CJI on Individual Rights in India: The Supreme Court's Perspective

In a presentation titled "Individual Rights in India: A perspective from the Supreme Court" (April 3-6, 2009) at the International Roundtable Conference’ University of Georgia, Mr. K.G. Balakrishnan, the Chief Justice of India , provides an elaborate view of the protection provided to individual rights by the Constitution of India and how they have come to be interpreted by the Supreme Court of India over the last sixty years. He concedes that it is not possible to present a complete understanding of individual rights in all spheres of public law.

He mainly focuses on the evolution of ‘religious freedom’, the interplay between individual rights, groups and governmental interests and the need to balance them. He dwells upon the ‘seemingly existential question’ of whether the guarantees provided by Articles 25-30 of the Constitution are veered towards ‘No Concern Secularism’ or ‘Equal Respect Secularism’ and the conflicting notions of secularism that were propounded and debates upon by the members of the Constituent Assembly . He also mentions how the Indianised version of secularism i.e. 'Equal Respect Secularism’ recorded a significant victory, though certain concerns of ‘No Concern Secularism’ were also accommodated. The allowing of religious instructions in private and partially aided educational institutions is the result of the compromise between the competing strands.

He also discusses in detail the nexus between the protection of minority rights and the exercise of ‘religious liberty’ which have been further complicated by debates on interference with personal laws of the religious minorities and the feasibility of Uniform Civil Code for them. He points out that ‘personal laws’ were not included in definition of law under Article 13 of the Constitution and hence cannot be scrutinized on the basis of constitutional principles. The clash between the ‘group rights of religious minorities’ and ‘the individual rights of the members of the minority groups’ is clearly reflected in the difficulty posed in reconciling the competing interests of ‘non-interference with customary practices’ as they are regarded as an essential condition for protecting the group rights of religious minorities and the duty of the State to bring an end to those customs that have the effect of continuing gender-discriminatory practices.

Among other issues, the presentation also deals with the ideal of ‘state neutrality’ and how its practice by the Indian state has been repeatedly questioned in the recent past. The CJI suggests that the codification of a Uniform Civil Code presents a ‘litmus test for legislative interference and codification as a strategy of social reform.’ He takes a stand that the religious freedom impedes the pursuit of constitutional objectives of strengthening democracy, minority rights and rule of law. To quote him, “It has also been argued that these western notions of secularism are unsuitable for the Indian cultural setting, but unfortunately those who have argued for an indigenous notion of privileging religious autonomy have also tended to support religious extremism. In this respect the onus has been on the Supreme Court to show the way.”

The shaping up of secularism and minority rights in Constitutional Assembly Debates has been also dwelt upon by Rochana Bajpai (Lecturer, School of Oriental and African Studies, University of London) in an article published in May 27, 2000 issue of Economic and Political Weekly.