Constitutional Law

Aishat Shifa: Dushyant Dave on ERP, Article 25 Jurisprudence, and Religious Freedom in India

Parv Tyagi

Arbitrary


In the latest episode of Arbitrary, the flagship podcast of Law School Policy Review, Parv Tyagi (Managing Editor, LSPR) sits down with Senior Advocate Dushyant Dave to discuss the Supreme Court’s judgment in Aishat Shifa v. State of Karnataka (the Hijab Case). They discuss the Essential Religious Practice test, Justice Dhulia and Justice Gupta’s opinions in the case, and the evolution of Article 25-26 Jurisprudence starting with Shirur Mutt, Ratilal Gandhi through to Sabrimala. They also discuss related issues surrounding religious freedom in India.

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(The following is an edited transcript of the discussion.)

Parv: Greetings to all our listeners. I am Parv. Today our guest is Senior Advocate at the Supreme Court of India, Mr. Dushyant Dave. Not that Mr. Dave needs any introduction. But still, Mr. Dave has been practising law for more than four decades now and has been a part of almost every important constitutional case most of us have seen in our lifetimes, including the very recent Aisha Shifat or the hijab ban case. Currently, LSPR is taking an in depth look into Aisha Shifat, the essential religious practice test and other related issues surrounding religious freedom in India. Aisha Shifat versus State of Karnataka delivered a split verdict with Justice Gupta upholding the impugned order that directed college development committees to disallow wearing of the hijab to quote unquote, “preserve public order”, while Justice Dhulia held the same unconstitutional. Considering your prominent role in the case, sir, we are honoured to interview you and hear about your experience of the case and your views more generally on religious freedom and articles 25 and 26 jurisprudence. Welcome to the show, sir.

Mr. Dave: Hello! Good evening to all of you.

Parv: So I’ll just shoot the questions. My first question to you, sir. So you argued that the High Court was incorrect in testing the legality of wearing hijab in public places on the touchstone of the essential religious practice test. You very interestingly argued that hijab is right protected under Articles 19 and 21 of the Constitution, in effect, sidestepping the question of the ERP test altogether. Why did you pursue this line of argumentation specifically?

Mr. Dave: No, I would put it slightly differently. I did not put the argument of essential religious practice on the side, on the backburner. In fact, I faced it heads on. And I told them that Supreme Court had rejected this argument way back in 1954. And, you know, you have to understand one thing, I will give a little preface to what really happened when 25 and 26, were brought in. Interestingly the icon of the Bharatiya Janta Party today, which is wanting to bring these kind of controversies, late Sardar Vallabhbhai Patel, indeed, one of India’s greatest sons, he was heading two committees during the drafting of the Constitution. He was the chairman of the Fundamental Rights Committee, and he was the chairman of the Minority Rights Committee. And, in both these committees, when he presented the reports to the constituent assembly, he said that fortunately, all these provisions that we have drafted, be it fundamental rights, be it protection for the minority rights- have all been brought with complete consensus. And he said, I was so happy that everybody agreed. that we have talked to everybody in the country, whomever mattered, and we are brought out this provisions this report, and therefore, we would hope that the Constituent Assembly would accept our suggestions as they are. So that’s something which we must understand that if a person like Sardar Vallabhbhai Patel, who really is now being considered as the new icon and rightly so, because, you know, along with Jawahar Lal Nehru, Sardar Vallabhbhai Patel was also one of the greatest lieutenants of Mahatma Gandhi, and what he did for unifying this country is absolutely unforgettable, but a man like him, provided us these provisions. Now, if you read article 25 and 26, they are absolute in terms. They are absolute in terms. Now if you read Article 25, you will know that all persons are equally entitled to freedom of conscience, and the right freely to profess, practice and propagate religion, subject only, of course, to public order, morality and health. Now, it’s nobody’s case that hijab contravenes public order, morality or health. Now, therefore, this is what the right is and the Constituent Assembly, which comprised of some extraordinary men and women, did not put the word essential practice. They said to profess, practice and propagate religion. So, practice of religion is also part that is something given by them as a fundamental right, propagating religion. I mean, this argument today of conversion, I mean, if people voluntarily convert, if I were to, you know, as a Hindu, go to a Muslim and say he becomes a Hindu. I convinced him that these are the good points of my religion, please convert, and he does. There’s nothing unconstitutional in this. It is exactly what they (constituent assembly) wanted. In fact, there was a great debate about propagating. And member after member said that no, and most of them were Hindus, including TT Krishnamachari. They said that propagating religion is a fundamental right. If you don’t propagate your own religion, what else will you do?

So, you know, the amplitude, the width of article 25, is extraordinarily wide. And there is no reason for anybody, including the Supreme Court to read into that article, the essential practice doctrine. So that’s a point I made to them, because during the Constituent assembly, member after member said that article 25 is an article of toleration. Now, this is something which we are not able to understand in today’s India. We have to tolerate the minorities and their beliefs, their practices, we must respect it. And both Sardar Vallabhai Patel and Dr. Ambedkar, did speak about the rights of the minorities. Sardar went to the extent of saying that we as majority must put ourselves into the shoes of the minority to realise how would we feel if we were discriminated as minorities are sought to be discriminated against. So therefore, he said that we must stop this kind of discrimination, we must take them (minorities) into the main fold. Ambedkar said that a minority is an explosive force. And if it explodes, then the very fabric of the state will disappear. Now, they add that majority also has an obligation to ensure that minority feels comfortable in the country. The state was never permitted during the Constituent Assembly debate, and therefore, under the Constitution, to have its own religion, we are a secular nation, it’s wrong to believe that we have become secular only because the word secular was added in the preamble later on (in 1976). No, the entire constitution is founded on principle of secularism, therefore, state can’t have a religion; the state can’t even have a preference for a religion. So state can’t say I prefer Hinduism or Islam or Buddhism, or Christianity. The state has to be very neutral about it. So this is the basic philosophy, which led to making of articles 25 and 26. And that is why they give absolute freedom of propagating religion, practising religion, and professing religion. So having said that, I must say that, after so many years, these debates are completely uncalled for. Fundamental rights are fundamental, and nobody has the right to tinker with them. Nobody can restrict the meaning, including the courts. But the courts don’t understand, including the Supreme Court with greatest respect as to what is the width of these provisions, because, rarely does the Supreme Court go into in great detail the Constituent Assembly debates to understand what the constitutional framers had in their mind. They had in mind, a very, very liberal, tolerant, a truly secular nation, and a truly neutral state, to all religions, they did not want this kind of nonsense, that you now have love Jihad and hijab controversies, or beef controversy. All this was not be relevant for the state. It’s not for the state to go into all these issues. So this is how we brought about a constitution. My own feeling is that unlike American and United Kingdom’s constitution, where judges have interpreted religious freedom to, you know, include many things because they didn’t have a written constitution, or they did not have the kind of wide amplitude that articles 25 and 26 have. So I personally feel that this controversy or this debate about essential practice is a complete non starter.

Having said that, let me read to you this aspect of the supreme court judgement way back in 1954, which has been singularly lost sight of by the Supreme Court in subsequent judgements I must say, sadly. The Supreme Court was actually confronted with this argument way back in 1954. And I will read this to you. This is what the Supreme Court said in the 1954 judgement Commissioner of Hindu Religious Endowment v. Shri Lakshmi Lakshmindra Tirtha Swamiar, commonly known as the Shirur Mutt Case. Now, this is what the Supreme Court says, and I’ll quote, “Articles 25 and 26 of our Constitution are based for the most part upon article 44 (2) of the constitution of  Ireland. And we have great doubt whether a definition of religion, which is recognised by American Supreme Court could have been in the minds of our Constitution framers. Religion undoubtedly has its basis in a system of beliefs or doctrine, which are regarded by those who profess that religion as conducive to their well being, but it will not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down code of ethical rules for followers, for example. It might prescribe rituals, observances, ceremonies, modes of worship, which are regarded as integral parts of religion. And these forms and observations might extend even to matters of food and dress.”

Now, this is how widely Supreme Court interpreted it way back in 1954, saying that even food for example, now you know, in various temples that we go, I mean I’m a proud Hindu, and I go to this temple: Sri Nathji in Nathdwara, Rajasthan and the offering of food or dressing up of Lord Shrinathji is something which has come down to us for centuries, for centuries, and that is still being followed, because that’s how the vaishnavites (I’m not a Vaishnavite) follow that kind of a practice. Now can state today say that No, no, you will only serve this prasad to lord Shrinathji, or that lord Shrinathji will wear only this kind of a dress. It can’t be done. These are beliefs and practices which have to be respected. Likewise, now, Supreme Court further says, and this is important, in the same judgement, “The learned Attorney General lays stress upon clause 2A of the article. And this is contention is that all secular activities, which may be associated with religion, but do not really constitute an essential part of it are amenable to state regulation.” This was the argument, in 1954, which is the argument of the learned Advocate General in Karnataka and Supreme Court, that these are not essential practices. The answer of Supreme Court is this, the contention formulated in such broad terms cannot be supported in the first place, what constitutes an essential part of a religion is primarily to be ascertain with reference to doctrines of the religion itself. If the tenets of any religious sect of Hindus prescribe, that offering of food should be given to idol at particular hours of the day, that periodical ceremony should be performed in a certain way at certain periods of the year, or that they should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as part of religion. So they said, can a court decide what is the essential practice or not? No, it is a matter of personal belief. So as a Hindu, if I want to say, if I am a Shivaite want to wear Shiva’s emblem on my body and enter a court, can the court say that Mr. Dave, you’re not properly dressed as per the Advocates Act. It can’t. That’s my right. I want to worship Lord Shiva, then I’m wearing a symbol of Lord Shiva. Nobody can say you can’t do that. So I think this kind of argument was long quashed by the Supreme Court. It has not been understood by some of the later decisions of Supreme Court specially in 70s and 80s. And now even in last five years, I think one of the judgements to which Justice Chandrachud (now Chief Justice) and justice Rohinton Nariman were party: the SabriMala case: They stressed on essential practices. I think with great respect to the learned judges, they perhaps didn’t realise that the argument of essential practice was rejected by the Supreme Court in 1954. So to my mind, that argument is a non starter.

And, Justice Dhulia, I must say, with, great humility, has really risen in the eyes of those of us who love the constitution so immensely, and who strongly believe that fundamental rights are untouchable

Parv: In fact, from what I could gather from the judgement: on ERP, you very compellingly argued that the expression essential religious practices was wrongly used by the Supreme Court in Shayara Bano and subsequent cases since the judgement in Shirur Mutt, had not used that expression in respect of article 25 to begin with, right? So how did the two judges engage with this argument in this case?

Mr. Dave: Well, I think we had a fantastic hearing. And I must say both Justice Gupta and Justice Dhulia, were extraordinarily receptive to our submissions. When I argued for almost almost four hours, the judges listened to the arguments with rapt attention. I mean, ultimately we as lawyers, what do we do, we present the case as best as we can. All that we have to try to do is to persuade the judges, and it is fundamentally for the judges to decide what they want to decide, we can’t compel them to decide in a particular way. So I’m really happy that I could pursuade Justice Dhulia, and I regret that I failed to pursuade Justice Gupta. But that’s part of, you know, the legal profession. That’s the joy of legal profession. And I have no regrets about it in the broader sense. So I think the hearing was very, very interesting, I would say the court heard us with rapt attention, and Justice Gupta himself, in fact, although he disagreed with me, at the end of the argument said, that it was a privilege to hear you on this issue. So that’s our reward as counsels. What else do we want? We don’t want to foist our view on the judges that you take a particular view or a particular judgement, no. So I think, overall, though, I personally do feel that Justice Gupta has gone terribly wrong in the interpretation that he has given. And, Justice Dhulia, I must say, with, great humility, has really risen in the eyes of those of us who love the constitution so immensely, and who strongly believe that fundamental rights are untouchable. They cannot be diluted in any manner. Because, you know, we have seen that every time the state becomes powerful, whether it was under Mrs. Gandhi, or now under Prime Minister Modi, the executive when it becomes stronger, they try to dilute the fundamental rights in one form or the other. And it’s for the Supreme Court or the judiciary to really stand up to that, and that is the reason why late Justice, HR Khanna is the hero of the nation, even today for having given a powerful dissent in ADM Jabalpur. And nobody remembers, you know, Justice Bhagwati and Justice Chandrachud (Senior) and other judges who decided against the citizens and said that no, no fundamental rights can be suspended. So to my mind, I mean, ultimately, I would say that the hearings were extraordinary, and it was great joy for me to, you know, defend the community, which needs to be defended, in the words of both late Sardar Vallabhai Patel, and late, Dr. Ambedkar, who are both my heroes. So I think I was trying to project a viewpoint, which both of them had projected during the Constituent Assembly debate, and both of them had forewarned us, the majority community to really be mindful of the rights of the minority community and not to discriminate against them unnecessarily. So I think that’s what really drives people like us, this is what really India is, and we should really continue in that direction, and not dilute it. And in fact, in one of the debates, I don’t know who it was, but one of the Constituent Assembly Member gives this very chilling or telling example, that the reason why Buddhism disappeared from this country was that when Ashoka became the emperor he adopted Buddhism as a state religion, and he positively discriminated against Hinduism. And as a result of that, ultimately Buddhism disappeared. And because, you know, the word Hindu itself has a liberal connotation. A Hindu means somebody who is truly liberal, truly secular in his outlook, and his religion is a way of life. It’s not some dogmatic religion. There are many religions, which have some strict rules including Islam or Christianity for that matter. But Hinduism is so beautiful, and so liberal in its approach, that it is willing to adopt every kind of practice which has come over centuries or 1000s of years. And that’s the reason why this religion has survived so beautifully. And you have to read therefore, one of the most celebrated speeches that any Hindu has ever given: the greatest of all Hindu scholars, Swami Vivekananda in Chicago. I mean, if you read his speech, you will realise that how much he believed in respecting other religions and how much he believed that our religion was such which would respect every other religion, and that there could be no question of any confrontation. Now, that kind of a philosophy, that kind of an understanding of religion is getting slowly and steadily lost in public life. And that is where the judges have a role to play to ensure that this country remains as great as it was for 1000s of years.

Justice Chandrachud and Justice Nariman are extraordinarily brilliant, they’re geniuses. But I still feel that they perhaps have done a great disservice to the constitutional framers by narrowly interpreting and importing into article 25 the essential practice test.

Parv: In complete agreement, sir. You mentioned justice Dhulia. Some scholars suggest that the circumvention of ERP in Justice Dhulia’s  judgement, even though desirable, rests on very shaky jurisprudence. I’ll give you an illustration. Now, Justice Dhulia held that an ERP analysis has no application to the instant case, because an ERP analysis is undertaken only when rights under both 25 and 26 are in question. And he cites Shirur Mutt and Durgah Committee as illustrations. Now of course, we know that subsequently the ERP test came to be applied also to cases where rights under article 25 were in question. And Justice Dhulia does recognise this but suggests that the limited cases were ERP was applied to article 25 involved cases with an individual’s dissent against religious practices and not state led deprivation of an individual’s religious freedom. But perhaps he overlooks Mohd Hanif Qureshi v. State of Bihar which involved state led deprivation of an individual’s right to freedom of religion under 25 and where the court nonetheless, employed ERP. So what do you make of the argument that even though desirable, the circumvention of ERP in Justice Dhulia’s judgement is problematic? 

Mr. Dave: No, I don’t think so. With the greatest respect to these scholars, I must say that they have singularly ignored not only Shirur Mutt but two days after Shirur Mutt Judgement was given in 1954, the five judge bench of the Supreme Court in Ratilal Panachand Gandhi once again reiterated this principle. And they said that Shirur Mutt has laid down the correct principle of interpretation of article 25. And the width of article 25, I mean we will be doing a great disservice to the constitutional framers, the greatest of minds, if you were to say that you must read essential practice into article 25, you think they were naive, and they didn’t therefore put it when they just used the expression religion and said that you have a right to profess practice and propagate religion? They meant it in the widest possible terms. Who are we, therefore to restrict it? Constitutional rights cannot be read down in any manner. They can’t be watered down in any manner, they can’t even be indirectly diluted. So I personally feel with greatest respect to these scholars that look at the language of article 25. The only restriction they have put is public order, morality and health, and only where the state can make the law is to ensure that they can regulate and restrict economic, financial, political and other secular activity, which is related to that religious practice, nothing else. So personal belief and personal practice is untouchable. They went further, see, if you read sub-article two, “the parliament has a right to make law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice.” That’s all. Therefore we have to give respect to the constitutional framers, and to what they had in mind. They are the ones who have given us the Constitution. They are the ones who fought for 200 years for liberating this country. They knew what slavery was, they wanted to free us from the British Raj. They wanted therefore, the citizens of this country to be totally free. Freedom in every sense must be allowed to be enjoyed by citizen, if you start chipping away that freedom in this kind of a ridiculous way, then I think freedom will have no meaning. Who is the state to design the freedom when the Constitution is a contract between me as a citizen and the state. The moment I am born, I have a constitutional rights. And that’s why Constitution begins by saying in the preamble we the people of India, we give ourselves this Constitution. Now, once we have given ourselves that constitution and these fundamental rights and these freedoms, these freedoms could perhaps be expanded. We have done it, look at article 21 interpretation. 21 only said you can’t take away life and personal liberty without due process of law. But now we have interpreted in article 21 everything: right to education, right to shelter, right to this, right to that. Every right which one can think of which make a human being live a good life and not an animal’s life has been brought into article 21. That’s the contribution of Supreme Court. Now, how do you therefore today justify that in 21, I will interpret it as widely as possible. But when it comes to 25, the minorities, I will go on restricting it. I will go on chipping away their rights. That’s not permissible. So, with respect I don’t agree with these scholars, and I don’t think judges of the Supreme Court really have understood, this essential practice doctrine. They have not understood what exactly the Constitution stands for and these are some brilliant judges, I mean, judges like Justice Chandrachud and Justice Nariman are extraordinarily brilliant, they’re geniuses. But I still feel that they perhaps have done a great disservice to the constitutional framers by narrowly interpreting this and, you know, importing into article 25 the essential practice test, I think they are wrong.

Parv: Which brings me to a related question, which is that they’ll now be a review of the Sabrimala Judgement in Kantary Rajeevaru. And issues concerning the ERP test are slated to be settled in that case. So how do you think should the court go about approaching the ERP test? You’ve made your views clear, you want the Supreme Court to discard it? But how do you think the SC ought to go about doing it?

Mr. Dave: I can’t answer that, because who am I to tell Supreme Court how it should think, it’s for the Supreme Court to decide. I can only say what, according to me is my understanding of the Constitution, constitutional rights, and the judgement of Supreme Court in Shirur Mutt and Ratilal cases. So I mean, having said that, I feel very, very sad that judges are not willing to expand the rights of the minority community as they are willing to do so for article 21 or for that matter, article 14. So, I mean, judges have really taken two different positions. So I feel that judges should rethink about their own approach and see what is happening on the ground. Why is it that for 75 years, nobody spoke about the hijab. I mean, Karnataka has had BJP governments many times in the past. Nobody thought about it back then. When I was a young man, a young boy, I lived in a place called Palampur in Gujarat where my father was district and sessions judge and I went to a school there for almost four years. It is a town which had a nawab. And there was a sizable Muslim population. And even in 1962-64, I used to see many small girls wearing a hijab. So I mean, hijab is not something which is new. Yes, look, it may not be a good practice, I’m not here to, you know, tell the Muslims, whether this is a good practice or a bad practice. It may not be for some, some may think that is wrong practice. But you cannot impose yourself. Today, Iran is going the other way, where Iranian women are saying that hijab has become a symbol of oppression against the women and women’s rights, Iranian women have no rights. Our women who wear hijab have all the rights in the world, and are being treated equally as men. So therefore, they are not really afraid of wearing a hijab, and hijab is not a symbol of operation for them. So it’s a diametrically opposite situation. So what I mean is, what you and I think is not important. We have to respect what a member of a minority community thinks for example, I don’t know whether you Parv have seen but Orthodox Jews in Israel, have you seen them? They have long, long beards, they wear particular dresses, they have these skull caps. And they are so orthodox, that it is impossible for a modern Israel to really impose any kind of a rule or regulation on them about these things. And indeed Israel does not pass a law saying that you can’t wear a skullcap and come to the school, or you can’t have a beard and come to the school. And people who now support a ban on hijab are great champions of Israel in many other areas, but then you must realize that the same Israel respects religious practices. You have to understand, so constitution for example, let’s take turbans. The Constitution didn’t recognize turban as a constitutional right. It only recognizes kirpan. Because you know, the bearing of arms is not a fundamental right. But the Sikhs always wear a kirpan, because that’s what the great gurus have told us. Now, therefore, the Constitution recognizes that. Great gurus also spoke about, kesh, and a turban. But constitution didn’t give that right. Today, we allow Sikhs to wear turbans in every institution, whether it’s a school, college, or government offices, or in the military or the police, because that’s their right, we must respect that right. Tomorrow, if the state were to say that sikhs can’t wear a turban, it would be wholly unconstitutional, it would be a direct violation of their fundamental right of religion, and it will violate their right under 25. So if we can’t stop sikhs wearing a turban, if we can’t wear stop Christians from wearing a cross on themselves and coming to school or college, if we can’t stop devout Hindus from wearing a Janeyu, and, you know, coming to the school or putting a Tilak on their head, then why should we stop somebody wearing a hijab? That’s the beauty of this country: multicultural, multi religious society that we have, it’s one of the most beautiful societies in the world. And I don’t think we should really try becoming this kind of a feudal nation, and go back to 500 years that Aurangzeb did this and therefore, we are not trying to undo what Aurangzeb did. Yes, he was wrong, but then these people forget what Akbar did. Akbar was very secular. Zil-e-illahi religion was brought from all the best parts of every religion. He respected Zoroastrianism he respected Hinduism. He was very, very liberal to every religion. He would give land and he would you know, exempt religious places, including Mathura and Kashi from tax. So, you know, something which we have to understand is that you can’t really undo the history. Yes, Aurangzeb was wrong, nobody can deny that. But we don’t want to become Aurangzeb, we want to be like Akbar, we don’t want to become Ashoka, we want to be a liberal, beautiful society. So I personally feel that these are all frankly, issues which are unnecessarily raised by the executive. And they are raised only for one purpose and one purpose alone: vote catching. And therefore judges have to be extraordinarily cautious in understanding that these kind of decisions, these kind of measures are not only just unconstitutional, but they are unethical, they are dishonest, because they are only trying to create a rift amongst the citizens and win the votes. The Prime Minister has consistently said he wants development to be a plank of politics. Why should religion become a plank in politics at all? So I think judges have to really understand unless they strike at these kinds of measures with a heavy hand, I must say, we have lost the battle. And we will pay very, very heavily.

Parv: Sir my next question is that, since you mentioned Iran and women and discrimination, some lawyers in this case argued it precisely as an anti discrimination issue, as infringing the right of equality and the right against discrimination. And Justice Dhulia seemed to agree with them in part, because he remarks that the hijab ban is first an invasion of the privacy of the girls and then a denial of secular education to them. What is your view on this?

Mr. Dave: Look, I am one of those who believe in absolute freedom, so long as that freedom is not abused, and so long as that freedom does not, you know, disturb public order, health or morality, freedom is freedom. Ultimately, if an individual is not allowed to have his own freedom, I mean what does freedom do? It allows an individual to develop, his mind is so complex that he wants to develop in 1000s of billions of ways. State now tells me that no, Mr. Dave, you must develop in a particular way. Look at today’s young generation. I mean, there was a time when homosexuality was considered criminal in this country, till the supreme court judgment came. And I’m so happy that Chief Justice Chandrachud spoke about it. But yet, look at the situation today that despite the fact that Mr. Sourabh Kirpal’s name has been recommended by the Collegium and reiterated almost for several years, his appointment is not coming through. Now, it shows how narrow the outlook of the state is. And that’s sad. Because state is not willing to recognize the rights or choice of an individual. People have choices, you must respect the choices, one may or may not agree with it. So what. If states were to start interfering like this, nobody’s safe, frankly, it begins with the hijab today, or homosexuality today, it will end with everything tomorrow. The state is now becoming so omnipresent, and so powerful, that it wants to restrict us in everything that we do. And all this is in the garb of national security. I mean, frankly, I’ve been a lawyer for 44 years. I’m a very keen observer of public life, and what is happening in my country, I love country as much as everybody else does. No less. But is there any threat to national security in this country? No, if at all, there is a threat  by these people who are in power across the country, who are constantly fomenting trouble in one form or the other. The citizens are very beautiful. Citizens respect constitution, they respect the law, they respect the rule of law, and they are going about their own way, professing their own religions, their own beliefs, their own lifestyles, whatever their food habits or their dressing habits are, they go and live their life, they work hard, they are God fearing. So there is no threat to national security in this country. If at all, there is an external threat. Yes, from China and Pakistan. And there is a threat from terrorism. Nobody can deny that. I’m a strong believer that there is a must be fought strongly. No doubt about it, be it Islamic terrorism in Kashmir or naxalism in some of the states- it has to be fought. But that doesn’t mean that in the garb of fighting that you take away from citizens their rights. These kinds of measures are really creating resentment among a section. That’s why Ambedkar’s words constantly ring in my mind when he says, minorities are an explosive force. And if it explodes, the very fabric of the state will explode. We don’t want that. The minority has put the faith in us, the majority community, they had a choice to go to Pakistan. But they they said no, we want to live in India. And they have lived in India. And they have lived very peacefully, yes, riots do take place. It’s like a family feud. If there are two brothers or three brothers, there is always some simmering of disputes. And sometimes it becomes ugly. So there is in society bound to be some kind of fight between the two communities. But that’s not a threat to national security. More often than not, these kinds of riots take place because of interference by politicians in policing. Today, the rule of law is weak, because we have made our police virtually private security guards of our politicians, and they are interfering in everything, their appointments, their promotion, their transfers and everything. We don’t allow police force to be independent, and disciplined. So we have destroyed that now, so if a riot takes place, and if the politicians were to say, oh, go in and beat up a particular section of society, don’t do anything to the other section of society. That’s what happened in 1984, the anti-Sikh riots. That’s what happened in 2002, in Gujrat riots. We allowed the security forces, the police forces to really sit, sit on the side and watch as moot spectators as a result of which 1000s of citizens died. And who are the people who died, the members of the minority community: Sikhs and Muslims. So to my mind, we must end this. This is where I would strongly appeal to young generation. Look, I honestly confess that my generation has failed this country. The generation of my parents who were born well before independence who took part in independence struggle, contributed to the making of this country in the 50s, 60s and 70s. That generation was extraordinarily different. They were selfless people, men and women. And they really worked hard to build this country into a great nation, at least a strong democracy. Our generation has singularly failed in last 30 years, particularly. So there is a great responsibility on the young generation that you guys have to make sure that our constitution is protected to the hilt. And if you don’t stand up to protect the Constitution and the constitutional rights, then these politicians will make a real mockery of the Constitution, because they have all the rights. They have all the rights that you can think of, they really live like kings, they really behave like kings, they can get away with anything that they do. We citizens have to pay a price when they say that, Oh, you are in fact, you have made infraction of the law, which may not be infraction at all, or our constitutional right will be taken away. They’ll say, Oh, don’t speak like this, don’t do this, don’t go on Facebook and say anything against this country. Of course, everybody has the right to question the country’s governance. What is wrong about it? If I don’t question the governance of the country, how is the prime minister going to know whether the country is functioning in a proper way or not? How is my chief minister going to know? How is my district magistrate going to know? Every citizen must be aware, and he must constantly write as to what is good happening and what is bad happening. You can’t just be praising the country. You can’t be constantly saying Narendra Modi is great, Narendra Modi is great. Of course he is. But where is Narendra Modi failing, we have a duty to say that Prime Minister, you are failing. So the moment we say that, we will be slapped with sedition. Now, is that the kind of nation we want? Is that the kind of nation that constitutional framers envisaged? Is this the kind of nation, those millions of Indians, men, women and children who lead their lives in freedom struggle wanted this country to be? No. So I personally feel that there is a great responsibility on you, young lawyers to really stand up and defend the Constitution, spread the word to the citizens as to what constitution is about, what the rights are. Nobody today knows even best of Parliamentarians. I remember while giving an oath to members of parliament, one of the honorable speakers or chairman of Rajya Sabha had said that you must be picking up Constitution for the first time in your life. So, people are not aware of the Constitution. To my mind, Constitution of India must be as much revered and worshipped as Gita, Bible, Quran, or Guru Granth Sahil – worshipped no less, and then only a country can prosper.

Parv: Sir, in the context of religious freedom and since we mentioned Sabrimala, there is a school of thought which is more prominent in the United States than in India, value pluralism. So value pluralists argue that constitutionalism, that is the commitment to constitutional values is not eroded when the state enforces the right of private persons to act in accordance with even values that conflict with those of the Constitution. In fact, pluralism can flourish only when the state is prepared to enforce this freedom. And Justice Indu Malhotra’s dissent in Sabrimala, I think vaguely reflected this view when she remarked that religion is a matter of faith and not logic, and that every religious practice is not required to satisfy the overarching constitutional goal of gender equality and dignity. Both in the particular context of this case and more generally, what is your take on this idea?

Mr. Dave: Well, I’m very clear about that. Justice Malhotra, who’s been a personal friend, and whom I regard very highly, I think was totally wrong in that dissent. And, you know, it’s clearly a myopic view, in my opinion, about what religious freedom means under our Constitution. UK, America don’t have a written constitution or don’t have the words that we have in Article 25. So, right to practice propagate or profess religion is an absolute right under 25 subject only to three limitations, which are provided and the state can regulate economic activity etc., nothing else. To dilute its meaning it in any form by so called pluralism, or whatever nonsensical words is really doing great disservice to the Constitution. It’s not understanding the Constitution in the right perspective. So just see this: during the Constituent Assembly debate, Mr. Santhanam said, “Therefore, I submit to you that this article, as it is, is not so much an article ensuring freedom but toleration, toleration for all irrespective of the religious practice or profession. And this toleration is subjected to public order, morality and health.” We must learn to tolerate what others do. You may not like Sikhs wearing turban, who are you to say that. Sikhs have the right to wear one because that’s what their guru says and we must respect it. So the Digambars for example, their monks move completely naked. Can you say that they have no right to move like that in public? No, it’s a religious practice, you must respect it. Nagababas every time Kumbh Mela takes place, are given a special status for centuries Nagababas are naked. They are recognized, they are given special place in the Kumbh Melas and the Kumbh Melas begin with them. Today, tomorrow, can you say that they shouldn’t be allowed because oh, we don’t like anybody coming naked here. But that’s a religious practice. So I don’t think this say very, very narrow, and very, I would say selfish interpretation of the Constitution from a majoritarian view. I reject it completely.

Parv: Some lawyers in the case argued, that if the order, that is the Karnataka government order was being perceived from an article 19 1(a) a perspective as restricting freedom of speech and expression, there was a burden on the state to justify the reasonableness of such a restriction. In this particular case, did you during the course of the hearings, think the court put the state’s lawyers to this justification of reasonableness in context of 19 1(a) specifically?

Mr. Dave: See, the freedom of expression and speech again is extraordinarily wide. And one of the ways you can express yourself is by dressing. So you can remain silent, but you can wear something and make a point. Now, by wearing a hijab, you are expressing your faith in Islam, you are expressing your identity as a Muslim, nothing wrong about it. What I mean is that everybody has a right. So there are various ways you can express yourself. And one of the ways is dressing. Freedom of speech and expression is very, very important. And you must therefore interpret it widely and Supreme Court has indeed interpreted it widely from time to time. So I think judges were right at least Justice Dhulia was right in reading  article 19 1(a) into the hijab issue. And I think whichever way you look at it – 19 1 (a) or 21 or 25 or even 14 because ultimately it’s state’s arbitrariness. It is the state discriminating. If a Sikh is allowed, if a Hindu is allowed, why not a Muslim? So I mean Prime Minister, look at our prime minister, on every 15 August we see him on Red Fort wearing a beautiful headgear, every public meeting, he goes now for electioneering. He has a different headgear. Headgear symbolizes, it is an expression, it tells people that I’m identifying myself with you. And that is a very beautiful way of expression. Chief Minister Yogi Adityanath wears his saffron and goes attend his office. He identifies himself publicly as a Hindu, and says that very well, I will go. So can anybody object to that? I don’t think that we as Hindus, and I’m a proud Hindu, should really be bothered about these things, we should think about progress of this country. And we think we should think about 1.3 billion people of this country who deserve a much greater attention to real issues of poverty, of education, of health, of job creation, rather than or literacy rather than this kind of nonsensical issues as to what you are wearing and what you are not wearing. I mean, those are not the issues we should be wasting our time with at all.

There was no question of public order being violated by wearing a hijab. On the contrary, stopping wearing of hijab has resulted in public order issue being raised.

Parv: So both in the context of article 19 and article 25, drawing from well established precedent, the test for public order is that the action in question must have a rational nexus with the violence or incitement. In the particular instance, because the justification for not allowing a job in schools was “public order”, in your opinion, what are the implications and ramifications of watering down the standard of, of public order to such a level, wherein a piece of cloth is set to disrupt public order?

Mr. Dave: Public Order is very beautifully defined by Supreme Court. And that doesn’t include this. State first allows some people to enter the institutions wearing, you know, saffron scarves, and then there is skirmishes, and then says that public order is, so I think state was responsible for creating a situation resulting in a poor public order. I don’t think public order was affected by the women wearing the hijabs, you know, to create the controversy state does this. So I don’t think public order is any I mean wearing of a hijab is not certainly something where public order can be said to be involved in any manner. I don’t think anybody should really bother about public order. In fact, I must tell you that in Lohias case, Supreme Court in 1960, very beautifully, said that said public order is therefore something which is demarcated from others in that limited sense, particularly in your history of amendment it can be postulated that public order is synonymous with public peace, safety and tranquility. Now, merely wearing a hijab is not going to disturb tranquility, safety or public peace. Yes, if you send others wearing somewhat saffron scarves and tell them to create some trouble and try and stop girls wearing hijab entering into the institutions physically, naturally. State had an obligation to stop those people instead state encouraged them. We saw that all on television, on the news channels. We saw that this brave girl trying to say that I will go wearing a hijab into the institution. It’s very sad. BJP is a responsible party, BJP has a great role to play in this country. And BJP government, therefore should not really indulge in these small things. In fact, I’m really surprised that Prime Minister doesn’t stop it. Because Prime Minister says Sabka Saath Sabka Vikas and the Prime Minister is constantly talking about it. He talks that I respect all religions, then why is it that he does not stop his own party members from indulging in these avoidable controversies. So I don’t think public order is anywhere involved here. There was no question of public order being violated by wearing a hijab. On the contrary, stopping wearing of hijab has resulted in public order issue being raised.

Parv: So last question, sir. Do you think minority rights protection has to be realized outside of the courts as well? And if yes, how, and what role can law schools play in this?

Mr. Dave: Well, there is no doubt that we have a sizable minority, especially of the Muslims, we have 160 million people or maybe more. They are citizens of this country. And they have a right to profess their religion, we must respect that right. And we, as lawyers, and law students, have an obligation and duty to tell fellow citizens that these are their rights, let us respect them, let us not really trample with their rights, let’s not try and take away those rights. Let’s not force ourselves on them. It’s no point. We can’t forcibly convert 160 million people to Hinduism, if they feel that their religion is not good, and they want to convert, they’re free to do, why is it that a lot of “untouchables” are converting to Buddhism? Ambedkar himself converted to Buddhism, why? Because he felt that in Hinduism, they were not respected, they did not have the same status. The Brahmins, the Rajputs, the Baniyas all have special status, the untouchables don’t have that. We know that today, even today, you go to villages the Untouchables can’t even draw water from the well of the village. They can’t enter certain temples. It’s a known fact, even after 75 years of independence, they are not getting the status, the rights, which they should get, as Hindus. And if they therefore want to convert to Buddhism, what’s wrong about it? Because in Christianity or Islam, they get the same status, there is no class, no caste there. So therefore, it’s not right. I mean, we must understand as lawyers, that these rights must be respected as widely as possible, we should not allow any kind of an interference by state in the enjoyment of those rights. As lawyers, we should therefore try and take a message of constitutional peace to the people who love this country and tell people that the those in power want to disturb this peace, constitutional peace. Let’s not allow them to do it. Thanks a lot.

Parv: Thank you, sir for being so generous with your time. It was an excellent conversation. Thank you!

 

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