There is a provacative article by Colin Gonsalves titled “State has no religion” (www.indiatogether.org For those of you who prefer links, I am afraid, I am not yet completely blog savvy to provide links. I am working on it!). After discussing various HC and SC judgments, Gonsalves makes two broad assertions- a) The Courts have not come down heavily on people and parties spreading communal hatred (he appears to extend this to include caste hatred); and b) Certain decisions (he refers to the Rishikesh Egg Case and the Parsi Housing Cooperative society case) in fact enable and encourage ghettoisation based on caste and religion and social ostracisim of minorities (and I think he means not only religious minorities but also caste minorities).
Assertion a) is clearly debatable as one needs to examine if the Court actually had options to hand out a more severe penalty (or conviction) in each of those cases based on facts and evidence, before we can agree with Gonsalves. It is assertion b) however that interests me. Apart from the cases that Gonsalves mentions, the newspapers regularly report of incidents where certain areas in some cities (Mumbai is an example) have either gone completely “vegetarian” or completely “Jain”. Incidents where corporations have banned employees from talking in regional languages have also been reported. The more chauvanistic cultural, caste and linguistic groups are indulging in violence even when there is no perceptiple threat to their own culture, caste or language. If we go by Gonsalves’ assertion, an aggressive propogation of an idea that adversely affects the freedom of any other religion or caste or language (or habit it appears, if we take non-vegetarianism/vegetarianism as an example) is something that should not be permitted or encouraged as it is likely to result in affecting minority rights (Gonsalves appears to recognise that minorities vary from place to place).
Clearly any propogation involving violence or inciting violence should be punished, but is there a need to curb non-violent aggressive propogation of one’s culture, caste or language? Assertion of an identity is not something that the Constitution prohibits. Therefore, if a particular group wishes to limit access to resources/ spaces (let us for the moment assume that these are not state owned or supported resources, as it is likely that state owned or supported resources cannot be the subject of discrimination) which are occupied by them to other groups, is it something that can be discouraged legally? Will that not that result in a violation of Part III? This is an issue that is going to be significant as most of our large cities become cosmopolitan, particularly so given the enormous diversity that we have. In this context, Gonsalves’ prediction is pretty dire. At the same time, assertion of identities (on a non-violent basis) is something that sociologists and historians do not discourage as they believe it does encourage diversity. I understand that there are a number of studies about assertion of caste identities (particularly Dalits) that show positive benefits.
So how does one regulate majority group activity that is non-violent, but may have the effect of reducing diversity and adversely affecting minorities of all hues?
On reading the original article myself i found that Colin also delved upon conversions and its legal position in India.
From what I understand this idea was the basis for his prologue that you have so rightly mentioned in the beginning of your post.
This post is a bit uncanny, because I am currently working on an article precisely on the need for a legal remedy for prohibiting discrimination in the private sector, including private employment, housing societies etc. Will surely post a link once I finish and publish it (hopefully very soon).
Interesting article. This is a part of the larger question that we have been discussing (see Vivek’s recent post on the constitutionality of Art. 15(5) and comments), namely, the scope of ‘reasonable restrictions in the interests of the general public’ and in particular, how far the state can go in imposing its own preferred social policies on the private group or individual.
The article presents a good summary of judgments in various areas though I feel that his criticism of the Supreme Court in Zoroastrian Cooperative Housing Society v. District Registrar is not justified. When the court said that the interest of the society ought to determine the nature and scope of amendments to its bye-laws, it was merely repeating verbatim what the Cooperative Societies Act itself stated; given the provision that gave the Registrar authority to impose bye-laws ‘in the interest of the society’ even against the wishes of its members and the conflicting provisions allowing for the members’ right to determine their own membership and impose obligations on those who accepted it , the court interpreted the former in a way that would be consistent with the right to form associations guaranteed under Art. 19(1) – a reasonable interpretation though one can debate if it is indeed the ideal one. What is perhaps more important is the other quotation from the same judgment (partly quoted in the article) where the court exhorted the state to bring legislation disallowing discrimination on religion, sex, and other grounds even in the formation of associations – this seems like an unnecessary statement given that any such legislation might impinge on the same constitutional right beyond what might be deemed reasonable and it would have been wiser for the court to have reserved its thoughts rather than burden the future by stating its preference for such a course.
One other point: language restrictions in the private sector do not seem out of place or unreasonable given that even the constitution imposes such a restriction in the proceedings of parliament (Art. 120).
Very interesting post. I was recently reading a discussion on private associations and discrimination under US constitutional law (http://www.lessig.org/blog/archives/002933.shtml )
and Harish’s post is very relevant to the discussion above. Unfortunately I do not have access to the orginial article or the cases mentioned in the post but everytime I come across a discussion about private groups or individuals and their activities of a questionable constitutional nature, it fascinates me. Having defended a woman who had sexual reassignment surgery from being discriminated against while trying to admit her child in a private school, I realized that the grey area of the rights of private associations and groups to regulate themselves versus the rights of individuals to have their constitutional guarantees protected is something the courts are reluctant to give sweeping judgements on. We were lucky that the parties settled, the terms were undisclosed and yet another appeal was avoided. In a small way it was a victory for individual rights, albeit secured with the assitance of red eyed law clinic students!