Mr. Karan Gupta
In this article, the author argues, in response to Jacobsohn, that constitutional identity, though dialogical, need not be fixed. Important constitutional aspects emanate from distinct principles and tensions between them may be perpetuated, repudiating the claim that the constitution has a fixed identity and may be either militant or acquiescent.
Jacobsohn advances a theory of constitutional identity[i] – that constitutional particularity is a continuing dialogue between stable features of the Constitution and its context, which gives each constitution a particular identity. He states that identity emerges over time as an ongoing process[ii] in through a dialogue, representing a mix of political aspiration that expresses the nation’s past and is as well continuously determined, grounded in activity.[iii] As such, ‘continuity’ and ‘discovery/invention’ are twin aspects essential to constitutional identity.[iv] Jacobsohn emphasis the importance of identity and speaks of how Bruce Ackerman’s deference towards the legitimate voice of the demos could logically lead to the selection of a state religion without any deference to a fundamentalism.[v]
The Indian Constitution, at a general level, states that those activities related with religious practice may be restricted or regulated.[vi] At the same time, “freedom of conscience and free profession, practice and propagation of religion”[vii] are protected. Is there any contradiction in saying that the constitution protects religion as well as allows the reshaping of structures of the social order? How do we find coherence in this contradiction, if any? Constitutional law is not meant to create and keep just one theory of the state. I hope to state that our Constitution is neither militant nor acquiescent in relation to society and that important constitutional aspects emanate from distinct principles and the tension between them is to be perpetuated. Thus, constitutions are not meant to have fixed identities.
Kerala – Sabarimala
Sabarimala is one of the richest religious institutions in India. Recently, the Supreme Court opened its gates to all women in a landmark judgment.[viii] Makarasankranti, which marks the last day of the festive season, is important for one other reason. At around 6:30 pm, a bright light is seen from the temple grounds (‘temple light’), which marks the opening of the doors of the inner sanctum.[ix] Whilst the ceremony is performed, this light disappears, and in a ground 8 kms away, another light is seen (‘ground light’). This too disappears after flashing three times. Thus, a huge rush is expected on this day and a huge exit right after.
In 2011, the Temple bench rebuked the Travancore Devaswom Board (“TDB”) for the stampede caused on Jan 14, 2011 (which killed 102 pilgrims).[x] Subsequently, Justice B. Radhakrishnan soon turned to the two lights to enquire whether they were man-made and a room fell silent (quite unusually).[xi] He stated – “See, blind faith is good but when faith and law conflict there is provision in the Constitution to abridge [faith] for public health and morality.”[xii] This marked the position over the rest of the enquiry where the TDB was repeatedly questioned on the nature of the light. Eventually, it was conceded by the Chief Priest that the lamps were lit by humans, but they denied any role in doing so. Two things were clear – no TDB official had admitted that TDB lit the lamp and every other actor connected to Sabarimala had admitted that they did. Whilst the rest of the proceedings focused on administrative issues, in the end, quite anti-climatically, the court declared that it only need be affirmed that the lamp was lit by humans, and that no further enquiry is needed regarding faith.
But what had the court done here? It had taken the reformist task of bringing out the religious and political machine without making any further enquiry into faith. It had thus, done and not done what it wanted – which is to inform people on whether the celebrations are divine in nature. This was a clear balancing act.[xiii]
How do we explain this behavior of the Court? Was it merely a lack of conviction to unearth existing practices? Or the Court just changing its mind? These answers seem unsatisfactory. This doesn’t account for why an otherwise activist judiciary would falter away from the same in the two cases. Further, the Kerala HC itself has acted quite differently in other situations.[xiv] What seems like the right way forward is that the behavior of the Court is best understood as reflecting a commitment to constitutional impulses – which herein seems to be citizenry.
In looking at the question of the lamps and in partly increasing the kind of overseeing officials, it was suggested that the state can participate in the ordering of religious activity. However, in refusing to make sweeping declarations on faith or on the lights itself, it also affirmed that some state involvement is not called for. These reflect two different conceptions about sovereignty in the state – that of only state and that of state and citizens. The Court steered clear of any extreme and stayed true to the vision of a dynamic equilibrium.
In the midst of first two decades, there was a move towards the reformist nation, thus prohibiting untouchability[xv] and opening secular aspects of religion for oversight of the state.[xvi] Yet, they didn’t go the whole stretch. There has been some restraint. Not forgetting that the sphere of religion also constitutes a personal space, the SC declared and created the Essential Religious Practices Test.[xvii] What is important, is that contrary to general assumptions, this tension maybe intentional and productive as a feature of Indian Constitutionalism: productive because the balance between holding back and the attempt to reform is better than moving towards one extreme in the garb of resolution.
Thus, looking at Indian sovereignty itself as not just vesting in either the people or the state, allows us to also look at reforms required for what could be called a more equitable society. It’s instability that is a result of the courts adopting one position over the other. Is this dynamic equilibrium an identity in itself? There doesn’t seem to be any real and identifiable substance to it. However, this instability could itself be called a constitutional identity, but there seems to be little to gain in saying so.
Mr. Karan Gupta is a graduate from NALSAR University of Law, Hyderabad. He is currently working at the Supreme Court of India.
[i] Gary Jeffrey Jacobsohn, Constitutional Identity, The Review of Politics, University of Notre Dame, (2006).
[ii] Michel Rosenfeld, Modern Constitutionalism as Interplay between Identity and Diversity, in Constitutionalism, Identity, Difference, and Legitimacy, Durham: Duke University Press, 1994, 10.
[iii] Erik H. Erikson, Dimensions of a New Identity, New York: W. W. Norton & Co., 1974, 105.
[iv] Supra, n. 1.
[v] Ibid, 366 – 368.
[vi] Constitution of India, art. 25(2)(a); In addition to the same, art. 25(2)(b) allows opening Hindu institutions of a public character to all classes and sections of Hindus.
[vii] Constitution of India, art. 25(1).
[viii] Indian Young Lawyers Association v State of Kerala, Writ Petition (C) No. 373 of 2006 (decided September, 2018)
[ix] Radhakrishnan Kuttoor, Makarajyothi is man-made, aver leaders, The Hindu, 21 Jan, 2011.
[x] G. Mahadevan, Sabarimala Stampede: Toll rises to 102, The Hindu, 15 Jan, 2011.
[xi] Supra, n. 9.
[xii] Deepa Das Acevedo, Temples, Courts, And Dynamic Equilibrium in The Indian Constitution, 64 American Journal of Comparative Law, 2016.
[xiii] A similar balancing was seen in terms of the temple administration, which was characterized by an unwillingness to consolidate authority over Sabarimala.
[xiv] The Courts handling of the Padmanabhaswamy treasure scandal is informative in this regard.
[xv] Constitution of India, art. 17.
[xvi] Constitution of India, art. 25(2)(b).
[xvii] For an exposition on this test, see generally Gautam Bhatia’s writings on the topic.