By Bhaskar Kumar and Snehil Kunwar Singh
“The irony of these times is that as actual places and localities become ever more blurred and indeterminate, ideas of culturally and ethnically distinct places become perhaps even more salient.”[1]
Legal systems across the world have tried to preserve the cultural identity and sanctity of a particular group by equipping them with group rights.[2] The doctrinal argument favouring this kind of legal protection centres on the idea of preventing the infringement of cultural autonomy of certain groups by external factors. However despite the common treatment of social groups as cohesive entities these groups experience internal dissent sometimes. The members of group disagree on how to define their group’s core values, goals and advocacy strategies.[3] As a consequence of the rapid change in socio-economic conditions, modern society is becoming more heterogeneous from inside but homogeneous from outside. Differing opinions are abound in a cultural community.[4] In our modern world, which is being globalised at an unprecedented pace, it is now people’s personal choice to as to how, where and with whom they want to live their lives and what cultural practices to exercise.[5]
Today more and more people are dissenting against the cultural and traditional norms of their community; they want a culture that is best suited to their situation and thus changing the nature of culture itself. This kind of civilizational dynamism has posed serious question to the law and legal system which has steadfastly been committed to the old world view of cultural diversity and untouched by the changes happening inside a cultural community. So far the dissenters inside a culture have been suppressed to preserve the distinctiveness of a group.[6] In this paper the researchers will analyze as how group dissent is grounded in constitutional commitment of preservation of group autonomy as well as individual autonomy and has found space and recognition in judicial pronouncements in the recent backdrop of Sabrimala judgment.
Before landing on the issue of group dissent in the context of constitutional philosophy it is imperative to understand the importance of group rights in an individual’s life. While elaborating the significance of group rights Peter Jonas posits that
“Some of what is fundamentally important for people relates to identities that they can possess and to practices in which they can engage only in association with others.”[7] Hence in order to develop a sense of self, social groups play an important part in this process, as an individual would identify himself as a part of that group.[8]But when it comes to the cohesiveness of group there are always fissures in that cohesiveness. Members of same church might disagree on the issue of interpretation of religious texts; members of same community disagree in terms of practices and norms. At this juncture, the role of law comes into play to ensure that the dissenting members of that particular community must remain unrobed of their basic rights and protection of law.
“Cultural dissent”[9] symbolises a movement away from imposed cultural identities to a new age of autonomy, choice and reason within culture.”[10]While attempting to strike a balance between the individual’s liberty versus group autonomy the problem with Cultural survival approach[11] is that it imposes the culture on individual rather than a choice based approach where an individual can choose culture best suited for him and this approach somehow jeopardises the prospect of sanctity of identity of an individual.[12] The problem underlying behind this kind of conception is the misconceived notion of ‘Culture’ in judicial and legal fraternity. Legal Scholars for a long time have been interpreting culture as something concrete and fixed entity existing without interference in time and space. However the postmodern scholars have dissected the settled notion of culture.
“By presuming culture is static, imposed, bounded, homogeneous, and unitary, law actively obstructs internal efforts within cultural associations to move away from imposed identities to identities of choice and reason.”[13]
As Charles Taylor[14] puts forwards the argument that in the era of modernity to preserve the cultural integrity, cultural rights are necessary but he missed the pointy that by legally bounding a culture degenerates the prospect of change and puts dissenters in precarious situation.[15] As Janet Halley observes “culture, by its very nature, ‘constrains’.”[16]
“We ought to ensure that legal efforts to counter globalisation and modernisation do not buttress the hegemony of cultural elites and suppress efforts by cultural dissenters to gain autonomy and equality within their cultural context.”[17]
The problem behind this is the misconceived perception of culture where traditional thinkers observed culture as something crystal and distinct entity existing with an uninterrupted continuance but modern thought especially the postmodernism thought has attacked the notional aspect of culture. Today anthropologists perceive culture as increasingly fluid, heterogeneous and more dynamic than ever.[18]
“Moreover, culture is understood as subject to individual agency and internal contest, and increasingly so as cultures modernise and become more interrelated.”[19] Now when it comes to the question of rights of minority culture, more or less these are the special rights with the liberal commitment to individual autonomy.[20] The rights to minority cultures ensure the protection of certain cultural uniqueness from the encroachment by political and economic decisions by majority culture.[21]
“Liberalism is committed to (perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance.”[22]
In the course of time there has been shift in the ethical balance between individual and group in the direction of individual. The liberal theory expounds that every individual must have a right to exit and this is completely different from coercively imposing liberalism on minority groups but it provides an individual with the option to make informed choice on the way he wants to conduct his life.[23]
In furtherance of discussion above Chandrachud J. in Sabrimala case while relying on the concept of radical equality observed that
“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunise them from constitutional scrutiny is to deny the primacy of the Constitution.”[24]
While acknowledging the concerns of minority group over protection of cultural rights the historical injustices pervading in the guise of culture cannot be sanctioned by constitutional morality. Chandrachud J. was of same view in Sabarimala case where he observed at
“In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life is the equal participation of women in all spheres of social activity.”[25]
When a group of people within a community feel that adherence to particular custom or practice of their group is robbing them of their dignified and free existence then they must have a remedy against it in law. Constitution framers could never have conceived a cultural right violating the autonomy of an individual. In Sabarimala case while dissenting Malhotra J. also seems to agree on this point when she observes that– “The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious.”[26] The terms oppressive and pernicious must be seen in context of a person who is subjected to discrimination and curtailment of liberty within his group by certain cultural practice or norm. Practices, that perpetuate discrimination on the grounds of characteristics that have historically been the basis of discrimination, must not be viewed as part of a seemingly neutral legal background. They have to be used as intrinsic to, and not extraneous to, the interpretive enquiry.[27]
The judgment of Sabarimala in this sense sets a new era in the conceptual framework of group rights by placing itself inside the atomistic conception of rights in harmony with group autonomy. The right to religion and protection of minorities under article 25[28], 26[29] 29[30] of the Indian Constitution must be understood in terms of facilitating an individual a choice within a particular group to control and direct the conduct of the life of his/her choice. Nariman J. articulates this point by quoting the dissenting judgment of Chief Justice in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay[31]
“It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by 25 Art. 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience. ……… The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc.”[32]
When it comes to question of gender justice or some kind of historical discrimination the social emancipatory objective of constitution must be taken into consideration. The vision of the constitution is transformative and transformative in a direction inclined towards recognising an Individual as the basic unit of constitution and hence while viewing the existing structures and laws it must be viewed from the prism of Individual dignity.[33] Fundamental rights after all are guaranteed to an individual by ingraining the concept of liberty and human dignity even cultural right is a right guaranteed to an individual to practice and profess the values of his community without an external interference. Chandrachud J further lays emphasis on this point –
“The discourse of freedom in the Constitution cannot be denuded of its context by construing an Article in Part III detached from the part within which it is situated. Even the right of a religious denomination to manage its own affairs in matters of religion cannot be exercised in isolation from Part III of the Constitution. The primacy of the individual is the thread that runs through the guarantee of rights. In being located in Part III of the Constitution, the exercise of denominational rights cannot override and render meaningless constitutional protections which are informed by the overarching values of a liberal Constitution.” [34]
Even when recognising the immune nature of rights granted to religious denominations in matter of managing religious affairs the moot question is can we dispense the individual dignity and liberty which is the essence of transformative nature of our constitution.
That issue is whether the Constitution ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens. The exclusion may relate to prayer and worship, but may extend to matters which bear upon the liberty and dignity of the individual. The Constitution does recognize group rights when it confers rights on religious denominations in Article 26. Yet the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty and equality which animate the soul of the Constitution.[35]
The constitution envisioned India as a progressive democratic country with individual as a central entity and fundamental rights are instrument to actualise the self-expression of an individual in a dignified manner. While addressing the question of group rights one should not forget the underlying premises on which fundamental rights have been conceived. The constitution in this way provides ample space in recognising the doctrine of cultural dissent within the ambit of cultural rights.
(The authors are 2nd year undergraduate students at the National Law School India University, Bangalore and would like to thank Dhawal Sagar, an Associate Editor for his valuable inputs)
[1] Akhil Gupta & James Ferguson, Beyond “Culture”. Space, Identity, and the Politics of Difference, 7 Cultural anthropology 6, (Feb. 1992).
[2] The examples cultural rights in international humanitarian law(2001 Durban Decration para 66, World Heritage Convention, the Framework Convention on National Minorities (FCNM), the Faro Framework Convention on the Value of Cultural Heritage for Society and UNDRIP.) Rights of minority in Indian constitution( Article 25, 26, 28, 29), Right to freedom of religion in USA(Article VI constitution of USA.).
[3] Holning S. Lau, An Introduction to Intragroup Dissent and Its Legal Implications, University of North Carolina School of Law Carolina Law Scholarship Repository, Available at https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=1185&context=faculty_publications.
[4] Especially after the third stage industrialization and rapidPlP immigration and emigration there has been observed a colossal transformation in social composition across the globe. see John Harwood, Inaugural Test: As Bush Aims to Close Nation ‘s Cultural Gap, He Risks Widening It, WALL ST. J., Jan. 19, 2001, at Al; Jeffrey S. Victor, Election 2000 and the Culture War, HUMANIST, Jan. 1, 2001.
[5]Chirkov, V. I., Ryan, R. M., Kim, Y., & Kaplan, Differentiating autonomy from individualism and independence: A self-determination theory perspective on internalization of cultural orientations and well-being, Journal of Personality and Social Psychology, 84(1),(2003).
[6] Sunder, Madhavi, Cultural Dissent, 3 Stanford Law Review, vol. 54, (2001).
[7] Peter Jones, Group Rights and Group Oppression, 7 J. POL. PHIL. 353 (1999).
[8][8] Cf. Mark Kelman, Market Discrimination and Groups, 53 STAN. L. REV. 833, (2001). For instance if we look at the case of religious ceremonies the participation of an individual with other worshipers is important for his self-definition or it can be said that the individual’s sense of self is contingent upon his belongingness to the group of his fellow worshipers.
[9] Sunder, Supra note 6, 528. This is term coined by Madhavi Sunder which refers to the situation where members of a particular group find it difficult to pay allegiances to particular norm or value of their community and seek to modify these norms according to their own terms. This concept has lately been entertained by judiciary of progressive countries like USA, Australia and also been recognized in recent Sabrimala verdict in India.
[10]Sunder, supra note 6, 533.
[11] Ibid. Madhavi sunder explains cultural survival approach as judicial and legal attitude towards the …..which doesn’t acknowledge the change in a culture.
[12] Anley Fish, Doing what comes naturally: change, rhetoric, and the practice theory in literary and legal studies, 1989, Duke University Press.
[13] Austin Sarat & Thomas R. Kearns, The Cultural Lives of Law, in Law in the domains of culture 1, 11 (Austin Sarat & Thomas R. Kearns eds., 1)
[14] Taylor, C., Gutmann, A., & Taylor, C. (1994). Multiculturalism: Examining the politics of recognition. Princeton, N.J:
[15]Sunder, supra note 6, 544.
[16] Janet E. Halley, Culture Constrains, in Is Multiculturalism Bad for women ? 100, 103-04 (Joshua Cohen et al. eds., 1).
[17]Sunder supra note 6, 504.
[18] Renato Rosaldo, Culture & Truth: The remaking of social analysis (1989).
[19] Arjun Appadurai, Modernity at Large: Cultural dimensions of globalization 48 (1996).
[20] Ibid.
[21] “A liberal theory wouldn’t hesitate to adept special rights for minority culture against a majority community so as to ensures equality of circumstances between them but special rights of a culture against its own members cannot be justified at all. In case of former it promotes and protects the autonomy of minors and in latter case it just restricts. The Rights of Minority Cultures: Political Theory, Vol. 20, No. 1 (Feb., 1992), pp. 140-146.
[22] Ibid ,142.
[23] Appadurai, supra note 20, 38.
[24] Para 99, Indian Young Lawyers Association vs The State Of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006.
[25] Para 117, Supra note 24.
[26] Para 7.2, Supra note 24.
[27] Para 102, Supra note 24.
[28] The Constitution of India, 1950, Art. 25.
[29] The Constitution of India, 1950, Art. 26.
[30] The Constitution of India, 1950, Art. 29.
[31] Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp. (2) SCR 496.
[32] Para 9, Supra note 25. Chandrachud J. also concurs to this view in the same judgment at Para 6.
[33] Para 100 supra note 25.
[34] Para 115, Supra note 24.
[35] Para 109, Supra note 24.
