By Astha Upadhyaya and Anant Sangal
In the first part of this two-part commentary, we established the infirmities underlying the decision of the Court in Afzal Ansari. We argued that the Court fails to identify the primary concern the petitioner brought before it. In this part, we will argue against the very method the Court adopts to adjudicate the question of religious freedom. As we indicated earlier as well, for the purpose of this part, we treat the issues framed by the Court as they are and argue that despite such framing, the very method the Court deploys to answer a question of religious freedom was incorrect and demands a closer scrutiny.
Carving the Space for Religious Freedom in a ‘Balanced’ World
The nature of rights available in Part III of the Constitution make them non-absolute in nature. This also implies that their limitation is essential with a proper framework in place. While scholars like David Beatty[1] have gone to the extent of terming the proportionality analysis as the ‘ultimate rule of law’, we do not have any intentions to argue the validity or invalidity of this claim in this commentary. Our preference for the proportionality analysis is because of two basic reasons. First, scholars around the world[2] have preferred the proportionality analysis whenever there has been a clash between two rights and the courts were conflicted about which right to prefer over the other. For scholars like Mureinik,[3] the proportionality analysis offers a much needed shift from a culture of authority to a culture of justification.
In case of a conflict between the Article 25(1) right and any other right, therefore, the preference for a proportionality analysis is enhanced even further, which takes us to our second reason for its preference. Unlike many commentators[4] who reject any form of balancing for the right under Article 25, the second reason is that the very structure and framing of Article 25(1) right demands that it must be ‘balanced’ against the four considerations (which we mention in the opening paragraph of the last section), whenever any conflict arises (For a detailed discussion on the nature and structure of the right conferred by Article 25(1), see, Professor PK Tripathi[5]).
We will illustrate this problem through an example from the Indian jurisprudence. The Indian Supreme Court has treated the clash under Article 25 with other provisions of Part III in a rather unusual manner. Through its decision in October 2018, a two-judge bench of the Supreme Court prohibited the sale and bursting of firecrackers in the National Capital Region and made the same illegal. The Court was called upon to strike a balance between bursting of crackers as a manifestation of freedom of religion and the right to health under Article 21 [and covered by the ‘health’ exception under Article 25(1)]. The Court’s balance leaned in favour of health as the Court chose promotion of a healthy environment over freedom of religion. It said that balancing could be done only by allowing a practice which in turn would be subject to those conditions, which do not negatively impact the health.
For our purposes, we do not engage with the debate between European ‘proportionality’ and American ‘balancing’ as that debate has already been settled by Cohen-Eliya and Porat[6], who suggest that both these tests are ‘analytically similar’. Instead, our case is that in Afzal Ansari, even when the Court erroneously framed the issue of essentiality of loudspeakers, it still proceeded wrongly when it came to striking a balance between religious freedom and other limitations in the form of public health or free speech. This is primarily because the Court did not undertake any discussion on the nature and content of the right under Article 25(1). The Court commenced its discussion with limitations that should exist on the usage of sound amplifying devices and ended with a solution under which the limitation imposed by the Court can be lifted (by seeking permission).
The Court simply ignored going into the discussion about the kind of right that Article 25 is supposed to provide and the content or impact of the practice in question. A classic example of the kind of balance that the writ courts in India are expected to strike whenever any freedom of religion issue is involved, could be drawn from the Israeli Supreme Court in Horev v Minister of Transportation.[7] In Horev, the local municipality imposed a road detour to prevent cars from passing through a Jewish neighbourhood during the Sabbath(a Jewish festival). The situation in Horevis very close to what occurred in Afzal Ansari. The trade-offs both in Horev and in Afzal Ansari were similar, that is to strike a balance between religious freedom (Sabbath and reciting Azan, respectively) and a likely (another freedom-oriented) limitation on that religious freedom (taking a detour and right not to be disturbed, respectively). However, unlike Afzal Ansari, the Court in Horev chiselled out a more optimal method for reaching a conclusion. An important observation to make is that in Horev, the Israeli Supreme Court was balancing between a limitation imposed by the government on the liberty of a few to enhance the religious freedom of others. The situation in our case is different, but the solution remains the same in both these situations.
In a three-stepped enquiry the Court undertook, it engaged in the following steps. First, if the governmental means (detour) further the end goal (protection of religious freedom); second, if the means chosen were the least restrictive measures/options available with the government; and third, if the harm to the right to free movement is proportionate to the benefit resulting from such harm. On the basis of this analysis, the Court restricted the extent of the detour and held that the same would be applicable only during the time of prayers. While we are unsure what the application of this three-step enquiry would have resulted in Ansari, as the Court may as well have reached the same conclusion as it does now. However, when the enquiry is so profound and structured, where the content of the religious freedom as well becomes a serious consideration before facing any restriction, it is safe to conclude that the limitation imposed does in fact factor in the gravity and importance of the religious freedom involved.
Given that the proportionality analysis is a fact-heavy enquiry, in such a case, the courts are dutybound to engage with the content of the religious practice under the scan and with the possible repercussions such ban on the practice may have. However, in Ansari, the High Court (partly)repeats a similar phenomenon which the Supreme Court displayed earlier in 2017. The speech of Justice Rohinton Nariman in Shayara Bano v Union of India is of support to us. The Supreme Court in Shayara Bano, while striking down the practice of instant triple-talaq, prevalent in some sects of Muslims in India, made a very notable observation. Justice Nariman, in paragraphs 320 and 321, said,
“320. The fact that about 90% of the Sunnis in India, belong to the Hanafi School, and that they have been adopting “Talaq-e-Biddat” as a valid form of divorce, is also not a matter of dispute. … “Talaq-e-Biddat” is practiced in India by 90% of the Muslims (who belong to the Hanafi School). The Muslim population in India is over 13% (about sixteen crores) out of which 4-5 crores are Shias, and the remaining are Sunnis (besides, about 10 lakhs Ahmadias), mostly belonging to the Hanafi School. And therefore, it would not be incorrect to conclude that an overwhelming majority of Muslims in India have had recourse to the severance of their matrimonial ties by way of “Talaq-e-Biddat”—as a matter of their religious belief—as a matter of their faith.… We are satisfied that the practice of “Talaq-e-Biddat” has to be considered integral to the religious denomination in question — Sunnis belonging to the Hanafi School.”
The Court relied on the entrenchment of the practice in question, within the community which follows that practice, to determine the importance of that practice. After factoring in a variety of other considerations, on the basis of entrenchment of the practice of Talaq-e-Biddat among the Sunni Muslims in India, the Court reached the conclusion that the practice of instant divorce is an essential religious practice. It is another thing that the Court eventually struck down the practice despite holding it to be integral to the religious denomination. However, our argument is that in Afzal Ansari, the Court should have undertaken an analysis which discussed the sociological penetration of the practice in question. The Court must have called for assessing what the impact of doing away with the loudspeakers and other such devices is or would be.
The Court notes in the opening sections how in the earlier times, a person used to recite the Azan at the top of his voice so as to inform the people around about it. However, what the Court does not register is the fact that over the years, due to increased industrialization and changes in the socio-economic condition of the people, most people are now settled not as close to the mosque as they would have been about hundred-years ago. It was the change in the settlement of the population on one hand and to cope with the advanced technology on the other, that the sound amplifying devices became a part of the religion. As one of us have argued elsewhere,[8] the test for the essential religious practices doctrine could be summarised as follows –
“An individual enjoys her religious practice ‘X’. Either the state government or the central government bring a law ‘Y’, restricting the enjoyment of that religious practice. The individual invokes her right to enjoy that practice and challenges the validity of that law either at the level of the High Court or the Supreme Court. The State defends the validity of the law on the basis that it falls under any one of the limitations I listed out earlier. However, on the petitioner-practitioner’s side, the Court’s jurisprudence suggests that instead of asking the petitioner-practitioner to show that the practice does not offend the limitation which the State has used to restrict the practice, the courts have demanded the petitioner-practitioner to show that the religious practice in question is rather an essential religious practice.”
The test of essentiality is fraught with many inconsistencies, some of which one of us have tackled elsewhere. That discussion is for another day. However, through the present fact situation, that is in Afzaal Ansari,we bring out some other limitations that the courts have induced in the essential religious practices doctrine – that of imparting the doctrine with a non-sociological grounding. The doctrine continues to become more and more judiciary-centric. This means that what possibly becomes an essential religious practice depends on what the bench wants to see as essential. One of us have already undertaken that discussion elsewhere and the same could be accessed from below. Likewise, in the present fact situation, instead of enquiring if loudspeakers were available three hundred years ago, what the Court should have investigated is the sociological impact and the relation of Azan with the daily practice of Islam. Such an enquiry would have entailed questioning a variety of other issues intertwined with the purpose behind loudspeakers.
For instance, besides the sociological entrenchment and relation of the public with Azan as a matter of their faith and religion, its impact on the daily lives of the destitute would have been a significant question to consider. People residing in hutments and shanties, having no other way to determine the different phases of the day, heavily rely upon the Azan to decide the part of the day they are currently in. If the Court would have subsequently discovered that the recitation of Azan over loudspeakers does not impact the enjoyment of Islamic tenets of a substantial number of Muslims or lives of others in a detrimental manner, it would have been free in its right to do away with the requirement of such devices. It is quite certain that religious freedom in India remains at the heart of the country’s vibrant and pluralistic culture. In ‘amplification’ of such diversity, it is essential that the job of its writ courts is much more nuanced in terms of their understanding of the issues at stake where they remain critical of the roadblocks that obstruct this freedom.
The authors, Astha Upadhyaya and Anant Sangal, are currently law students at the National Law University (NLUD), Delhi.
[1]David M. Beatty, The Ultimate Rule of Law, (Oxford University Press, 1st ed., 2004)
[2]Alec Stone Sweet, Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Columbia Journal of Transnational Law, 68, 68 (2008), available at https://ssrn.com/abstract=1569344, last seen on 18/07/2020.
[3]Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights, 31, 31 (2017), available at https://doi.org/10.1080/02587203.1994.11827527, last seen on 20/07/2020.
[4]Shrutanjaya Bhardwaj, Individual Religious Freedom is subject to Other Fundamental Rights, (2019) 7 SCC Part-4 J-29, available at https://ssrn.com/abstract=3517936, last seen on 19/07/2020.
[5]P.K. Tripathi, Secularism: Constitutional Provision and Judicial Review, 8 Journal of the Indian Law Institute, 1, 1 (1966), available at www.jstor.org/stable/43949866, last seen on 21/07/2020.
[6]Moshe Cohen-Eliya, IddoPorat, American balancing and German proportionality: The historical origins, 8 International Journal of Constitutional Law, 263, 263 (2010), available at https://academic.oup.com/icon/article/8/2/263/699991, last seen on 22/07/2020.
[7][1996] HCJ 5016 (Supreme Court of Israel).
[8]For further discussion on the jurisprudence and limitations of the essential religious practices doctrine, see Anant Sangal, Standing at the Cemetery? Pitchforking a Doctrine Towards an Inevitable Burial, available at <https://wbnujscls.wordpress.com/2020/11/30/standing-at-the-cemetery-pitchforking-a-doctrine-towards-an-inevitable-burial/>, last accessed on 1st December 2020.
The Journal of Indian Law and Society 