Tanishk Goyal, Naman Agarwal and Rishabh Singh

Moving from the redundant ERP Test to the twin principles of the CVT and the theory of transformative accommodation could go a long way, in laying down the concrete jurisprudence in regulating the relationship between the religion and the law.

IV. The theory of multicultural accommodation and vulnerability.

The theory of multicultural accommodation refers to the policies and measures by the state to facilitate the practices of various identity groups.[1] The object and purpose of multicultural accommodation is to provide these identity groups, an opportunity to preserve and maintain their culture and understanding of the world.[2] However, the paradox which arises with multicultural accommodation, is the problem of multicultural vulnerability. This happens when State policies end up reinforcing power hierarchies between the members of a particular identity group. In the present case, The Kerala Places of Worship Act[3] through its section 3(b) is an illustrative example of multicultural accommodation trying to preserve the cultural rights of the worshipers of Lord Ayappa. However, it led to the reinforcement of power hierarchies, between the men and women of the same identity group with regard to the entry into the temple, thus projecting the multicultural vulnerability of the said act.

V. The Concluding aspect: Accommodating cultural differences without violating individual rights- joint governance and transformative accommodation.

The question then arises, as to how, in the interest of constitutional morality can the state accommodate cultural differences without violating the  individual rights of men and women. Here comes in the theory of joint governance by Ayelet Shachar. The theory “aims to divide the jurisdictional authority between the state and the cultural group.”[4] The theory of transformative accommodation is a basic tenet of the principle of joint governance.  It acknowledges that individuals may form a part of multiple identity groups. It further observes that whenever there is a conflict between cultural and individual rights with respect to a particular social arena, that arena becomes internally divisible in distinct sub-matters, separable, yet complementary to each other.[5] These sub-matters may include, inter alia, a demarcating function (to be performed by the cultural group) and a distributive function (to be performed by the State) which run parallel to each other, i.e to say that no function has any inherent primacy over the other. Furthermore, the No Monopoly Rule of transformative accommodation ensures that the State and the Cultural Group in question are complementary power-holders and neither the State, nor the cultural group has absolute control over the religious practices.[6] Illustratively observing the Sabarimala Case through the prism of transformative accommodation, it can be said that the demarcating functions which would be  the prerogative of the cultural group would involve determination of who enters the temple, the membership of the community, ensuring their continuance by protecting the core values of their foundation and the essentiality of their practices, among other things. Similarly, the distributive functions, which would be the prerogative of the State would inter-alia include, the regulation and prevention of the practices from assuming a life-threatening character and ensuring public policy is maintained, thus keeping a check on the contemporary validity of their practices. “These institutional provisions grant individuals a choice between the jurisdiction of the state and the cultural group,”[7] thus ensuring that cultural differences are accommodated without violating individual rights. One of the fundamental reasons why the theory of transformative accommodation overcomes the problem of multicultural vulnerability is because it “allows cultural differences to flourish while creating a catalyst for internal change.” This essentially implies that the jurisdiction to manage the affairs of a community is equally shared between the community and the State (by virtue of the No Monopoly Rule) thus ensuring the “division of power along sub-matter lines within a single social arena.” The theory is capable of bringing about a revolution, as it would ensure that the courts or the State do not interfere with the demarcating functions of a community, which have the sole prerogative to manage their religious affairs, and practices of their temples, unless, the practice categorically assumes a character which is not contemporarily valid. The perfectionist and maximalist aspirations,[8] of the State and the cultural identity groups are a fundamental source of conflict between them, and the principle of transformative accommodation ensures that these aspirations to exclusively govern certain religious practices are abandoned, so that both the State and the group can be complementary power holders.

As for the situation, when a practice does assume a life threatening character, the State would have the sole prerogative to regulate it, just as the cultural group would have had it otherwise.

Thus, moving from the redundant ERP Test to the twin principles of the CVT and the theory of transformative accommodation could go a long way, in laying down the concrete jurisprudence in regulating the relationship between the religion and the law. This could, consequently, ensure a harmonious interpretation of religious and individual rights, and preserve the multicultural ethos of this country.

This is the 3rd part of the series of posts on Deconstructing the Sabrimala Dissent.

Click here to access the 1st part – Deconstructing The Sabarimala Dissent (1/3): An Analysis of the Essential Religious Practice (“ERP”) Conundrum

Click here to access the 2nd part- Deconstructing The Sabarimala Dissent (2/3): Can the Contemporary Relevance of a religious practice override its essentiality?

[1] Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights, pp17-18 (2001).

[2] Id.

[3] Arjun Gopa vs. Union of India and Others (2017).

[4] Roland Pierik, Reviewed Work(s): Multicultural Jurisdictions: Cultural Differences and Women’s Rights by Ayelet Shachar, available at https://www.jstor.org/stable/pdf/4148111.pdf?refreqid=excelsior%3A026eb402d628db7fd3d17d9b69cec0e0 (Last visited on 28^th February, 2019).

[5] Supra note 1.

[6] Supra note 1 at 119-120.

[7] Supra note 1.

[8] Id.

Tanishk, Naman and Rishabh are students of  WBNUJS Kolkata, NLU Delhi and Faculty of Law, Allahabad University, respectively.

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