Religious Freedom and Dalit Identities
The article looks at the restrictions imposed on the religious freedoms enjoyed by Dalit communities in the light of the 1950 Presidential order. It explores key judgments to understand how the courts have protected the rights of Dalits.
- The Throwing Open of Hindu Religious Institutions and Public Places of Worship
- The Untouchability (Offences) Act, 1955
- Penalties for Non-Compliance
- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- Rights Of Co-Religionists Vs. Rights Of Denominations
- Appointment of Priests
- Freedom of Conscience and Dalits
- Anti-Conversion Laws
- Reconversion of Dalits into the Hindu Fold
On 26 January 1950 the Constitution of India came into force and Article 17 categorically stated that, “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.”
However, the framers of the Constitution did not stop there. They incorporated it into Part III of the Constitution which outlined the fundamental rights of all citizens protected under the Constitution. It was another critical measure to ensure that Dalits had equal opportunity to practice their religious freedom.
The Throwing Open of Hindu Religious Institutions and Public Places of Worship
The fundamental rights framework incorporated the long standing demand to protect the rights of Dalits to enter places of public worship. Article 25 (2) states that:
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus (emphasis supplied).
By this Article, the framers of the Constitution sought to remove “any distinction between one class and another class of Hindus.”
The Untouchability (Offences) Act, 1955
To give effect to these Constitutional protections for Dalit communities, the Parliament enacted the Untouchability (Offences) Act,[i] which later came to be known as the Civil Rights Act.
This law makes a comprehensive provision to give effect to the solemn declaration made by Article 17 and Article 25 and extends it not only to places of public worship but to hotels, places of public entertainment and shops.[ii]
Section 2 (d) of this Act defines a "place of public worship" as:
“a place by whatever name known which is used as a place of public religious worship or which is dedicated generally to, or is used generally by, persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein; and includes all lands and subsidiary shrines appurtenant or attached to any such place.”
The broad definitions under Section 2 indicate the large field of socio-religious activities that the mandatory provisions of this Act are supposed to be implemented upon.
Penalties for Non-Compliance
Section 3 of the Act makes it an offence to prevent anyone, on grounds of untouchability, from entering a place of public worship that is open to all the others who profess the same religion or section.
It also proscribed that prevents the worship, offering of prayers or performing any religious service in any place of public worship. This also extends to bathing or using the waters of any sacred tank, well, spring, river or lake in the same manner and to the same extent as is permissible to the others.[iii] (emphasis supplied)
Therefore, the law sought to ensure that Dalits have equal footing with their co-religionists and are able to enjoy the same rights that are available to the other members of the religion, in terms of accessing various rights at the places of public worship.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, is a special law which, among other offences, penalised the obstruction or prevention of a person from using common property resources. This includes imposing a social or economic boycott on any person or family belonging to a Scheduled Caste/Scheduled Tribe community for using public places and public resources at places of worship for the purposes of taking out religious, social or cultural processions, etc.
Rights Of Co-Religionists Vs. Rights Of Denominations
Over the years, the Supreme Court has tried to strike a balance between the rights of a religious denomination and the rights and protections given to Dalits under the Protection of Civil Rights Act, 1955 and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The courts have held that while the rights of Dalits were raised to the same level as other caste Hindus, the Civil Rights Act did not give Dalits more rights than their co-religionists. The Supreme Court has held in numerous decisions that while the temples were thrown up to the general public, the denominational character of any particular institution must prevail. But this protection is only available for a religious denomination which has to fulfil the three-part test of having a common faith, organisation and a distinct name. This was made amply clear in the case of S.P. Mittal v. Union of India[iv],
In the State of Kerala v. Venkiteswara Prabhu[v], the Kerala High Court held that “untouchables” or Dalits were prevented from entering the Nalambalam of a temple belonging to the Gowda Saraswat Brahmin community. The court found no evidence that ordinarily, people outside of the Gowda Saraswat Brahmin community (not just Dalits) were allowed to enter this part of the temple any way. So, the court held that exclusion of Dalits was not a violation of Section III of the Act because “those refused entrance did not belong to the same “denomination or section thereof.” The court also held that, “since members of other communities enjoyed no right of entry to this part of the temple, no such right was conferred on Dalits.”
Similarly, in State vs. Puranchand,[vi] the Madhya Pradesh High Court said that denying “untouchables” entry into Jain temples is not a violation of Section III of the Civil Rights Act since those who are excluded do not belong to the “same religion” as those who are allowed to enter the premises.
According to the court, the Civil Rights Act does not abolish the distinction between Hindus and Jains, nor does it create any new right — either for Dalits or caste Hindus — to enter Jain temples. It only puts the rights of Dalits on parity with the rights of “others of the same religion”. This means that Dalits have the same rights to enter a Jain temple that were previously enjoyed by caste Hindus. If the temple was not open to the latter before, it is no offense to exclude Dalits from it now. Dalits who embrace Jainism would have the right to enter Jain temples since the temples are open to co-religionists.
This interpretation of the temple-entry provisions by the courts is supported by the fact that there is no evidence that the Civil Rights Act intended to confer new rights on non-untouchables. The Act penalises exclusion only on “grounds of untouchability,” not on grounds of religious denominations.
The courts have held that it would be anomalous if Dalits were given rights of entry that were more extensive than those enjoyed by their co-religionists.
In Venkataramna Devaru v. State of Mysore[vii], the Gowda Saraswat Brahmins challenged the Madras Temple Entry Authorization Act, 1947. They said that as a separate religious denomination and under Article 26 (b), they had the right to prevent the entry of other Hindus into the temple. Although the Supreme Court recognised Gowda Saraswat Brahmins as a denomination, it upheld the validity of the legislation that was made in furtherance of Article 25 (2)(b) and held:
“32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Article 26(b), must yield to the overriding right declared by Article 25(2)(b) in favour of the public to enter into a temple for worship.
“But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Article 25(2)(b) overrides that right so as extinguish it, but whether it is possible so to regulate the rights of the persons protected by Article 25(2)(b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Article 25(2)(b), then of course, on our conclusion that Article 25(2)(b) prevails as against Article 26(b), the denominational rights must vanish.
“But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Article 25(2)(b) as to give effect to Article 26(b) and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.” (emphasis supplied)
This means that a religious denomination can exclude the public from worshipping at a temple but only for services that are exclusive to this denomination. They cannot prevent the public from entering a public place of worship at all times.
In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya[viii] while upholding the validity of the legislation that permitted Dalits to enter temples, the Supreme Court stated that:
“25. Besides, on the merits, we do not think that by enacting Section III, the Bombay Legislature intended to invade the traditional and conventional manner in which the act of actual worship of the deity is allowed to be performed only by the authorised Poojaris of the temple and by no other devotee entering the temple for darshan. In many Hindu temples, the act of actual worship is entrusted to the authorised Poojaris and all the devotees are allowed to enter the temple up to a limit beyond which entry is barred to them, the innermost portion of the temple being reserved only for the authorised Poojaris of the temple.”
So, what Section III purports to do is give Harijans the same right to enter the temple as is claimed by other Hindus.
It would be noticed that the right to enter, worship or perform any religious service in a temple, as conferred by Section III, is specifically qualified by the clause that the said right will be enjoyed by Dalits as much as the other sections or classes of Hindus do.
The main object of the section is to establish complete social equality between all sections of Hindus in the matter of worship specified by Section III.
Appointment of Priests
In addition to throwing open religious places of worship, various laws have also been enacted to protect the rights of Dalits to be appointed as priests or religious leaders. However, here too the courts have tried to balance protecting Dalits from discrimination and protecting the rights of various religious denominations.
In Adi Saiva Sivachariyargal Nala Sangam v. State of T.N.[ix], brought before the Supreme Court, an amendment to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was challenged. The amendment to Section 55 of the Tamil Nadu Act meant that office-holders or servants of a religious institution were no longer appointed on the principle of hereditary succession. Rather, the amendment and a subsequent government order allowed people from non-Brahmin castes to be appointed as priests in all state temples.
The Supreme Court held that, “the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas (priests) would not violate Article 14 so long as such inclusion or exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter.”
The court further held that the government order which stated that “any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential of falling foul of the Constitutional mandate, if it could be shown that the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate. This would have to depend on the facts of each case of appointment.
The Supreme Court has held in Shri Venkataramana Devaru v. State of Mysore,[x] that under the rule of harmonious construction, when there are two provisions in an enactment that cannot be reconciled with each other, they should be interpreted such that, if at all possible, effect could be given to both. In the present situation, if the denominational rights are such that favouring them would substantially reduce the right conferred by Article 25(2)(b), then the latter prevails and the denominational rights must vanish. However, if after favouring the rights of the denomination, what is left to the public in terms of right of worship is something substantial, then the courts will recognise the rights of the denomination.
In N. Adithayan v. Travancore Devaswom Board[xi], the Supreme Court held the appointment of a person who is not a Malayala Brahmin as the priest in a temple in Kerala as constitutionally valid.
The court held, “If traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples. Consequently, there is no justification to insist that a Brahmin, or Malayala Brahmin in this case, alone can perform the rites and rituals in the temple as part of the rights and freedom guaranteed under Article 25 and further claim that any deviation would tantamount to violation of any such guarantee under the Constitution.”
Freedom of Conscience and Dalits
Article 25 protects the freedom of conscience and the right to practice, profess and propagate the religion of one’s choice. In its various judgments, the Supreme Court held that the freedom to choose one’s religion is an inherent aspect of the human dignity of an individual and this should not be subject to the dictates of the states. Religious conversions are an act of agency. The ability to change one’s religious beliefs or to express one’s deeply held beliefs lie at the core of what it means to be human.
The Supreme Court held in Shafin Jahan v. Asokan KM and Ors[xii] that the right to choose one’s faith is intrinsic to their dignity. The court stated:
“54. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person.
“The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right.
“Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realisation of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it an indispensable preliminary condition.”
“…Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere…” (emphasis supplied)
In Justice K S Puttaswamy v. Union of India[xiii], the decision of nine judges held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality. The court stated:
“The autonomy of the individual is the ability to make decisions on vital matters of concern to life… The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination…”
However, there is a hiccup with the Constitution (Scheduled Castes) Order, 1950. It outlines which caste communities will be recognised by the central government as Dalit or members of the Scheduled Caste and it restricts the freedom of conscience of Dalits. Commonly known as the 1950 Presidential Order, it states in para 3 that:
“Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste…”
In effect, paragraph 3 penalises Dalits for choosing a faith other than Hinduism, Sikhism and Buddhism by restricting their right to access reservations and policies. It forces Dalits to continue to operate in a religious tradition by not allowing them to make a free choice. To be forced to choose between one’s religious beliefs and protection under the law and even various benefits under government policies, is an impossible choice. The State should never force any person to compromise on their religious beliefs. This is a clear violation of the protections under the Indian Constitution that are also safeguarded in numerous international declarations.
For instance, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) bars coercion that would impair the right to have or adopt a religion or belief. This includes the use of threats, violence and penal or economic sanctions to compel believers to adhere to their religious beliefs and congregations, recant their religion or belief, or convert.[xiv]
Policies or practices with the same intention or effect as those restricting access to education, medical care, employment or the rights guaranteed by Article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2 of the ICCPR.[xv]
The Supreme Court in Shafin Jahan v. Asokan KM and Ors[xvi] noted that:
“Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.”
The Supreme Court in A.K. Gopalan held that the expression “personal liberty” under Article 21 is only the antithesis of physical restraint or coercion. The court also said that in this day and age coercion need not just be physical but can also be psychological.
State-level anti-conversion laws or freedom of religion Acts are the other aspect to negatively impact the rights of Dalits or Scheduled Caste communities.
These laws were enacted in nine states in an attempt to prohibit conversions by force, fraud and inducement or allurement. However, due to the vague definitions they are frequently misused. The laws state that no person shall convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by using force, misrepresentation, or undue influence, allurement, marriage, by inducement or any fraudulent means. Nor shall any person abet any such conversion. The law requires a person converting or overseeing the conversion to inform the district authorities by completing a prescribed form. The intimation can be prior to conversion or in some cases after the ceremony. In some states, the person or religious priest conducting the conversion is also required to send an intimation either prior or post the conversion.
The laws have stricter penal provisions when the person converted is a Dalit or belongs to the scheduled castes. But since the provisions are poorly worded and there is misuse, the laws put the person converting their faith to inquiry. Some even penalise the person who is converting if they fail to inform the authorities. The public nature of inquiry and the mandatory notice leave Scheduled Caste converts vulnerable to attacks from religious mobs.
Reconversion of Dalits into the Hindu Fold
The Supreme Court has reiterated in various judgments that caste is permanent and pervasive and has sought to protect the rights of Dalit Hindus, who have reconverted to Hinduism, even up to three generations.
The constitutional bench of the Supreme Court in the Principal Guntur Medical College, Guntur and Ors. v. Y. Mohan Rao[xvii] laid down that if a person born to Scheduled Caste parents who took up Christianity re-converted to their religion, they would still be treated as a member of the Scheduled Castes. And if the said caste falls within the SC Order, 1950, then they will be treated as a person from the Scheduled Castes.
In Kailash Sonkar v. Maya Devi[xviii], the Supreme Court, held that, “In our opinion, when a person is converted to Christianity or some other religion, the original caste remains under eclipse and as soon as the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives.”
In S. Anbalagan v. B. Devarajan and Ors[xix], the Supreme Court laid down that if the caste disappears, it will still reappear upon reconversion. The court said that the mark of caste does not seem to really disappear even after a few generations post the conversion. The process goes on continuously in India and generation by generation, the last sheep to return to their caste fold are once again assimilated to that fold. The three-judge bench further commented that the members of the Scheduled Castes who embraced another religion in their quest for liberation, return to their old religion on finding that their disabilities have clung to them with great tenacity.
In K.P. Manu Vs. Chairman, Scrutiny Committee[xx], the Supreme Court observed that caste identity continued and was merely eclipsed. It held that if a person whose grandparents had converted to Christianity from Hinduism re-converts to the religion and caste of his grandparents, they can avail the benefits of being a member of such caste. The court laid down a three fold test that required:
- Clear cut evidence that they belonged to one of SCs;
- Reconversion to original religion; and
- Acceptance by the community
The freedom of conscience and the rights of Dalits to practice their faith are largely protected under the Constitution, legal provisions and many judicial pronouncements. However, there are restrictions placed on Dalits converting out of Hinduism, Sikhism or Buddhism.
One’s identity is intrinsically linked to their race, sex and religious beliefs, among other things. Some of these identities are immutable and cannot be changed – sex and race, for example. But the ones that can change – like religion, place of residence and profession – by one’s own choice, must not be penalised for Dalits or for others. This goes against the provisions of the Constitution and India’s international commitments.
[i] Untouchability (Offences) Act, 1955 (No. 22 of 1955)
[ii] See S. 2 (a), (b), (c) and (e).
[iii] See Section 3 of the Act : Punishment for enforcing religious disabilities: Whoever on the ground of "untouchability" prevents any person-
(a) from entering any place of public worship which is open to other persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or
(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or watercourse, in the same manner and to the same extent as is permissible to other persons professing the same religion, or belonging to the same religious denomination or any section thereof, as such person;
[iv] (1983) 1 SCC 51
[v] AIR 1961 Ker. 55.
[vi] AIR 1958 MP 352
[vii] [1958) SCR 895
[viii] AIR 1966 SC 1119
[ix] (2016) 2 SCC 725 : (2016) 2 SCC (Civ) 243 : 2015 SCC OnLine SC 1325
[x] 1958 SCR 895 : AIR 1958 SC 255] , SCR pp. 920-21 : AIR pp. 268-69
[xi] (2002) 8 SCC 106
[xii] Shafin Jahan v. Asokan KM and Ors 2018 SccOnline SC 343
[xiii] (2017) 10 SCC 1
[xiv] International Covenant on Civil and Political Rights, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
[xv] See Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994).
[xvi] Shafin Jahan v. Asokan KM and Ors 2018 SccOnline SC 343
[xvii] (1976) 3 SCC 411
[xviii] (1984) 2 SCC 91
[xix] (1984) 2 SCC 112
[xx] (2015) 4 SCC 1