Religious Discrimination under the Indian Constitution: Unpacking the Contents of Religion

Indian Journal of Constitutional Law 2022

Posted: 17 Oct 2022

Date Written: March 1, 2022

Abstract

Grounds’ are effectively the building blocks of discrimination law, both in theory and in practice. Understanding what a ‘ground’ means helps determine what the scope and efficacy of discrimination law can be. The primary objective of this paper is to answer the question, “What does ‘religion’ as a ground of discrimination mean?” As this paper argues, this has proven to be a particularly vexed question. The paper goes about undertaking this enquiry in two stages. The first stage involves a study of cases involving direct religious discrimination, as decided by various High Courts, and the Supreme Court. What emerges from this study is that ‘religion’ has predominantly been understood to mean the ‘religious status’ of an individual. While there exists a normative justification for this pattern, I argue that there is a need to dig deeper because the approach does not explain all cases that have been litigated. The second stage of the enquiry thus identifies and studies uncommon judicial opinions that exist on the periphery, which examine several elements beyond religious status. In these cases, ‘religion’ has been understood to include several elements that would ordinarily be construed to be a part of ‘religious freedom’. This paper then proceeds to unpack the meaning/content of religion in these cases that exist on the periphery by exploring three alternatives. It argues that ‘religion’ under Articles 14 and 15 of the Constitution must be understood to include sincerely held religious beliefs as well.

Keywords: Religion; Religious Discrimination; Article 15; Article 25

Suggested Citation

Gandhi, Dhruva, Religious Discrimination under the Indian Constitution: Unpacking the Contents of Religion (March 1, 2022). Indian Journal of Constitutional Law 2022 , Available at SSRN: https://ssrn.com/abstract=4232141 or http://dx.doi.org/10.2139/ssrn.4232141

Dhruva Gandhi (Contact Author)

Bombay High Court ( email )

Churchgate
Mumbai
India

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