“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 the 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 abound in a cultural community. In our modern world which is being globalized with 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. [4]
Today more and more people are dissenting against the cultural and traditional norms of their community, they want culture best suited to their situation in time and space and thus changing the nature of culture itself. This kind of civilizational dynamism has posed a serious question to the law and legal system which has steadfastly been committed to the old worldview 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. [5] In this paper the researchers will analyse as for how group dissent is grounded in the constitutional commitment of preservation of group autonomy as well as individual autonomy and 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.” Hence in order to develop a sense of self-social groups play an important part in this process as an individual identify himself as a part of that group. But when it comes to the cohesiveness of group there are always fissures in that cohesiveness. Members of the 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 the law.
“Cultural dissent symbolizes a movement away from imposed cultural identities to a new age of autonomy, choice and reason within the culture.” [6] While attempting to strike a balance between the individual’s liberty versus group autonomy the problem with Cultural survival approach 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 jeopardize the prospect of sanctity of identity of an individual. The problem underlying behind this kind of conception is the misconceived notion of ‘Culture’ in a judicial and legal fraternity. Legal Scholars for a long time has 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.” [14]
As Charles Taylor puts forwards the argument that in the era of modernity to preserve the cultural integrity cultural rights are necessary but he missed the point that by legally bounding a culture degenerates the prospect of change and puts dissenters in a precarious situation. [7] As Janet Halley observes “culture, by its very nature, ‘constrains’.” [8] “We ought to ensure that legal efforts to counter globalization and modernization do not buttress the hegemony of cultural elites and suppress efforts by cultural dissenters to gain autonomy and equality within their cultural context.” [9]
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 has attacked the notional aspect of culture. Today anthropologists perceive culture as increasingly fluid, heterogeneous and more dynamic than ever. [10] “Moreover, culture is understood as subject to individual agency and internal contest, and increasingly so as cultures modernize and become more interrelated.” 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. The rights to minority cultures ensure the protection of certain cultural uniqueness from the encroachment by political and economic decisions by the majority culture.
“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.”
In the course of time, there has been a shift in the ethical balance between individual and group in the direction of the individual. The liberal theory expounds that every individual must have a right to exit and this is completely different form coercively imposing liberalism on minority groups but it provides an individual with the option to make an informed choice on the way he wants to conduct his life. In furtherance of the discussion above Chandrachud J. in Sabarimala 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 immunize them from constitutional scrutiny is to deny the primacy of the Constitution.” [11]
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 the same view in Sabrimala 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.” [12]
When a group of people within a community feels 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 law. Constitution framers could never have conceived a cultural right violating the autonomy of an individual. The judgment of Sabrimala 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, 26, 29 respectively 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. When it comes to the question of gender justice or some kind of historical discrimination the social emancipatory objective of the constitution must be taken into consideration as this kind of issues would fall within the ambit of what Sunder Calls “Cultural dissent”.
Authors: - Bhaskar Kumar & Snehil Kuwar Singh, National Law School of India University
Contact: - bhaskarkumar@nls.ac.in
[1] Akhil Gupta & James Ferguson, "Beyond Culture" Space, Identity, and the Politics of Difference, 7 CULTURAL ANTHROPOLOGY 6, (Feb. 1992).
[2] Holning S. Lau, An Introduction to Intragroup Dissent and Its Legal Implications, University of North Carolina School of Law Carolina Law Scholarship Repository, https://scholarship.law.unc.edu/cgi/viewcontent.cgireferer=https://www.google.co.in/&httpsredir=1&article=1185&context=faculty_publications.
[3] V.I Chirkov, R.M Ryan, Y Kim, & 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).
[4] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3, 3 (2001).
[5] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3, 3 (2001).
[6] 1 Austin Sarat & Thomas R. Kearns, The Cultural Lives of Law, 11 LAW IN THE DOMAINS OF CULTURE (1st ed.)
[7] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3, 3 (2001).
[8] Janet E. Halley, Culture Constraints, in Is MULTICULTURALISM BAD FOR WOMEN? 100, 103-04 (Joshua Cohen et al. eds., 1).
[9] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3, 3 (2001).
[10] Renato Rosaldo, CULTURE & TRUTH: THE REMAKING OF SOCIAL ANALYSIS (1989).
[11] Indian Young Lawyers Association v. State Of Kerala & ors, (2017) 11 SCC 577
[12] Id.
