part three
communalism
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58
9
P
communalism
and the indian
legal system
articipants in the began with their recollection of what happened in certain
incidents in Uttar Pradesh. They described the happenings in the Hissar
incident. There was a long discussion on the Gujarat riots, which focused
on how the entire legal system had collapsed. Participants spoke of how the police had sabotaged the prosecutions right from the beginning by either not registering FIRs or by recording them wrongly. The public prosecutors were also
communal elements who assisted the accused persons. False counter cases
and also different forms of coercion were used by accused persons to threaten
the victims and their witnesses and to force them to withdraw the prosecutions.
Participants from Bombay said that after the Bombay massacres in 1992, the
legal system collapsed there in the same way. There was a general feeling that
the legal system was an engine of oppression and that the entire judiciary
needed to be reformed if public centric law and legal system was to operate in
the country.
Analysing the various decisions of Supreme Court since Independence, 1994
appears to be a dividing line between decisions that speak of secularism and
the post-1994 decisions, which appear to dilute the principles of the secular
State. A number of decisions were cited starting with Babu Rao Patel’s case
where the Supreme Court ordered the prosecution of a person who wrote about
Muslims in a communal way. In 1986, in Emmanuel’s case, when students,
who were Jehova witnesses stood, up respectfully when the national anthem
was played but refused to sing because it was against their religious beliefs to
have a national anthem, the Supreme Court exonerated them and said that
their actions were protected by the freedom of religion clause.
1994 was the watershed, because in this year important decisions that both
upheld the principle of secularism as well as decisions that undermined this
principle were proclaimed by the Supreme Court. In the two Babri Masjid cases,
the Supreme Court was naive in not passing orders for the protection of the
mosque and in relying upon an undertaking given by the Chief Minister Kalyan
Singh. The latter had no intention of keeping his assurances and the state gov-
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essay on human rights and the law
ernment permitted the mosque to be demolished. When the matter came up before the Supreme Court after demolition, the Supreme Court had a very weak
response and, for a very serious crime, punish Kalyan Singh with a token imprisonment of one day till the rising of the Court and a fine of Rs. 2000!
1994 also saw the historic decision of the Supreme Court in SR Bommai’s case
where a eleven-judge bench of the Supreme Court laid down the principle that
“the State has no religion”. It “stands aloof from religion”.
However, participants enquired as to how it is that President, prime minister
and officials use their official cars and security personnel when they privately
visit religious places? How do officials conduct pooja and other religious ceremonies in public places such as police stations and railway stations? How are
the images of gods displayed in public buildings? The practices of the State officials is directly contrary to the decision of the Supreme Court to the effect that
the State must stand aloof from religion. Participants enquired as to whether a
public interest petition could be done to prevent religious objects being displayed on public property such as government buildings and religious ceremonies being performed in public spaces owned by the government.
In 1996, there were two decisions of the Supreme Court both by benches
presided over by the then Chief Justice, Mr. JS Verma. Both these cases related to the call by the Shiv Sena for its members to vote for their candidates
because the party was campaigning for the establishment of a ‘Hindu Rashtra’.
This was the meaning of the electoral plank of Hindutva. In the petition relating
to Bal Thakeray the Supreme Court upheld the disqualification of the candidate
Suresh Prahu. However, in the petition relating to Manohar Joshi, the Supreme
Court did an amazing about turn and set aside the decision of Justice Hosbet
Suresh who had held that anyone who campaigned on such a plank of Hindutva
was bound to be disqualified. The Supreme Court held that there was nothing
wrong with the campaign on the basis of “Hindutva”. Subsequently, the contradiction between these two decisions were noticed by a three-judge bench and
the issue was referred for a decision by a larger bench.
In 2005, in the case relating to migrants illegally entering Assam from
Bangladesh, the Supreme Court used exceptionally harsh language while dealing with poor Muslims entering India mainly for economic reasons. The
Supreme Court categorised the migration as akin to an enemy invasion designed to undermine the unity and integrity of India.
60
Two other decisions of 2005 by the Supreme Court also merit attention from the
point of view of studying the manner in which the Supreme Court is today looking at the issue of secularism. The first is the cow slaughter case where the
Supreme Court set aside its earlier rulings and held that a Gujarat law banning
cow slaughter was valid thereby affecting the livelihoods of thousands of Muslim
butchers.
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The second decision was the one relating to the long-standing practice of the
sale of eggs in public places. The Supreme Court upheld the order of the state
government prohibiting such sale in certain places on the grounds that the sale
of eggs offended Hindu sentiments!
The 2005 decision of the Supreme Court in Zahira Sheikh’s case where the
trial was transferred to Bombay from Ahmedabad, was a landmark decision
where, at least two judges of the Supreme Court stood firm against the communal onslaught against the Muslims in Gujarat.
The discussion then turned to the new Bill on communal violence prepared by
the central government, which had received the support of a prominent NGO
“Communalism Combat”. After discussion, it was generally agreed that the Bill
was utterly unsatisfactory for the following, among other reasons. First of all, the
new law will only come into force in extreme situations where the unity and integrity of the nation is under threat. Communal massacres, such as the Bombay
riots, Sikh riots or the Gujarat riots which only affect particular states may not
be severe enough for the law to be used. Secondly, the Bill requires a notification in respect of a communally disturbed area for the law to apply to that area,
and also a notification by the state government for the law to come into force in
that state. Thirdly, a communal crime is nowhere defined and, since the Bill requires deaths to have occurred for the law to be enforced, crimes such as, rape,
the insertion of objects, social ostracism and the like do not qualify as communal
crimes. The Bill provides for sanction by the state government as a prerequisite
for the prosecution of police officers engaging in such crimes. This is an unwarranted clause because sanction is never given. There are no provisions for
witness protection. The sections relating to relief and rehabilitation do not create
any rights in favour of the victims. The central government has not allocated, in
its financial memorandum, even a single rupee for this purpose!
For all these reasons, the participants decided to unequivocally reject the Government Bill.
All the participants felt that a comprehensive Act was necessary because communalism was raising its ugly head in state after state. Participants from Rajasthan pointed out that the criminal elements are roaming scot-free in spite of
the grievous crime they have committed. This is because they have the support
of the police and the administration. When FIRs are lodged against communal
elements no action is taken. On the contrary false cases are filed against anticommunal and peace activists. For example, Bhanumati’s paintings was said
to have offended the freedom of religion of the Bajrang Dal. She was arrested,
and after people protested, she was free. The Bharat Ma Temple is the meeting
place of all these nefarious elements. In Alwadh there was a communal riot and
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essay on human rights and the law
many false cases were filed against Muslims. A Muslim teacher was beaten up
outside her school by the RSS people and her brother committed suicide. Many
false cases are being filed against Muslims in Bhilwada in Udaipur district. Their
property is being seized. The police are refusing to accept complaints by Christians. After Praveen Togadia distributed 1000 trishuls and made hate speeches
everywhere, the Arms Act was amended and trishuls were included as weapon.
In Gujarat, the communal preparations are going on. The police are not only
communal but are also elitist and anti-Dalit. The Durga Vahini, promoted by the
BJP and the Bajrang Dal are training young women to use arms.
In Lucknow, as in many parts of India, the Muslims have been told to shift their
slaughterhouses out of the cities. The judiciary is also insisting on the shifting.
There is a rise of communalism in Uttar Pradesh. In Gorakhpur, lands belonging
to the Muslims are sought to be taken over. In Lucknow in all the government
offices, including the secretariat, on Tuesdays and Thursdays prayer meetings
are held and all persons are forced to contribute money.
In Haryana Agricultural University, the Sangh Parivar dominates the mass communication department and hold classes to indoctrinate the young students.
Participants from state after state, including surprisingly a southern state Karnataka spoke of the increasing level of communal crimes and the total ineffectiveness of the judiciary in enforcing the law.
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10
critique of the
communal violence
T
(Prevention, Control and
Rehabilitation of Victims) Bill, 2005
he UPA government has done it again! The Communal Violence Bill is an
astonishingly poor draft that has ignored the two drafts suggested by civil
society groups after extensive consultations with NGOs. The focus is on
increasing police power and not on empowering civil society to initiate and control prosecutions when communal crimes occur. Given that government is the
principal wrongdoer in many instances the thrust of the legislation is misplaced.
fatal flaw
1. The fatal flaw in the Act is that it cannot come into force in the state unless
the state governments issue notifications to that effect. Once notified, the Act
cannot be invoked even when communal crimes take place unless the state or
the central government decides to declare an area as communally disturbed.
Therefore, if the state government refuses to issue a notification bringing the
proposed statute into force or if the State Government refuses to declare an
area communally disturbed, the Act will not apply. All opposition governments
could ignore this statute completely. Moreover, a state government may issue
a notification bringing the statute into force in the state and yet render it sterile
by not issuing notifications declaring certain areas to be “communally disturbed
areas.”
2. Section 1 (4) is the culprit, which is as under: “The provisions of this Act, except Chapters II to VI (both inclusive) shall come into force in the states on such
date as the central government may, by notification in the office gazette, appoint… and the provisions of Chapters II to VI (both inclusive), shall come into
force in a state as the state government may by notification, appoint…”
3. The principal issue is Parliament’s legislative competence to make a law in
respect of communal crimes, which, according to some, are covered by Entry
1 (Public Order) of List II of the Seventh Schedule of the Constitution framed
under Article 246. Only the state governments, it is contended, have the legislative competence to make laws in respect of communal crimes.
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4. However, “Public Order” is confined to disorders of a lesser gravity than communal crimes and are necessarily restricted to those disorders having an impact
only within the boundaries of the state. Article 245 (I) restricts the legislative
power of the state legislature to laws having application within the territorial limits of the state.
5. Communal crimes have grown enormously in their nature and geographical
spread. Apart from riots that have taken place on an ever increasing scale often
bordering on genocide, the spread of hate in educational institutions throughout
the country taken together with social and economic boycotts, ghettoisation,
stigmatisation and victimisation, indicates that communal crimes have reached
such a stage that they undermine the secular fabric of the Indian State.
6. A similar argument was used by the central government to justify the enactment of what was called anti-terrorism legislation – TADA and POTA. It may be
recalled that even the possession of a weapon in a notified area, as in Sanjay
Dutt’s case, could attract charges under these statutes. Communal crimes are
arguably as grave as “terrorist crimes” in today’s situation. The same logic
could, therefore, apply to the effect that the control of communal crimes falls
within the legislative competence of the central government. If this is correct, the
concurrence of the state government for the enactment of legislation and for the
punishment of communal crimes, is not necessary.
7. In Kartar Singh vs. State of Punjab - 1994 3 SCC 569 – the Supreme Court
held: “Having regard to the limitation placed by Article 245 (I) on the legislative
power of the legislature of the state in the matter of enactment of laws having
application within the territorial limits of the state only, the ambit of the field of
legislation with respect to ‘public order’ under Entry 1 in the State List has to be
confined to disorders of lesser gravity having an impact within the boundaries
of the state. Activities of a more serious nature which threaten the security and
integrity of the country as a whole would not be within the legislative field assigned to the states under Entry 1 of the State List but would fall within the
ambit of Entry 1 of the Union List relating to defence of India and in any event
under the residuary power conferred on Parliament under Article 248 read with
Entry 97 of the Union List” (Para 66).
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8. There is a feeble attempt in Chapter XI to assert the primacy of the central
government where a situation exists corresponding to section 3 abovementioned i.e. where communal violence is taking place on such a large-scale that
there is an imminent threat to the secular fabric, unity, integrity or internal security of India. Then and only then, is the central government empowered to direct the state government to take measures. If the state government does not
take such measures the central government may issue a notification declaring
any area within the state as a communally disturbed area. Even then the central
government cannot deploy armed forces without the request of the state gov-
ernment! Section 55 (3) is critical:
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“(3) Where the central government is of opinion that the directions issued under
sub section (2) are not followed, it may take such action as is necessary including:(b) the deployment of armed forces, to prevent and control communal violence,
on a request having been received from the state government to do so.”
communally disturbed area:
too narrowly defined
10. The proposed Act can only be invoked in the most extreme circumstances
where there is criminal violence resulting in death or destruction of property
and there is danger to the unity of India. There are myriad kinds of serious communal crimes which may not result in death, such as rape, and which are not
considered to result in danger to the unity of the country. All these crimes fall
outside the ambit of the Bill. Even if such circumstances do exist the section
only prescribes that the government ‘may’ act. On the face of it, the duty to act
is not mandatory.
9. The offending part of the Bill is Chapter II, the relevant parts of which are set
out below:
“3.(I) Whenever the state government is of the opinion that one or more scheduled offences are being committed in any area by any person or group of persons:
(a) in such manner and on such a scale which involves the use of criminal force
or violence against any group, caste or community resulting in death or destruction of property and;
(b) such use of criminal force or violence is committed with a view to create
disharmony or feelings of enmity, hatred or ill-will between different groups,
castes or communities; and
(c) unless immediate steps are taken there will be danger to the secular fabric,
integrity, unity or internal security of India.
It may, by notification:
(i) declare such area to be a communally disturbed area
(3) where any area has been notified as communally disturbed area under sub-
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essay on human rights and the law
section (l), it shall be lawful for the state government to take all measures, which
may be necessary to deal with the situation in such area…
(2) If the state government is of opinion that assistance of the central government is required for controlling the communal violence, it may request the central government to deploy armed forces of the Union to control the communal
violence.
communal crimes: narrowly defined
10. Section 2(l) read with the schedule indicates that crimes covered by this
Bill are offences as set out in the Indian Penal Code, the Arms Act 1959, The
Explosives Act, 1884, The Prevention of Damage to Public Property Act 1984,
The Places of Worship (Special Provisions) Act, 1991and The Religious Institutions (Prevention of Misuse) Act, 1988. The Bill does not propose to include
any of the communal crimes so frequently noticed in riot after riot. Gender violence including the insertion of objects in the genitals, social and economic boycotts, forcible evictions, restraint on access to public spaces, residential
segregation, deprivation of access to food and medicines, enforced disappearances, interference with the right to education, using religious weapons and
ceremonies to intimidate, interference with police work, advocating the destruction of a religious structure, are woefully absent in the Bill. All that the Bill provides for in Chapter IV, is for enhanced punishment for the commission of
already defined offences under other statutes.
11. A special section on communal crimes against women and children is solely
needed covering sexual violence, penetrative assault, sexual slavery, enforced
prostitution, forced pregnancies, enforced sterilisation and other forms of sexual
violence. The rules of evidence need to be modified so that the victim is not
further victimised during the trial.
sections either unnecessary or of doubtful use
12. Chapter III deals with the prevention of communal violence. Chapter V deals
with investigation of offences. Chapter VI deals with the setting up of special
courts. Apart from minor changes these provisions already exist in the criminal
procedure code and, in any case, it is doubtful whether it is necessary at all to
include these provisions in this special Act. Chapter III, for example, relates to
the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace by, inter alia, curbing processions, externing persons, regulating the use of loudspeakers, seizing arms, detaining
persons and conducting searches. This is largely a cosmetic section because
the police, in any case, have the powers to do all these things under the criminal
procedure code and various other criminal statutes in force today.
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essay on human rights and the law
13. A chapter on preventive action to be taken by the authorities along the lines
of the SC/ST Atrocities Act is certainly needed. Immediately on receiving information, the officials should visit the area, establish a police outpost, begin patrolling with special police forces and form vigilance committees.
victims rights: relief,
rehabilitation and compensation
14. There is, of course, wishy-washy Chapters VII and VIII requiring government to plan and coordinate relief and rehabilitation measures through the setting up of state and district communal disturbance relief and rehabilitation
councils but these chapters fall far short of enunciating victim’s rights enforceable in court. Chapter X of the Bill deals with compensation to be paid to the victims but restricts the compensation to the amount of fine payable under the
code, which is generally very small. In the Communal Crimes Bill, 2007 submitted by the Human Rights Law Network and ANHAD to the government, the
suggested sections made it mandatory for government to set up relief camps,
pay subsistence allowance, pay substantial compensation and provide reasonable rehabilitation including alternative sites and housing and to reconstruct the
destroyed places of worship at government’s expense. All these victim’s rights
are missing in the present Bill.
15. When the State does not protect the lives and properties of the minorities
during communal carnages, should the victim not have a right to compensation
and alternative livelihoods at the cost of the State? An answer to this was expected in the statute. Is a relief camp to lie at the discretion of government and
NGOs with shabby provisions being made on a temporary basis, or is it the
right of the victim to be provided immediate relief according to well established
norms?
16. Once again, had government cared to look at the Atrocities Act, it would
have noticed the provisions relating to the collective fine where the community
harbouring the aggressors could be substantially fined and the money used for
the payment of compensation.
17. There is no provision in the Bill relating to the duties of authorities after the
riots take place. A section is necessary requiring the authorities to provide immediate relief and protection from further acts of violence, to prepare a list of
victims and their losses, to provide for legal aid and for allowances and facilities
during legal proceedings. Likewise, provisions are required to enable the arrest
and detention of people engaging in hate speeches and enabling the court to
shift the investigation to the CBI in cases of involvement of the local police in
the communal crime.
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essay on human rights and the law
18. The Supreme Court has recently held that social statutes must be accompanied by a financial memorandum. This is to ensure that government puts it’s
money where it’s mouth is. The Government of India is accustomed to enacting
grand legislation without allocating resources for its implementation. In this regard the financial memorandum of the Bill makes interesting reading:
“As involvement of expenditure depends mainly on the occurrence of communal
violence, it is difficult to make an estimate of the expenditure, both recurring
and non – recurring, from the Consolidated Fund of India.”
It is thus clear that the Government of India intends to make no financial provision whatsoever for the relief and rehabilitation of the victims of communal
crimes.
witness protection
The witness protection provision - Section 32 - has been drafted without application of mind as to the law commission’s recommendations. The usual pathetic
provisions reappear covering only the holding of proceedings at protected
places and the shielding of the identity of the witnesses. The main aspects of
modern day witness protection which shields the witness from the accused,
compensates her for the trauma of the crime and the trial and creates new identities and a new life for the witness is missing. Genuine witness protection includes a substantial financial obligation of the State to take care of the witness
and her family in secrecy, often for the rest of their lives.
immunity for public servants
19. Section 17 which grants immunity to the police and the army is particularly
insensitive. Although the section provides for the punishment of public servants
who break the law two things must be noticed. Under the Indian Penal Code the
punishment for such offences by public servants is more severe than the maximum sentence of one year with the alternative of a fine as prescribed in the Bill.
Secondly, Section 17(2) retains the requirement of sanction by government for
prosecution of public servants. The provision is as under:
“(2) Notwithstanding anything contained in the Code, no court shall take cognizance of an offence under this section except with the previous section of the
state government.”
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20. Various commissions of enquiries including the Justice Ranganath Mishra
Commission (Delhi riots), the Justice Raghuvir Dayal Commission (Ahmednagar riots), the Justice Jagmohan Reddy Commission (Ahmedabad riots), the
Justice DP Madan Commission (Bhiwandi riots), the Justice Joseph Vithyathil
Commission (Tellicheri riots), the Justice, J Narain, SK Ghosh and SQ Rizvi
essay on human rights and the law
Commission (Jamshedpur riots), the Justice RCP Sinha and SS Hasan Commission (Bhagalpore riots), and the Justice Srikrishna Commission (Bombay
riots) have found the police and civil authorities passive or partisan and conniving with the communal elements.
21. A chapter is necessary to punish police persons, paramilitary forces and
members of the armed forces for their involvement in communal crimes particularly when FIRs are not registered or registered improperly, when security is
not provided to minorities under attack, when destruction of property is not prevented and when inadequate forces are deployed. Where the officers stand
firm – and there were many such fine examples of bravery even in Gujarat – the
rioters are quickly scattered. No communal riot can take place without the support of the police and the security forces. They must be severely punished for
not doing their duty.
22. The abject failure of the criminal justice system because of the insidious
role of the police and the public prosecutor, who often side with the accused,
needs special legislative attention. After the last racial riots in Britain, the McPhearson Committee recommended that complaints be registered at places
other than police stations and suggested ways of overcoming ‘institutionalised
racism’. Sections are required for the punishment of policemen who fail to
record complaints and conduct investigations properly. Complaints ought to be
registered even electronically.
23. Recognising the role of the police in communal riots, it is critical that the immunity granted under sections 195, 196 and 197 of the criminal procedure code
be omitted in any statute on communal crimes. No junior officer should be allowed to take the defence that he was ordered by his superior to commit the
crime. Nor should any commanding officer be allowed to take the defence that
he was unaware of the crimes that were committed on his beat.
24. Similarly, public prosecutors who side with the accused persons and enable
them to be released on bail or are instrumental in their acquittal ought also to
come under legislative scrutiny. A section is necessary to make it mandatory for
the trial judge who finds the performance of the prosecutor unsatisfactory to remove him from the case.
25. Politicians must come in for special mention in the legislation. Any minister
interfering with police work by shielding the accused, misdirecting the police investigation or by preventing relief from reaching the victims should be treated
as a common criminal. His ministerial status should afford him no protection in
law.
26. All in all a policeman’s Bill oriented to increasing police power with no care
for the victim.
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70
11
the state has no religion
T
here are hardly any decisions of the high courts or the Supreme Court
which have come down heavily on communal parties. The judgments are
generally full of pious sentiments and the lofty ideals of secularism but
lack practical measures penalising religious fundamentalists.
Because of lack of concern by the apex court there has hardly been any successful prosecution of rioters. The anti-Sikh riots in Delhi and the anti-Muslim
riots in Mumbai are few of the cases in point.
In 1962 in the case of Sardar Syedna Taher Saifuddin Saheb, v. State of Bombay (AIR 1962 SC 853) the Supreme Court, struck down a statute purporting
to outlaw the practice of excommunication by the Syedna, as going beyond the
provisions of Articles 25(2)(b) of the Constitution.
The majority judgment held: ‘That excommunication of a member of a community will affect many of his civil rights is undoubtedly true. The particular religious denomination (Dawoodi Bohra community) is possessed of properties
and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such property. The right
given under Article 26(b) has not, however, been made subject to preservation
of civil rights. Hence, the fact that civil rights of a person are affected by the exercise of the fundamental right under Article 26(b) is of no consequence.
Quite clearly, the impugned Act cannot be regarded as a law regulating or restricting any economic, financial political or other secular activity.
The impugned enactment by depriving the head of the power and the right to
excommunicate and penalising the exercise of the power, strikes at the very life
of the community by rendering it impotent to protect itself against dissidents
and schismatics.
The purity of the fellowship is secured by the removal of persons who had ren-
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essay on human rights and the law
dered themselves unfit and unsuitable for membership of the sect’.
Sinha, C.J. made a strong and correct dissent: ‘‘The right of excommunication is not a purely religious matter. The effect of the excommunication or expulsion from the community is that the expelled person is excluded from the
exercise of rights in connection not only with places of worship but also from
burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not
purely religious matters.
‘‘Though the Act may have its repercussions on the religious aspect of excommunication, in so far as it protects the civil rights of the members of the community, it has not gone beyond the provisions of Article 25(2)(b) of the
Constitution.
‘‘The Act is intended to do away with all that mischief of treating a human being
as a pariah, and of depriving him of his human dignity and of his right to follow
the dictates of his own conscience. The Act is thus aimed at fulfilment of the individual liberty of conscience guaranteed by Article 25(1) of the Constitution,
and not in derogation of it.
‘‘The position of an excommunicated person becomes that of an untouchable
in his community, and if that is so, the Act in declaring such practices to be void
has only carried out the strict injunction of Article 17 of the Constitution, by
which untouchability has been abolished and its practice in any form forbidden.
The Article further provides that the enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance with law.’’
three important decisions
Between 1976 and 1986 there were three important decisions of the apex court
which deal firmly with the issue of secularism. In ZB Bukhari v. BR Mehra (1976
2 SCC 17) the Apex Court laid down for the first time that a secular State must
be neutral or impartial:
“Under the guise of protecting one’s own religion… one cannot embark on personal attacks on those of others or whip up low herd instincts and animosities
or irrational fears between groups…
“Hearsay propaganda on professedly religious grounds directed against a candidate at an election may be permitted in a theocratic State but not in a secular
republic like ours. If such propaganda were permitted it would injure the interests of members of religious minority groups.
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“The term secular is used to distinguish all that is done in this world without
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seeking the intervention of… a… Divine Power. Secularism is… quite independent of… religion. The Secular State… is neutral or impartial’ Then in 1980
in Baburao Patel v. State (1980 2 SCC 402) the apex court held that the scope
of section 153-A(1)(a) of the Indian Penal Code 1980, which dealt with promotion of feeling of enmity, hatred or ill-will between religious groups or communities, was not only confined to such promotion on grounds of religion alone
but also covered other grounds such as race, place of birth, residence, language, caste or community. The facts of the case were:
“The appellant in the two criminal appeals was the editor, publisher and printer
of a monthly magazine going by the name ‘Mother India’. He wrote two articles
under the captions "A Tale of Two Communalisms" and "Lingering Disgrace of
History.”
Section 153-A (1) provides: (a) by words, either spoken or written, by signs or
by visible representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language , caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred, or ill-will between different religions, racial, language or regional groups or
castes or communities.
The appellant referred to Muslims generally as "a basically violent race" and
went on to say "communalism is, therefore, an instrument of a minority with a
racial tradition of rape, loot, violence and murder as is found in India with a
Muslim population of 12.7 percent. In Pakistan, the Hindu minority is 6.6 percent
but because its racial tradition is different it does not indulge in communal
riots… Three essentials are necessary for violent communalism. The community must be a minority, the minority must be sizeable and the minority must
have a tradition of murder and violence… We find these three essentials in the
Muslim community of India.
the second article "lingering disgrace of history"
"From Mohammed Bin Qasim, who landed in India in June 712 AD with 6000
Muslim cut-throats, to Mohd. Ali Jinnah, who cut this ancient cradle of a peace
loving human race into three bleeding bits in August 1947, we have had 1,235
years of blood-stained history in which our life has been constantly punctuated
by endless raids, rapes, loots, arson and slaughters. All these years Hindus
have given millions of men, women and children as hostages to Islam to buy
some peace and preserve their own religion. They are still doing so. God alone
knows how long this process of paying and appeasing Muslims will go on but
it cannot go on for long if the family planning designs of the present secular
government succeed. Because then pretty soon there would be no Hindu left
to pay."
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essay on human rights and the law
Thereafter, in 1986 in the case of Bijoe Emmanuel v. State of Kerala ( 1986 3
SCC 615) a controversy arose when three school children who were Jehovah’s
witnesses – a sect of Christians – were expelled from a school in Kerala because they refused to sing the national anthem. The complaint reached the
Supreme Court.
The Court held: “In the present case the expulsion of the appellant children
from school for the reason that because of their conscientiously held religious
faith, they did not join in the signing of the national anthem, though they stood
up respectfully when it was sung, is a violation of their fundamental right under
Article 25 "to freedom of conscience and freely to profess, practice and propagate religion". They cannot be denied that right on the ground that the appellants belonged to a religious denomination and not a separate religion’.
1994 was the year of great controversy. A nine-judge constitutional court in SR
Bommai v. Union of India (1994 3 SCC) held: "The State stands aloof from religion. Matters which are purely religious are left personal to the individual and
the secular part is taken charge by the State. There can be no democracy if antisecular forces are allowed to work dividing followers of different religious faiths
flaying at each other’s throats. The secular government should negate the attempt and bring order in society.
State is neither pro-particular religion nor anti-particular religion. It stands
aloof…’
But in the same year in a most retrogressive decision in Ismail Faruqui v. UOI
(1994 6 SCC 360) the majority of the judges let pass the acquisition of the
mosque at Ayodhya holding that "a mosque is not an essential part of the practice of the religion of Islam".
The minority judgment of Justice Ahmedi and Justice Bharucha is of interest.
Not only did it reiterate the position that the State has no religion, it also
recorded the fact that the State would not have honoured the opinion of the
Supreme Court by rebuilding a mosque, had the Supreme Court held that there
was originally on the disputed site a mosque and not a temple.
That secularism is part of the basic features of the Constitution was held in Kesavananda Bharati v. State of Kerala. It was unanimously reaffirmed by the
nine judge bench in SR Bommai v. UOI.
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The reference states that "the central government proposes to settle the said
disputes after obtaining the opinion of the Supreme Court and in terms of the
said opinion. It is clear that the central government does not propose to settle
the dispute in terms of the court’s opinion. It proposed to use the court’s opinion
as a springboard for negotiations… Asked to obtain instructions and tell the
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court that the mosque would be rebuilt if the question posed by the reference
was answered in the negative the learned solicitor general made the statement
…(which) leaves us in no doubt that even in the circumstance that this court
opines that no Hindu temple or Hindu religious structures existed on the disputed site before the disputed structure was built thereon, there is no certainty
that a mosque will be rebuilt.’
To make matters worse came Mohd. Islam v. Union of India (1994 (6) SCC
442) which show how lightly the apex courts takes the issue of communal riots.
For having disobeyed the orders of the apex court and allowing the demolition
of the Babri Masjid, Kalyan Singh the then chief minister of Uttar Pradesh was
convicted and sentenced to a "token imprisonment of one day" and a fine of
Rs.2000/- to be paid within a period of two months.
grossest violation
The court held: “These petitions raise certain important issues as to the
amenability of the State and of its ministers to be proceeded against in contempt
for failure of obedience to the judicial pronouncements. These proceedings
have the echo of the disastrous event that ended in the demolition on the December 6, 1992 of the disputed structure of "Ram Janma Bhoomi-Babri Masjid"
in Ayodhya. Thousands of innocent lives of citizens were lost, extensive damage to property caused and more than all a damage to the image of this great
land as one fostering great traditions of tolerance, faith, brotherhood amongst
the various communities inhabiting the land was impaired in the international
scene...
The graveman of the charge in these contempt petitions is that Kalyan Singh,
the then chief minister of the state, in view of his ideological and political affinity
with the Bharatiya Janata Party and the Vishwa Hindu Parishad and their commitment to the building of Sri Ram temple, deliberately encouraged and permitted the grossest violation of the court’s orders...
The defence in substance is that the constructions were initially of the nature
of "leveling operations" done by the state government for enabling the
Parikrama facilities for the pilgrims…
However, later the large congregation of Sadhus who had assembled on the
land took upon themselves to make the constructions and that even those constructions which were in the nature of a platform did not amount to permanent
structure such as were prohibited by the order of the court…
But it is necessary to say that in a government of laws and not of men the executive branch of government bears a grave responsibility for upholding and
obeying judicial orders…
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There is, therefore, no manner of doubt that substantial work, indeed very substantial work, involving tonnes of cement and concrete deployed with the help
of construction machinery was carried on at the site. The photographs produced
by the complainant, which are not disputed, indicate the gathering of workers.
A mere perusal of the photographs justifies an inference that the large workforce at the site does not consist of mere Sadhus but justifies the inference that
professional workmen had been deployed at the site...
Nothing is indicated as to what was sought to be done at all to prevent construction material coming in. There is no mention in any of the affidavits of any
of the officers as to what reasonable measures the government took to prevent
the inflow of construction material such as large quantities of cement, mortar,
sand, construction equipment, water tankers, etc, that were necessary for the
work…
If reasonable steps are not taken to prevent the violation of the orders of the
court, the government cannot be heard to say that violation of the orders were
at the instance of others. The presumption is that the government intended not
to take such preventive steps. In the facts and circumstances of the case, we
are unable to persuade ourselves to the view that the government was helpless
and the situation that had developed was in spite of all reasonable steps taken
by the government...
The state government is, therefore, liable in contempt. A minister or officer of
government is also either in his official capacity or if there is a personal element
contributing to contempt, in his personal capacity, liable in contempt...
We find that the undertaking given by Kalyan Singh was both in his personal capacity and on behalf of his government. There has been a flagrant breach of
that undertaking. There has been willful disobedience of the order…
It is unhappy that a leader of a political party and chief minister has to be convicted of an offence of contempt of court. But it has to be done to uphold the
majesty of law. We convict him of the offence of contempt of court. Since the
contempt raises larger issues which affect the very foundation of the secular
fabric of our nation, we also sentence him to a token imprisonment of one day.
We also sentence him to pay a fine of Rs.2000. The fine shall be paid within a
period of two months. For the sentence of imprisonment a warrant will issue.
1996 was another tumultuous year. Despite Hindutva being the main plank of
the communal forces, the apex court in Manohar Joshi v/s. NB Patil (1996 (1)
SCC 169) said "however despicable be such a statement (that the first Hindu
state will be established in Maharashtra) it cannot be said to amount to an appeal for votes on the ground of religion".
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The judges of the Bombay High Court had correctly held that because Manohar
Joshi campaigned on the basis of his party programme which made "Hindutva"
the main plank he was guilty of the charge of corrupt practices within the meaning of section 123 of the RP Act and it declared his election void. The result of
the Bombay High Court decision was that a candidate of a political party was
bound by the programme of that party and if the programme of that party was
a communal programme the stigma of the corruption charge would attach both
to the party as well as to the individual. This is correct way to look at the law and
to stamp out communalism in elections.
The Supreme Court set aside this order holding: ‘A mere statement in the
speech made by the appellant – returned candidate in an election meeting that
the first Hindu state will be established in Maharashtra is by itself not an appeal
for votes on the ground of his religion but the expression, at best, of such a
hope. However despicable be such a statement, it cannot be said to amount to
an appeal for votes on the ground of his religion. It does not constitute the corrupt practice either under sub section (3) or sub section (3-A) of Section 123.
Some of the most offending statements:
1. To handle the Congress-I hoodlums the Shiv Sainiks may take law in their
hands and use firearms if necessary (Thackeray)
2. To save Hindutva vote for BJP-Sena nominees (Pramod Mahajan, BJP MP)
3. Mr. Rajiv Gandh does not know his own religion, and thus has no right to
speak on Hinduism (Pramod Mahajan)
4. The result of these elections will not only depend on the solution to the problem of food, cloth but the same will also decide whether in the state the flame
of Hindutva will grow or will be extinguished. If in Maharahstra the flame of Hinduism is extinguished, then anti-national Muslims will be powerful and they will
convert Hindustan into Pakistan. If the flame of Hindutva will grow then in that
flame the anti-national Muslims will be reduced to ashes (Pramod Mahajan).
A contrary progressive trend was noticed in Bal Thackeray v. PK Kunte (1996.
1. SCC 130). The returned candidate Dr. Ramesh Yeshwant Prabhoo was present in all the three meetings in which speeches were given by Bal Thackeray.
"We are fighting this election for the protection of Hinduism. Therefore, we do
not care for the votes of the Muslims. This country belongs to Hindus and will
remain so."
But here one cannot do anything at anytime about the snake in the form of Khalistan and Muslims… The entire country has been ruined and therefore we took
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the stand of Hindutva and by taking the said stand we will step in the legislative
assembly. Unless we step forward strongly it would be difficult for us to live because there would be war of religion… Muslims will come. What will you Hindu
(people) do? Are you going to throw ‘Bhasma’ (i.e.ashes) on them? We won’t
mind if we do not get votes from a single Muslim and we are not at all desirous
to win an election with such votes… therefore, there is a dire need of the voice
of Hindutva and therefore please send Shiv Sena to legislative assembly. Who
are (these) Muslims? Who are these ‘lande’ ( ? )? Once Vasant Dada had called
me when he was a chief minister. He told me that rest is OK But asked me as
to why I was calling them ‘lande’. But is it correct if they call us ‘kafir’ (i.e. traitor)
then we will certainly call them ‘lande’… They should bear in mind that this
country is of Hindus, the same shall remain of Hindus... if Shiv Sena comes to
power and if the morcha come—- first of all (we) shall make them come. Everybody will have to take ‘diksha’ (i.e. initiation) of Hindu religion…"
The Court held: The appeal made to the voters by Bal Thackeray in his aforesaid speech was a clear appeal to the Hindu voters to vote for Dr. Ramesh
Prabhoo because of his religion. The clear import of the above extracts in each
of the three speeches is to this effect. The first speech also makes derogatory
reference to Muslims by calling them ‘snake’ and referring to them as ‘lande’
(derogatory term used for those practicing circumcision). The language used in
the context, amounted to an attempt to promote feelings of enmity or hatred
between the Hindus and the Muslims on the ground of religion. The first speech,
therefore, also constitutes the corrupt practice under sub-section (3-A).
Our conclusion is that all the three speeches of Bal Thackeray amount to corrupt practice under sub-section (3), while the first speech is a corrupt practice
also under sub-section (3-A) of Section 123 of the RP Act. Since the appeal
made to the voters in these speeches was to vote for Dr. Ramesh Prabhoo on
the ground of his religion as a Hindu and the appeal was made with the consent
of the candidate Dr. Ramesh Prabhoo, he is guilty of these corrupt practices.
For the same reason, Bal Thackeray also is guilty of these corrupt practices
and, therefore, liable to be named in accordance with section 99 of the RP Act
of which due compliance has been made in the present case.
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We cannot help recording our distress at this kind of speeches given by a top
leader of a political party. The lack of restraint in the language used and the
derogatory terms used therein to refer to a group of people in an election
speech is indeed to be condemned. The likely impact of such language used
by a political leader is greater. It is, therefore, a greater need for the leaders to
be more circumspect and careful in the kind of language they use in the election
campaign. This is essential not only for maintaining decency and propriety in the
election campaign but also for the preservation of the proper and time honoured
values forming part of our cultural heritage and for a free and fair poll in a secular democracy.’
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The last decision of 1996 was AS Narayana Deeshitalyu v. State of AP(1996 9
SCC 548) where the court held:
“The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right… they are subject to reform on social welfare by appropriate legislation by the state… The court therefore while interpreting Article 25 and 26
strikes a careful balance between… matters… which are essential and integral
part and those which are not… and the need for the state to regulate or control
in the interests of the community.”
The other decision of relevance relates to conversions. In Rev. Stainislaus v.
State of Madhya Pradesh (1977.I. SCC. 677) the controversy related to the
Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and a similar statute
in Orissa which sought to penalise conversions based on force and fraud. The
MP High Court held this Act constitutional, the Orissa High Court held otherwise. The challenge reached the Supreme Court.
“Article 25(1) by giving the right to propagate one’s religion, does not give the
right to convert another person… but to transmit or spread one’s religion by the
exposition of its tenets.
What is penalised is conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to
conversion by force, fraud or allurement can, in our opinion, be said to contravene Article 25(1) of the Constitution of India, as the Article guarantees religious
freedom subject to public health. As such, we do not find that the provisions of
Sections 3, 4 and 5 of the MP Dharma Swatantraya Adhinyam, 1968 are violative of Article 25(1) of the Constitution of India. On the other hand, it guarantees
that religious freedom to one and all including those who might be amenable to
conversion by force, fraud or allurement. As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach
upon the religious freedom of any particular individual.
The meaning of guarantee under Article 25 of the Constitution came up for consideration in this court in Ratilal P Gandhi v. State of Bombay and it was held
as follows:
“Thus, subject to the restrictions which this Article imposes, every person has
a fundamental right under our Constitution not merely to entertain such religious
belief as may be approved of by his judgment or conscience but to exhibit his
belief and ideas in such overt acts as are enjoined or sanctioned by his religion
and further to propagate his religious views for the edification of others.
“The Acts therefore clearly provide for the maintenance of public order for if
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forcible conversion had not been prohibited, that would have created public disorder in the State."
If it is correct as stated in SR Bommai’s case that State stands aloof from religion and if it is correct as stated in Ismail Faruqui’s case that the State has no
religion and if Bukhari’s case lays down correct law that a secular State is neutral or impartial why is it that we routinely see religious photographs and idols
in government establishments and police stations and the like? Are the State
and its functionaries not acting contrary to the mandate of the Supreme Court?
Is it not time for the courts to step in and injunct religious practices and functions
in governmental establishments and is it not time for the leaders of our country
to set an example by clearly separating their duties as government functionaries
from their personal religious practices? Also how is that universities recommend
books that contain blatantly anti-Muslim material?
All the above practices are unconstitutional and it is time we documented them
and file PILs in the various high courts and the Supreme Court.
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