-Aditya P. Phalnikar*
Recently, the Supreme Court (SC) passed an Order[1] permitting the Rath Yatra[2] under certain conditions. For example, one of the conditions was that the persons pulling the chariots should follow social distancing norms (condition 5). This Order (O2) was passed, reversing its earlier Order (O1),[3] which had directed the cancellation of the Yatra on the ground that doing so was necessitated by the Covid-19 pandemic. It had justified its direction in O1 with a reference to the opening words of Art. 25- ‘Subject to public order, health, morality…’. Apart from the fact that the SC blithely equated ‘health’ with ‘public health’,[4] the Order is conspicuous in not citing any law justifying the Order. To contrast this with the latest developments under A. 21 (and existing jurisprudence under Art. 19 as well)- every restriction on a complete freedom should be backed up by a law.[5] In other words, it seems that the Order is not a restriction on the freedom of religion, but instead is only the enforcement a limited freedom of religion. This distinction is both real (in terms of being reflected in the text of the Constitution) and theoretically helpful. It helps us to analyze the standards that courts should employ when assessing an Art. 25 violation. This distinction further raises a crucial question- what is the extent of freedom that is guaranteed under A. 25 (‘the question’)? Prima facie, it may seem as if the answer to this question is very easy. In this blog, I argue that the opening words of Art. 25 ‘subject to’ can indeed be given differing interpretations, and that the SC has adopted a certain approach implicitly (in that it does not form a part of the court’s analysis explicitly) in Sabarimala. In the next part, I will clarify the exact meaning (and implications) of the question posed above.
Clarifying the Question
In the preceding paragraph, I mentioned that going by the text of A. 19, every restriction on an Art. 19 right has to be justified by a law. I have chosen Art. 19 to clarify the meaning of the question posed above because the jurisprudence on that provision is relatively stable, and the way this jurisprudence is structured (as mentioned, every restriction must be backed by a law) provides us with an interesting foil to analyze Art. 25. Moving on, under Art. 19, freedom that is guaranteed is, by itself, absolute. A. 19(1)(a),[6] for example, states that ‘all citizens shall have the right to freedom of speech and expression’. Hence, Art. 19(1)(a) declares that there will be an absolute right to freedom of speech and expression, which can then be curtailed by a law as long as it is conformity with the grounds under A. 19(2). In other words, every restriction on the freedom of speech and expression is illegal, unless and until the law authorizing this restriction is in conformity with Art. 19(2) grounds.
The question posed above, in other words, will read as- ‘what all aspects of the freedom of religion are required to be curtailed by a law as a justifiable intrusion (similar to an A. 19(2) ground) upon a freedom? More fundamentally, does the Constitution guarantee this freedom completely in the first place (approach 1), or is it a partial guarantee (approach 2)?’ An illustration of approach 1 will be the A. 19 approach.[7] The significance of these two questions is tremendous- if it is only a partial guarantee, then the Court’s O1 was justified. This would be because the Court wasn’t really restricting a complete freedom, only recognizing a partial freedom. If, on the other hand, it is a complete guarantee, then an analysis similar to an A. 19 violation will have to be undertaken. Notice the different analysis that would entail an A. 25 enquiry vis-à-vis an A. 19 inquiry if this construction of a ‘partial guarantee’ is accepted. Under an A. 19 inquiry, the State is required to show how a restriction by law falls in line with a permissible ground. Under A. 25, on the other hand, no such recourse to law will be required- and the State will only be required to show that the restriction bears some connection to the ground (in this case, ‘public health’- assuming this itself is valid). This low standard under an A. 25 inquiry will be because, unlike an A. 19 restriction, a complete freedom is not being restricted, but a partial freedom is being recognized.
With the import of the question clear, l will now argue that this confusion arises from an ambiguity that is present since the Constituent Assembly Debates. In other words, I will argue that the phrase ‘subject to’ occurring in A. 25 can be given two interpretations (approaches 1 and 2 above). Next, I will argue that the SC in Young Lawyers Association v S/O Kerala (the Sabarimala judgment)[8]has adopted approach 1 in answering this question. Finally, I show how according to the Sabarimala decision, the aforementioned Orders by the SC dealing with the rath yatra were incomplete in their logic.
The Constituent Assembly Debates
On 16th December of 1948, the Assembly was discussing Draft Article 19 (A. 25 in the present Constitution). Speaking in support of the Article, K. Santhanam from Madras seems to adopt approach 2 in interpreting Art. 25. For example, he states that the crucial part of the provision is not the aspect of ‘religious freedom’, but of ‘religious toleration’. Seen in this light, he states that the important part was ‘the governing words with which the article begins viz., “subject to public order, morality and health”. He goes on to place this constitutional protection in a context- where communities across the subcontinent had an unregulated freedom to propagate religion before passage of the Constitution, the same situation would be altered after it was passed. According to him-
“…But we are now in the new Constitution restricting the right only to that right which is consistent with public order, morality and health. The full implications of this qualification are not easy to discover. Naturally, they will grow with the growing social and moral conscience of the people. For instance, I do not know if for a considerable period of time the people of India will think that purdah is consistent with the health of the people. Similarly, there are many institutions of Hindu religion which the future conscience of the Hindu community will consider as inconsistent with morality.”[9]
Here, K. Santhanam is recognizing 3 important points- a) Draft Article 19 is more about ‘religious toleration’, b) the important words are ‘subject to public order, health…’ and c) after the Constitution comes into force, the nature of freedom of religion will change- and the recognized freedom will be limited to one that is consistent with public order, morality and health (approach 2). One would presume that these words would be subject to judicial interpretation. However, he quickly states that these words will depend upon what is ‘inconsistent with morality’, which will be decided by the ‘Hindu community’. K. Santhanam’s dictum itself seems to be pulling itself in two directions and hence not giving us a clear answer to what the Constituent Assembly meant for this freedom to be recognized. On one interpretation, we are left with approach 2 (recognising partial freedom). On the other, if the operative part of A. 25 is left to be determined by the religious community in question, then that amounts to granting a complete freedom (in effect, approach 1). The line between the two approaches becomes very thin here. However, a real distinction does exist- even though the opening part of Art. 25 will still be subject to judicial interpretation, the point being made here is that the Constituent Assembly members thought that the freedom would be interpreted by the Hindu community as well. The ‘ability’ of any religious community to determine the extent of its freedom (and hence, having approach 1) is not at all inconsistent with the power of the higher judiciary to interpret these provisions.
In other words, while the interpretation of the religious community can be approach 1 (as is suggested by the cited part of the CAD), the extent of judicial interpretation has not been clarified by the Constituent Assembly. This confusion in the Debates, however, need not detain us for long. Reading the debate on the Article as a whole, it is clear that the members did not seriously consider the question outlined above. The omission is understandable- the impact of religion on social life in a newly independent nation, its capacity for unity and of parochialism, steered the debate along very different lines. For example, the primary questions the higher judiciary has dealt with revolve around the extent of permissible propagation, whether certain practices constitute an essential part of any religion or not etc.
Judicial Pronouncements[10]
Even the SC did not directly deal with this question, and its views on the matter have to be culled from the underlying rationale of each decision. Hence, in Ratilal Gandhi v S/O Bombay,[11] the petitioners had challenged the constitutionality of the 1950 Bombay Trusts Act on the ground that certain provisions of the Act interfered with their fundamental right under A. 25. Dealing with the meaning of the freedom under A. 25, the Court holds that A. 25(2)(a) does not contemplate state regulation of religious practices as such which are protected, unless they run counter to ‘public health’ or morality. Instead, it has within its ambit practices which are of essentially of an economic nature, though they can be associated with religious practices. Hence, the power of regulation that the Constitution gives to the state under Art. 25(2)(a) only applies to freedoms that steer clear of interfering with public order, health and morality. Extending this holding to its logical conclusion,[12] in Ratilal, the Court recognized that A. 25(1) only affords a partial protection to the free exercise of religion (approach 2).
Moving over to the Sabarimala judgment, however, it seems that the Court overturns its own position in Ratilal. In Sabarimala, the SC starts its discussion on the scope of A. 25 by rejecting the absolute nature of freedom under A. 25 (paragraph 184). While it may seem that this answers the question posed above in a conclusive manner, it is submitted that the Court’s affirmation of a ‘limited’ or ‘non-absolute’ right is similar to statements made about A. 19- no freedom is absolute, and is subject to reasonable restrictions. Here is where the duality of the phrase ‘subject to’ becomes clear. In the next paragraph, the Court says this-
“The effect of clause (2) of Article 25 is to protect the ability of the state to enact laws, and to save existing laws on matters governed by sub-clauses (a) and (b). Clause (2) of Article 25 is clarificatory of the regulatory power of the state over matters of public order, morality and health which already stand recognised in clause (1). Clause 1 makes the right conferred subject to public order, morality and health. Clause 2 does not circumscribe the ambit of the ‘subject to public order, morality or health’ stipulation in clause 1. What clause 2 indicates is that the authority of the state to enact laws on the categories is not trammelled by Article 25.”
The important part is how the Court chooses to relate the opening words of A. 25(1) with the powers of the state under A. 25(2) by stating that the latter is only clarificatory of the former. Hence, since A. 25(2) only refers to the Parliament, it can only be assumed that the opening phrase in A. 25(1) is ultimately creating a space for the state to impose restrictions on the exercise of an otherwise complete right to freedom of religion. Consider another argument to buttress this assertion. The SC, in the above paragraph, states that A. 25(2) is clarificatory (a point which we have discussed) of the regulatory power of the state. Regulating societal conduct- in other words, the formulation of rules of conduct, has been held by the SC to be in the exclusive domain of the legislature. This argument has most famously been made in the context of the constitutionality of delegated legislation, but its application is definitely not restricted to those types of cases. For example, in Harishankar Bagla v S/O Madhya Pradesh,[13] the petitioners had challenged the Essential Supplies Act on the ground of excess delegation (that is, the executive would be acting outside the proper bounds of its authority under the impugned provisions). While the Court ultimately rejected the contention, it upheld the view that the formulation of policy (regulating conduct) is in the sole domain of the legislature. Hence, if the SC in Sabarimala states that Art. 25(2) is clarificatory of the regulatory power of the state under Art. 25(1), the following conclusion emerges. The opening phrase of Art. 25(1) deals with state regulation of societal conduct. Such regulation can only be legitimately performed by the legislature. If the executive is allowed to regulate the said freedom without a pre-existing law, then it is interfering with the sole domain of the legislature. Since the Sabarimala dictum clearly disallows such a position, we are compelled to move towards approach 1- The freedom given by Art. 25(1) is by itself absolute, and the only restrictions that can be placed upon it are by a law made by the legislature (since there is no other way for the legislature to actually regulate conduct). In conclusion, the Court’s usage of the words ‘regulatory’, coupled with its arguments in paragraphs 184- 188, has settled the ambiguity that had been present ever since the drafting of the Constitution itself.
At this point, it may be possible to object that the discussion above is mere wordplay- one way or another, the state can regulate the freedom of religion. The importance of the argument in the previous paragraphs can be illustrated by the following argument. No fundamental right is absolute (in an A. 19-and-restrictions sense or a ‘recognizing only a partial right’ sense), and all are subject to some kind of state regulation. However, arguing about A. 25 the way I have tried to do above enables us to ask what the freedom itself means, and to answer the bracketed question. If the argument I have tried to make with Sabarimala is accepted, then the opening phrase in A. 25(1) is within the sole domain of the legislature. This will automatically mean that the freedom itself is absolute, and is subject only to a law made which restricts it. And if this is true, then the standards that the Court uses will differ. To illustrate, under approach 1 (for clarity of thinking, one can think of Art. 19 here)- the freedom a citizen has is absolute. Any restriction must be backed up by a law- and any alleged infringements on said freedom have to be adjudicated upon by the court in accordance with settled principles (for example, whether the restriction is ‘reasonable’ or not). Under approach 2, on the other hand, since the freedom itself is partially recognized, the a law will not be required to ‘curtail’ this freedom (a freedom can be ‘curtailed’ by a law if it exists to that extent in the first place). In such a situation, the state will be justified in stating that it’s action affecting the freedom wasn’t a restriction/curtailment per se. On the other hand, it was enforcing the given freedom. This discussion, then, is important to determine the standards of review that Courts will adopt to determine an A. 25 violation. This issue did not come up before previous benches, as those benches were concerned more with other matters- for example, does ‘propagate’ mean ‘freedom to convert’ etc. Let us call these substantive questions about A. 25. On the other hand, determining the standard of review is more ‘procedural’, in a sense. If courts recognize the Sabarimala interrelation as binding, then the standards of review that they have to employ will differ- for example, courts will have to take recourse to the doctrine of proportionality.
Contextualizing the two approaches
Going back to the Rath yatra example, let us try to apply this distinction to the concrete facts of the case. With the Sabarimala dictum about interrelating the opening phrase of A. 25(1) with the regulatory power of the state under A. 25(2), the restriction of an A. 25 freedom is required to fit within a law. This then has to fit within any ground mentioned under A. 25(1)/A. 25(2) (what I have previously termed the A. 19 approach). This is not to say that the order itself was incorrect, only that it is missing certain parts. In addition to what it already stated in the original order, it would have to state how this restriction was in accordance with a law (which in this case could have been the NDMA, or the EDA), and how this law was consistent with A. 25 grounds.
Through this post, I have sought to argue that the A. 25 jurisprudence is underdeveloped on this point, and that the court has impliedly clarified an ambiguity that was inherent in the text of A. 25, and the debates surrounding it. If courts do accept this, then what will follow is a shift in the standards of review that is required to undertake an A. 25 analysis. However, this argument is solely dependent on how the judiciary chooses to tackle the controversy in explicit terms, and it is hoped that the same will be done soon.
* Aditya P. Phalnikar is a third year student of law at the National Law School of India University, Bangalore.
[1] W.P. (Civil) No. 571/2020, Order dated 22nd June, accessed here- < https://www.livelaw.in/top-stories/sc-stays-puri-jagannath-rath-yathra-related-activities-amid-covid-19-threat-158520>.
[2] BBC, ‘Rath Yatra: The legend behind the world’s largest chariot festival’ (BBC, 4th July 2019) <https://www.bbc.com/news/world-asia-india-48864239> accessed 13th July 2020.
[3] W.P. (Civil) No. 571/2020, Order dated 18th June accessed here- https://www.livelaw.in/top-stories/breaking-sc-allows-jagannath-rath-yatra-at-puri-on-conditions-158724.
[4] The term ‘public’ in Art. 25 only applies to ‘order’ and not to all the terms succeeding it. For an argument along similar lines, see Gautam Bhatia, Offend, Shock of Disturb, (OUP 2016) 109.
[5] A. 19(2)-A. 19(6) authorizes restrictions ‘by law’. In addition, one of the essential ingredients for a restriction on the right to privacy to be valid is that such restriction must be backed by a law. See KS Puttaswamy v Union of India (2017) 10 SCC 1.
[6] Art. 19(1)(a), Constitution of India 1950.
[7] Even though Articles 19 and 25 are not similarly worded, they provide us with a framework of analysis because, as I have mentioned, the extent of freedom under Art. 25 is not very clear. Hence, comparing it with Art. 19 helps us to focus the question better.
[8] 2018 (4) KLT 373.
[9] Constituent Assembly Debates, Vol. VII accessible here- <http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C06121948.html>.
[10] Ratilal and Sabarimala have been chosen because they are the closest the SC has come to inter-relating the opening phrase of Art. 25 to Art. 25(2)(a). All other decisions merely state that the freedom guaranteed is ‘subject to’ public order, health and morality. My argument is precisely that this phrase (‘subject to’) can be given different interpretations. As such, these other decisions are not helpful.
[11] 1954 AIR 388.
[12] It will be a ‘logical conclusion’ because the Court is not dealing with the opening parts of Art. 25 in Ratilal. On the other hand, the case tries to make a distinction between religious activities and secular/economic activities which are essentially of an economic nature. Even so, its pronouncements in Ratilal cannot be held to be mere obiter dicta and hence unimportant in analyzing Art. 25, because it is on this basis of inter-linking Art. 25(1) and Art. 25(2)(a) that the Court proceeds with its analysis.
[13] 1954 AIR 465.
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