Freedom from Community: Individual Rights, Group Life, State Authority and Religious Freedom under the Indian Constitution
34 Pages Posted: 29 Feb 2016 Last revised: 20 Mar 2016
Date Written: February 28, 2016
This paper examines the fraught relationships between individual rights, group rights, State intervention, and religious freedom under the Indian Constitution. Over the years, the Indian Supreme Court has developed the famous - and heavily criticised - "essential practices" test to navigate these questions. This paper acknowledges that the text of the Indian Constitution, and the role of religion in Indian public life, necessitates a departure from the traditional liberal approach to religious freedom. However, the "essential practices" test comes at too high a cost. Instead, an alternative approach may be drawn from Justice Sinha's dissenting opinion in the famous "Dawoodi Bohra excommunication" case: the Constitution is committed to protecting the integrity of religious groupings subject to the "anti-exclusion principle" - i.e., religious practices that results in the exclusion of individuals from economic, social and cultural life in a manner that hampers their access to the basic goods required for sustaining a dignified life, are not to be accorded constitutional protection. The paper argues that this approach is textually, structurally and historically more faithful to the constitutional scheme than the "essential practices" test.
Keywords: religious freedom, indian constitution, secularism
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