Canadian

provinces also started to diffuse the information about the judiciary's
stance on Canada’s public and civil society. Even today in most
common law jurisdictions, this process of altering the legislative
framework after a judicial decision is rendered, is considered voluntary
and primarily depends upon political will. In the early 2000s, a
“relentless tide of equality” started to flow within Canada that showed
no signs of “receding backwards” or “slowing down”.29 By 2000, just
over 50 per cent of Canadians had started to support the idea of
marriage for same-sex couples.30
2.3. Battle for equality in provinces
At the dawn of the new millennium, the Canadian LGBT++
community, with newfound determination, started to contest marriage
issues throughout Canada's various provinces.
The case of EGALE Canada Inc. vs. Canada (Attorney General)31,
took place in the province of British Colombia in 2001. Equality for
Gays and Lesbians Everywhere Inc. (“EGALE v Canada AG”), filed
a case before British Columbia’s Attorney General. The petition
requested the Attorney General to declare any of the following two
things:

28 Matthews (n 15) 849.

29 The Netherlands was the first country to legalize same-sex marriage in 2001. Since then,
legal relationship recognition of same-sex couples has increased rapidly, especially among
Western states. Eleven Western European countries have legalized same-sex marriage at
the time of this writing: the Netherlands (2001), Belgium (2003), Spain (2005), Sweden
(2009), Norway (2009), Iceland (2010), Portugal (2010), Denmark (2012), France (2013),
England (2013), Wales (2013), and Luxembourg (2015. Canada was too, relatively early
in implementation of same sex marriage. See Louise Richardson-Self, Justifying Same-Sex
Marriage: A Philosophical Investigation [Rowman & Littlefield 2015] 15.
30 Matthews (n 15).
31 EGALE Canada Inc v Canada (Attorney General) 2001 BCSC 1365 (Supreme Court of
British Columbia).
192 INDIAN J. CONST. L.

Either declare that same-sex marriage is not prohibited by

statute or by common law, or;
Declare that prohibiting or not allowing same-sex couples
to marry within the province of British Columbia goes
against the equality rights enshrined under the Charter.
The Attorney General then referred this petition to the
Supreme Court of British Columbia. Interestingly, this decision also
added complexity to the narrative by ruling that prohibitions on same-
sex couples not to marry were discriminatory. However, in the view of
the court such discrimination under Section 1 of the Charter could be
allowed:
“[B]ecause of the importance of marriage in the Canadian context,
the preservation of its opposite-sex core far outweighs the deleterious
effect resulting from the refusal to provide legal status to same-sex
relationships under the rubric of marriage.” 32
It was the view of the court that opposite-sex couples
perpetuate the species of humans, therefore the State has the interest
in creating the distinction based on this:
“the one factor in respect of which there cannot be similarity is the
biological reality that opposite-sex couples may, as between themselves,
propogate the species and thereby perpetuate humankind. Same sex
couples cannot.”33
In the eyes of the court, since same-sex couples could not
“biologically” have children together, the court held that the then-
existing definition of marriage required no change. Supreme Court of
the British Columbia was of the view that the State had an interest in

32 ibid 215.
33 ibid 205.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 193

the “traditional definition of marriage” because it is a “core social and legal

institution in the society”.34
It needs to be clarified that this view among scientists and even
science itself has progressed since then. Today, there are assisted
reproductive technologies by way of sperm donation, egg donation and
gestational surrogacy available through which same-sex couples can
have biological children. Moreover, the Supreme Court of British
Columbia missed the intent of the Charter, about equality before law,
and lost its way to biology. There are many heterosexual couples who
face difficulties to conceive, are infertile, or do not wish to bring
children into the world. However, before law such marriages would
not go unrecognized. Marriage is a social as well as a legal construct in
which norms are enforced by communities, cultures, religions and even
the State.35 It cannot be reduced solely to the reproduction and
continuation of species. Proponents omit the fact that homo-sapiens
are a social species. Any social interaction, including sexual interaction
in a social species such as ours performs the role of establishing and
maintaining positive social relationships. It serves to maintain bonds
and alliances. It facilitates reconciliation in the face of conflict.36 Sexual
attraction has both physiological and psychological ingredients. It is a
stable trait which is innate to the individual. The moot question is
whether such individuals deserve to be treated differently because of
who they are. It is vital to have consideration over the fact that sexual
orientation is not something that people choose to have. However,
unfortunately this missed the eye of the Supreme Court of British
Columbia.

34 Alex Van Kralingen, ‘The Dialogic Saga of Same-Sex Marriage’: (2004) 62 University of
Toronto Faculty of Law Review 149, 154.
35 See Generally, Elizabeth S Scott, ‘Social Norms and the Legal Regulation of Marriage’
(2000) 86 Virginia Law Review 1930.
36 José M Gómez, A Gónzalez-Megías and M Verdú, ‘The Evolution of Same-Sex Sexual
Behaviour in Mammals’ (2023) 14 Nature Communications 5719.
194 INDIAN J. CONST. L.

Two years later in 2003, in the province of Ontario, another

battle for the recognition of equality was fought. This was in the case
of Halpern v Canada (Attorney General) in Ontario’s Superior Court of
Justice (Divisional Court).37 The province's Superior Court agreed –
that excluding same-sex couples was unfair and violated their Charter’s
provisions on equality before the law. The Court also rejected the
arguments that the 1867 Constitution does not allow the Parliament to
modify the legal meaning of “marriage.” However, the Court in this
case exercised judicial restraint and did not traverse into legislative
domain by changing the definition marriage. Instead, it gave the
legislature a 24-month time period to enable suitable remedy for the
LGBT++ community. This meant amending marriage laws to be
inclusive for everyone.
In the same year, a similar case titled Hendricks vs Quebec was
instituted by petitioners Michael Hendricks and Rene LeBeouf, in the
Cour Supérieure of Quebec. In this case, the court declared that
excluding same-sex couples from the concept of marriage is
discriminatory towards the LGBT++ community. The Cour
Supérieure of Quebec ruled that heterosexual characterization of the
institution of marriage as per Federal Law-Civil Law Harmonization Act,
No. 1,38(FLCLH Act) which was only applicable to the province of
Quebec, represented an unjustified violation of the Charter.
Interestingly, the Court ended up making a progressive observation
that marriages do not happen “solely for procreation”, deviating from
judgment by Supreme Court of the British Columbia in case of
EGALE vs Canada AG,39 and that definition has to give way to

37 Halpern v Canada (2003) 225 DLR 529 (Ontario Court of Appeal).

38 Federal Law-Civil Law Harmonization Act, No. 1, SC 2001, c 4,
<https://canlii.ca/t/51zdl> retrieved on 2024-08-19
39 EGALE Canada Inc v Canada (Attorney General) (n 31).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 195

recognizing same-sex marriage.40 Cour Supérieure of Quebec

recognized that moot question contested before it was not the
“definition” of marriage as that of being between “man and a woman”,
rather it was about equality before law and equal protection of law under the
Charter. Marriage is older than religions, and with time, religions came
to define marriages. However, there is no reason why the religious grip
on marriage should continue. The court succinctly put:
“The state must ensure respect for each citizen, but no group has the
right to impose its values on others or define a civil institution.” 41
The judge in sum and principle, came to the same conclusion
as the Ontario Court and held that Parliament is indeed the competent
and ultimate authority to modify the definition of marriage to reflect the
change and evolution in marriage. The judge ended up declaring
section 5 of the impugned FLCLH Act as inoperative, and just like in
the judgment from province of Ontario, the Cour Supérieure of
Quebec suspended its declaration for a two-year time period. These
decisions highlight the growing momentum for marriage rights and
equality. Moreover, Cour Supérieure of Quebec and Ontario’s
Superior Court of Justice made it clear with their rulings that they
would not accept subordination of one group by the other. This legal
back and forth between various institutions of Canada was setting up
the stage for the national conversation that was about to happen in the
coming years with regard to same-sex marriage rights. Two of the cases
that we have seen eventually proceeded to Courts of Appeal in
respective provinces which are the ultimate authorities in respective
provinces to interpret any provision of law.

40 Mary C Hurley, ‘SEXUAL ORIENTATION AND LEGAL RIGHTS: A

CHRONOLOGICAL OVERVIEW’ 12.
41 Hendricks v Québec [2002] RJQ 2506 (Québec Superior Court).
196 INDIAN J. CONST. L.

In May of 2003, the British Colombia Court of Appeal (BC

Court of Appeal), the province’s highest court, in the case of EGALE
vs Canada AG42 ended up unanimously overturning the judgment of
the Supreme Court of British Columbia in which the bar to same-sex
marriage was upheld. The BC Court of Appeal ruled that the traditional
definition of marriage was discriminatory against same-sex couples and
could not be justified against the Charter. However, the Court was also
of the opinion that Parliament has the constitutional authority to
legislate a modified definition of marriage, which would ensure that a
comprehensive solution could be made through amendments. The
court made the decision to suspend its declaration until July 2004. This
was to ensure that, in case the said period expired, same-sex couples
would be able to marry regardless of the amendments made by the
legislature. Lastly, the court observed that the Constitution of Canada
cannot be considered a dusty rulebook. It is a “living document” which
“evolves with time”:
“Civil marriage should adapt to contemporary notions of marriage as
an institution in a society which recognizes the rights of homosexual
persons to non-discriminatory treatment. I do not think that the
judgment under appeal can be supported on the ground that marriage
is so essentially heterosexual as to be constitutionally incapable of
extension to same-sex couples and in that respect immune from
Charter scrutiny” 43
In sum, the BC Court of Appeal put greater emphasis on the
part of the legislature in fashioning a comprehensive response. Even
though the it declined to grant an immediate relief by striking down
the law, the decision in EGALE vs Canada AG acted as a judicially

42 EGALE Canada Inc v Canada (Attorney General) 2003 BCCA 251 (British Columbia Court
of Appeal).
43 ibid 178–179.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 197

reinforcing force in the institution for the recognition of equality for

the LGBT++ community regarding marriage. As Canadian society was
undergoing transformation since the post-World War period, an
economic middle class of the LGBT++ community had emerged that
had “out” itself to the eyes of the public.44 These were primarily white
men, but they were able to access various professions, such as lawyers,
doctors, and nurses. Through these professions, they helped create an
understanding in society that despite being homosexuals, they were not
so different from the rest of the majority. In sum, this decision not
only created an impetus to introduce institutional change but also
created the push for a social movement and politics of human rights,
which defined its end in recognition of equality.
In June 2003, the case of Halpern v. Canada went before the
Ontario Court of Appeal, in which it was again unanimously held that
the common law definition of marriage creates an unjustifiable
violation of Section 15 of the Charter. In comparison to the Superior
Court of Appeal of British Columbia and Cour de Superior of Quebec,
the Ontario Court of Appeal took the big step of not waiting for the
Canadian Parliament to bring in the amendments to the marriage laws.
Instead, it declared the right of same-sex couples to marry with
immediate effect in the following words:
“There is no evidence before this court that a declaration of invalidity
without a period of suspension will pose any harm to the public,
threaten the rule of law, or deny anyone the benefit of legal recognition
of their marriage. In our view, an immediate declaration will simply
ensure that opposite-sex couples and same-sex couples immediately
receive equal treatment in law.”45

44 Smith (n 24) 337.

45 Halpern v Canada (n 37).
198 INDIAN J. CONST. L.

However, the Ontario Court of Appeal did concede to the fact

that reforming the definition of marriage would require a “substantial
volume of legislative reform”.46 The Canadian Constitution vests the power
to legislate matters related to marriage to the Canadian Parliament or
Federal Government. We have seen that in three landmark cases of
provinces of Ontario, British Colombia, and Quebec, the courts of
these provinces started to observe that under Common Law,
restrictions on LGBT++ couples or “same-sex” marriage go against
Section 15(1) of the Charter and the restrictions on these freedoms
could not be kept under iron-clad grip of tradition under the Section 1
of Charter.47 The court, while weaving a new thread in the fabric of
equality in the Canadian Jurisprudence, held that the Charter demands
that a gay or a lesbian couple has every right to be treated equal to a
heterosexual couple.48 The Court further opined that as a guarantor of
freedoms under the Charter, equal treatment for same-sex couples
must be declared with immediate effect. The social ramifications of
this decision were quick. The Court issued the writ of mandamus in
Toronto to compulsorily issue marriage licenses or certificates to
couples wanting to get married. Within hours, marriage ceremonies
between same-sex couples were taking place, and by the end of the
year, no less than a thousand same-sex marriages had taken place in
the province of Ontario.49

46 ibid 153.
47 EGALE vs Canada (2003) 225 DLR 472 (British Columbia Court of Appeal); Halpern v
Canada (n 37); Hendricks v Québec (n 41).
48 Wintemute has given an excellent analysis of the doctrines employed in the judgment
Egan v. Canada. The Supreme Court majority in this case failed to appreciate the case
Egan and Nester were making out for themselves. The Court misapplied the test of
“Similarly Situated”, “Irrelevant personal Differences”, “Ground of Distinction” and
“Discriminatory Impact” of the majority view. See Robert Wintemute, ‘Sexual
Orientation Discrimination as Sex Discrimination: Same-Sex Couples and the Charterin
Mossop, Egan and Layland’ 39 441-451.
49 Kralingen (n 34).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 199

2.4. Response from Canadian Federal Government

The Federal government of Canada chose not to appeal the
three judgments by the apex court of the respective provinces. Instead,
the Federal government sought to propose a new law, providing for
the first time a changed definition of marriage. It defined marriage as
“the lawful union of two persons to the exclusion of all others”. The
Federal government made a reference to the Supreme Court of Canada
seeking an advisory opinion on whether the new law, if enacted, would
be constitutional or not.50 It is a well-known principle in jurisprudence
that references sought by the government from the Courts do not have
a binding effect on the power of the legislature or executive. These
opinions are merely advisory in nature.
The executive branch of the government posed three questions
to the judiciary51 :
1. Does the federal government or parliament have the exclusive
authority to legislate the proposed bill?
2. If the first question is valid, is granting an extension of the right
to marry to same-sex couples not against the Charter?
3. Does the Charter protect freedom of religion and thereby grant
the right to religious groups not to perform religious
ceremonies if they contradict their religious beliefs?
In a unanimous verdict52, the Supreme Court of Canada
observed succinctly that the moot question was whether the LGBT++
community had the “capacity for marriage” and whether the institution

50 Graham Gee and Grégoire CN Webber, ‘Same-Sex Marriage in Canada: Contributions

from the Courts, the Executive and Parliament’ (2005) 16 King’s Law Journal 132, 136.
51 Order in Council PC 2003–1005 (16 July 2003) annexing the Proposal for an Act
respecting certain aspects of the Legal Capacity for Marriage for Civil Purposes.
52 Reference Same-Sex Marriage [2004] 3 SCR 698.
200 INDIAN J. CONST. L.

of marriage could transcend its traditional confinement to heterosexual

couples.53 The interveners in the case endeavoured to persuade the
court by using the rule of original interpretation at the time of the
Constitution's drafting. The Court observed that the framers of
Canadian Constitution could not have envisioned the extended the
meaning of “marriage” to homosexual unions. The Court, with
unwavering resolve, rejected this reasoning, stating that marriage
cannot be kept “frozen in time”.54 The Court observed that marriage
could not be held as a relic of the past; it is a living institution that had
the capacity to change and evolve. It was further held that the Canadian
constitution is a living document. The court held that marriage was an
agreement between two persons “to the exclusion of all others”.55 This
pronouncement by the Court would reverberate beyond the
courtrooms and would be heard till the corridors of legislation. The
Parliament of Canada enacted the Civil Marriage Act, under which the
Canadian State legalised same-sex marriage. Canada became the fourth
country after Netherlands, Belgium, and Spain to recognise same-sex
marriage, etching its name in history. The Bill was passed in the
Parliament by a solid majority and received assent from the Governor
General on the 20th of July in 2005.
To summarise the right of Canadian same-sex couples to
marry, we have seen how the Charter has played a pivotal role in
bringing the LGBT++ community into its fold by extending to them
the right to marry. This recognition of equality was simultaneously
being contested in different provinces, such as Quebec, Ontario and
British Columbia. Moreover, the federal character of the Canadian
State allowed a pluralistic and enriching debate to emerge with regard

53 ibid para 16.

54 ‘Canada: The Constitution and Same-Sex Marriage’ (2006) 4 International Journal of
Constitutional Law 712, 717.
55 Reference Same-Sex Marriage (n 52) para 27.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 201

to the right of LBGT++ people to marry, both on legal as well as

cultural fronts. Article 15 of the Charter grants equal opportunity to all
persons under the law as well as the right to enjoy equal protection and
benefits from it. This Article has played a pivotal role in furthering
Canadian constitutional jurisprudence for sexual minorities and for
aboriginals as well.56 We have also seen that the judiciaries of British
Columbia and Quebec were inclined in favour of reforms through
legislative channels. They gave the Parliament the indication to make
amendments to include same-sex marriage on an equal footing with
heterosexual marriages. Meanwhile, Ontario’s Court of Appeal
considered a novel and more insightful approach, calling for the
Canadian State to prove that striking the laws down as unconstitutional
could cause the problem of maintaining “public order.” A common
golden thread that runs in every judgment by highest courts of
respective provinces was that none would accept one group’s
domination over the other group when it came to defining marriage.
Holding that marriage has a social and evolving character, the
definition had to change with changing times. Moreover, as the highest
courts of provinces were making it clear by way of their
pronouncements that denying LGBT++ people the right to marry
goes against the Charter, they kept galvanising the issue of same-sex
marriage before the public. Lastly, the issue of same-sex marriage, as
much as it may have become a conversation among intellectuals,
scholars, feminists, lawyers and educators, still needed to become a
conversation among common folks for attitudinal or normative
change towards sexual minorities. Amending the law is often only a
part of the solution to the problem. These are merely stepping stones
towards resolving a social issue. Attitudinal change is much more
formidable challenge. There is no option for the oppressed but to keep

56 John D Richard, ‘Federalism in Canada’ (2005) 44 Duquesne Law Review 5, 16.

202 INDIAN J. CONST. L.

living under the coercive and arbitrary powers and actions executives
and even society itself. Yet hope can emerge in hearts when institutions
of nations – judiciary, legislature and executive engage in constitutional
dialogue. This dialogue is not a battle ground for ideologies or assertion
of power by one institution over the other. Instead it is an honest and
good-faith conversation on basic tenets of constitutional guarantees,
which eventually pave way for progression of gender equality in the
legal realm, and by allowing diffusion of information among common
persons, in the social realm as well. Is this not the hallmark of a well-
functioning and mature democracy, where each voter able to
participate in collective decision-making with the best information
accessible to them? The constitutional courts of Canada and the
Canadian Parliament had conversations by way of judgments,
amendments and references and raised their baton like season
choreographers in unison, coming to an agreement on the issue of
same-sex marriage, causing a shift in the trajectory of Canadian polity,
paving the path towards inclusive polity. Canada weaved a new chapter
in its history where statutes bowed to rhythms of change. A land where
love among consenting adults had no bounds.
3. Tracing doctrinal history of same-sex marriage in the United
States of America
In the USA, there is a rich history and jurisprudence regarding
the rights of same-sex couples to marry. In the USA, issues of same-
sex marriage have been analysed from multiple viewpoints and
approaches. The first one is under the “equal protection clause”, the
second one is the “anti-subordination” principle and last is
“substantive due process”. This article will not attempt to reproduce
the above-mentioned approaches, for they have been succinctly and
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 203

adequately discussed elsewhere.57 Instead, it shall confine itself to

information that is minimal but necessary for the purpose of the
discussion related to same-sex marriage.
3.1. Equal Protection before Law
Equal protection is also known by other names such as “equal
access to liberty” and “equal protection of dignity”; similarly, the anti-
subordination principle is also known as the “anti-humiliation” or
“anti-subjugation” principle. Under the equal protection clause, cases
have been traditionally analysed using the Three-Tier Framework. The
first or the highest level is known as “strict scrutiny” or famously
known as “strict in scrutiny, fatal in fact”.58 Under the tier of strict
scrutiny, a law has to be “narrowly tailored to further a compelling
interest”.59 The law that creates classification is challenged before the
Court, and in such cases, it becomes “suspect classification”. To
understand this, consider a table on which there are two bins, namely
“good on face” and “bad on face”. When the court is called to apply
the Strict Scrutiny test, it puts the law in the “bad on face” category

57 Ruth Colker, ‘Anti-Subordination Above All: Sex, Race, and Equal Protection’ 61 New
York University Law Review 1003; Stacey L Sobel, ‘When Windsor Isn’t Enough: Why
the Court Must Clarify Equal Protection Analysis for Sexual Orientation Classifications’
(2015) 24 493; Steve Sanders, ‘Dignity and Social Meaning: Obergefell, Windsor, and
Lawrence as Constitutional Dialogue’ (2018) 87 Fordham Law Review; Maxwell L
Stearns, ‘Obergefell, Fisher, and the Inversion of Tiers’ 19 1043; Peter Nicolas, ‘Gay
Rights, Equal Protection, and the Classification-Framing Quandary’ (2014) 21 Geo.
Mason L. Rev. 329.
58 Washington v Davis 426 US 229 239, 240 ("Necessarily, an invidious discriminatory
purpose may often be inferred from the totality of the relevant facts, including the fact,
if it is true, that the law bears more heavily on one race than another .... Nevertheless, we
have not held that a law, neutral on its face and serving ends otherwise within the power
of government to pursue, is invalid under the Equal Protection Clause simply because it
may affect a greater proportion of one race than of another. Disproportionate impact is
not irrelevant, but it is not the sole touchstone of an invidious racial discrimination
forbidden by the Constitution. Standing alone, it does not trigger the rule that racial
classifications are to be subjected to the strictest scrutiny and are justifiable only by the
weightiest of considerations. ").
59 Gerald Gunther, ‘Foreword: In Search of Evolving Doctrine on a Changing Court: A
Model for a Newer Equal Protection’ (1972) 86 Harv. L. Rev. 1, 8.
204 INDIAN J. CONST. L.

and proceeds on this assumption. The assumption of strict scrutiny

goes heavily against the law. Against a strict scrutiny test, it is virtually
impossible for a law to survive the interference of a “fundamental”
right.
The second level of equal protection jurisprudence is
“intermediate scrutiny”. If a law can withstand this scrutiny, it “must
serve important governmental objectives and must substantially relate
to the achievement of those objectives”.60 This tier of equal protection
scrutiny is also a difficult tier to satisfy. The question of why a court in
the USA should apply intermediate tier rather than strict scrutiny tier in
cases involving same-sex marriage is unclear.
The lowest tier of equal protection is known as the “rational
test”. It is considered the weakest form of judicial review because,
under this scrutiny, a law is sustained “if the classification drawn by the
statute is rationally related to a legitimate state interest”.61 It is the
weakest form of scrutiny that could be exercised while testing the
constitutionality of the State’s action. Coming back to the bin analogy,
most laws in this test would go into the “good law” bin. When a law
only needs to justify rational test, it is likely to sustain the scrutiny of
judicial review. Scholars also refer to the trinity of these equal
protection tests as the “sliding scale” test for the equal protection
clause in the USA. Another set of scholars have also developed
additional tiers in this sliding scale.62 The traditional sliding scale of
equal protection clause in the USA is further divided into two
additional tiers of scrutiny, namely, “Rational Basis Plus” and “Strict
Scrutiny Lite”. The “Rational Basis Plus” is more demanding than
merely rational basis review, and “Strict Scrutiny Lite” employs a less

60 Craig v Boren [1976] 429 US 190.

61 City of Cleburne v Cleburne Living Center 473 US 432 (1985) 460.
62 Stearns (n 57) 1047.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 205

stringent form of scrutiny utilised in the highest tier level. The Strict
Scrutiny tier demands from the government that the classification
created under a law serves a “compelling governmental interest”.
Additionally, such means employed by the government are “narrowly
tailored to further that interest”. However, the initial burden is on the
claimant to identify the “trigger” for strict scrutiny. Once the
challenger or petitioner discharges their burden, then the government
has to satisfy compelling state interest and narrow tailoring to make the law
sustainable. Conventionally, a rational basis has been the rule, and strict
scrutiny is rarely employed.63 On its own tiers of equal protection,
scrutiny always analyses “discriminatory intent” on the part of the
State’s actions, which is ineffective due to the reason discrimination
may also consist of “implicit biases” against “socially marginalized
groups” that operate without our “conscious awareness”.64
3.2. The Anti-Subordination Principle
On the other hand, scholars of anti-subordination primarily
concern themselves with the effects that governmental action has on
disadvantaged groups even when, on the face of it, the action does not
seem to discriminate. The central point of the anti-subordination
principle is that even when there is a lack of discriminatory intent in
the law, the effect of such law perpetuates discrimination and creates
disparate outcomes. The purpose of anti-subordination is to unearth
not only those prejudices that people of the past had, but also to
unearth those prejudices that, to us, seem “natural, familiar and fair”.65
The identification of the subordinate group could be done by asking
whether the group:

63 ibid 1049–1052.
64 Kristin A Lane, Jerry Kang and Mahzarin R Banaji, ‘Implicit Social Cognition and Law’
(2007) 3 Annu. Rev. Law Soc. Sci. 427.
65 Reva Siegel, ‘Why Equal Protection No Longer Protects: The Evolving Forms of Status-
Enforcing State Action’ [1997] Stanford law review 1111, 1113–1114.
206 INDIAN J. CONST. L.

1. Is an insular and discrete minority;

2. Has suffered historical injustice, such as discrimination,
segregation or denial of access to public institutions such as
educational institutions or temples;
3. Has no political power or is politically powerless or is a
statistical and marginalised minority;
4. Is defined by an immutable or ascriptive trait that is not
relevant for one to lead a functional life in society.66
Depending upon the facts and circumstances of a case a
Constitutional court satisfies itself on above conditions based on
empirical data or evidence. Robustness of such data will depend upon
the sociological, historical, anthropological and legal research methods
both in quantitative and qualitative domain utilized to ascertain
whether a class or group satisfies some or all of the above conditions.
If the answer to the some of the above questions is affirmative, then
the second step is to apply heightened or strict scrutiny to the
classification that has been challenged or will be created by the State.
In such analyses, the specifics of each case will differ. For instance,
women, despite not being a statistical minority, may experience
subordination due to their gender. The aforementioned rules are not
rigid; circumstances may necessitate deviations from them. The
identification process outlined by these rules serves merely as an
illustrative example. If a pre-existing classification, or one that is
sought to be created by the State, develops hierarchies and perpetuates
the subordination of marginalized groups, such classification would be
liable to be struck down. Classification could be based on race, gender
or even sexual orientation. When the law introduces a classification,

66 Susannah W Pollvogt, ‘Beyond Suspect Classifications’ (2013) 16 U. Pa. J. Const. L. 739,

742.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 207

the anti-subordinate doctrine will put emphasis on the effect of such

classification on marginalized groups and see whether such groups are
facing subordination under the scheme of classification.67
3.3. The Test of Substantive Due Process
The final test is that of “substantive due process”. This
doctrine originates from the Fifth and Fourteenth Amendments of the
US Constitution. The Fifth Amendment is applicable to the federal
government, while the Fourteenth Amendment is applicable to the
action of the State. Under this doctrine, the government cannot
deprive an individual of their life, liberty or property without adhering
to procedural requirements. In other words, the Supreme Court has
interpreted this doctrine to include substantive guarantees that require
the State to fulfil certain obligations before it can restrict an individual’s
liberty. If it is proved before the Court that the State action infringes
upon the fundamental rights of the people, the Supreme Court has
consistently maintained the position that a test of strict scrutiny would
be applicable. Therefore, it is necessary for the State action to be tailored
narrowly. And as we have seen, the state action here must be substantial
as well as legitimate in furtherance of a compelling interest.68 If a
compelling State interest is established, then the State action cannot
interfere any more than is necessary to achieve that compelling
interest.69 In addition to these, there should be no possibility for the
government to take any other alternative course that would further its
interest while interfering less with fundamental rights.70 In India, all

67 Abigail Nurse, ‘Anti-Subordination In The Equal Protection Clause: A Case Study’ 89

New York University Law Review 293, 300–301; Roe v Wade 410 US 113 (1973); Planned
Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992); Loving v Virginia 388 US
1; Maxwell L Stearns, ‘Obergefell, Fisher, and the Inversion of Tiers’ 19 1043, 1051–
1053.
68 San Antonio Indep School Dist v Rodriguez, [1973] 411 US 1, 98 (Supreme Court of USA).
69 Dunn v Blumstein, [1972] 405 US 330 343.
70 ibid 488.
208 INDIAN J. CONST. L.

such tests related to “equal protection of law” are subsumed within the
phrase “proportionality doctrine”. 71
3.4. Tracing History through cases of Supreme Court of US
The celebrated case of Brown v Board of Education of Topeka72
condemned the classification of citizens on the basis of race and
inflicting harm by perpetuating subordination. The case of Loving v.
Virginia,73 wherein miscegenation laws were declared unconstitutional,
was similarly tested on the principles of strict scrutiny and anti-group
subordination. After the decision of Loving v. Virginia, a number of
activists and scholars argued for a ban on same-sex marriage to be
looked at as a suspect classification and be subject to strict scrutiny.74
An attempt was made to shift the burden onto the State to justify its
discrimination against LGBT++ people. But we will see below that the
Supreme Court has refrained from applying the anti-subordination
principle since the mid-1970s. It is unclear as to why the courts in USA

71 Association for Democratic Reforms v Union of India 2024 INSC 113 (Supreme Court of India)
103–111.(The Indian Courts apply the proportionality test in different stages.
1. The first stage involves analyzing the comparative importance of the rights in
question.
2. The second stage lays down the justification for any potential infringement of these
rights.
3. The third stage applies the proportionality standard to both rights.
4. In the Fourth and final stage, the Court undertakes a balancing act by weighing
whether the cost of interfering with one right is proportional to the fulfilment of
the other. This stage encapsulates an analysis of the comparative importance of
consideration involved in the cases. The justifications for infringement of rights, the
proportionality of the effect for infringement of the rights.
Thus, to sum up, the Court assesses
1. whether the measure is a suitable means for furthering rights A and B.
2. Then, determining the measure is the least restrictive and equally effective means to
realise rights A and B.
3. Lastly, Evaluate whether the measure has a disproportionate impact on rights A and
B.)
72 347 U.S. 483,493 (1954) (“[t]o separate [Black children] from others of similar age and
qualifications solely because of their race generates a feeling of inferiority as to their status
in the community that may affect their hearts and minds in a way unlikely ever to be
undone.”)
73 Loving v. Virginia (n 5).
74 Nicolas (n 57) 357.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 209

have not included anti-subordination principle in case of same-sex

marriage, when it was used on similar lines to strike down
miscegenation laws. A possible explanation is that ant-miscegenation
at its core is about whom people in America were allowed to marry,
while when it comes to same-sex marriage the definition of marriage
takes the centre stage during the debate.
For the better part of US Constitutional history, the issue of
same-sex marriage has remained elusive to the Fourteenth
Amendment’s Equality Protection. In the case of Baker v Nelson75
before the Supreme Court of Minnesota, a gay couple challenged the
definition of marriage between “husband and wife” as violative of
substantive due process and equal protection doctrine. The petitioners
contested that the equal protection doctrine had to apply equally to
“same-sex couples” and “heterosexual couples”. However, siding with
the State, the court rejected arguments and held that the statute was
not discriminatory because neither men nor women were allowed to
marry a person of the same sex. Court created the framework in which
it looked at the issue from a lens of “formal equality”. In the court's
view, if both men and women were stopped from marrying their own
sex, then the law could not be said to be violative of the equal
protection doctrine. In sum, the statute did not offend the
Constitution’s equal protection doctrine as per the Supreme Court of
Minnesota.76The couple then challenged this decision before the
Supreme Court of the USA, arguing the following:
First, that the statute violated their Fourteenth
Amendment right to Equal Protection.

75 Baker v Nelson 409 US 810 (1972).

76 Baker v Nelson 191 NW2d 185 (Minn 1971) (Minnesota Supreme Court) 186–187.
210 INDIAN J. CONST. L.

Second, the statute further violated due process under the

Fourteenth Amendment.
Third, the statute’s definition of marriage was a violation
of their right to privacy under the Fourteenth and Ninth
Amendments of the US Constitution.
The Supreme Court of the US summarily dismissed the appeal.
Then came the case of Romer v Evans77, in which the Supreme Court
had the task of determining whether the amendment of the
Constitution of Colorado, which prohibited legislative, executive and
judicial action to protect gay people from discrimination, violated the
Fourteenth Amendment.
The Supreme Court in 1973, citing USDA v. Moreno, held that
“[if] equal protection of laws means anything, it must at the very least
mean that a vast congressional desire to harm a politically unpopular
group cannot constitute a legitimate government interest”. 78
There is an argument among scholars about whether, in this
case, the Supreme Court applied a rational basis or a rational basis plus
review doctrine. The hostility at that point towards LGBT++ people
was high, and the Supreme Court probably took this fact into
consideration and perhaps raised scrutiny to a higher level than rational
basis. However, this is mere speculation that we can reasonably infer
from the text of the judgment. The Supreme Court also failed to
answer whether people who identified as LGBT++ could be
considered a “suspect class” or not. In 1993, the Supreme Court of
Hawaii became the first constitutional court in America to allow same-
sex marriage.79 However, this ruling ended up creating a popular

77 Romer v Evans 517 US 620 (1996) (Supreme Court of United States).

78 USDA v Moreno [1973], 413 US (Supreme Court of United States) 538.
79 Baehr v Lewin 852 P2d 44 (Haw 1993).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 211

backlash, due to which a constitutional amendment was brought in by

way of a referendum in the State of Hawaii to keep same-sex marriage
illegal. In 1996, Congress brought in the Defence of Marriage Act
(DOMA) in order to thwart progress that various States within USA
and as well as Courts tried to make in full recognition of same-sex
marriages. During the enactment of DOMA time, around 44% of
Americans were of the view that homosexual relationships between
two consenting adults did not deserve to be punished under the law. 80
American views regarding homosexuality more or less had started to
transform during the 1980s and 1990s. However, in the early 2000s,
the opinion shifted so much that scholars described the attitudinal
change of Americans as “unprecedented”.81 By the early 2000s, even if
the American public was not ready to witness the extension of marriage
equality to gays and lesbians, the attitude of Americans steadily moved
in the direction before which it became difficult to defend and justify
the objective of criminalization and banning of sodomy laws.82
The next landmark case was that of Lawrence v. Texas83 in 2003,
under which two gay men were arrested for engaging in sexual
conduct. An immediate precedent on similar facts existed before the
Supreme Court while deciding this case. In 1986, the Supreme Court,
in Bowers v. Hardwick84 had declared sodomy laws to be constitutionally
valid. In Bowers, the court applied the rational basis doctrine because the
State did have a legitimate interest in criminalising sodomy as it had to
maintain moral order in public. The state of Georgia was merely

80 Sanders (n 57) 2085.

81 ‘How Unbelievably Quickly Public Opinion Changed on Gay Marriage, in 5 Charts - The
Washington Post’ <https://www.washingtonpost.com/news/the-
fix/wp/2015/06/26/how-unbelievably-quickly-public-opinion-changed-on-gay-
marriage-in-6-charts/> accessed 25 March 2024.
82 Sanders (n 57) 2085.
83 Lawrence v Texas 539 US 558 (2003) (Supreme Court of United States).
84 478 U.S. 186 (1986)
212 INDIAN J. CONST. L.

required to demonstrate before the Supreme Court that sodomy law

served some “legitimate state objective” and that the law was tailored
narrowly to achieve the objective. It is important to contextualise the
decision of Bowers; it came during the peak of the AIDS crisis decision
of the Supreme Court.85 The Supreme Court in Bowers accepted the
version of legal moralism, ignoring the relevancy of the right to
privacy, contributing to not only bad law but also bad science86, thereby
contributing to stigma around AIDS.87 It created fertile ground to
intensify fear as well as to justify discrimination against a class of
people who had no legal protections of the law. People were evicted
out of their rented properties by landlords, ostracised by friends and
family and, in the worst-case scenario, were even declined treatment
by doctors for being infected with HIV.88 Therefore, under the
backdrop of this social context and history, the question before the
Supreme Court in the case of Lawrence was whether the laws of Texas
violated the substantive due process doctrine and infringed the
fundamental right to privacy of same-sex couples. The Supreme Court
in Lawrence, reversing the judgment of Bowers, came to the conclusion
that substantive due process indeed played a role in the agreement
between two consenting adults and that the petitioner would be
entitled to equal liberty protections.89 As much as the case was an important

85 Bowers v Hardwick 478 US 186 (1986) (Supreme Court of United States).

86 Morality itself is a source of great debate among scholars, and a great amount of ink has
flown into debating which kind of morals can be given the backing of the law. For
example, Ronald Dworkin has been of the view that moral views cannot be given the
force of law because they can be based on prejudice, false claims, rhetoric, and parroting.
Then, Patrick Devlin advocates that morality is merely a feeling, it can arise from disgust,
take birth from indignation, sprout from intolerance in the minds of ordinary men. HLA
Hart has said if morals have “sufficient strong feelings” attached to them, they can be
given the backing of the law. See, Christine Pierce, ‘AIDS and Bowers v Hardwick’ (1989)
20 Journal of Social Philosophy 21, 24.
87 David W Purcell, ‘Forty Years of HIV: The Intersection of Laws, Stigma, and Sexual
Behavior and Identity’ (2021) 111 American Journal of Public Health 1231.
88 ibid.
89 Lawrence v Texas (n 83) 578.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 213

step in the recognition of equality for LGBT++ people, it did not

make it clear how rational basis scrutiny could be utilised to its maximum
potential for applying equal protection for the LGBT++ community.
Nevertheless, the Court did hold that the amendment to the statutory
provisions, to contain animosity towards a particular class and animus
towards a class, could never be a rational objective.90 The cases of Romer
and Lawrence are two focal points for us to understand whether a ban
on same-sex marriage could be considered a legitimate interest of the
Government.
In 2013, Pew Research Centre surveyed Americans regarding
the cause of the shift in their minds regarding same-sex marriage; the
most common answer was that they “knew someone…who was gay”.91
With time, more and more closeted LGBT++ individuals started to
come out. In the same year, the Supreme Court faced the case of United
States v. Windsor.92 Windsor and her spouse resided in the State of New
York, where their marriage was legally recognised by the law. The
deceased spouse of Windsor left the entire estate, which was worth
$363,053, to her. Windsor sought to claim an exemption to pay federal
estate tax on this estate, claiming a marital exemption.93 The Internal
Revenue Service (IRS) denied Windsor’s refund on finding that
Windsor was not a “surviving spouse” under the Defense of Marriage
Act (DOMA).94 Windsor sought to challenge DOMA before the
Supreme Court of the United States of America, claiming that it
violated the equal protection clause.95 The Supreme Court observed that

90 ibid 575.
91 ‘Growing Support for Gay Marriage: Changed Minds and Changing Demographics’
(2013) <https://www.pewresearch.org/politics/2013/03/20/growing-support-for-gay-
marriage-changed-minds-and-changing-demographics/> accessed 25 March 2024.
92 United States v Windsor [2013] 133 S Ct 2675 (Supreme Court of the United States
America).
93 ibid 2683.
94 ibid.
95 ibid.
214 INDIAN J. CONST. L.

protection under the Fifth Amendment prohibited Congress from

targeting unpopular political groups by way of disparate and
discriminatory treatment to harm that group. However, it is unclear
how much role equal protection doctrine played in this case. But the
Supreme Court did clarify that the animus test would get triggered in
cases where “unusual character of discrimination has been
established”.96 When animosity is involved in the discrimination, the
Court would give weight to more consideration than discrimination in
which there is no animosity is present. Cases where no animosity is
present could be interpreted as systemic or unconscious discrimination
that is embedded within the legal system. Scholars have argued that the
American Federal Structure had far more influence on the outcome of
this case. This is because the Supreme Court had done a historical
analysis of the institution of marriage in America, which was subject to
the regulation of the states rather than the federal government.
Furthermore, DOMA had departed from this long-standing tradition
or practice.97
Lastly, in the case of Obergefell v Hodges98 the Supreme Court
heard arguments from 14 same-sex couples. They asserted before the
Supreme Court that states like Michigan, Ohio, Kentucky and
Tennessee violated their right under the Fourteenth Amendment by
not recognising their right to marry within their territory or any other
state if even if such state recognized their marriage as legal and valid.
The Supreme Court powerfully observed in this case that even though
the right to same-sex marriage was not traditionally rooted in the
history of America, the right to marriage was, and quoting a paragraph
from Lawrence discussed its legal tradition:

96 Samuel G Gustafson, ‘The Doctrine of the Same-Sex Marriage Cases: A Brief Analysis
of Animus’ (2019) 33 Brigham Yougn University Prelaw Review 1, 2–4.
97 United States v. Windsor (n 92) 2680.
98 Obergefell v Hodges 135 S Ct 2584 (2015) (Supreme Court of United States of America)
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 215

“The nature of injustice is that we may not always see it in our own
times. The generations that wrote and ratified the Bill of Rights and
the Fourteenth Amendment did not presume to know the extent of
freedom in all of its dimensions, and so they entrusted to future
generations a charter protecting the right of all persons to enjoy liberty
as we learn its meaning.”99
The Court noted the blindness of each generation that
Founders of America had humbly recognized while drafting the
American Constitution. Framers foresaw that liberty would undergo
abstractions by future generations.100 Supreme Court extended animus
analysis from Romer and struck down a ban on same-sex marriage in
the whole of USA. As we have seen, the courts have been rather
reluctant to utilize the anti-subordination doctrine, which was utilized by
Brown and Loving. A pattern of analysis seems to suggest that there has
been a shift in American Jurisprudence from the lowest tier of equal
protection doctrine, i.e., rational basis, to a more intermediary type of
scrutiny, be it animus or substantive due process. This is the case at least
when it comes to analysing same-sex marriage by the Supreme Court.
However, courts have consistently refused to apply the anti-
subordination principle since the striking down of the anti-miscegenation
laws, except when it comes to analyzing affirmative action by the
State.101
4. Love Unchained: The Fight for Queer Affection in India
In a diverse country like India, the pursuit of love transcends
all boundaries, yet the path to inclusive love has been fraught with

99 Lawrence v Texas (n 83) 578–579; Obergefell v Hodges 135 S Ct 2584 (2015) (Supreme Court
of United States of America) 2598.
100 Kenji Yoshino, ‘A New Birth of Freedom? : Obergefell v. Hodges’ (2015) 129 Harvard
Law Review 147, 17.
101 Stearns (n 57) 1101.
216 INDIAN J. CONST. L.

challenges. India’s struggle for freedom and its ideas of fraternity has
been carved into the constitution. Analysis of the Indian judgment
would be done under the light of American and Canadian
jurisprudence that has been discussed in preceding sections. The
Constitution of India aimed to bring an end to age-old customs of
marginalization, oppression, exclusion, and humiliation, which
ultimately resulted in the “dehumanization of the human self.”102 The
idea of equality was central to eradicating practices like untouchability,
violence, and discrimination based on caste, sex, and gender, which
fundamentally undermine a person's dignity. Dignity is the “intrinsic
worth of a human” by which they are “entitled to certain basic respect”
from fellow humans. 103 Dignity has an internal as well as an external
character. In its external state, dignity has multiple facets, such as a
right to be “treated as a fellow human”, a right of “due respect,” and a
right of “equal worth.”104 Denying these rights can harm an individual’s
internal sense of dignity, leading them to feel diminished in their own
eyes.105 It is under the shield of this dignity that Section 377 of the
Indian Penal Code, 1860, was sought to be decriminalized. It was a
colonial provision that imposed victorian morality on Indian Citizens.
Decriminalization robbed homosexuals of the right to an identity and
personhood. The Queer community again found itself at a crossroads.
It now sought the right to marry within the existing framework of laws
prevailing in India in the case of Supriyo Chakraborty v Union of India.

102 Supriya Chakraborty and Another vs Union of India (n 10) 283.

103 Francis Coralie Mullin v Administrator, Union Territory of Delhi 1981 (2) SCR 516 held ‘Right
to life includes the right to live with human dignity’; In Prem Shankar Shukla v Delhi Admn
1980 (3) SCR 855 was held ‘human tone and temper of the Founding Document
highlights justice, equality and dignity of an individual’. Justice KS Puttaswamy v Union of
India (2017) SCCOnline SC 996 (Supreme Court of India); National Legal Service Authority
vs Union of India Supreme Court of India W.P.(C) No. 400/2012, 2014 INSC 275.
104 Supriya Chakraborty and Another vs Union of India (n 10) 285.
105 ibid.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 217

4.1. Background
The brief background of this case is as follows. On the 14th
November 2022, same-sex couples filed a writ petitions in the Supreme
Court of India for recognition of the right of same-sex couples to
marry in India. The petitioners argued that Section 4(c) of the Special
Marriage Act (after this “SMA”) discriminates against same-sex
couples because it only recognises ‘male’ and a ‘female’ as parties
capable of marrying. This discrimination, in turn, the petitioner
contended, leads to the prevention of rights that they should be able
to enjoy as any other citizen, such as benefits of adoption,
employment, retirement, pension, and surrogacy.
Petitioners contended before the Court that not recognizing
their right to marry goes against the fundamental rights given under
Part III of the Constitution of India. The reliance was primarily based
upon the Judgment of NALSA and Navtej Singh Johar v. Union of India,
where recognition of the gender identity of non-binary people and
guarantees of equal rights of homosexuals have been observed.106
The Supreme Court of India addressed numerous key questions
regarding the marriage of same-sex couples raised by the petitioners.
These questions include:
1. Is there a fundamental right to marriage guaranteed by the
Constitution of India?
2. Do queer individuals have the right to enter an intimate
union?
3. Is the Special Marriage Act considered unconstitutional for
excluding the right to marry for queer or same-sex couples?

106 National Legal Service Authority vs Union of India (n 103); Navtej Singh Johar vs Union of India
(2017) 10 SCC 1 (Supreme Court of India).
218 INDIAN J. CONST. L.

4. Can the provisions of the Special Marriage Act be

interpreted in a gender-neutral manner?
4.2. Constitutional Controversy: Is Marriage a Fundamental
Right in India?
The Supreme Court unanimously delivered a verdict stating
that there is no Fundamental Right to marry as per the Indian
Constitution. Chief Justice, D.Y.Chandrachud distinguished the
present set of petitions from the cases of Shafin Jahan107 and Shakti
Vahini.108 In the case of Shafin Jahan, the High Court declared the
marriage between Shafin and Hadiya null and void. The Supreme
Court recalled the observations made in Shafin in this case
“The right to marry a person of one’s choice is integral to Article 21
of the Constitution. This right cannot be taken away except through
a law which is substantively and procedurally fair, just, and
reasonable. The law prescribes conditions for a valid marriage. It
provides remedies when relationships run aground. Neither the State
nor the law can dictate a choice of partner or limit the free ability of
every person to decide on these matters.”109
In a meticulous examination of the petitioner’s arguments, the
Supreme Court drew a clear distinction between the current case and
the precedent set by Shakti Vahini. The petitions in Shakti Vahini, filed
under Article 32, implored the Central and State governments to take
decisive action against “honour crimes” and caste or religion-based
murders. The petitioners advocated for the establishment of special
teams in each district to prosecute those involved in such heinous
crimes. In response, the Supreme Court mandated the authorities to

107 Shafin Jahan v Asokan KM & Ors 2018 (4) SCR 955 (Supreme Court of India).
108 Shakti Vahini v Union of India 2018 (3) SCR 770.
109 Supriya Chakraborty and Another vs Union of India (n 10) 135.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 219

implement preventive measures and devise strategies to curb honour

killings.110 The court then revisited its celebrated decisions of Navtej
Johar and Justice K.S.Puttaswamy and observed that none of these
decisions made any inkling of a notion of whether the constitution of
India provides for the fundamental right to marry. It, therefore, fell
upon the court to decide whether the Constitution grants or recognizes
a fundamental right to marry.
The court then turned its gaze to the jurisdiction of the USA,
as the petitioners had cited the Obergefell decision by the Supreme Court
of the United States of America.111 The Supreme Court of India
distinguished the present case of Supriya Chakraborty v. Union of India
from the ruling of Obergefell.112 In Obergefell, the United States Supreme
Court acknowledged the right to marry as a fundamental right and it
had been deeply ingrained in American tradition, whereas even if the
institution of marriage was an important institution in Indian society,
its relevance under law was never to the level of being recognised as a
fundamental right.
Justice Bhat, Justice Kohli, and Justice Narasimha concurred
with the Chief Justice's perspective that fundamental right to marry
does not exists in India. Justice Bhat, speaking for the majority in his
opinion, pointed out a key distinction between India and the USA. He
observed that marriage historically was not a socio-legal status
conferred by the Indian State. In USA, the marriage was regulated
through license regime, however in the Indian Context “marriage has
been a union solemnized as per customs, or personal law tracing its
origin to religious texts”. The essence of Justice Bhat’s opinion is that

110 ibid 134–135.

111 Obergefell v Hodges, Director, Department of Health 576 US 644 (2015) (Supreme Court of
USA).
112 Supriya Chakraborty and Another vs Union of India (n 10) paras 177–180.
220 INDIAN J. CONST. L.

the notion of marriage in the Indian context is autonomous and

independent of the State, where the roots of the origin of marriage lie
beyond its perimeter, whereas in USA, marriage historically had been
regulated by both Church and the State.113 Bhat J further addressed the
question under the assumption that even if the right to marry is
elevated to the level of fundamental rights within India, like the ones
under Articles 17114, 23115, and 24116 (which apply to both governmental
and non-governmental entities), the right cannot be put into practice
without specific laws and regulations. Therefore, the Supreme Court
declined to grant the petitioner relief for enabling marriages between
queer or homogeneous couples since the legislature and executive wing
of the State can administer this demand and access to the institution
of marriage.117 This reading of history by the majority in Supreme
Court judgment, with due respect to the Supreme Court, it is self-
contradictory on its face, which shall be discussed in subsequent
section. However, to mention in brief, marriage today is indeed

113 ibid 290.

114 Constitution of India 1949 Art 17 Abolition of Untouchability - Untouchability is
abolished and its practice in any form is forbidden The enforcement of any disability
arising out of Untouchability shall be an offence punishable in accordance with law.
115 ibid Art 23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law
(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purpose, and in imposing such service the State shall not make any discrimination
on grounds only of religion, race, caste or class or any of them.
116 ibid Art. 24. Prohibition of employment of children in factories, etc–
No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment Provided that nothing in this sub
clause shall authorise the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ); or such
person is detained in accordance with the provisions of any law made by Parliament
under sub clauses (a) and (b) of clause (7).
117 Marriage as an institution here means an established and recognized social structure or
practice that plays a significant role in society. It encompasses religious, cultural and legal
aspects that define and establish relationship between individuals typically involving
rights, obligations and commitments creating a framework for social stability and family
life.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 221

regulated by the State, even if it had not been regulated historically.

Further, it should not matter how historically marriage had been
treated by the Indian State; the Court failed to appreciate the effect of
present regulations by the State through various personal or secular laws
of marriage; it ended up perpetuating subordination of the LGBT++
community, which, in the present batch of petitions, the court was
being asked to strike down.118
4.3. Is “Union” Just a Word? Division on the Meaning of
“Intimate Union”
Is the Special Marriage Act considered unconstitutional for
excluding the right to marry for queer or same-sex couples? With
regard to this question, there was disagreement in the bench. Chief
Justice turned out to be in a minority view along with Justice Kaul.
Justice Bhat, Justice Kohli and Justice Narasimha formed the majority
bench. Article 21 of the Indian Constitution, which grants the Right to
Life and Personal Liberty, was at the heart of discussion between the
diverging judges.119 Chief Justice, underscored that the “right to live
under Article 21 secures more than the right of physical existence”.120
It encompasses the “right to a quality life”, which includes the right to
reside in a smoke-free and pollution-free environment, the right to
access well-maintained roads, and the right to suitable accommodation
that allows an individual to foster mental, physical, and intellectual
growth. Similarly, the free exchange of ideas under Article 19 is an
integral element of self-development. Chief Justice further emphasized
that the Directive Principles of State Policies provide guidance to the
State in its endeavour to promote the well-being of the people, ensure

118 Supriya Chakraborty and Another vs Union of India (n 10) 291.

119 Constitution of India Art. 21–Protection of life and personal liberty - No person shall be
deprived of his life or personal liberty except according to procedure established by law.
120 Supriya Chakraborty and Another vs Union of India (n 10) 157.
222 INDIAN J. CONST. L.

humane working conditions, and elevate the standard of nutrition and

living for the population. Drawing from the capabilities approach of
Amartya Sen and Martha Nussbaum, the Chief Justice opined, “Access
to the institution of marriage is crucial to individual self-definition,
autonomy and pursuit of happiness.”121 Love and affection form the
core of our identity. While it may not be an exclusive trait that has been
bestowed upon humans, it certainly is the one that makes us feel
human. As humans, we innately seek to be seen, understood and
develop an identity along with emotions. Thereby, a full
acknowledgement, acceptance, and recognition of our relationship
with ourselves and others whom we love as friends, family members,
or even romantic partners is quintessential to being human.122 Having
the ability and freedom to form an unregulated relationship by itself is
not enough; in fact, to pave the way for the full enjoyment of a
relationship, the State must recognize them. Chief Justice, by
integrating Article 19(a) into Article 19(c), remarked that freedom of
expression is not merely limited to expressions made by words. Over
time, the scope of freedom of expression expanded to encompass
“sexual identity”,” choice of partner,” and expression of “sexual desire
to a consenting party.”123 Traditionally, the interpretation of Article
19(c) as “Freedom to form Association” had been confined to political
spaces in which people sought to further the cause of labour rights.
While it forms an integral element of Article 19(c), the Chief Justice
argued that this definition needs to be expanded to include other forms
of associations, including “intimate associations”. This progressive
reading of Article 19(a), along with 19(c), is a sublime example where
the whole becomes greater than the parts constituting it. This reading

121 Martha C Nussbaum, ‘A Right to Marry?’ (2010) 98 California Law Review 667, 678–
685; Supriya Chakraborty and Another vs Union of India (n 10) 160.
122 Supriya Chakraborty and Another vs Union of India (n 10) para 217.
123 National Legal Service Authority vs Union of India (n 103); Navtej Singh Johar vs Union of India
(n 106).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 223

of both the articles by the Chief Justice deserves appreciation; even

when there was no remedy directly under the Statute, he took its
analysis to its logical conclusion by pointing out an immediate remedy
to the petitioners, where the LGBT++ community’s right to choose a
partner can be traced from. This expansive reading of Article 19(c) is
in the opinion of the minority view necessary to embrace freedom of
expression in a holistic manner to protect the diverse forms of
expression of human relationships that could be safeguarded under
Article 19(a) of the Indian Constitution along with Freedom of
expression to realise all forms of expression including expression of
human relationships that could be protected under Article 19(a).124,125
While the Supreme Court unanimously held that no fundamental right
to marriage exists in India, the Chief Justice remarked that the right to
choose one’s partner also emerges from Article 21. Many of us regard
making the decision about whom we want to marry as one of the most
important decisions in our lives, which often comes to define one of
our core identities, which is also true for people who wish to marry
someone of their own gender.126
The Indian Constitution also recognises the concepts of positive
and negative rights.127 The government can indirectly limit individual
freedoms when it fails to create the necessary conditions for people to
exercise those freedoms. Therefore, to fully enjoy the right to form
intimate associations guaranteed by the Constitution, it's essential for
such associations to be formally recognised.128 Interestingly, the Chief
Justice, in his minority opinion, also developed a curious interpretation

124 Supriya Chakraborty and Another vs Union of India (n 10) 162.

125 Roberts v United States Jaycees 468 US 609 (1984); Kenneth L Karst, ‘The Freedom of
Intimate Association’ (1980) 89 The Yale Law Journal 624, 634–636.
126 Supriya Chakraborty and Another vs Union of India (n 10) 170; Supriya Chakraborty and Another
vs Union of India 2023 INSC 920 (Supreme Court of India) [233].
127 Supriya Chakraborty and Another vs Union of India (n 10) 122–126.
128 ibid 223.
224 INDIAN J. CONST. L.

of Article 25 under the constitution of India.129 Chief Justice's

interpretation of Article 25 affirms that every individual, including
members of the queer community, possesses the right to assess the
moral character of their own actions. Once they have made such
judgments, they are entitled to act in accordance with their own
judgment as they deem appropriate. The meaning of liberty under the
Constitution is what a person wishes to do or be in accordance with
the law. Individuals have the right to decide for themselves or
according to their conscience.130 Supplementing this decision by
underscoring the important ideal of equality enshrined under the
Constitution Chief Justice recalled the judgment of Navtej Singh Johar v.
Union of India, thereby highlighting that Article 15 prohibits both direct
and indirect discrimination.131 Thus, the Chief Justice came to the
conclusion that the right to enter into a union under Article 19(c) under
the Indian Constitution encompasses the right to choose one’s life
partner.132
Justice Bhat speaking for the majority, disagreed that Queer
people today enjoy the “right to intimate union” under Article 19(c)–

129 Constitution of India 1949 Art. 25- Freedom of conscience and free profession, practice
and propagation of religion (1) Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus
Explanation I– The wearing and carrying of kirpans shall be deemed to be included in
the profession of the Sikh religion
Explanation II –In sub clause (b) of clause reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.
130 Supriya Chakraborty and Another vs Union of India (n 10) 175.
131 Navtej Singh Johar vs Union of India (n 106).
132 Supriya Chakraborty and Another vs Union of India (n 10) 161.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 225

freedom of association.133 It was the view of the majority bench that

the right to a relationship resides within Article 21. This right to a
relationship includes choosing a partner, living together, and sharing a
physical and intimate space with them. These rights flow from privacy,
autonomy, and dignity, integral parts or elements of the Right to Life
and Personal Liberty.134 Expanding further on his reasoning Bhat J
observed that queer people, like all citizens, are entitled to live freely

133 Constitution of India Art 19 Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests
of the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order, reasonable restrictions
on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub
clauses either in the interests of the general public or for the protection of the interests
of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular, nothing in the said sub clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State from
making any law relating to, (i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or business, or (ii) the
carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise.
134 Supriya Chakraborty and Another vs Union of India (n 10) 281.
226 INDIAN J. CONST. L.

and can express their choices without interference from society, and
he also held that whenever this right to enjoyment comes under the
threat of violence, the State shall be bound to extend all the necessary
protection to the couples.135 By tracing the trinity of rights – autonomous
choice, dignity, and non-discrimination, the majority conceded that
these are now enjoyed by queer persons under the Constitution.
Further, majority also pointed out that the understanding of
constitutional progress in the realm of personal liberties (Article 21)
and equality (Article 14) has revealed layers of biases, prejudices, and lack of
understanding from members of society about a person’s freedom that
resides outside of their “group.” 136 Analysing a catena of precedents,
Bhat J faced no hesitation in holding that a person’s right to choose a
life partner is integral to their fundamental right to life.137 The Court
also views this issue from the viewpoint of dignity in its various facets.
For Dr Ambedkar and other constitution-makers, political freedom
(swaraj) represented the liberty to shape one's identity, to make choices
with dignity, and to break free from the shackles of historical suffering
and humiliation. The historical development of the equality code
(Articles 14, 15, 16, 17, and 18) vividly attests to this principle. 138
Despite such eloquent and moving discussion, Bhat J, speaking for the
majority, did not take this judgment to its logical conclusion by
extending all necessary protection and holding the State duty-bound to
protect the rights of LGBT++ people which he had himself observed

135 ibid 294.

136 ibid 281.
137 Right to choose partner Asha Ranjan v State of Bihar 2017 (1) SCR 945 (Supreme Court of
India); In re [Gang-Rape Ordered by Village Kangaroo Court in WB ((2014) 4 SCC 786) it was
held that state is under obligation to protect fundamental rights and an inherent right
vested under Article 21 is freedom to choose partner in marriage. Shafin Jahan v. Asokan
K.M & Ors. (n 107) held that expression of choice has to be exercised according to law;
In Justice KS Puttaswamy v. Union of India (n 103) the present Chief Justice D.Y.
Chandrachud had observed that ‘personal choices governing a way of life are intrinsic to
privacy’.
138 Supriya Chakraborty and Another vs Union of India (n 10) 285.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 227

on behalf of majority. However, there is an inkling of hope to argue

for the anti-subordination principle in the words of Bhat J where he has
held that Articles 21 and 14 of the Indian Constitution can reveal our
potential hidden biases.
4.4. Can the Special Marriage Act Break Free from Gender
Norms?
When a court finds a part of a law unconstitutional, it can
declare it invalid.139 However, in this case, the court believed that if it
were to declare the provisions of the Special Marriage Act (“SMA”) as
unconstitutional, it would undermine the entire purpose of the law,
which is to encourage interfaith and inter-caste marriages. This is so
because, in the view of the Court, holding SMA unconstitutional would
essentially take the country back to a time before independence when
people from different castes or religions couldn't marry and celebrate
their love through marriage. Such a decision would lead to a different
form of discrimination and bias at the expense of others. Therefore,
the Chief Justice reached the following conclusion that the Court
lacked the capacity to engage in such a broad exercise due to
institutional constraints. Redrafting laws under the guise of
interpretation is not within the powers of the court as it would amount

139 Constitution of India, Article 13 (1949)-

(1) All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part, shall,
to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under
article 368.
228 INDIAN J. CONST. L.

to judicial legislation. Further, the Chief Justice wrapped up by saying

that in the factual matrix of the case, the determination of
unconstitutionality of SMA would be futile since the Court would not
be able to grant immediate remedy to petitioners since it is for the
Parliament to legislate a framework. Justice Kaul’s views were in
alignment with the Chief Justice, and he came to the conclusion that
numerous challenges existed in the interpretation of SMA to
encompass non-heterosexual relationships. He further concurred that
modification of the definition of provisions under SMA had the
potential to trigger a ripple effect throughout the legislative provisions
of personal laws as it forms a “proverbial spider’s web of legislation.”
by taking notice of diverse viewpoints prevailing throughout the
territory of the nation.140 Justice Bhat, again speaking for the majority
in his separate but concurring opinion, observed that petitioners had
urged that there exists a “hostile classification” that results in the
exclusion of queer couples in the enjoyment of benefits of a statute or
policy.141 This is based on the premise that “equals are treated
differently.”142 The petitioner contended that no “intelligible
differentia” exists in the classification of queer and heterosexual
couples under the framework of the SMA. The petitioners further
urged that this had a discriminatory effect, resulting in the exclusion of
a group that otherwise would form a part of the group. The court, in a
careful analysis of a series of judgments143 along with provisions of
SMA, concluded that the impugned legislation’s objective was
intended to enable marriage for “heterosexual couples” belonging to

140 Supriya Chakraborty and Another vs Union of India (n 10) 154.

141 ibid 304.
142 ibid.
143 DS Nakara v Union of India (1983 (2) SCR 165); Kedar Nath Bajoria v State of West Bengal
[1954] 1 SCR 30; Chandan Banerjee v Krishna Prasad Ghosh [2021] 11 SCR 720; Transport &
Dock Workers Union v Mumbai Port Trust ((2010) 14 SCR 873); Union of India v MV
Valliappan 1999 (3) SCR 1146; State of J&K v Triloki Nath Khosa 1974 (1) SCR 771; In Re
the Special Courts Bill, 1978 (1979) 2 SCR 476.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 229

“different faiths.”144 Queer people were kept out of the purview of

SMA because even consensual sexual intimacy was outlawed by
Section 377 of the Indian Penal Code.145 Therefore, SMA cannot be
held unconstitutional because it failed to make a better classification
for the LGBT++ community.146
The Court then addressed the second challenge by the
petitioners that the passage of time had made the provisions of SMA
lose its relevance. Justice Bhat, however, noted that the significance of
the SMA had actually grown due to the rising awareness and the
increasing choices made by spouses from different faiths to marry each
other. In conclusion, Justice Bhat observed that it could not be argued,
under any interpretation, that the exclusion of non-heterosexual
couples from the ambit of SMA renders it devoid of rationale and,
therefore, is discriminatory in nature. Without such a finding, the
Court is incapable of utilizing “reading down” doctrine into the words
of the statutes. In sum, the majority in this view agreed with the
rationale forwarded by the Chief Justice that SMA could not be held
unconstitutional.147

144 Supriya Chakraborty and Another vs Union of India (n 10) 312.

145 On 6 September 2018, a five-judge Bench of the Supreme Court partially struck down
Section 377 of the Indian Penal Code in case of Navtej Singh Johar vs Union of India (n 106).,
thereby decriminalizing same-sex relations between consenting adults. LGBT++ can
now legally be allowed to engage in consensual intercourse. The Court has upheld
provisions in Section 377 that criminalized non-consensual acts or sexual acts performed
on animals. See Indian Penal Code, 1860, supra note 1 at Section 377 Unnatural
offences.—
Whoever voluntarily has carnal inter-course against the order of nature with any man,
woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to
fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section.
146 The court concluded that “under classification” is not discriminatory. See State Of Gujarat
And Another v Shri Ambica Mills Ltd 1974 (3) SCR 760; Supriya Chakraborty and Another vs
Union of India (n 10) 307.
147 Supriya Chakraborty and Another vs Union of India (n 10) 312.
230 INDIAN J. CONST. L.

4.5. Breaking Boundaries: Embracing Transgender Marriage

Rights
The Chief Justice offered a broader interpretation to
incorporate transgender individuals within the framework of the
traditional understanding of the SMA and personal laws, thereby
affirming that transgender individuals in heterosexual relationships are
eligible to marry under the SMA or personal laws. Chief Justice started
his reasoning by addressing a flawed submission made by the Solicitor
General of India that a Queer person exercises a “degree of choice” in
determining their sexual orientation because the person “identifies” as
a Queer.148 Sexual orientation is an “ascribed” characteristic that
cannot be “achieved” or “reversed.”149 However, a person’s gender
identity is changeable. This concept is best illustrated by the example
of a person who transitions from a male to female, embracing her
identity as a woman. She may face discrimination based on her gender,
experiencing bias and prejudice. It’s also important to consider her
past, where she might have faced discrimination based on the sex she
was assigned at birth. This highlights how discrimination can stem
from both an individual’s true identity and the identity imposed by
societal expectations. However, the law is not just about protecting
innate characteristics of a person; it also addresses imposed identities.
It is also about ensuring people are not treated unfairly for things they
choose in their lives. A person is born into a caste150, a person is born
with a sexual orientation, but then a person’s gender identity can
transform with time. When individuals undergo such a transformation,
they may face discrimination. Therefore, people can face

148 ibid 180.

149 ibid 181.
150 Madhu Kishwar v State of Bihar (1996) 5 SCC 125; Ashoka Kumar Thakur v Union of India
(2008) 6 SCC 1; Indian Medical Assn v Union of India (2011) 7 SCC 179; Indra Sawhney v
Union of India 1992 Supp (3) SCC 217.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 231

discrimination because of their innate and imposed identity. Article

15(1) of the Constitution of India encloses stereotypes that can arise
because of gender, i.e., non-straight relationships challenge traditional
male-female roles, and discrimination based on sexual orientation
indirectly involves stereotypes about gender, which is against the law.
So, a law discriminating based on sexual orientation is questionable
under the Constitution.151
Following the previous discussion, a different group of
petitioners asked the Supreme Court to clarify the marriage rights of
transgender individuals within the existing legal framework. The
Solicitor General, representing the Union Government, argued that
discrimination against transgender individuals no longer existed
because Parliament had passed the Transgender Persons Act in 2019.
However, the Court rejected the Union's argument and explained the
difference between “sex” and “gender.” Thereafter, the Court also
recalled the observations made in NALSA v. Union of India and delved
into the rights granted to transgender persons under the Transgender
Persons Act of 2019.152 The Court while carefully interpreting of the
Transgender Persons Act and existing marriage laws, such as the
Special Marriage Act, Hindu Marriage Act, Domestic Violence Act,
Dowry Prohibition Act, and Section 498A of the IPC, which address
the traditional nature of heterosexual marriages came to conclusion by
noting that these statutes do not explicitly restrict their application to
cisgender men and women. The plain language of the gender-specific
terms in these statutes suggested to the Supreme Court that
transgender individuals in heterosexual relationships are included. The
Union of India’s argument that only “biological men” and “biological
women” were cast aside by the language of the statutes, neither any

151 Supriya Chakraborty and Another vs Union of India (n 10) 179–182.

152 ibid 188–197.
232 INDIAN J. CONST. L.

legal principles or methods of interpretation could be utilized to the

restrictions on marriage within prohibited degrees, as outlined in
marriage laws, remained applicable. The NALSA judgment also
acknowledged the right of transgender individuals to marry.
Furthermore, various State Governments have established and
executed programs that promote and support transgender individuals
in the context of marriage.153 As a result, the Court determined that
marriages involving transgender individuals in heterosexual
relationships would be considered valid under the law.
5. Three Nations, One Journey: India, USA and Canada
Compared
Most of the time in the history of Canada, the courts did not
act as the custodian of rights of sexual minorities. Upon the adoption
of the Charter, the Canadian Parliament granted the judiciary the status
of “Guarantors and Protectors of Rights.”154 Under this spirit, the
Superior Court of Ontario came to the rescue of the LGBT++
community. It granted them the right to marry on same footing that
had existed for heterosexual people.155
It is interesting how the Superior Courts of Appeal in Ontario,
Quebec, and British Colombia interacted with their respective
jurisdictions' legislature and executive branches. The Superior Court of
British Colombia believed that the legislature was primarily responsible
for changing the law. Quebec’s Cour de Superieure also gave way to
the Parliamentary wisdom to tackle this delicate issue
comprehensively. We have seen how Indian Courts have also reasoned

153 ibid 199.

154 Hon Irwin Cotler, ‘Marriage in Canada—Evolution or Revolution?’ (2006) 44 Family
Court Review 60, 61.
155 Christy M Glass and Nancy Kubasek, ‘The Evolution of Same-Sex Marriage in Canada:
Lessons the U.S. Can Learn from Their Northern Neighbor Regarding Same-Sex
Marriage Rights’ 15 144.
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 233

along similar lines to the Courts of Quebec and British Colombia.

However, the Ontario court showed little patience for deliberation and
chose to strike down the challenged provisions immediately to grant
same-sex couples the right to marriage.156 Case outcomes often depend
on how the Courts frame the issues. The Canadian Courts and
American Supreme Court framed the marriage issue primarily on the
touchstone of equality before law and equal protection of law.157 In
Canadian cases we have seen that Courts when faced with challenge in
early years kept accepting that discriminating on basis of one person’s
sexual orientation was unjustified before the Charter but the courts
eventually started to rule that it is the definition itself which is
discriminatory and needs to be changed to incorporate same-sex
couples. The Indian Supreme Court, at least in the majority ruling, has
seen the issue of same-sex marriage from the lens of “Privacy,”
“Dignity,” and “Autonomy.” 158 The majority opinion of the Court
conceded that discrimination existed against same-sex couples but this
was “under-classification” on the part of legislature when it was
drafting the SMA in 1950. At that time, the lawmakers did not
anticipate or include same-sex relationships within the scope of the
SMA, likely because societal norms and even understanding about
marriage itself different (or limited). As a result, the exclusion of same-
sex couples in the opinion of Supreme Court was not a deliberate act
of discrimination but rather a reflection of perspective of that era
which unfortunately failed to account for evolving notions and
deepened understanding of equality and personal liberty that we have
us with today. This is not to say that the Indian Supreme Court did not
deal with the issue of equality altogether. In fact, the Court was not
persuaded by the petitioners precisely because it would have

156 Gee and Webber (n 50) 135.

157 Matthews (n 15) 842.
158 Supriya Chakraborty and Another vs Union of India (n 10) 281–287.
234 INDIAN J. CONST. L.

encroached upon the legislature field if it had read into the words of
the statute. The Solicitor General had made submissions before the
court stating that there are about 160 laws that would be impacted by
bringing marriage equality through the Court’s declaration.159
Consequently, he argued that Parliament is the only suitable and
capable authority to bring such change. In the words of Justice Kaul,
the provisions of the Special Marriage Act make a complex “inter-
connected web of statutes,” and striking it down would have created a
cascading effect.160 Hence, the Indian Supreme Court opted for
restraint in addressing same-sex marriage, leaving it to the legislature
to reform the marriage definition through new laws. However, as we
have seen in the discussion of Canadian doctrinal history, the Court of
Appeal in British Columbia and the Court de Superior of Quebec gave
the Parliament 24 months to amend laws, failing which the laws would
automatically become null. It is unfortunate that this type of exercise
could not be carried out by the Indian Supreme Court in conjunction
with the Indian Parliament. It can certainly be argued that facts of
Indian case were different, the issues were different, the history is
different, nonetheless, the constitutional principles upon which the
Court ought to render a decision were the same. It was not even
necessary for Indian Supreme Court to go to the extent that the Court
of Appeal for Ontario in the case of Halpern v. Canada161 under which
it had immediately declared the ban on same-sex marriage as
unconstitutional and asked the Canadian State to demonstrate how
such striking down could cause public disorder, but merely specifying
a reasonable time-frame to the parliament of India to carry out

159 ‘SC Verdict on Same Sex Marriages Explained Highlights: No Fundamental Right of
Same-Sex Couples to Marry, Says Supreme Court’ (The Indian Express, 17 October 2023)
<https://indianexpress.com/article/explained/explained-law/sc-verdict-on-same-sex-
marriages-explained-live-8986361/> accessed 23 October 2023.
160 Supriya Chakraborty and Another vs Union of India (n 10) 255.
161 Halpern v Canada (n 37).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 235

amendments in the respective laws would have been a suitable remedy

as well for the aggrieved petitioners.
Then, in his reasoning, Justice Bhat speaking for majority held
that the petitioners essentially aimed to “establish an entirely new social
and regulatory institution”, leading to the dismissal of the petitions. In
contrast, the Chief Justice countered this perspective by underlining
the state’s duty to create an inclusive environment for all citizens,
particularly vulnerable minorities, enabling them to enjoy their rights
and freedoms as equally as privileged members of society.162 This
argument further asserted that the LGBT++ community has the right
to establish unions, including intimate same-sex unions, as protected
under Article 19(c) of the Indian Constitution. The Chief Justice also
acknowledged that Justice Bhat reached a similar conclusion but did
not pursue it further under Article 32 of the Indian Constitution. In
response, Justice Bhat expressed empathy for the challenges faced by
the LGBT++ community but stressed that the appropriate path to seek
justice involved enacting new statutes or amending existing ones
through legislative processes. Achieving outcomes must mean arriving
at the desired destination in a manner that is legally sound, adhering to
the “Architecture of Constitutional scheme.”163
With due respect to Hon’ble Supreme Court, the majority
bench in the ruling of the Supriyo judgment164 failed to consider two
factors. First, while the constitutional bench has given us the answer
to the question that there is no abstract fundamental right to marry
under the Constitution of India unlike America or Canada, at the same
time, it failed to appreciate to look at this issue from the point of view
of whether LGBT++ couples can be excluded from the present legal

162 Supriya Chakraborty and Another vs Union of India (n 10) 236.

163 ibid 353.
164 Supriya Chakraborty and Another vs Union of India (n 10).
236 INDIAN J. CONST. L.

regime just because of their sexual orientation? The Indian Supreme

Court pondered deeply on the question of whether it is capable of
creating a new legal regime striking down the provisions of SMA but
failed to address the moot question of equality before the law and equal
protection of the law, which at all times, been the focal point of contention
as we have seen while discussing the Canadian and American cases as
we have seen. The Indian Supreme Court carried out its assessment
and unfortunately left a historically marginalised community,
subordinated under the majority of people and within a legal
framework which does not treat them as equal or at par with
heterosexual people. Merely classifying people on the basis of their
social identities and checking whether the statutes have a rational basis
leaves no space for consideration to question classification themselves.
It left no space to analyse this situation from a framework of group-
on-group domination. The objective of SMA, along with its
classification scheme, ought to have deserved a higher level of judicial
scrutiny by the Indian Supreme Court. The Supreme Court, in the case
of Ashoka Kumar Thakur v. Union of India, has rejected the application
of strict scrutiny on governmental action in providing reservations to
SC/ST communities.165 However, it is probable that a persuasive
argument can be built by utilizing strict scrutiny doctrine in the
American Jurisprudence where State classification seems to be adverse
to a historically marginalized group and violates principles of equality
before the law and equal protection of the law.166 This is precisely why
the anti-subordination principle needs to find a place within the Indian

165 Ashoka Kumar Thakur v. Union of India (n 150) para 268 (‘In India there has to be a
collective commitment for upliftment of those who needed it. In that sense, the question
again comes back to the basic issue as to whether the action taken by the Government
can be upheld after making judicial scrutiny’).
166 State of Kerela v NMThomas (1976) 2 SCC 310 (Supreme Court of India) (‘The victims of
untouchability, identification of social and economic backwardness have been accepted
as permissible measures.’).
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 237

Constitutional jurisprudence, which would allow the constitutional

courts to protect only those classifications that do not perpetuate the
subordination of one group over another. It would allow us to ask
ourselves whether certain hierarchies, whether constructed socially or
conferred on us by law, are so unjust, arbitrary and irrational that they
violate equal protection doctrine and the right to dignity of members of
certain groups, that they deserve to be discarded or abolished, from
the scheme of permissibility of the Constitution. Human history is
witness to atrocities that have been carried out with subjugation, either
between individuals and as well as between various groups. People
belonging to certain groups, such as Jews, have faced the horrors of the
holocaust while being used as scapegoats in political spheres.167 Such
consideration may be very hard for the Court to spot on its own due
to the limitations of the institution, but it can surely look at studies or
ask experts to apprise itself about the same important contextual
details. Nonetheless, in one aspect, it needs to be appreciated that
Chief Justice, in his opinion, did manage to create consensus with his
fellow judges by declaring the right of transgender persons to enter
into heterosexual unions. Unfortunately, the majority opinion in the
judgment went on to a tangent to determine the “intent of the
legislators” at the time of drafting the SMA while ignoring the effect that
the SMA creates today for same-sex couples. While the majority view
did concede in its view that, indeed, SMA is exclusionary and
discriminatory towards LGBT++ people, it left the remedy at the
discretion of an “executive committee”.168 This approach, in the light
of the Canadian and American jurisprudence we have seen above,
raises the question as to if a provision is found discriminatory, can the
highest court of the land leave the remedy at the discretion of the

167 Nurse (n 67) 301–305.

168 Supriya Chakraborty and Another vs Union of India (n 10) 165.
238 INDIAN J. CONST. L.

executive or as guarantor and protector of fundamental rights, a

constitutional court ought to act assertively just as Courts of Canada
and America did. Finally, the majority opinion also opined that the
institution of marriage in the Indian context existed prior to the State
but failed to appreciate that it may have been historically true in all its
abstract sense, but at present, the institution of marriage is indeed
sanctioned and regulated by the State. While the majority opinion is
correct in stating that the Court cannot “create a social or legal status”,
the Court failed to appreciate that, at present, there is a “social and
legal status” in the institution of marriage which is being perpetuated by
the State. With the utmost respect to the Supreme Court of India, it is
challenging to overlook the inherent contradiction in majority’s
reasoning. The petitioner, in this case, challenged the mandatory legal
exclusion of LGBT++ people from the institution of marriage,
whereas the Court, unfortunately, misread the prayer for it being the
“creation of new social, legal status”. Moreover, the reasoning by the
majority bench falls flat on the face of a hypothetical example of inter-
caste marriage. Suppose an imaginary legislation existed in India that
banned inter-caste marriage or inter-religious marriage was to be tested
on the anvil of the Constitution. Would the Supreme Court of India,
in such a case, opine that caste existed prior to the State and was
independent of the State? Would it provide similar reasonings for the
hesitation to strike down such a law because the petitioner would
effectively ask for a “new social and legal status” from the State? It
would run against the basic tenets of the Constitution and would be a
mockery of constitutional values to not strike down such a law; then,
it is difficult to understand why discrimination based on sexual
orientation that excludes a class of people in recognizing their right to
get married could be constitutionally tolerated. By looking at this issue
from the “right to marry”, the majority opinion unfortunately could
Tying The Knot: A Comparative Analysis of Lgbt++ Marriage Rights in India, USA and Canada 239

not appreciate the right against discrimination and equal access to the
institution of marriage within the territory of India. This is perhaps
where the role of the anti-subordination principle would have provided
more clarity while framing the issues and weighing them against each
other based on strictly Constitutional considerations.
6. Conclusion
A marriage is considered by many in this world to have its own
inherent value, whether it is given recognition by state or not A legal
system that tries to create a distinction between “kinds of marriage”,
in the form of association or romantic, will always have justification
for excluding certain associations from the definition of marriage. The
moot question we may have to pose ourselves is what marriage truly
is? It has to be emphasized that being able to understand the value of
marriage can be easily distorted by policies, which may come due to
animosity, mistakes on the part of people or even outright prejudice.
In Navtej Singh Johar v. Union of India it was opined by Justice Indu
Malhotra that history owes apology to LGBT++ community.169 But
what is the use of such an apology if no corrective action or remedy is
provided to the aggrieved? Recognizing same sex- marriage India is
still in the early stages of this development when it comes to
recognizing same-sex marriage, but it has the potential to make
progress at a faster pace than the western hemisphere and undo the
historical injustices in a global context. The latest studies have revealed
that more than 53% of Indians now support same-sex marriage, similar
to the number of people Canada and the USA supported in the early
2000s.170 The social attitudes are undergoing a shift in India as per

169 Navtej Singh Johar vs Union of India (n 106) para 50.

170 Jacob Poushter, Sneha Gubbala and Christine Huang, ‘How People in 24 Countries View
Same-Sex Marriage’ <https://www.pewresearch.org/short-reads/2023/06/13/how-
people-in-24-countries-view-same-sex-marriage/> accessed 27 October 2023; Nikhil
Rampal, ‘53% of Indians Are Accepting of Same-Sex Marriage, Finds Global Survey by
240 INDIAN J. CONST. L.

empirical findings. A review petition has been filed before the Supreme
Court of India to reconsider its view, stating that there exists an error
on the “face of the record”.171 It is difficult to anticipate whether the
Supreme Court would reconsider its reasoning on merits in a review
petition. At the very least, a 7-judge bench would have to be
constituted to overturn this judgment. A revised perspective,
nonetheless, would be a welcome one, which would eventually extend
equal protection of law and equality of law to everyone in matters of
marriage. Again, by no means are these easy questions to address
theoretically, let alone assess their impact on the real and practical lives
of people. It will be a test of our abilities and require all of us to be
committed to making findings and be cognizant of the preambular
ideals that the drafters of the Indian Constitution left us with.

Pew Research’ ThePrint (14 June 2023) <https://theprint.in/india/53-of-indians-are-

accepting-of-same-sex-marriage-finds-global-survey-by-pew-research/1626333/>
accessed 27 October 2023.
171 Utkarsh Saxena v Union of India Review Petition (Civil) no. 1142 of 2022 (Supreme Court
of India).
 EXPANDING ARTICLE 17: LOGIC & EQUALITY

Archit Sinha
ABSTRACT
Article 17 of the Indian Constitution prohibits “Untouchability”.
The jurisprudence on this article has been negligible. Thus, courts
have dealt with issues of social discrimination through religion–
Articles 25 and 26-which has resulted in social discrimination being
linked to religious rights. For instance, the Supreme Court recently
expressed doubt regarding the correctness of its judgment in Sardar
Syedna, which upheld the right to excommunicate people, in light of
‘Constitutional Morality’ (Articles 25 and 26), implying that
excommunication from all aspects of social life belies religious reasons
which in contemporary times would be apathetical to the Supreme
Court’s idea of Constitutional Morality. In an attempt to remedy
this conflation, this paper looks at Article 17 to say that it holds
value in cases of social discrimination irrespective of basis–religion or
otherwise. Justice Chandrachud J.’s reasoning in Sabarimala opened
the doors for interpreting Article 17 expansively. Such interpretation
of Article 17, following Chandrachud J.’s reasoning, has the
potential to give way to a new form of the non-discrimination doctrine
that includes instances of discrimination (social boycotts, ex-
communication, etc.) without disturbing the case laws on religion.
This paper gives a new meaning to Article 17 in two ways- by
identifying the purpose of Article 17 to protect against discrimination
belying the ‘Purity-Pollution’ logic; and by introducing the
‘exclusionary effect’ as a separate phenomenon worthy of


Archit Sinha is a fourth-year student at National Law School of India University,
Bangalore. He thanks Prof. Aparna Chandra and Mr. Rahul Bajaj for their inputs and to
Arushi Goel, Aditya Singh, Anandita Tayal and Karthik Kalra for their insights which
finetuned this paper.
242 INDIAN J. CONST. L.

consideration in addition to this ‘logic’.

INTRODUCTION
Article 17 of the Indian Constitution provides for protection
against “Untouchability” as a fundamental right.1 It is noteworthy that
“Untouchability” appears in quotes, implying a specific meaning to the
term.2 This specific meaning has been understood to be the social
practice of “Untouchability” prevailing in Hinduism.3 Meaning the
practice of exclusion of purported ‘lower castes’ from social gatherings
and public places like wells, temples, etc. It entails an exclusion of
people from participation on aspects of social life on apparent This
reasoning has prevailed in the Indian courts as of now.4 However,
Justice D.Y. Chandrachud J. in Indian Young Lawyers Association and Ors.
v the State of Kerala and Ors.5 (‘Sabarimala’), introduced a novel
interpretation of Article 17. Chandrachud J. went beyond just the
historical understanding of “Untouchability” and expanded the scope
of Article 17 by emphasizing the logic of Purity-Pollution. In doing so,
Chandrachud J. strayed away from the prevailing judicial trend.6

1 Constitution of India 1950, Article 17; Rohit De, A People's Constitution: The Everyday Life
of Law in the Indian Republic (2018) 6; U. R. Rai, Fundamental Rights and Their Enforcement
(2011) 624.
2 Rai (n 1) 625.
Rai understands “single quotes” to imply that the word “Untouchability” does not carry
they “usual meaning”. Interestingly, he also notes a connection between Article 17 and
Article 15(2) while looking at the word “disabilities arising out of ‘Untouchability’” in
Article 17. This connection, originally appearing in the Constituent Assembly Debates
will be explored by this paper in the coming sections.
3 See n 11.
4 See Karnataka High Court, in the case of Devarajiah v B. Padmanna AIR 1958 Kant 84; The
State of Karnataka v Appa Balu Ingale AIR 1993 SC 1126; Gopal v State of Maharashtra
(2020) 2 AIR Bom R (Cri) 339; P. Rathinam v State of Tamil Nadu (2009) 78 AIC 659
(Mad); K. Prabhakaran v The District Collector, Madurai District & Ors. 2015 SCC
OnLine Mad 8704; Vimla Govind Chorotiya v State of Maharashtra (2022) 2 AIR Bom R 157,
etc.
5 Indian Young Lawyers Association and Ors. v State of Kerala and Ors. MANU/SC/1094/2018.
6 See n 4.
Expanding Article 17: Logic & Equality 243

This paper argues for an expanded interpretation of Article 17

based on this effect-based equality consideration. Chandrachud J.’s
approach, though a positive step, still lacks the appropriate framework
to have the effect on Article 17 as it intends to. This discussion around
Article 17 becomes relevant and contemporary with the 9-judge bench
constituted by the Supreme Court to consider the issues mentioned in
the Sabarimala review. The bench framed seven new issues for
consideration with one of them being on the scope and ambit of
religious freedom and the interplay between religious freedom and the
limits thereon. More recently, in June 2023, the Madras High Court in
the case of Elephant G Rajendran v The Registrar General and others7 has
given a very broad reading to Article 17 to include “all practices of social
ostracism and exclusion that have their bases in ritual ideas of purity/pollution and
hierarchy/subordination”.8 In this context where conversations around
religious freedoms and their extent are being taken up by the courts
and simultaneously, Article 17 post Sabarimala is occupying a more
nuanced meaning, this paper contributes to this discourse by providing
an expansive interpretation of Article 17 with emphasis on equality.
This paper argues for expanding Article 17 through the
equality aspect, because the Equality Approach is more appropriately
in line with the historical context of Article 17, which this paper has
derived from the plethora of case laws and a history of the practice.
This allows for a wider set of practices to be considered under Article
17, unlike Chandrachud J.’s logic. The Logic Approach, although a
potential alternative, is incomplete, as this paper will show. This paper
contends that the harm that Article 17 seeks to prevent is that of
exclusion stemming from the logic of Purity-Pollution, hence, the
incorporation of the Equality Approach.

7 Elephant G Rajendran v The Registrar General and others [2023] LiveLaw (Mad) 171.
8 ibid.
244 INDIAN J. CONST. L.

In Part I, this paper outlines the traditional approach to Article

17 and differentiates it from Chandrachud J.’s reasoning in Sabarimala.
In Part II, this paper critiques Chandrachud J.’s approach by exploring
the question – why does an Article 17 inquiry need to incorporate the
logic of Purity-Pollution in the first place? This paper argues that
Chandrachud J.’s approach, although a step in the right direction, is
incomplete and needs to be refined. Here, this paper introduces the
Equality Approach as well as the Logic Approach. In furtherance of
this, in Part III, this paper analyses the two approaches and argues for
the Equality Approach by dissecting it and going into its nuances. In
Part IV, this paper will highlight the procedural nuances of the
approach and clarify its working. Finally, in Part V, this paper looks at
the limitations of the Equality Approach and concludes thereafter.
I. Understanding Article 17 and Where Sabarimala Comes in
A. Evolution (Lack thereof) of Article 17 since
1950
Having undertaken a qualitative assessment of Supreme Court
and High Court judgements (post-independence) concerning the
meaning of “Untouchability”, this paper identifies that the Indian
Courts have understood “Untouchability” in a historical sense, solely
restricted to the caste based practice prevalent in the Hindu society.
Out of 83 High Court and Supreme Court judgments (65 and 18
respectively) concerning Article 17 and “UUntouchability”,9 a total of

9 These cases have been filtered using the SCC Database.

Expanding Article 17: Logic & Equality 245

31 judgments (8 Supreme Court10 judgments and 23 High Court11

judgments) have directly dealt with the meaning of “Untouchability”

10 Supreme Court cases, notably The State of Karnataka v Appa Balu Ingale AIR 1993 SC 1126
[14], [18]-[24]; Heikham Surchandra Singh v. Representative of Lois Kakching 1997 2
SCC 523 [5] citing Law Commission Report to interpret “Untouchability”; Ashoka
Kumar Thakur v. Union of India, (2008) 6 SCC 1; A.S. Narayana Deekshitulu v State of
A.P. & Ors. (1996) 9 SCC 548 [89]; State of MP v. Ram Krishna Balothia 1995 3 SCC
221 [6]; Adi Saiva Sivachariyargal Nala Sangam v. Govt. of TN 2016 2 SCC 725 [47]; N
Adithyan v. Travancore Devaswom Board 20028 SCC 106 paras [12], [15]; M Chandra
v. M Thangamuthu 2010 9 SCC 712 [41]; all deal with the meaning of the
“Untouchability” appearing either in Article 17 or relevant statues (see n 9)
11 See notably Devarajiah v. B. Padmanna, 1957 SCC OnLine Kar 16 [10] which recognises
the lack of a definite meaning of “Untouchability”, [11]-[21] affirmed in Sabarimala;
Commander Kamaljeet Singh Bhatti (Retired) & Ors. v State of Maharashtra 2016 SCC
OnLine Bom 9029 [3] (unreported); Gopal v State of Maharashtra (2020) 2 AIR Bom R
(Cri) 339 [6]-[7]; P. Rathinam v State of Tamil Nadu (2009) 78 AIC 659 (Mad [2]-[7], [10];
K. Prabhakaran v District Collector, Madurai District & Ors. 2015 SCC OnLine Mad
8704 [6]-[10]; Vimla Govind Chorotiya v State of Maharashtra (2022) 2 AIR Bom R 157
[11], [20]; Govind v State of Maharashtra (2019) 3 AIR Bom R (Cri) (NOC 77) 25 [13];
S. Gnanvel v The Principal, St. Joseph of Cluny Matric Higher Secondary School & Ors.
(2012) 2 CWC 575 [2] and [8]; Pavadai Gounder v State of Madras 1972 SCC OnLine
Mad judgment by Ramamurti, J. [1]-[3] and notably [4]; Ramchandra Machwal v. State of
Rajasthan, 2015 SCC OnLine Raj 9660 citing P. Rathinam at [9], interprets
“Untouchability” in similar fashion at [10] and [11]; V. Rajendran v. District Munsif, 1996
SCC OnLine Mad 442 [12]-[20] citing Shastri Yagnapurhdasji v Muldas Bhumdardas
Vaishya AIR 1966 S.C. 111, State of Karnataka v. Appa Balu Ingle in context of the
Madras Removal of Civil Disabilities Act, 1938, Devarajiah v. Padmanna A.I.R. 1958
Mysore 84 and Untouchability (Offences) Act, 1955; State v. Bhaishankar Uttamrai, 1955
SCC OnLine Bom 248 [32]-[34], [63], [109] in context of the Bombay Harijan (Removal
of Social Disabilities) Act, 1946 s. 2(f); Daulat Kunwar v. State of Uttarakhand, 2017 SCC
OnLine Utt 58 [11] in context of Protection of Civil Rights Act, 1955 s. 2(d) and the
meaning of “shops” along with s. 4 in context of Article 17; Bhanudas v State of
Maharashtra 2017 SCC OnLine Bom 7238 [37] notes “Untouchability” in Article 17 to
be in context of Caste System prevalent in the Hindu Society; The Board of Trustees
Arulmighu Poottai Mariamman Temple v The Revenue Divisional Officer-cum-
Executive Magistrate, Kallakurichi, Villupuram District & Ors. 2009 SCC OnLine Mad
264 [2] and [26]; Chandrama Singh v. State of Bihar, 1999 SCC OnLine Pat 721 [14];
Monu v. State of M.P., 2016 SCC OnLine MP 12178 [10]-[12] citing the Supreme Court
in the case of State of Karnataka v. Appa Balu Ingale; Duni Chand v. Sriniwas, 1993 SCC
OnLine J&K 31 judgment of R.P. Sethi, J at [1]-[3] and [12] notes there to be a connection
between Article 17 and s. 7 of the Untouchability Offences Act, 1955 in the meaning of
“Untouchability” appearing in both the instruments; Stephen Doss v. District Collector,
2015 SCC OnLine Mad 13161 [7] and [19]; Mariswamy v. State by the Police of Kude,
1997 SCC OnLine Kar 438 [13], [19], and [20] citing Devarajiah v. B. Padmanna affirms
the historical understanding of the term; Bishashwar Prasad v. State of U.P., 1965 SCC
OnLine All 459 [10] connects Article 17 to s. 7 of the Untouchability (Offences) Act,
1955; Surya Narayan Choudhary v. State of Rajasthan 1988 SCC OnLine Raj 31 [7]
attributes the historical meaning of “Untouchability” to be the intent of the framers; State
of Karnataka v. Laxminarayana Bhat, 1991 SCC OnLine Kar 44 [55].
246 INDIAN J. CONST. L.

while interpreting Article 17, or in the context of statutes relating to

“untouchability” which are linked to Article 17 of the Indian
Constitution.12
In this context, analysing Chandrachud J.’s approach in
Sabarimala has the potential to pave the way for a refined form of the
‘non-discrimination’ doctrine, one that preserves human dignity by
allowing it to attack the branding of human beings as pure/impure,
often associated with the Case caste system. This paper argues that his
approach, though a step in the right direction, is still incomplete. This
paper agrees in principle with Chandrachud J.’s consideration of the
logic of Purity-Pollution for Article 17. However, expanding Article 17
by simply using this logic would be meaningless as Part II (C) of this
paper will show. Chandrachud J. puts the logic of Purity-Pollution at
the core of Article 17. Though not wrong, his approach needs to be in
line with the historical basis of Article 17 as well by considering the
exclusionary effect of such practices as the starting point of inquiry.

12 Statutes such as Protection of Civil Rights Act, 1955, s. 7(1)(d) and Schedule Castes and
Schedule Tribes (Prevention of Atrocities) Act, 1989 Objects and Reasons
(“Untouchability as used in the Act is connected to Article 17 by the High Court of
Madhya Pradesh in Arif Khan v. State of M.P., 2019 SCC OnLine MP 6979 [11] citing
Monu v State of MP (n 8) at [21] and by M.P. Chothy v State of Kerala 202 SCC OnLine
Ker 4254 [25] – “The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, flows from Article 17”) and even Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993, The Prohibition of Employment as Manual Scavengers and their
Rehabilitation Acts, 2013, are generally understood to give effect to the provisions
contained in Article 17 of the Constitution.
Generally, in cases involving caste offences, a reference is always made to Article 17 in
light of these specific statutes (See Vimla Govind Chorotiya v State of Maharashtra (n 3) [11],
[20] as an example along with Monu v. State of M.P (n 8) [10]-[12], A.S. Narayana
Deekshitulu v. State of Andhra Pradesh, (1996) 9 SCC 548 [92], aresh Kumar Singh v.
Union of India, 1996 SCC OnLine Pat 438 [8] and Loknath v State of Karnataka [12]).
Furthermore, in Safai Karamchari Andolan v Union of India (2014) 11 SCC 224, Supreme
Court was concerned with enforcing the provisions of the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. In doing so, it
placed reliance on Parts IIthis paper and IV of the Indian Constitution and the
enforcement of fundamental rights guaranteed under Article 17 among others (14, 21
and 47 of the Constitution of India). Hence, the connection between Article 17 and these
statues makes such cases relevant for the purposes of this paper.
Expanding Article 17: Logic & Equality 247

This is what this paper calls the Equality Approach because it accounts
for a holistic understanding of discrimination by basing the inquiry on
exclusion as the starting point, compared to its raw alternative – the
Logic (of Purity-Pollution) Approach.
B. The Traditional Approach And Where
Sabarimala Stands Out
With the context of judicial treatment of ‘Untouchability’ and
Article 17 in mind, this section looks at the ‘Traditional Approach To
Article 17’ which is derived from the previous section, in contrast with
the approach followed in Sabarimala. The aim here, is to bring out the
difference in these divergent approaches and lay the foundation for
shifting the understanding of Article 17 from ‘Untouchability’ to the
logic of Purity-Pollution.
The term ‘Untouchability’ in Article 17 is nowhere defined in
the Indian Constitution,13 and up until now, the judiciary has dealt with
its interpretation in a historical context-based sense by confining it to
the practice of caste-based discrimination only. 14 Notably, the

13 See Durga Das Basu, Short Constitution of India, Eleventh Edition (1994) 102. Commenting
on Article 17 of the Constitution read with Untouchability (Offences) Act, 1955 he states,
“the word “Untouchability” has not, however, been defined by the Act just as there is no definition in
the Constitution; Marc Galanter, ‘Untouchability and the Law’ (1969) Economic and Political
Weekly 4(1/2) 131, 139; Devarajiah v B. Padmanna AIR 1958 Kant 84 [4]; Centre for
Academic Legal Research, ‘Analyzing the Scope of ‘Untouchability’ under Article 17’
(CALR, December 19, 2020) <https://calr.in/analyzing-the-scope-of-
”Untouchability”-under-article-17> accessed 6 May 2022.
14 B.R. Ambedkar, The Untouchables: Who were they and why they Became Untouchables (Kalpaz
Publications 1948, republished in 2017) 21. Dr. Ambedkar mentions that “Non-Hindu
societies only isolated the affected individuals. They did not segregate them in separate quarters. The
Hindu society insists on segregation of the Untouchables. The Hindu will not live in the quarters of the
Untouchables and will not allow the Untouchables to live inside Hindu quarters. This is a fundamental
feature of Untouchability as it is practised by the Hindus. It is not a case of social separation, a mere
stoppage of social intercourse for a temporary period. It is a case of territorial segregation and of a cordon
sanitaire putting the impure people inside a barbed wire into a sort of a cage. Every Hindu village has a
ghettto. The Hindus live in the village and the Untouchables in the ghetto.” Dr. Ambedkar’s
understanding of it was in line with purity/pollution, attached it to caste-based
discrimination; See also Mahatma Gandhi’s My philosophy of Life where he considers
‘Untouchability’ to be the acts/practices committed against Dalits as described therein;
248 INDIAN J. CONST. L.

Karnataka High Court,15 while tackling this issue in the case of

Devarajiah v. B. Padmanna (1957),16 restricted the scope of
“untouchability” to the historical context of the practice and not a
literal understanding of the term.17 The Supreme Court reaffirmed it in
The State of Karnataka v. Appa Balu Ingale (1992),18 by confining the scope
of the word to the discrimination faced by Dalits, as under the caste
system in India.19 In his judgment, Justice K. Ramaswamy provides the
rationale behind this, and concludes “Untouchability” to be the “basic
and unique feature, inseparably linked up with the caste system and social set up
based upon it.”20
Chandrachud J., in Sabarimala, departs from this approach by
choosing to inquire further into the logic behind the caste system;21 he

L. Elayaperumal, ‘The Report of the Committee on Untouchability, Economic and

Educational Development of the Scheduled Castes and Connected Documents’ (1969
New Delhi, Department of Social Welfare); M Kagzi, Mangal Chandra Jain, Segregation
and Untouchability Abolition (1976, New Delhi: Metropolitan Book Co.) 207 notes that
“Untouchability connotes the acts, action or practice of non-touching of the members of the lowest by the
caste Hindus, which means separation, segregation and isolation of such persons from the higher caste
Hindus. It means keeping the Harijan untouchables outside the mission”; Gerard Baader, ‘The
Depressed Classes of India: Their Struggle for Emancipation’ (1937) An Irish Quarterly
Review 26(103) 399, 400-403; Lela Dushkin, The Policy of the Indian National Congress Toward
the Depressed Classes, an Historical Study (1967) notes that “Untouchability is ordinarily used in
all sense, first to refer to the pollution - stigma attached to untouchables, secondly to refer to the set of
practice engaged in by the rest of the society to protect itself from pollution conveyed by the untouchables
and to symbolise their inferior status.”
15 Note that the court cautions against construing ‘Untouchability’ in the literal sense,
meaning those who cannot be touched literally. Rather, it opts for a historical context-
based approach by looking at the evolution of the practice in India Devarajiah v B.
Padmanna AIR 1958 Kant 84 [4].
16 Devarajiah v B. Padmanna AIR 1958 Kant 84.
17 Note that the court here was not interpreting Article 17 but the word ‘Untouchability’
under The Untouchability (Offences) Act, 1955 which made the practice a punishable
offence, and for reaching an understanding about ‘Untouchability’, the court looks at
Article 17. It mentions at [4]:
“There is no definition of the word 'Untouchability in the Constitution also. It is to be noticed that that
word occurs only in Article 17 and is enclosed in inverted commas. This clearly indicates that the subject-
matter of that Article is not “Untouchability” in is literal or grammatical sense but the practice as it had
developed historically in this country.”
18 State of Karnataka v Appa Balu Ingale AIR 1993 SC 1126.
19 ibid [11]-[17].
20 State of Karnataka v Appa Balu Ingale [18].
21 He also relies on the Transformative Constitution theory and analysis of Assembly
Expanding Article 17: Logic & Equality 249

acknowledges the logic of Purity-pollution to “constitute the core of

caste.”22 He then proceeds to look at its working within the domain of
caste and outside it as well (the society, regarding women).23 He
extracts the logic as a separate phenomenon, found in the practice of
‘Untouchability,’ as its core.24 He considers Article 17 to be attacking
that essence of the caste system25 and not only its manifestation in the
caste system because such logic can manifest in a kind of
Untouchability that the Constitution26 seeks to prohibit by mentioning
the words “in any form.”
Simply put, the genus is the logic of Purity-Pollution, (and one
of) the species is the caste system. Article 17 targets the genus and this,
consequently, allows for the presence of different kinds(s) of
‘Untouchability. The principle here is that all practices of the caste
system are bound to follow the logic but not the other way around,
and since Article 17 targets the logic, the scope of Article 17 goes
beyond the caste system.
II. Expansive Interpretation of Article 17 – A Critique
Having established the distinct approaches to Article 17, this
part of the paper critiques the idea of expanding Article 17 in meaning
and ambit. It explores arguments for reading Article 17 expansively. It
discards Assembly Debates as the sole set of possible arguments for
expanding Article 17 because of their inherent inconsistencies. Instead,

Debates to infer an expansionary connotation to Article 17. My focus, however, is on the

logic aspect only.
22 Sabarimala (n 4) [253].
23 ibid [258].
“Menstruation has been equated with impurity and the idea of impurity is then used to justify (women’s)
exclusion from key social activities.”
24 Sabarimala (n 4) [253].
25 ibid.
26 The Constitution of India, 1950.
250 INDIAN J. CONST. L.

it looks at historical reasons and equality considerations for refining

Article 17.
A. The Assembly Debates Argument
Starting with the very basis of almost all judgments on the
interpretation of Article 17, the Constituent Assembly Debates find
relevance. One of the primary reasons due to which Article 17 has
come to be understood in its current form is because of the heavy
reliance of courts on the Constituent Assembly Debates on Draft
Article 11 (now Article 17).
However, an analysis of these debates can lead to a different
proposition as well. Following this trend of using Assembly Debates,
this paper presents some reasons against a restricted Article 17. Firstly,
it is noteworthy that during the Constituent Assembly Debates, the
lack of a definition for ‘Untouchability’ had come up. While some of
the members understood the term in the context of historical caste-
based discrimination, none of them proposed a narrow definition in
opposition to an expansive one.27 Secondly, the presence of Article 15(2)
was noted to contend that its guarantee against ‘horizontal
discrimination’ in access to hotels, shops, public restaurants, etc. was
superfluous because of Article 17, as it already abolished such
exclusionary practices that were based on caste.28 Thus, a preliminary
look at these debates leads to the inference that an expanded Article
17, though novel, is not entirely inconceivable.
Another way to look at these two Articles (Article 15(2) and
17) is that since Article 15(2) already covered caste and religion-based

27 Gautam Bhatia, ‘The Sabrimala Hearings and the Meaning of ‘Untouchability’ under
Article 17 of the Constitution’ (Indian Constitutional Law and Philosophy July 18, 2018)
<https://indconlawphil.wordpress.com/2018/07/18/the-sabrimala-hearings-and-the-
meaning-of-Untouchability-under-Article-17-of-the-constitution/> accessed May 6,
2022.
28 ibid.
Expanding Article 17: Logic & Equality 251

discrimination, a narrow reading of Article 17 would make it

redundant, therefore, the scope of Article 17 must be beyond just
caste-based discrimination. Moreover, consider the amendment
proposed by Mr. Naziruddin Ahmad to draft Article 11 (now Article
17). He had moved for the Article to be amended such that it only
covered instances of religious or caste-based ‘Untouchability’. But his
amendment was rejected. Considering the rejection of Mr. Naziruddin
Ahmad’s amendment to the concerned Article,29 which would have
restricted it to only caste and religion,30 a notion against attributing a
limited meaning to Article 17 can be inferred and such was also noted
by Chandrachud J. in his judgment in Sabarimala.31
However, such arguments are easily countered using literature
on Constituent Assembly Debates, which shows an inclination of
some other members to construe the term in a narrow sense. That is
to say that there was a multiplicity of arguments and views on the scope
of ‘Untouchability’ and Article 17, and there is no definite conclusion

29 Naziruddin Ahmad had the following understanding of draft Article 11 (now Article 17):
“this paper submit that the original article 11 is a little vague. The word “Untouchability” has no legal
meaning, although politically we are all well aware of it; but it may lead to a considerable amount of
misunderstanding as in ale gal expression. The word 'untouchable' can be applied to so many variety of
things that we cannot leave it at that. It may be that a man suffering from an epidemic or contagious
disease is an untouchable; then certain kinds of food are untouchable to Hindus and Muslims. According
to certain ideas women of other families are untouchables. Then according to Pandit Thakurdas
Bhargava, a wife below 15 would be untouchable to her loving husband on the ground that it would be
'marital misbehaviour'. this paper beg to submit, Sir, that the word 'untouchable' is rather loose. That
is why this paper have attempted to give it a better shape; that no one on account of his religion or caste
be regarded as untouchable. Untouchability on the ground of religion or caste is what is prohibited.”
Hence, he moved to propose the following amendment:
“No one shall on account of his religion or caste be treated or regarded as an 'untouchable', and its
observance in any form may be made punishable by law.” This amendment would have restricted
Untouchability to its religious and caste-based manifestations only. But it was rejected.
Sabarimala (n 4) [249]; Constituent Assembly Debates, November 29, 1948, speech
by Naziruddin Ahmad 62, para 183.
30 Constituent Assembly Debates, November 29, 1948, speech by Naziruddin Ahmad 62,
para 183, available at
<https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/194
8-11-29> Accessed May 6, 2022.
31 Sabarimala (n 4) [250].
252 INDIAN J. CONST. L.

about the true scope of Article 17 which can be gathered solely from
the Assembly Debates. Such is also the reasoning that Justice Indu
Malhotra relied on in her judgment in Sabarimala.32 She mentions that
“a perusal of the Constituent Assembly debates on Article 11 of the Draft
Constitution would reflect that “Untouchability” refers to caste-based
discrimination faced by Harijans, and not women as contended by the
Petitioners.”33 So, this argument which argues for expanding Article 17
solely based on Assembly Debates is as easily made as it is countered.
Lastly, as Justice Malhotra notes, even scholars like H.M Seervai34 and
M.P Singh35 have pushed for a historical, caste-based understanding of
‘Untouchability’ under Article 17. So, sole reliance on Assembly

32 ibid [310.7].
33 ibid [310.4]. Notably, she mentions Mr. V.I. Muniswamy Pillai and Dr. Monomohan Das
to construe a narrow meaning for ‘Untouchability’ in Article 17.
She notes: “During the debates, Mr. V.I. Muniswamy Pillai had stated: Sir, under the device of caste
distinction, a certain Section of people have been brought under the rope of “Untouchability”, who have
been suffering for ages under tyranny of so-called caste Hindus, and all those people who style themselves
as landlords and zamindars, and were thus not allowed the ordinary rudimentary facilities required for
a human being... this paper am sure, Sir, by adoption of this clause, many a Hindu who is a Harijan,
who is a scheduled class man will feel that he has been elevated in society and has now got a place in
society.”
Furthermore, Dr. Monomohan Das, quotes Mahatma Gandhi while undeniably
accepting the meaning of “Untouchability” as intended under the Constitution: “Gandhiji
said this paper do not want to be reborn, but if this paper am reborn, this paper wish that this paper
should be born as a Harijan, as an untouchable, so that this paper may lead a continuous struggle, a
lifelong struggle against the oppressions and indignities that have been heaped upon these classes of
people.... Not only Mahatma Gandhi, but also great men and philosophers of this ancient land, Swami
Vivekananda, Raja Ram Mohan Roy, Rabindranath Tagore and Ors. who led a relentless struggle
against this heinous custom, would also be very much pleased today to see that independent India, Free
India, has at last finally done away with this malignant sore on the body of Indian Society.”
34 H.M. Seervai, Constitutional Law of India: A Critical Commentary (4th edn. vol I, Reprint
1999), paragraph 9.418, 691. He notes “ that “Untouchability” must not be interpreted in its
literal or grammatical sense, but refers to the practise as it developed historically in India amongst Hindus.
He further states that Article 17 must be read with the Untouchability (Offences) Act, 1955, which
punishes offences committed in relation to a member of a Scheduled Caste.”
35 M.P. Jain, Indian Constitutional Law, (6th edn., revised by Justice Ruma Pal and Samaraditya
Pal, 2010) 1067. He states: “Therefore, treating of persons as untouchables either temporarily or
otherwise for various reasons, e.g., suffering from an epidemic or a contagious disease, or social observances
associated with birth or death, or social boycott resulting from caste or other disputes do no come within
the purview of Article 17. Article 17 is concerned with those regarded untouchables in the course of
historic developments.”
Expanding Article 17: Logic & Equality 253

Debates does not yield a definite conclusion on the exact scope of

‘Untouchability’ and Article 17.
This paper recognizes the lack of a decent argument that
compels one to consider only one type of literature from CADs.
Hence, relying solely on these debates to expand or restrict Article 17
would be naïve and misguided. Still, these debates are not entirely
irrelevant. From a perusal of the points mentioned above and
counterpoints by Justice Indu Malhotra,36 it can definitely be extracted
from CADs that there was an absence of consensus or even a single
member’s preference for a narrow definition of ‘Untouchability’ and
Article 17 in opposition to an expansive one.
Furthermore, a plausible argument from the Assembly
Debates can be made to argue against an expanded Article 17.37 This
is the Misappropriation Argument that attacks this form (expanded) of
Article 17. It considers the newly expanded scope of ‘Untouchability’

36 ibid [310.2]-[310.4].
Justice Malhotra mentions – “All forms of exclusion would not tantamount to “Untouchability”.
Article 17 pertains to “Untouchability” based on caste prejudice. Literally or historically,
“Untouchability” was never understood to apply to women as a class. The right asserted by the Petitioners
is different from the right asserted by Dalits in the temple entry movement. The restriction on women
within a certain age-band, is based upon the historical origin and the beliefs and practises of the
Sabarimala Temple.” [310.2].
37 During the debates, such arguments had come up. As Santanu Kumar Das noted – “This
clause is intended to abolish the social inequity, the social stigma and the social disabilities in our society.
We must ourselves first observe the law for otherwise there would be no sense in asking others to act upon
it. If we fail to observe it, it would be impossible to root out this evil. Provincial Governments enact laws
for the welfare of the Harijans; they pass bills for the removal of “Untouchability”, for the removal of
disabilities and for permitting temple entry but you will be surprised, Sir, if this paper tell you that our
members act as fifth columnists in the rural areas, for they tell the people there that these laws are not in
force and thus they themselves act against the law. this paper would request the Members of the House to
try their best to make the law effective so that this present social inequity in the country may be removed.
Sir, this paper support the clause whole-heartedly.” Thus, he showed his support for the draft
article in its original form, based on a caste system based understanding of
“Untouchability”.
Constituent Assembly Debates, November 29, 1948, speech by Santanu Kumar Das 62,
para 172, available at
<https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/194
8-11-29> Accessed May 6, 2022.
254 INDIAN J. CONST. L.

under Article 17 to be akin to misappropriating the struggles of caste

discrimination by regarding practices that are not solely based in caste
discrimination as ‘Untouchability’. It removes caste from the focus of
Article 17 by considering practices that go beyond caste discrimination
to be included under the heading of ‘Untouchability.’
Consequently, it dilutes the historical implications associated
with caste-based practices. Resultantly, the meaning and gravity of
caste discrimination stands misappropriated. Extending this argument
further weakens the consideration of Assembly Debates (specifically
Ahmad’s amendment) for expanding Article 17. The people who had
questioned the scope of Article 17 in the CADs were upper-caste men.
Therefore, giving primacy to their views, it may be argued, is another
form of subjugating Dalit voices.
In response to these points, this paper deals with the
Misappropriation Argument first. The response would be a
consideration of the phrase “its practice in any form is forbidden” present
in Article 17.38 The Article itself acknowledges the presence of forms of
‘Untouchability’ and protects against all such forms, out of which caste
is the basis of one. This implies Article 17 has a broad scope.39 So,
when an expanded Article 17 bases its inquiry on the logic of Purity-
Pollution, like Chandrachud J., the basis of ‘Untouchability’ and hence,
caste discrimination is attacked. Hence, it is put forward that including
practices based on the logic of Purity-Pollution under Article 17 does
not misappropriate the issue of caste discrimination, but rather
prevents a stigma similar to Untouchability from evolving by outlawing
analogous disturbing practices.

38 Sabarimala (n 4) [255].
39 ibid [250].
Expanding Article 17: Logic & Equality 255

Secondly, this approach does not displace caste from the core of
Article 17 because the historical practice of Untouchability remains
prohibited even under an expanded Article 17. It is argued that by
considering this logic of Purity-Pollution, the essence of caste
discrimination is proscribed and consequently, all practices based in
this logic, including the caste system, are sought to be outlawed. This
understanding of Article 17 works to prohibit all practices that may be
similar to the caste system in effect by attacking the very basis of a
practice like the caste system. This reinforces the protection against
Untouchability along with its forms and takes it a step further by
outlawing its basis as well.
Lastly, the ‘primacy to upper-caste views’ argument is
countered as Dalit voices are not being subordinated here. This is
because (a) none of the members, including those from the Dalit
community, preferred a narrow definition in opposition to an expansive
one,40 and (b) by incorporating the logic, historical Untouchability still
remains prohibited. Rather, this approach harmonizes the two ideas in
the CADs (narrow v. expansive Article 17). It incorporates Dalit voices
by having historical Untouchability under the fold of Article 17 and
other voices by locating logic as the driving factor of an Article 17
inquiry to include other types of ‘Untouchability’ as well. These “types”
may include menstruation, discrimination in funeral rites/practices, the
phenomenon of ‘Temporary Untouchability’, etc.41
In summation, this paper does not argue for an expansive
interpretation only based on CADs, which would be an originalist
argument to make. There exist inherent inconsistencies in these
Debates regarding the ambit of Article 17. Relying solely on these will
lead to a situation similar to one between Justice Chandrachud J. and

40 Bhatia (n 24).
41 Subsequent sections of this paper will deal with these types in more detail.
256 INDIAN J. CONST. L.

Justice Indu Malhotra in the Sabarimala judgment. Both of them used

similar sources to arrive at contrasting conclusions on the Article 17
issue. Rather, this paper refutes the arguments against expanding
Article 17 by using the Assembly Debates to introduce counter
arguments.
B. Historical Basis of Untouchability – The Need to
Incorporate the Logic
Expanding Article 17 simply because it can be done is not
appropriate as the sole reason for interpreting this provision a certain
way. The explicit need to incorporate this logic which is essential to
the spirit of Article 17 in terms of its purpose also needs to be shown
and the purpose of this section is precisely that.
The expanded approach needs to have a basis to legitimately
incorporate the logic of Purity-Pollution under Article 17 as a starting
point of inquiry. This basis can be identified in the historical
understanding of Untouchability read with the purpose of Article 17.
This expanded Article 17 is quite different from the current historically
understood Article 17 because unlike the latter, it considers the logic
of Purity-Pollution as the focal point of inquiry. On the other hand,
the former considers the caste system as the focal point of inquiry,
thereby restricting its scope compared to the expanded Article 17.
The difference in these two versions is illustrated as follows –
the expanded form would include the caste system within its fold,
among other analogous practices based in the logic of Purity-Pollution
whereas the historical form of Article 17 would only include the caste
system which is necessarily based in this logic of Purity-Pollution.
Therefore, its scope is simply the caste system and any consideration
of the logic of Purity-Pollution is virtually meaningless. Analogous
Expanding Article 17: Logic & Equality 257

practices would fall out of the scope of Article 17, rendering the phrase
“in any form” appearing in the Article meaningless.
In this light, it is important to acknowledge how Chandrachud
J. in Sabarimala starts his inquiry for Article 17. He considers this logic
of Purity-Pollution to be at the core of caste-based Untouchability.42
But he doesn’t back this notion up with any literature around
Untouchability, which is one of the criticisms of his argument and one
of the reasons this paper considers his approach incomplete hence this
paper firstly identifies this logic in the historical practice of
“Untouchability” as its basis and secondly, places it under an expanded
Article 17.
Moreover, Chandrachud J. focuses strictly on the logic of
Purity-Pollution as the starting point. This form of expansion of
Article 17 is unsustainable in its working as Parts II and IV of this
paper will show. Rather, a more appropriate focus of inquiry which
Chandrachud J. also hints at, though not as the starting point, is the
exclusionary effect which is bound to stem from the logic of Purity-
Pollution. This effect is evidenced by an analysis of the historical basis
of Untouchability in Hinduism to attribute a purpose to Article 17.
The idea of Purity/Impurity (pollution) has been prevalent
throughout Hindu society in both, domestic and public life – food &
water, occupations, kinship, marriage, religious action & belief, access
to temples/monasteries, etc.43 Even in caste, the key idea of hierarchy
has originated in “priestly ceremonialism,” implying the general belief to
be rooted in purity.44

42 Sabarimala (n 4) [253].
43 A. M. Shah, ‘Purity, Impurity, Untouchability: Then and Now.’ Sociological Bulletin,
56(3) 2007, 355.
44 Compiled by Vasant Moon, Dr. Babasaheb Ambedkar Writings and Speeches (vol. 1 1st edn.,
Dr. Ambedkar Foundation Ministry of Social Justice & Empowerment, Government of
India, 1979) ‘Chapter 1: Castes in India: Their Mechanism, Genesis and Development’ 5.
258 INDIAN J. CONST. L.

Such notions of Purity-Pollution, applicable since birth have

played key roles in the separation and the hierarchical arrangement of
castes.45 The principle of hierarchy can be identified in the caste
system.46 The arrangement of this hierarchy was based on the level of
purity and the indicator for it was the observance of the rules of Purity-
Pollution.47 Resultantly, castes have been ranked on their ‘level of
purity,’ based on their compliance with such rules.
Basically, the higher one climbs up the caste ladder, the higher
level of purity one would find. In summation, Purity-Pollution has
been the basis of caste distinction, making it the idea behind the caste
System and thus, Untouchability. If we trace the ‘logical’ flow, it
becomes evident that Purity (or, the lack thereof) starts as a basis for
distinction, which in the context of caste, spawned Untouchability as
we have historically witnessed.
By considering a context other than caste, one could conceive
a different form of Untouchability. For example, menstruation. In a
gendered context, as opposed to caste, the notions of Purity-Pollution
manifest as menstrual taboos.48 Consequently, menstruation is seen as

45 Shah (n 36) 356.

46 See Dumont L, Homo Hierarchicus: An Essay on the Caste System (University of Chicago
Press, 1970) Introduction; M Kagzi, Mangal Chandra Jain, Segregation and Untouchability
Abolition (1976, New Delhi: Metropolitan Book Co.) 207 notes that “Untouchability connotes
the acts, action or practice of non-touching of the members of the lowest by the caste Hindus, which means
separation, segregation and isolation of such persons from the higher caste Hindus. It means keeping the
Harijan untouchables outside the mission”; Marc Galanter, ‘Untouchability and the Law’ (1969)
Economic and Political Weekly 4(1/2) 131, citing the Privy Council decision of Sankaralinga
Nadan v Raja Rajeswara Dori 35 this paper AC (1908) affirmed by the Bombay High Court
in Sankaralinga Nadan v Raja Rajeswara (1908) 10 BOMLR 781.
47 A. M. Shah, in his ‘Purity, Impurity, Untouchability: Then and Now,’ acknowledges the
enormity and the complexity of the literature on such rules. He mentions, “even if one
manages to read the entire literature on purity/impurity, this paper doubt if one would be able to grasp
all its ramifications. A complete list of pure/impure actions, ideas, and materials would occupy a whole
book, perhaps as large as an encyclopaedia.”
Shah (n 36) 356.
48 Mitoo Das, ‘Menstruation as Pollution: Taboos in Simlitola, Assam’ 2008 Indian
Anthropologist 38(2) 29, 30.
Expanding Article 17: Logic & Equality 259

a ‘polluting agent’ (in Hinduism), containing dirt/impurities,49 and as a

result, women have been relegated to an inferior position vis-a-vis
men, resulting in a need to ostracize them for certain periods, resulting
in their social exclusion.50
This notion of impurity is distinct from caste, where the
observance of rules determined one’s level of Purity. The principle
apparent here is that the context in which the notion(s) of Purity-
Pollution are practised, gives rise to a stratification (it may be caste
hierarchy or gendered or otherwise), which spawns a form of
Untouchability, derived from the context (for example, inferiority-
based exclusion of women, or impure castes).
Hence, looking at (say) only caste, to determine
‘Untouchability’ is a misdirected approach as its manifestation can
change with context, and it does not address the core of the issue. So,
logic needs to be the focal point of Article 17.
C. Refining the Process – Introducing the Exclusionary
Effect
This logic-driven approach to Article 17, this paper argues, still
needs to be refined. This has to be done by incorporating the
exclusionary effect of any practice, as the starting point of any Article
17 inquiry, and only then would the logic be considered. Here, this
paper explicitly acknowledges the ‘exclusionary effect’ as a
phenomenon, aside from the logic of Purity-Pollution, something that
Chandrachud J. fails to do in Sabarimala.

49 Some Vedic texts describe menstrual blood as “impure and dangerous because it was the result
of Indra's curse . . . women the bearers of the discharge, the curse, the danger, and the impurity were in
turn subjected to severe restrictions.”
ibid 31.
50 Das (n 41) 31.
260 INDIAN J. CONST. L.

This paper presents two possible forms that an expanded

Article 17 inquiry can take. First, it starts and ends at the logic only,
that is, the logic of the practice is looked at. If found to be based on
‘Purity-Pollution,’ (like caste discrimination), it becomes a form of
Untouchability as under Article 17 and hence outlawed. The rationale
here is that the very act and significance of branding a human being as
pure/impure falls so foul of human dignity that even in a world
without Article 17, it would offend the principles of equality and
dignity. So, any practice that is concerned with the purity/impurity of
a human being is barred under the scope of Article 17.
The emphasis is only on the logic of any practice and not on
the form this logic will take, the way it will play out in a context, etc.
The argument is that any practice that is grounded in Purity-Pollution
is a form of Untouchability and it does not matter whether or not it
excludes people. The very idea that a human being is pure/impure is
problematic enough to be under Article 17. This is what this paper calls
the Logical Approach to Article 17 and Chandrachud J. largely51
follows it in Sabarimala.
Chandrachud J. in Sabarimala talks of Article 17 as a “powerful
guarantee to preserve human dignity”52 but he does not stop there. He
further includes “stigmatization and exclusion of individuals and groups on the
basis of social hierarchism,” to be under Article 17 as well. 53 He alludes to
the concept of ‘exclusion’ in the context of the logic of Purity-
Pollution without going into the nuances or the significance of it. This
is where his argument needs sharpening.

51 This paper says this because he refers to exclusionary effect as well but the focus and the
basis of his argument seem to be the logic only. Exclusion is not elaborated upon.
Chandrachud J.’s sole focus remains the logic first and foremost and not the exclusionary
effect.
52 Sabarimala (n 4) [252].
53 ibid.
Expanding Article 17: Logic & Equality 261

This paper argues that his approach needs to start by

considering the exclusionary effect of any practice and only then check
whether this exclusion stems from the logic of Purity-Pollution, which,
if it does, would come under Article 17. Summarily, this paper
contends that to legitimately expand the scope of Article 17, the inquiry
has to start by considering whether the practice is exclusionary and
only then check for the presence of Purity-Pollution. This is what this
paper calls the Equality Approach and this is the second form of inquiry
for an expanded Article 17.
There is a considerable difference between the 2 approaches.
The Logic Approach focuses only on logic and not its manifestation
or its consequences. It overlooks exclusion and hence, is incomplete.
It is not the case of this paper to attack The Logic Approach, but
simply to point out its incomplete nature. That, in contrast to the
alternative this paper suggests, it cannot work to include practical cases
of Purity-Pollution and exclusion. Moreover, it lacks focus as there is
no guiding principle behind it. It discounts the very manifestation of
an idea, essentially making it difficult to identify that idea in the first
place.
Contrastingly, the Equality Approach is guided by principle. It
falls in line with the historical context of Article 17 and the fight against
caste inequality. Additionally, it also deals with the possibility of the
extension of the logic of Untouchability and the consequences
thereon. It identifies the logic of Purity-Pollution by incorporating the
effect of this logic, i.e., exclusion, and starts from there. This gives an
identifiable starting point and direction to the inquiry. It allows the
room to include practices that go beyond the caste system and operates
on the same principles as caste-based Untouchability, under Article 17.
262 INDIAN J. CONST. L.

III. Equality Approach v. Logic Approach – Why Consider the

Effect?
With the two approaches introduced, this section of the paper
puts them against each other to bring out why the logic of Purity-
Pollution alone belying Article 17 would be incomplete. This paper
goes on to suggest a solution to make the approach complete – by
introducing the exclusionary effect of the logic, the practical
manifestation of it. It will argue for considering this effect under
Article 17 specifically keeping in mind the history, purpose, and
practical application of the provision.
A. Argument From History
As this paper has established above, at the core of the historical
practice, sits the logic of Purity-Pollution. However, this conception of
Untouchability, stemming from the logic and presenting as it did under
the caste system, is incomplete. Its aim/consequence, which is
‘exclusion’ needs to be considered as well. Ambedkar defines caste as
“a self-enclosed unit [that] naturally limits social intercourse, including messing, etc.
to members within it.”54
He attributes this rigidity not to an explicit, positive restriction,
but to the natural result of caste, which is exclusiveness.55 From the
need to preserve exclusivity (say, of caste, etc.) arose the idea of
exclusion. The goal is esotericism, to identify what makes a caste
exclusive, and preserve those characteristics from being diluted by
association with those who lacked them. This is to say an

54 Ambedkar (n 26) 8.
55 Ambedkar also mentions Émile Senart, a French authority, who relates caste groups to
the ceremonial questions of pollution and deems ‘irrevocable exclusion’ from the group,
to be the final form of penalty, authorizing the sanction of the community.
Ambedkar (n 26) 6.
Expanding Article 17: Logic & Equality 263

individual/caste (etc.), is not simply branded pure/impure for no

reason, there has been an end goal for it – Exclusion.
Expanding on the above-mentioned examples, historically
speaking, this logic has manifested in the exclusion of certain castes by
either avoiding their physical contact or ostracizing them from social
life – exclusion from wells, homes, temples, etc. or otherwise.56 Even
in the case of menstruating women, notions of Purity-Pollution have
manifested as social taboos that seek to justify the exclusion of
menstruating women from social life.57
Ultimately, the logical flow of the argument is this – the logic
of Purity-Pollution brands people as either pure or impure. This leads
to the establishment of a hierarchy, and following this, some form of
exclusion (social, literal, or otherwise) is practised against the
group/individuals ranked lower on the list. Without considering the
exclusionary effect, the inquiry, therefore, is incomplete because this
logic is only visible on ground through actual exclusion. The end goal
of this ordeal is to exclude. Creation of hierarchies, purity/impurity, all
work for the purpose of segregating people.58
While Article 17 may not be solely restricted to the historical
practice of caste-based discrimination, its aim has been acknowledged
to be that of ‘social transformation.’59 It represents the struggles to
break away from an ‘unequal social order,’60 created primarily because of
the caste system. Thus, caste-based Untouchability has at least some
bearing on the interpretation of Article 17 in that, the harm it seeks to
prevent is of exclusion, stemming from the logic of Purity-Pollution.

56 Judy Whitehead, ‘The Mirror of Inequality: A Reinterpretation of Homo Hierarchicus’

Social Scientist, 10(11) 1982 33, 45.
57 Das (n 31) 34.
58 Ambedkar (n 26) 5-8.
59 Sabarimala (n 4) [251].
60 ibid.
264 INDIAN J. CONST. L.

Consequently, since the practice of caste-based Untouchability is

incomplete without exclusion,61 its incorporation under the inquiry for
Article 17 becomes imperative. The Equality Approach, therefore, is
more in line with the historical context of Article 17 and the movement
it began for social reform.
B. Argument From Scope
Adding the extra layer of ‘exclusionary effect’ gives direction
and defines the scope of Article 17 while ensuring that the principles
of caste-based Untouchability remain at its core. Since the Equality
Approach is more in line with the historical context of Article 17, adding
the provision of ‘exclusionary effect’ legitimizes the scope of Article
17 to only those cases where a form of Untouchability is practised in its
entirety. This paper does not deem branding people as pure/impure as
unproblematic for human dignity. But simply recognizing the existence
of this logic, without it manifesting as exclusion is imperfect and does
not encapsulate ‘Untouchability’ in its entirety. As mentioned above
this whole ordeal operates with a purpose. Historically, this purpose
has been to exclude. Thus, recognising exclusion is fundamental to
refining an expended Article 17.
While such branding is a step toward practising Untouchability,
this paper maintains that an ‘exclusionary effect’ is bound to follow
such logic which is why an inquiry for Article 17 has to start with the
consideration of the presence of an exclusionary effect (present or
not). But this logic alone is not ‘Untouchability,’ as it is yet to manifest
as exclusion. The acknowledgement of the effect is crucial, as this harm
of exclusion from Purity-Pollution, is what Article 17 attacks.62

61 That is not to say that exclusion is not present in other forms of ‘Untouchability’. The
fact that it was the ultimate goal of caste-based Untouchability and that primarily, this
practice sparked the movement for social reform, it is imperative to consider the effect.
62 Arguments for Social Transformation, as Chandrachud J. puts it, in Sabarimala. He notes
at [248]:
Expanding Article 17: Logic & Equality 265

This argument has a procedural bearing and the inquiry must

start by considering exclusion and only then proceed to look at the
logic. Consider the purpose of this inquiry – preventing the exclusion
of individuals and not only merely declaring the group/individual as
‘not impure’. A lack of consideration of the ‘effect’, could arguably
justify exclusion (the end goal of Untouchability), and allow caste
groups to conflate the issue by arguing to maintain their ‘exclusiveness’
in other ways, possibly, by justifying the practice to be of ‘ritualistic
importance’,63 something the judiciary has acknowledged in the past
and subsequently awarded ‘purificatory ceremonies,’ necessitated by
‘pollution’ due to the presence of ‘untouchables’.64
Emphasizing the procedural nature of this argument, this
paper puts forward that the incorporation of the effect will not raise
the threshold for the petitioner seeking relief under an expanded
Article 17. On the contrary, it will reduce the standard of proof
required for the petitioner. Previously, the standard was to show the
existence of the logic of Purity-Pollution for seeking relief. Now the
threshold is only to show exclusion, without considering whether its
motive lies in Purity-Pollution. The existence of exclusion itself
becomes the ground on which an inquiry for the logic can begin. The
onus of this inquiry is not cast on the petitioner as subsequent parts
will show.
This paper maintains the ‘presumption of exclusion’ stand and
as a result, the petitioner need not prove it separately in cases where

“Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the
aspirations of socially disempowered individuals and communities, and provides a moral framework for
radical social transformation. Article 17, along with other constitutional provisions61, must be seen as
the recognition and endorsement of a hope for a better future for marginalized communities and
individuals, who have had their destinies crushed by a feudal and caste-based social order.”
63 Anandrav Bhikaji Phadke v Shankar Daji Charya ILR 7 Bom 323.
64 Marc Galanter, ‘Untouchability and the Law’ Economic and Political Weekly 4(1/2) 1969
131.
266 INDIAN J. CONST. L.

logic is explicitly identifiable as of Purity-Pollution. Moreover, this

paper envisions this presumption as refutable, so the respondent is not
left without a remedy. This paper will elaborate on this aspect in Part
IV.
C. Argument From Principle
Simply put, the existence (identification) of the logic of Purity-
Pollution is not going to be so clear as to recognize it prima facie. Since
there is no universal understanding of Purity-Pollution. It has varied
from ‘ritual impurity’ to ‘literal impurity’, in the context of jobs,
‘impurity’ based on adherence to rules, and even menstrual taboos and
more. Thus, having the petitioner prove the presence of this undefined
concept in a court of law is a very high threshold to meet because it is
a Part III inquiry.65 There has to be a principled methodology for such
an inquiry, which the Logic Approach lacks. It looks only at the logic
without considering its effect, and hence, is disorganized as it lacks an
explicit starting point.
How does one even start looking for the logic? Logic is not
always apparent and is often hidden under layers of reasoning. Do you
look for each and every manifestation of the logic (caste, menstruation,
occupation, etc.)? Where and in what context, do you look for it? Who
all are harmed by it? How do you confirm that people/groups have
been branded as pure/impure? Does this branding need to be
codified? Do you wait for the instances where such logic is clearly
apparent to show up, or do you just evaluate every single aspect of
society to look for it? Either of these methods is unrealistic.
Looking for every manifestation of logic, in every context is
not realistic. Therefore, this paper proposes a principled approach –

65 Part VI of this paper will elaborate on this claim.

Expanding Article 17: Logic & Equality 267

the Equality Approach. Considering that Article 17 seeks to prevent

the harm of exclusion stemming from the logic of Purity-Pollution, you
start with the presence of that effect, its manifestation, as it is (a)
conceivable because people experience it through ‘exclusion,’ and (b)
more in line with the historical context of caste struggle and places the
social transformative role of Article 17 at the core. Once (a) is
identified, the inquiry for Article 17 would begin.
Such is plausible as there is a legitimate basis for the inquiry –
Exclusion. Whether such exclusion is based on Purity-Pollution is to
be decided by the inquiry. The aforementioned questions can be
answered if the Equality Approach is followed. The starting point is the
manifestation of logic (exclusion from a certain activity of a certain
people) in a specified context, and for a specified people/group. Only
these are considered within the sphere of the exclusionary effect.
Under this approach, identifying Purity-Pollution is conceivable by
considering the presence of relevant facts, the context of the exclusion
(its nature, basis, justification of the basis, etc.), and the
nature/demographic/religion/commonality (etc.) of the excluded
group.
Consider Anandrav Bhikaji Phadke v Shankar Daji Charya,66
(1883) where the Bombay High Court was hearing an appeal regarding
a matter wherein Brahmin defendants, belonging to the ‘Palshe’ caste,
were alleged to have ‘infringed the right of exclusive worship’, of the
petitioners (upper-caste Brahmins), by entering and performing
worship in the sanctuary of a temple.67 Here, a misappropriation of the

66 Anandrav Bhikaji Phadke v. Shankar Daji Charya ILR 7 Bom 323. Available at Book Depot
Branch of the Legislative Department of the Bengal Secretariat ‘The Indian Law Reports,
Bombay Series’ (1883) Volume VIthis paper South Asia Archive, available at
<http://www.southasiaarchive.com/Content/sarf.100032/212272/002> Accessed
June 26, 2022.
67 ibid.
268 INDIAN J. CONST. L.

logic of Purity-Pollution is apparent. From the judgement, it becomes

clear that sole reliance on the ‘logic’ (Purity-Pollution) behind any
practice overlooks the forms in which this logic can manifest through
exclusion in various contexts. Anandrav Bhikaji Phadke is a clear
archetype of this phenomenon.
This paper acknowledges the outdated nature of the judgment
and considers it extremely unlikely for this judgment to stand in today’s
context, but that is not my purpose in introducing it. Through the
stance taken in this judgment, this paper aims to bring out why the
consideration of the effect is imperative.
The Bombay High Court, while ‘applying its mind’,
acknowledged the exclusive right of worship, of upper-castes as “one
which the Courts must guard, as otherwise, all high-caste Hindus would hold their
sanctuaries, and perform their worship, only so far as those of the lower castes chose
to allow them.”68 Here, the protection of this exclusion-based right is
grounded in the preservation of the nature of the sanctuary.69 The very
presence of the Palshe is considered to ‘pollute’ the temple premises
because they, as people from a ‘non-privileged’ caste make their way
into the sanctuary.70
Since they are not privileged, that environment becomes
‘polluted’ and thus unfit for the upper castes (or as the court notes,
privileged castes) to offer prayers, and hence, avoiding this ‘pollution’
of the premises (and not the caste – Palshe) becomes imperative. So,
this prohibition on the right of upper castes because of a ‘polluted’
atmosphere is identified as the core issue.

68 Phadke (n 48) [329].

69 ibid [324].
70 Phadke (n 48) [325].
Expanding Article 17: Logic & Equality 269

As per the High Court, the only way to remedy this is to

acknowledge the exclusionary right so that their (upper castes’) right is
not contingent on lower (non-privileged) castes ‘allowing’ them to
offer prayers by refraining people of their stature from entering the
temple premises. The logic of Purity-Pollution seems to have been
shifted by the Bombay High Court and applied to the ‘place’ while a
farcical reason, like ‘privilege’, is used to justify caste exclusion.
Analyse this argument using the Logic Approach. It fails to
offer any reason to probe the basis of ‘privilege’ because the question
of human dignity through purity/impurity of the caste never arises.
The Caste is not branded Untouchable/impure but rather, ‘not-
privileged’, so, since the place ‘gets’ polluted, it is to be avoided. The
caste is never branded ‘impure’ as the presence of non-privileged
people causes the ‘pollution.’ Here, the logic of Purity-Pollution is
obscured behind a scapegoat factor, like that of ‘privilege,’ while the
logic is underhandedly practised.
There are possible derivations of this argument that conceal
the Purity-Pollution logic behind a farce while practising a form of
Untouchability, based on such logic. This is a shortcoming of the Logic
Approach.71

71 Another similar case coming up in 1908, by the privy council led to a similar conclusion
as Anandrav Bhikaji Phadke v Shankar Daji Charya. In the case of Sankaralinga Nadan v Raja
Rajeswara Dorai 35 this paper AC (1908), the Privy Council (rater reaffirmed by the
Bombay High Court) upheld the exclusion of people belonging to the Shanar caste from
a Hindu temple and granted damages for its purification after scrutiny of their social
standing by observing that “their position in general social estimation appears to have been just above
that of Pallas, Pariahs, and Chucklies [regarded as unclean and prohibited from the use of Hindu
temples] and below that of the Vellalas, Maravars, and other cultivating castes usually classed as Sudras,
and admittedly free to worship in the Hindu temples” Dorai [182]; Galanter (n 39) at 131-132.
The court further concluded that the presence of Shanar people was repugnant to the
“religous principles of the Hindu worship of Shiva as well as to the sentiments and customs of the Hindu
worshippers.” Dorai [182]; Galanter (n 39) at 132.
Consequently, Untouchable Mahars who entered the enclosure of a village idol were
convicted on the ground that “where custom ordains that an untouchable, whose very touch is in
the opinion of devout Hindus pollution, should not enter the enclosure sur- rounding the shrine of any
Hindu god” it held their entry into the temple to be a defilement in violation of Section
270 INDIAN J. CONST. L.

But, if you consider the Equality Approach, you start with the
effect. ‘Exclusionary-right’, as it has been called will never find
justification under it. Clearly, there is an exclusionary effect that is
operating against a group, and exclusion from the temple sanctuary is
based on the logic of Purity-Pollution because this is a consequence
(lack thereof) of ‘privilege’ which is attached to the place. Purity-
Pollution, here, is easily identified by looking at the context of
exclusion as well as the justification offered for it. But here, by stating
that lack of ‘privilege’ ‘pollutes’ a place, it is argued that ‘privilege’ is
the immediate basis of exclusionary treatment and not Purity-
Pollution. Purity-Pollution, here, is presented as a consequence rather
than a reason for lack of privilege. The Logic Approach can plausibly
befall this style of argumentation.
Unlike the Logical approach which looks at the logic of Purity-
Pollution operating against an individual or group by the branding of
pure/impure, the Equality approach looks at the ultimate effect of a
practice which is exclusion in this case. Thus, it is not restricted to the
immediate reasoning for the practice. So, in this case, this reason was
‘privilege’ but the effect was ultimately exclusion. Exclusion stemming
from this tag is what Article 17 targets. It doesn’t matter who gets that
tag as long as it is based on the logic.
D. The Logic Approach & Sabarimala
To bring out the implications of the argument from principle,
consider Sabarimala and the Logic Approach. A different conclusion
can be reached provided some necessary assumptions be made.
Envision the exact scenario as Sabarimala – the procedural
history, facts, issues, some arguments, (etc.) but the only difference is

295 of the Indian Penal Code 1860. Galanter (n 39) at 132.

Expanding Article 17: Logic & Equality 271

that in this world, the Logic Approach is followed for the

interpretation of Article 17. The case filed by the Indian Young
Lawyers Association finds its way to the Supreme Court and is argued
accordingly by the two sides. Now, since the Logic Approach is
prevalent and it would have a bearing on the arguments put forward
by the respondents in defence of restricting the entry of menstruating
women into the Sabarimala temple.
So, it is entirely plausible for the respondents to argue that
since the deity of Lord Ayyappa is an eternal celibate, the presence of
menstruating women makes the temple premises impure as his vow
of eternal celibacy is broken. So, owing to that, the impurity of the
temple needs to be remedied and to do so, restricting women becomes
imperative.
Over here, the challenge to Article 17 will fail as the logical
approach won’t remedy this situation. This is because the reason for
exclusion would be the deity’s celibacy, making Purity-Pollution a
consequence of menstruating women’s presence and not a cause for
restrictions on their entry. Celibacy is the cause. This will be supplanted
with the fact that other temples of Lord Ayyappa across India do not
restrict menstruating women from entering the temple premises
because the vow of celibacy of the deity is specific to this one temple.72
So, here, the reasons for exclusion are not a direct functioning of the
logic of Purity-Pollution but factors affecting the celibacy of the deity.
A logic-based inquiry would consider celibacy-affecting factors and
deem exclusion to not be based on Purity-Pollution of women. Keep

72 Even Justice Indu Malhotra recognizes this in her judgment in Sabarimala. She notes at
[310.2]: “The restriction on women within a certain age-band, is based upon the historical origin and
the beliefs and practices.” Further, she adds: “Women of the notified age group are allowed entry into
allother temples of Lord Ayyappa. The restriction on the entry of women during the notified age group in
this Temple is based on the unique characteristic of the deity, and not founded on on any social exclusion
of the Sabarimala Temple.” Sabarimala (n 4) [310.3].
272 INDIAN J. CONST. L.

in mind that that the argument is that menstruating women are not
‘impure’ but the premises, in consequence of this presence only
become impure as a result. This impurity of the premises is a result of
the presence of women who are menstruating which ultimately
hampers the vow of celibacy of the deity. So, since this vow of celibacy
is broken, factors which bring about this consequence – the presence
of menstruating women only, must be restricted. Contrastingly, as per
the Equality Approach, the nature of such an argument would have no
bearing on the outcome. There is resultant exclusion operating on the
logic of Purity-Pollution, regardless of the source of exclusion.
Here, an argument may be made that following the logic
approach, this whole ordeal falls foul of human dignity in the first place
by allowing for such branding of pure/impure. In this case, then,
Articles 17 along with 21 would come into place and thus, then it may
be said that Article 17, following the logic approach allows for an
inquiry-based on ‘human dignity’ as its basis. But here more problems
come to light. There exists literature73 which explores the question of
equality from the lens of dignity. It is found that human dignity is
unsustainable as the sole basis of any inquiry in a discrimination matter.
Though an important factor, in isolation, the human dignity aspect is
insufficient as the only benchmark to establish an anti-discrimination
claim.74 Rather, as Fredman notes, dignity must be one factor in a
multi-factorial analysis and an equality claim. Fredman notes that in
many jurisdictions “dignity is a central pillar of the constitutional text itself,”
addressing directly the history of humiliation and degradation.75
However, she also notes the fact that ‘human dignity’ as a concept “has

73 Sandra Fredman, Discrimination Law (3rd edn., Clarendon Law Series, London, 2002) 20-
25, 28, 137-138.
74 ibid.
75 ibid 20-22.
Expanding Article 17: Logic & Equality 273

its difficulties.”76 She notes the multiplicity of interpretations of the

concept often leading to opposite results as intended. She mentions
the South African case of President of the Republic of South Africa v Hugo77
where a Presidential pardon accorded to all incarcerated mothers of
young children was challenged by a male prisoner who happened to be
the sole caretaker of his children for sex-based discrimination and
human dignity.78 Though the Court rejected this argument, there was
a notable dissenting opinion. Kriegler J. noted that the assumption of
women being the primary carers of children was an affront to their
dignity. He further mentioned:
One of the ways in which one accords equal dignity and respect to
persons is by seeking to protect the basic choices they make about their
own identities. Reliance on the generalisation that women are the
primary care givers is harmful in its tendency to cramp and stunt the
efforts of both men and women to form their identities freely. . .79
In furtherance of problems with basing equality claims solely
on ‘human dignity’, Fredman also notes that “there is a risk that dignity
comes to be regarded as an independent element in discrimination law, requiring a
claimant to prove not just that she has been disadvantaged, but that this signifies
lack of respect of her as a person.”80 She notes the Canadian case of Gosselin
v Quebec81 where it was held “that proof of disadvantage on grounds of an
enumerated characteristic would not in itself be discriminatory if the claimant could
not prove in addition that this disadvantage signified that society regarded her of less
value than others.”82 This is precisely one of the issues identified by this
paper in an approach that is based in the logic for Article 17. Lastly, as

76 ibid 23.
77 President of the Republic of South Africa v Hugo (CCT 11/96) [1997] ZACC 4.
78 ibid.
79 ibid [80].
80 Fredman (n 69) 23-24.
81 Gosselin v Quebec 2002 [SCC] 84 (Canadian Supreme Court).
82 Fredman (n 73) 23-24.
274 INDIAN J. CONST. L.

a solution to avoid such pitfalls, Fredman proposes approaches that

regard ‘dignity’ as just one aspect of equality instead of it constituting
the whole concept under a singular notion of ‘human dignity’.83 Thus,
she argues for “dignity to be regarded as one facet of a multi-dimensional notion
of equality, which also comprises disadvantage, accommodation of difference, and
participation.”84 Such is the argument which this paper also purports to
make. Instead of following the logic inquiry which reduces the whole
claim of equality only to this dignity aspect of human beings, it seeks
to include the exclusionary effect as a separate phenomenon in
addition to, and stemming out of this logic and adds a layer of
disadvantage resulting from such practices at the core of the claim for
equality.
It must be noted that as a practical matter, it is yet to be seen
the exact difference between an inquiry followed via the logic of
Purity-Pollution and one followed via the Equality consideration. It
may even be that practically, there is no difference between following
the Logic or Equality approach. However, it is the position of this
paper that if the Equality Approach is made the basis of an Article 17
inquiry, then the case to be established by the petitioner would not
only be procedurally easier as the next part will show but also
jurisprudentially stronger as previous parts have shown.
IV. Procedural Nuances of the Equality Approach
Having laid out the content of the exclusionary effect and the
subsequently expanded Article 17, this paper now expands the
procedural significance argument made in Part III (B). This paper
stands by the presumption of the exclusion line of reasoning because
historically speaking, the logic of Purity-Pollution has ultimately

83 ibid.
84 ibid.
Expanding Article 17: Logic & Equality 275

manifested as exclusion.85 So, realistically the practice of the logic of

Purity-Pollution will not be devoid of any consequences, it will
manifest in the form of exclusion. It won’t just be there and stay
dormant. But as shown above, starting with an inquiry for the logic will
lead nowhere. The consideration has to start from the presence of an
exclusionary effect.
Hence, this paper contends the presumption of exclusion if
and only if the logic of Purity-Pollution is explicitly established. This
paper maintains that every manifestation of the logic of Purity-
Pollution will manifest as exclusion but every exclusion need not be
based on this logic only. So, starting the inquiry from exclusion and
then checking the rationale for exclusion would be the procedure for
Article 17. Here, if the exclusion is always presumed then the argument
becomes circular – exclusion is there because of the logic (presumed)
and the logic is there because of the exclusion (historically understood
as such). So, there are two ways to consider the presumption of
exclusion argument. Firstly, this presumption is refutable and in the
second case, it is irrefutable.
If one were to consider the latter case, i.e., an irrefutable
assumption of exclusion, then the whole process falls apart because of
a circular argument. If the exclusionary effect is taken to be
incontestable in every case involving the logic of Purity-Pollution, then
there is no sense in considering the effect under any inquiry, because
as long as the logic is shown the court would irrefutably presume
exclusion. The inquiry would then turn into establishing the presence
of the logic of Purity-Pollution. Note that the problem is not the
presumption but its irrefutable nature. This basically becomes the

85 Ambedkar (n 26) 8.
276 INDIAN J. CONST. L.

Logic Approach only with the dead weight of ‘exclusion’ that adds no
real value to the inquiry.
Presuming the presence of the logic of Purity-Pollution from
any exclusion is fallacious but exclusion from the logic is fine as long
as that presumption can be contested. This would imply that the
respondent can refute an Article 17 challenge by showing that no
exclusionary effect is stemming from the impugned practice. This
shifts the burden of proof away from the petitioner and hence, an
impracticable standard of somehow ‘proving’ exclusion is not imposed
on her. Therefore, the latter case i.e., a refutable assumption of
exclusion has to be considered.
The presence of the logic of Purity-Pollution, unlike the
‘exclusionary effect,’ cannot be presumed if the exclusion is shown as
it assumes every single instance of exclusion to be based on that logic
only.86 Rather, this assumption would end up misappropriating the
struggles of caste by equating Untouchability with discrimination.
Finally, the inquiry, as this paper envisions would be the State’s
prerogative because Article 17 can be applied horizontally, to non-state
actors. Basically, the concept of Indirect Horizontality puts an
obligation on the state to not only ‘not violate a fundamental right’ but
to also ensure that no other party violates that right – a positive
obligation, ensuring a progressive realization of rights.87

86 All forms of exclusion need not be based on this logic only. There can be exclusion based
on sex, race, age, and anatomy (height, weight, etc.), which may/may not be permissible.
But as far as Article 17 is concerned, exclusion stemming from Purity-Pollution is the
focus.
87 Aparna Chandra, ‘Equality,’ Constitutional Law I, lecture on Substantive Equality (April
19, 2022), National Law School of India University Bangalore.
Expanding Article 17: Logic & Equality 277

V. Limitations of the Equality Approach

With one of the aims of this paper – laying down substantive
and procedural intricacies of an expanded reading of Article 17 –
undertaken, this paper now moves to the limitations made in the
arguments.
A. The Manifestation Argument & The Dignity
Question
Starting with the procedural assumptions this paper has made,
it is conceivable to think of cases where despite the logic of Purity-
Pollution being apparent, there may not be exclusion per se (the
Manifestation Argument). Exclusion may possibly manifest in a
different form, such as having separate accommodations for those
‘impure’.88 Then essentially, the dignity question comes up – does it
not fall foul of the right to a dignified life as enshrined by Article 21 of
the Indian Constitution to allow for the branding of people as
pure/impure? This paper acknowledges this limitation of the Equality
Approach. It does not deal with the dignity question entirety but for
the purposes of this paper, the relevant arguments have been dealt with
in the preceding part. Thus, this paper maintains that an inquiry that is
based solely on this dignity question would be inadequate to establish
a claim for equality.

88 See A.M. Shah, ‘Purity, Impurity, Untouchability: Then and Now’ Sociological Bulletin
2007 56(3) 355; “Pune Housing Society's Separate Lift for Domestic Workers Sparks
Debate, Splits Netizens” (The Indian Express May 8, 2022)
&lt;https://indianexpress.com/article/trending/trending-in-india/pune-society-
elevator-usage-notice-sparks-debate-online-netizens-divided-7905557/&gt; accessed
June 18, 2022; “Society in Mumbai's Bandra Is Allegedly Using Separate Lifts for Owners
and Servants” (India Times April 19, 2020)
&lt;https://www.indiatimes.com/trending/social-relevance/society-in-mumbais-
bandra-is-allegedly-using-separate-lifts-for-owners-and-servants-511234.html&gt;
accessed June 18, 2022.
278 INDIAN J. CONST. L.

Furthermore, in response, this paper claims this harm of being

branded pure/impure is not one that Article 17 prevents. It targets the
exclusionary effect which stems from the logic of Purity-Pollution. This
paper admits that branding people as pure/impure falls foul from a
human dignity standpoint and needs to be prohibited, but not under
Article 17 because (a) Article 17 has at least some basis in the historical
Untouchability prevalent in India and, (b) since this practice is not
complete without exclusion, the historical connection is not complete,
so Article 17 would not cover it. But this does not legalize such
branding. Articles 15(1) & 15(2) prohibit discrimination based on
caste, among other things.89 Thus, this notion of branding could
arguably be included under them.
B. Dissecting The Manifestation Argument
Coming to the Manifestation Argument, 3 things need to be
considered: (a) Is it possible to think of instances where logic sans
exclusion is apparent? (b) If one can conceive such cases, what if they
are more central than marginal? and (c) Even if there is no exclusionary
effect, shouldn’t Untouchability only be concerned with the
classification aspect of it? (c) is just another form of the dignity
question and has been dealt with. Regarding (a) & (b), this paper put
forward the presumption stance and maintains that exclusion would
always necessarily follow from the tag of pure/impure. So, such cases
are not possible, but this paper will consider them from an academic
standpoint.
Regarding (a) this paper argues that in such a practice then, the
logic would have been incorrectly identified and that it would not fit
in with the historical connection between Article 17 and
‘Untouchability’ in understanding its forms. This paper maintains that

89 Constitution (n 15) Articles 15(1) and 15(2).

Expanding Article 17: Logic & Equality 279

the caste struggle did have at least something to do with the

incorporation of Article 17 as evidenced by the discussion of its nature
during the CADs.
So, by including the logic sans exclusion, the historical
connection is severed. However, a tweaked form of (a) can be
proposed here which deserves consideration. It can be said that
exclusion can manifest in different forms and need not be exclusion
per se – instances like differential treatment, prohibitions, etc.90
This paper argues such instances are only steps (if based on
Purity-Pollution) in the process of practising a ‘form’ of Untouchability
that does not meet Article 17 standards (yet) and can be answered
under Article 15(1) and (2). So, it will be covered under Article 17 as
soon as the practice has an exclusionary effect. Contending these steps
problematic in themselves would be going back to the dignity question.
C. Where The Equality Approach Falls Apart
Regarding (b) from the previous section, this paper
acknowledges the consequences that this quantification will have.
Should such cases occupy the core rather than the penumbra, the
question takes a different form and comes down to where the balance
of convenience91 lies. In this case that would be with those people who

90 See for reference “Pune Housing Society's Separate Lift for Domestic Workers Sparks
Debate, Splits Netizens” (The Indian Express May 8, 2022)
&lt;https://indianexpress.com/article/trending/trending-in-india/pune-society-
elevator-usage-notice-sparks-debate-online-netizens-divided-7905557/&gt; accessed
June 18, 2022; “Society in Mumbai's Bandra Is Allegedly Using Separate Lifts for Owners
and Servants” (India Times April 19, 2020)
&lt;https://www.indiatimes.com/trending/social-relevance/society-in-mumbais-
bandra-is-allegedly-using-separate-lifts-for-owners-and-servants-511234.html&gt;
accessed June 18, 2022.
91 Basically, considering which party’s suffering is more convenient to be remedied if a
particular course of action is followed. For example, in a world where the instances of
people being branded as pure/impure exist with such huge numbers and impact that they
overshadow that of people facing exclusion from this branding, it becomes more
appropriate to remedy the suffering of the larger group, moreover, the former approach
280 INDIAN J. CONST. L.

are branded as compared to those being excluded owing to such

branding, so the inquiry would then have to be restricted to the Logic
Approach. In this context, this paper acknowledges that the Equality
Approach would fall flat. Such is the biggest flaw of this paper’s
argument.
D. The Argument from Within
Lastly, there exists an argument against the Equality Approach
which stems from the wording of Article 17 itself.92 The latter part of
the Article deems an offence, ‘the enforcement of any disability arising out of
“‘Untouchability’.93 Here, one can argue that the words ‘any disability’ be
read to include the branding aspect under Article 17.
But this paper counters it by contextualizing the phrase. It is
also followed by ‘arising out of Untouchability’. Untouchability is complete
when (i) there is exclusion, and it is based on (ii) the logic of Purity-
Pollution. Branding, in itself, is a component of Untouchability, as long
as exclusion is not an effect, ‘Untouchability’ is not complete.
Rather, the phrase ‘any disability’, has to be read in the context
of ‘exclusion’ only. It would, therefore, qualify the scope of Article 17
to include every sphere where exclusion, based on Purity-Pollution is
practised. Ultimately, the ‘exclusion’ that is based on Purity-Pollution,
in every context – social, occupational, private, temple entry,
association during certain periods, and more, is the scope of ‘any
disability’. This brings out the absolute nature of Article 17.

would always encapsulate the latter (in every form of the logic of Purity-Pollution exists
exclusion but not the other way around), so, it is convenient to follow that approach.
92 Constitution (n 15) Article 17.
“Abolition of ‘Untouchability’ – ‘Untouchability’ is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in
accordance with [the] law.”
93 ibid.
Expanding Article 17: Logic & Equality 281

CONCLUSION
There is a strong rationale for using Article 17 to target other
forms of discrimination. Article 17 prohibits discrimination on the
basis of “birth”, and it can be argued that discrimination based on
Purity-Pollution is a form of discrimination on the basis of birth.
Additionally, Article 17 prohibits discrimination that is "derogatory to
human dignity," and it can be argued that discrimination based on Purity-
Pollution is a form of discrimination that is derogatory to human
dignity.
However, there is also a lack of a strong legal basis for using
Article 17 to target other forms of discrimination. The Supreme Court
of India has not yet ruled on whether Article 17 can be used to target
other forms of discrimination.
If the Supreme Court of India were to rule that Article 17 can
be used to target other forms of discrimination, this would be a
significant development in Indian law. It would mean that the Indian
Constitution would provide a strong legal basis for challenging
discrimination based on Purity-Pollution, disability, sexual orientation,
and other grounds.
This paper has provided a sophisticated account of how Article
17 can be read to include other forms of discrimination based on
Purity-Pollution. It has shown that there exists a stronger rationale for
using Article 17 to target other forms of discrimination and possibly
bring Article 17 within the fold of the anti-discrimination guarantees
in the Indian Constitution. Chandrachud J.’s approach to Article 17
marks an important jurisprudential development in Article 17 but as of
now, his approach has lacked a strong legal basis. In this paper, I
sought to provide it through the inclusion of the exclusionary effect.
That is the contribution I have made. It remains to be seen what
282 INDIAN J. CONST. L.

practical difference this requirement makes to Article 17. It may help

us unlock the true potential of Article 17 by including practices
derogatory to human dignity. Further questions for research are still
left looming before a concrete version of a reformed Article 17 is
presented before us. As mentioned, it is yet to be seen what practical
difference these 2 approaches will make when applied in practice.
Questions such as - What are other contexts in which purity pollution
logic will have an exclusionary effect? etc. need to be considered as
well. Furthermore, the extent of Article 17 inquiries can be explored,
given that sexual orientation or disability based discrimination is not
covered under Part III. Can Article 17 serve as the constitutional home
for the violation of the Fundamental Rights of these groups? Perhaps,
it is yet to be seen.
If the Supreme Court of India were to rule that Article 17 can
be used to target any form of discrimination that is “derogatory to human
dignity”, this would be a major victory for those who are fighting against
discrimination in India. It would mean that the Indian Constitution
would provide a strong legal basis for challenging all forms of
discrimination, regardless of the ground on which it is based.
It is important to note that this is a complex issue, and there
are a variety of different perspectives on it. The conclusion that I have
presented is just one perspective, and it is important to consider all of
the different perspectives before forming an opinion on this issue.
 ROHINGYA AND BANGLADESH CONSTITUTION:
CONSTITUTIONAL OBLIGATION TO PROTECT REFUGEES

Zia Uddin Ahmed

Introduction
S. Islam1 observed that ‘national legal frameworks have been and can
be adapted and applied to recognize and grant refugee rights in the absence of
formalized international or regional refugee protection frameworks.’ This paper
considers in detail how the needed protections for Rohingya refugees
already exist in the domestic constitutional law framework of
Bangladesh and argues that they ought to be used by the Rohingya as
well as those who seek to assist them. What is substantially missing is
the awareness of this possible application of the constitutional rights
of Rohingya as residents, even though not as citizens of Bangladesh,
and the financial resources to use the Bangladesh court system, which
no Rohingya refugee from the genocide attempted in 2017 has tried to
do.
Bangladesh, which has not signed the 1951 Convention on
Refugees, should have given the Rohingya their constitutional rights
under its own law.2 At times, and in some piece-meal ways, it has done
so. Laying aside the legal obligations, no one can deny the generosity
of the Bangladeshi Government, which is itself struggling to develop
their own least-developed nation with massive problems of poverty
and ill health. It has provided refuge, rations and basic services to
almost 1,000,000 Rohingya who have fled across the border from
Myanmar in 2017, carrying little more than their children. The


Senior Assistant Judge, Bangladesh Judicial Service.
1 S Islam, C Schupfer, Z Hydari, A Zetes and K Cole, “The Peril and Potential of
Ambiguity” (2021) 22 Asia-Pacific Journal on Human Rights and the Law 7.
2 Convention relating to the Status of Refugees, April. 22 1954, (1954) 189 UNTS 137.
284 INDIAN J. CONST. L.

Bangladeshi Government has done this without any legal obligation to

protect the refugees.
Though Bangladesh is not legally bound to protect refugee
under international law, it still is constitutionally obliged to protect
human rights of people who are residing in its territory temporarily.
This article will argue that as a non-citizen resident group;
Rohingya refugee’s human rights can be better protected by
Constitution of Bangladesh without having the need to apply
international refugee laws.
I am certain that the Bangladeshi Supreme Court would say
that Bangladesh must follow its own laws and Constitution when
dealing with everyone. The Rohingya at least have the right to that
formal standard of protection, without question.
Literature Review
Several international organizations and academics have written
on the Rohingya crisis. It is a burning issue in international politics.
UNHCR has been playing a key role in mitigating the problem. They
have documented many Rohingya issues. Although many articles have
been published on Rohingya issues, there has been a lack of research
on the constitutional rights in Bangladesh and their implications for
Rohingya as residents.
Most of the writing has been focused on the rights of Rohingya
as refugees under Public International Law. There have been a few
exceptions to this trend. Islam looked at applicable legislation in
Bangladesh which set out rights and obligations applicable to
Rohingya, including the Constitution, Criminal Law and Civil Law,
referring to some relevant court decisions.3 He argued for a specific

3 See, Shawkatul Islam, Refugee Dilemma in Bangladesh (2015)

Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 285

law to be written on this subject as, right now, there is no law at all
referring to refugees in Bangladesh. Mohammad merely listed the
Constitutional provisions that might apply to Rohingya without much
discussion of the content of those rights as I do here.4
Bangladesh’s judiciary has not yet directly dealt with the
Rohingya’s constitutional rights. In the past, the apex court of
Bangladesh has guaranteed the citizenship of Urdu-speaking residents
in Bangladesh, essentially Pakistani settlers who remained in
Bangladesh after independence from Pakistan.5 The court has not,
however, addressed the rights of Rohingya in a comprehensive way,
except to decide that customary international law can apply in
Bangladesh if it is not contradicted by domestic law or the
Constitution.6
Gorlick reported that while there is action on the Rohingya
crisis on many fronts, including by the Government of Bangladesh and
Non-Government Organizations (NGOs), new ideas and options are
very much needed.7 UNDP has published detailed accounts of the
impact of the Rohingya influx on poverty, social cohesion and social
safety nets in southeastern Bangladesh.8

https://www.academia.edu/20079961/Refugee_dilemma_in_Bangladesh_searching_fo
r_a_specific_legislation
4 See, Nour Mohammad, Refugee Protection Under The Bangladesh Constitution: A Brief
Review at https://www.mcrg.ac.in/rw%20files/RW39_40/12.pdf
5 Abid Khan (& Others) v. Government of Bangladesh (& Others) [2003] 55 DLR(HCD)
318.
6 M Sanjeeb Hossain, Bangladesh’s Judicial Encounter with The 1951 Refugee Convention
[July 2021] Forced Migration Review 67.
7 Brian Gorlick, Rohingya Refugee Crisis: Rethinking Solution And Accountability,2019,
University of Oxford RSC Working Paper Series
131https://www.rsc.ox.ac.uk/publications/the-rohingya-refugee-crisis-rethinking-
solutions-and-accountability.
8 Impacts of Rohingya Refugee Influx in Host Community. 2018, UNDP, at
www.undp.org.
286 INDIAN J. CONST. L.

UNHCR in Bangladesh is working to protect the refugee rights

of Rohingya. UNCHR provides refugee identification cards for
Rohingya, which Bangladesh authorities accept. UNCHR seeks to
assure basic services in the Rohingya refugee camps by working with
the Bangladesh officials. UNCHR periodically publishes reports on
Rohingya issues, which focus on the real condition of the Rohingya
community.
The literature on Rohingyas places a lot of emphasis on
describing their plight, but there is a pervasive feeling that new options
are needed. The situation now is acceptable to almost only the
Myanmar military. There has been almost no discussion of the option
of using the Bangladesh court system to enforce the Constitutional
rights of Rohingya as residents of Bangladesh, so as to improve their
conditions until the question of where they will live permanently has
been resolved. My motivation for writing this article is to outline some
of the possibilities in this direction.
Human Rights and the Bangladesh Constitution
Bangladesh’s Constitution gives certain human rights to its
citizens and, in some cases to non-citizens present in Bangladesh.
Rohingya, who have fled from Myanmar to Bangladesh as refugees
from an attempted genocide, can access those rights which are
categorically provided for non-citizens who are present in Bangladesh.
Human beings have some rights merely because they are
humans. International human rights agreements like the Universal
Declaration on Human Rights, 1948 (UDHR), the International
Covenant on Civil and Political Rights, 1966 (ICCPR) and the
International Covenant on Economic, Social and Political Rights, 1966
(ICESCR) are the three main international instruments that guarantee
some basic rights to humans, irrespective to their legal status and
Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 287

location. Bangladesh’s Constitution has also provided those rights, as

“fundamental rights”. Some of the fundamental rights can be availed
by both citizens and non-citizens of the country. These rights are the
subject of this paper.
Rights to Protection of Law and to Life
These rights arise under the Constitution of the People’s
Republic of Bangladesh, Articles 31-32, which state:
Article 31. Right to protection of law.
“To enjoy the protection of the law, and to be treated in
accordance with law, and only in accordance with law, is
the inalienable right of every citizen, wherever he may be,
and of every other person for the time being within Bangladesh, and
in particular no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken except
in accordance with law.” [emphasis added]
Article 32. Protection of right to life and personal liberty.
“No person shall be deprived of life or personal liberty save in
accordance with law.” [emphasis added]
The emphases added in the above quotations demonstrates
that these rights apply not only to citizens but to any person in
Bangladesh. As the Rohingya are people in Bangladesh, these rights
apply to them too. According to the Bangladesh Constitution as
quoted above, the Rohingya community must be treated according to
law, with no detrimental action against any Rohingya’s life, body,
liberty, reputation or property, except as provided by law. Only
detrimental action provided by law may be applied to them, as a
penalty, after due process in a fair trial which proves them guilty of an
offence against applicable law beyond reasonable doubt. This is
288 INDIAN J. CONST. L.

obviously a high standard which gives anyone in Bangladesh, including

Rohingya, significant protection from detrimental action by agents of
the State.
All three of these rights, to the protection of law, to life and to
personal liberty, are basic and inalienable rights for human beings.
These are the basic requirements for a civilized State which upholds
the rule of law and good governance. At least the life of the resident
must be allowed to continue, and he/she must not be physically,
socially or mentally interfered with except as a penalty provided by law.
These rights in the Bangladesh Constitution are also like those
in the American Constitution, which grants the right to due process of
law to every person present in the country9. The cardinal rule is that
every action of the State which adversely affects a person should be
permitted by a rule of law, whether Constitutional, Statutory or
Juridical. If it is not so permitted, it is illegitimate and prohibited as an
abuse of the State’s power. This also relates to the customary
international law of non-refoulement, which is one of the few legal
rights that the Bangladesh courts have recognized in respect of
Rohingya.10 The concept of non-refoulement means that no person
shall be delivered to a country where there is a reasonable likelihood
of that person being killed or tortured. Moreover, the State has a
Constitutional obligation to do positive acts, or to refrain from acts, to
save the life of any citizen as well as any non-citizen present in the
country.
The Supreme Court of Bangladesh has explained that the
constitutional right to life is something more than the right to an
animal-like existence11. It means having rights and access to all other

9 Constitution of the United States of America, Amendment 14 (1868).

10 (n. 9).
11 Dr. Mohammad Mohiuddin Faruque v. Bangladesh (1996) 48 DLR 433,434 (AD).
Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 289

humane facilities which ensure a dignified and meaningful life to a

human being. To ensure the right to life, one should have access to
proper health security, opportunity for livelihood and the necessities
of life. Enjoyment of one’s culture and protection of one’s
environment is also a part of the right to enjoyment of a human life,
according to Islam12. In other words, the State should ensure all
necessary elements for life at the standard of an ordinary human being.
Implementation of the 'Right to Life' of Rohingya by
Bangladesh
Bangladesh has given shelter to the displaced people of
Myanmar. Rohingya were floating in the Bay of Bengal for want of
shelter and wading across the River into some of the most wild,
isolated and impenetrable places in Bangladesh. These are locations
where agriculture even for the tribal peoples who live there is difficult
and furthermore dangerous animals, snakes and insects abound.
Bangladesh’s Government decided to shelter them, and they are
providing Rohingya’s with their basic needs, including food, in
collaboration with national and international organizations.
Bangladesh has taken positive responsibility to save the lives of the
Rohingya community. To this extent, the People’s Republic of
Bangladesh has given the Rohingya refugees their constitutional right
to life.
However, in some cases, the Bangladesh Government action
was detrimental to the lives of Rohingya people, thus failing to give
them their constitutional right to life in a substantive manner.
Bangladesh authorities have sometimes refused to give shelter to
Rohingya. Human rights groups had to lobby with the Bangladesh

12 Islam,Mahamudul, Constitutional Law of Bangladesh (2d ed, 2009), Dhaka, p. 188.

290 INDIAN J. CONST. L.

Government to ensure the safety of Rohingya floating at sea in early

2020 and not to push them back into the sea13.
Bangladesh is constitutionally obliged to save the lives of
Rohingya who are floating within the maritime boundaries of the
country under Article 31 and 32 of the Constitution, which assures the
right to protection of law to a person “wherever he may be”. Certainly,
to push a destitute person back on to the sea in an unsafe, makeshift
craft would be an action “detrimental to life” even by a common
definition, let alone a legal one.
The human rights groups could have brought a Writ Petition
to the High Court, on behalf of the Rohingya on the sea, asking for an
interim order to the Government to bring the petitioners to safety and
give them emergency care – food, shelter, medicine - as needed. Article
25 of the Constitution has given responsibility to the State to respect
international law and policy. The courts may issue orders to do so
where the Government have not done so14.
A study by the Asia Foundation documents the low quality of
life of Rohingya refugees in Bangladesh camps.15 They have often lost
all their assets and then become deeply indebted while trying to
support the surviving members of their families left behind in
Myanmar. Bangladesh provides a place to sleep, sometimes hut-
building materials, food and medical care: but denies the right to earn
income, to leave the camp, and does not provide access to
telecommunication and internet facilities, education for children, etc.
In recent years, Bangladesh has transported large numbers of Rohingya

13 Human Rights Watch, Bangladesh: Rohingya Refugees Stranded at Sea (April 25, 2020).
14 Professor Nurul Islam v. Government of the People’s Republic of Bangladesh (2000) 52 DLR 413
(High Court of Bangladesh).
15 https://asiafoundation.org/wp-content/uploads/2020/05/X-Border_Securing-
Livelihoods-and-Agency-for-Rohingya-Refugees-in-Bangladesh_Brief.pdf Accessed on
26th May,2021.
Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 291

from mainland camps to isolated small islands in the sea, with no

modern facilities. These smaller camps became centers of disease
during the coronavirus pandemic. Rohingya living in camps are far
from enjoying the total benefit of the right to life guaranteed by the
Constitution. The most that they are getting is a right to sojourn and a
right to breathe. If all the facts were properly presented to the Supreme
Court, the court would likely conclude that the Rohingya are not
getting their 'right to life' guaranteed by the Constitution. They live in
unhealthy, filthy camps. They lack proper sanitation and adequate
medical facilities. So, they suffer from various diseases and
malnutrition. The World Health Organization (WHO) has reported a
serious health crisis among Rohingya.16
Desperate for income, Rohingya men, women and children
have been found begging in the streets illegally as far away as
Chottogram, Dhaka and Rajshahi, in Bangladesh. Unable to work
lawfully or have a business, persons from the Rohingya community
become involved in drug dealing and other kinds of crime, such as
burglary and robbery, which sometimes leads to murder. As for action
detrimental to liberty, the Rohingya are confined in camps under 24-
hour surveillance by law enforcement. They are not free to go
anywhere: any movement outside the camp is prohibited and leaves
them liable to arrest.
The Bangladesh Constitution requires far more for the
Rohingya than the picture presented here. Yet the Constitution does
not enforce itself. People must bring lack of compliance to the
attention of the courts in Dhaka so that they can order remedies. That
is what has been missing.

16 https://www.who.int/bangladesh/emergencies/Rohingyacrisis accessed on 30th May

2021.
292 INDIAN J. CONST. L.

Right to fair trial and access to justice:

Bangladesh is an ex-British colony. It follows the British
common law system. So, most of the laws and legal system have been
derived from the British system. According to the criminal law, an
accused must be given a fair opportunity to defend himself at trial
against any accusation of criminal conduct made against him/her. This
is also as per the principles of “natural justice” recognized across
common law jurisdictions 17. Thus, no one can be arbitrarily arrested
or detained, and this principle is enshrined in the Constitution as well,
in Article 33, below.
33. Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be of the grounds for such
arrest, nor shall he be denied the right to consult and be
defended by a legal practitioner of his choice. [Emphasis added]
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of
twenty-four hours of such arrest, excluding the time necessary
for the journey from the place of arrest to the court of the
magistrate, and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
[Emphasis added]
Again, emphasis is added to show that the right applies to all
persons, including Rohingya and not only to citizens of Bangladesh.
Rohingya and other Stateless people have rights against
arbitrary arrest and unlawful detention by any authority in Bangladesh,

17 Abdul Latif Mirza v. Bangladesh (1979) 31 DLR (AD) 33 (Supreme Court of Bangladesh,
Appellate Division).
Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 293

simply because they are people. Furthermore, Article 35 of the

Constitution requires that the accused shall have access to a speedy
trial and not languish for years on remand. An accused shall not be
tried under a law which did not exist at the time of the alleged crime,
and one shall not be tried twice for the same allegation. Moreover, the
accused shall not be punished in a cruel manner. According to Article
44 of the Constitution, any person, including a Rohingya present in
Bangladesh can go to court, even up to the apex court, to enforce his
constitutional rights if they are violated. Again, the rights are broad,
and the standard is high. The remedies are available to Rohingya. Yet
they have never been used.
Implementation of right to fair trial and access to justice:
Arbitrary arrest and detention by law enforcing agencies is an
endemic problem in Bangladesh,18 to which Rohingya refugees, having
no social networks or legal status in the country, are especially
vulnerable19. The High Court bar, who could bring these cases to the
court for relief. The High Court bar have a monopoly on
representation for constitutional Writ Petition cases and, while the
Rohingya have the right to defend themselves, they know nothing of
the legal system. Also, the language of the High Court documents, and
some of the oral arguments, is English.
The UNHCR, in collaboration with BLAST, a non-
government organisation of lawyers in Bangladesh, has taken some
projects in this regard so that victims can get access to justice in
informal and formal justice systems. However, UNHCR and BLAST
have never tried to pay the legal fees for High Court representation of

18 Al-Faruque, A. and Bari, H.M.F., “Arbitrary Arrest and Detention in Bangladesh” (2019)
19(2) Australian Journal of Asian Law Art. 10: 1-11.
19 See Access to Justice for Rohingya and Host Community in Cox’s Bazaar, International
Rescue Committee, 2009.
294 INDIAN J. CONST. L.

Rohingya to enforce their constitutional rights, which has the best

chance of success. Unlike the informal system, the High Court can
issue mandatory orders on the Government and jail those who do not
follow such orders for contempt. Their decisions are also precedent
for all other courts and legal processes.
Bangladesh’s Government have appointed some Executive
Magistrates in the Rohingya camps who deal with offences covered by
the Mobile Court Act, 2009 inside the camps. The Executive
Magistrates deal with petty offences in the camp. However, usually the
only persons present are the accused, the magistrate and the police.
Usually no one is there to represent the interests of the accused. Thus,
the accused is almost always convicted. This is true as much for
Bangladeshi citizens as for Rohingya, despite the best efforts of the
magistrates to give the accused a fair trial.
Rohingya who are not registered by the UNHCR as refugees
are considered by the police to be illegal immigrants and prosecuted.
They are often kept in jail even after completing their term of
imprisonment, as they have nowhere to go20. Myanmar also does not
consider Rohingya citizens so they have no right to return there and
would not be safe there if returned.
Prohibition against forced labor:
Any sort of forced labor is prohibited in Bangladesh, under
Article 35 of the Constitution. But the United Nations has reported
that at least 30 Rohingya girls were victims of forced labor in the fish
processing sector and as domestic helpers21.

20 Refugee and Migratory Movements Research Unit (RMMRU) v Government of Bangladesh, Writ
Petition no. 10504 of 2016, Bangladesh: Supreme Court, 31 May 2017.
21 ‘Un Says Rohingya Refugee Girls Are Being Sold into Forced Labour in Bangladesh’
(The Indian Express, 17 October 2018) https://indianexpress.com/article/world/un-
says-rohingya-refugee-girls-are-being-sold-into-forced-labour-in-bangladesh-5406121/.
Rohingya and Bangladesh Constitution: Constitutional obligation to protect refugees 295

Conclusion
Bangladesh is not a signatory to the UN Convention on
Refugees,1951 but it has voluntarily given some protection to non-
citizens in its Constitution. Bangladesh can assure constitutional rights
of the Rohingya. Therefore, it is recommended:
(1) to set up an independent committee of constitutional law and
human rights experts to observe the compliance of Bangladesh
State authorities with the constitutional rights of Rohingya.
The committee should periodically make public reports about
the State’s compliance with the Bangladesh Constitution in
dealing with Rohingya individuals and the Rohingya
community.
(2) that the international donor countries and non-government
organizations working with Rohingya, including BLAST,
routinely instruct and pay High Court advocates to bring Writ
Petitions on behalf of Rohingya whose constitutional rights
have not been given effect. While this is expensive in
Bangladeshi terms, it is well within the means of international
donors and non-governmental organizations, who should also
consider subsidizing Bangladeshi governmental and non-
governmental organizations to take legal action.
(3) that international donor organization should financially
support Bangladesh Government to implement court order
and constitutional obligation.
Though Bangladesh or its Constitution cannot permanently
solve Rohingya refugee issues, its constitutional obligation can
safeguard the basic rights of Rohingya for the time-being.
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