By Athik Saleh T


The conflict between the rights of groups and the rights of individuals has always been the story of civilization. There were times when the rights of the groups trumped the rights of individuals and vice versa. From the advent of the world as we know it now, individual rights have been gathering momentum over group rights.

However, the clout of groups over individuals still exists, albeit being in a slightly diminished form.

The biggest group identity in human history is religion. There is no other group identity that has played a bigger role than religion(s) in the formation of society as we know it now. The role religion plays in society has evolved over time.

Modern liberal democracies have placed more emphasis on the position of an individual in the society and the rights of groups like religion have been subverted as a result.

Although a modern liberal democracy in letter, India has different story as compared to most of the other democracies around the world. The colonial government used this group-centrism to promote this agenda of ‘divide and rule’ The importance of individual rights has increased with the constitution coming into force.

However, religion is something that runs through the core of Indian society, and as such, India, as a country is closer to our past than our future in terms of how we think.

The recent story of Sister (maybe not anymore) Lucy Kalapura being expelled from Franciscan Clarist Congregation after her appeal was rejected by the Apostolic Signatura or Segnatura Apostolica, the apex judicial body of the Catholic church, allows us to understand the conflict between a religious denomination’s right to manage its own affairs and the fundamental rights granted to an individual by the constitution.

Sister Lucy Kalapura Vs The Roman Catholic Church

In September 2018, Franco Mulakal, bishop of Jalandhar Diocese was arrested for being accused of raping a nun. It was the first time in Indian Catholic history that a bishop was arrested for being charged with rape. Sister Lucy protested against Bishop Franco in January, 2019.

Later that year, Sister Lucy was served notice by the mother superior of the congregation for not adhering to the norms of the church. She was later expelled for not providing a satisfactory explanation for the charges leveled against her.

It is important to understand the said “norms of the church” that she did not follow. Accordingly, they were – acquiring a license and then a car, writing and publishing poems, etc. The church accused her of breaking her vow by not adhering to the lifestyle standards a nun is supposed to adhere to.

The main reason was that she was part of the protest against Bishop Franco. It’s not surprising considering how Bishop Franco is one of the most powerful amongst Catholic clergy.

The congregation had leveled 14 charges against the sister, and according to her, all the charges were frivolous and were intended to malign her reputation.

Other allegations leveled against Sister Lucy were that she violated the dress code of Franciscan Clarist Congregation in public without permission and that her participation in the protest against Bishop Franco organized by ‘Save Our Sisters’ scandalized and harmed the congregation.[1]

The High Court of Kerala had stayed the expulsion of Sister Lucy until January, 2021, and the case is still sub judice. In the meanwhile, her last appeal to the apex body in the Catholic legal system has been rejected.

What is Article 26 of the Constitution?

Article 26 of the constitution deals with religious freedom. While Article 25 deals with the individual’s fundamental right to practice, profess, etc. A religion of his/her choice, Article 26 talks about religious denominations.

According to Article 26, every religious denomination or any section of a denomination has the right to –

  • Establish and maintain religious and charitable institutions;
  • In matters of religions, manage its own affairs in its own way;
  • Own and acquire movable property; and
  • Administer the property according to the law.

These rights of a religious denomination are limited by public order, morality, and health.

The most obvious question that arises after a bare reading of this provision is – what is a “religious denomination”?

In the case of Commissioner, Hindu Religious endowment Madras Vs Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt[2], the Supreme Court referred to the meaning of denomination from the Oxford dictionary. According to the definition, a religious denomination is a collection of individuals having a distinct name, common faith, and organization.

A religious denomination is a sub-group within a religion. It doesn’t matter whether it is a minority religion or not. If there is a collection of people who has beliefs or doctrines and consider these beliefs or doctrines important to their spiritual well-being, they can be considered as a religious denomination if they are designated by a common name. Their beliefs include common faith, common organization, etc.

The part of this provision that is important for this discussion is a religious denomination’s right to manage its own affairs in matters of religion.

To what extent is this right inalienable and to what extend can it subvert the fundamental rights of an individual who is part of the denomination?

Supremacy of Individual Rights

Article 25 of the Indian Constitution speaks about an individual’s right to practice and profess a religion of their choice. A literal interpretation of the constitution will land in a place where Article 26(b) which talks about a religious denominations’ right to manage its affairs is superior to the individual’s right to practice their religion of choice.

This was the interpretation followed by the Supreme Court in the case of Sardar Saifuddin Saheb Vs. State of Bombay[3], wherein the court struck down a provision in the Bombay Prevention of Excommunication Act, 1949. The Court in this case accepted that violation of an individual’s right to freedom of religion as a necessary consequence of excommunication.

The Supreme Court echoed an age-old tradition of group primacy in that judgement. It is important to ask some questions at this point – are group rights an end in themselves or are they only a facilitator for enhanced individual rights?

Indian independence showed a marked change from state-group relationship to state-individual relationship. The constitution identifies individual as the fundamental unit. Various provisions of Part III of the constitution including Articles 14, 15, 19, 21 talks about protecting the most basic rights of an individual.

It is clear from the scheme of Part III that the protection of an individual is of paramount importance while the protection of groups is an exception to the norm. The purpose of Article 26 is two-fold:

  • Protection of religious plurality, and
  • Protection of religion from unreasonable and overarching state interference.

Therefore, the rights of religious groups are laid down with the intention of protection from outside interference. They must not be used to curtail the rights of an individual.

Dr. B. R. Ambedkar had said during the Constituent Assembly debates, “What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations, and other things, which conflict with our fundamental rights.”

This was in response to attempts by various members in the Constituent Assembly to make personal laws a part of religious freedom and by extension protecting them from state interference.[4]

The Western concept of religion being completely left as a matter of private choice will not work in a society like India’s. When centuries-old traditions divide individuals based on the caste they were born into, a passive stance towards religion would have established group supremacy over individual rights.

A religious group is different from other groups such as political associations because identities such as religious or caste are mostly involuntary. They are mostly ascribed at the time of birth of an individual.

To imagine that a constitution as progressive as the Indian Constitution will provide for such an ascribed identity to supersede individual rights is nothing short of preposterous.

In a country like India where religions and religious institutions play a very important part from the birth of a person to his/her death, it will be catastrophic to assume that the constitution provides for the traditional liberal approach to freedom of religion.

This is not only clear from the fact that how the Constituent Assembly disregarded various attempts to make personal laws above the reach of state interference, but also clear from the fact that how the Supreme Court has time and again ruled against those religious practices which were antithetical to the progressive outlook the Indian Constitution laid out.

The differentiation between how a particular practice is essential or non-essential to the practice of a religion is in consonance with how the Constitution gives paramountcy to individual rights.

In the case of Indian Young Lawyers’ Association Vs State of Kerala[5], the Supreme Court, with a 4-1 majority, decide in favor of women entering the Sabarimala temple. This is a case of an individual right provided under Article 25(1) trumping a collective right under Article 26(b).

The transformative approach laid down by the Indian Constitution, especially Part III, must not be held hostage to ideas and notions that the framers of the Constitution were clearly unimpressed with in the first place.


The Roman Catholic church’s decision to expel Sister Lucy Kalapura for protesting against a power bishop of the church, masked in the form of various frivolous reasons, is an attempt to subvert the basic fundamental rights of an individual.

Although the church has the right to manage its affairs, the said right cannot and must not be used against the scheme of Part III of the Constitution.

Sister Lucy was merely exercising her rights given under Artice 19 of the Constitution. Expelling her for protesting, or for acquiring a driving licence, or for wearing a Salwar kameez is a violation of Articles 19 and 21. Article 14 will also come into the picture considering how male priests are allowed to wear casual clothes. Nor are they expelled for acquiring a licence or driving a car.

Even if the ‘essential practice’ test is applied to the action of Franciscan Clarist Congregation, it is clearly evident that none of these actions warrant protection from state or judicial intervention.

This isn’t just the story of a Sister Lucy. This is the story of many other individuals who were brave enough to raise their voices against the power wielded by religious institutions. They hide under the protection granted by Article 26 to bulldoze individual rights and freedoms.

When they have the backing of masses and more often than not, the state itself, the individual standing in front of them is flicked aside with ease. It is those individuals that the Indian Constitution seeks to protect. Not powerful religious institutions like the church.

The rights of an individual must always trump if put against the clout and power wielded by institutions like the church which has its roots embedded in society’s core.


  1. Press Trust of India, “Kerala court stays expulsion of Sister Lucy Kalapura till 1 Jan: nun was dismissed for joining protest against rape-accused Franco Mulakkal”, available at: visited on July 1, 2021)
  2. Commissioner, Hindu Religious endowment Madras Vs. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt, AIR 1954 SC 282
  3. Sardar Saifuddin Saheb Vs. State of Bombay, AIR 1962 SC 853
  4. Gautam Bhatia,” How courts decide on matters of religion”, available at: visited on July 1, 2021)
  5. Indian Young Lawyers’ Association Vs. State of Kerala, 2018 SCC OnLine SC 1690

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