Dear members it should be remembered that in the Indian
administrative setup the Judiciary is considered the vanguard of
constitutionalism and democracy. If such is the laid back attitude of
Indian courts towards communalism then it surely enforces the view
that India is secular only in name whose most hailed defenders are
themselves of a communal mindset.
COMMUNALISM AND THE COURTS
State has no religion
Court decisions have lacked strong measures to penalise religious
fundamentalism. On the contrary, as some decisions indicate, the
judiciary seems to permit social ostracism, boycott of minorities and
ghettoisation. But in a democracy the State has no religion, argues
Colin Gonsalves.
20 June 2007 - There are hardly any decisions of the high courts or
the Supreme Court that have come down heavily on people and parties
spreading communal hatred. The judgments are generally full of pious
sentiments and the lofty ideals of secularism, but lack practical
measures penalising religious fundamentalists. Because of a lack of
concern by the Apex Court, there has rarely been a successful
prosecution of rioters. The anti-Sikh riots in Delhi in 1984, the
anti-Muslim riots in Mumbai in 1993, and the anti-Muslim riots in
Gujarat in 2002 are some of the most glaring examples.
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
outlawing the practice of excommunication by the Syedna, the head of
the Dawoodi-Bohras, as going beyond the provisions of Articles 25(2)
(b) of the Constitution. The majority judgment held that not only
could the Syedna expel members from the religious life of the
community, but that the loss of some civil rights of the
excommunicated member was acceptable as a "necessary consequence of
excommunication." The court further held that "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."
In his strong and correct dissent, Chief Justice Sinha noted: "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.
"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 Art.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 Art.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 decisions
Between 1976 and 1986 there were three important decisions of the
Supreme Court that deal firmly with the issue of secularism. In Z.B.
Bukhari v. B.R. Mehra (1976 2 SCC 17) the court laid down, for the
first time, that a secular State must be neutral or impartial - "The
term secular is used to distinguish all that is done in this world
without 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 Supreme
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
covers other grounds such as race, place of birth, residence,
language, caste or community.
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 which ruled that "the
expulsion of children from school for the reason that because of
their conscientiously held religious faith, they did not join in the
singing 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: controversial year
A nine-judge constitutional court in S.R. Bommai v. Union of India
(1994 3 SCC) held that "[t]he 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. State
is neither pro-particular religion nor anti-particular religion. It
stands aloof[.]"
But in the same year, in a 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.
To make matters worse came Mohd. Islam v. Union of India (1994 (6)
SCC 442), which demonstrated just how lightly the Supreme Court takes
the issue of communal riots. For having disobeyed the orders of the
Supreme Court and allowing the demolition of the Babri Masjid, Kalyan
Singh, the then chief minister of U.P., 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.
1996: tumultuous year
Despite Hindutva being the main plank of the communal forces, the
Supreme Court in Manohar Joshi v. N.B. 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."
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 R.P. 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 Bombay High Court was correct in its judgment.
A contrary progressive trend was noticed in Bal Thackray v. P.K.
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 Thackray. The Supreme Court held:
"The appeal made to the voters by Bal Thackray in his aforesaid
speech was a clear appeal to the Hindu voters to vote for Dr. Ramesh
Prabhoo because he is a Hindu. The clear import of 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 Thackray amount
to corrupt practice under [the law]. 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 Thackray also is guilty
of these corrupt practices and, therefore, liable to be named in
accordance with section 99 of the R.P. Act of which due compliance
has been made in the present case."
The last decision of 1996 was A.S. Narayana Deeshitalyu v. State of
A.P. (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."
Conversions
An early significant decision of relevance to conversions came 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 M.P. 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.
" ... if forcible conversion had not been prohibited, that would have
created public disorder in the State".
• Convert and be damned
"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 M.P. Dharma Swatantrya
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 Panachand Gandhi v. State
of Bombay (1954 S.C.R. 2055) 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 forcible conversion had not been prohibited, that would
have created public disorder in the State".
Restrictions
In Om Prakash v. State of U.P. (2004 3 SCC 402), a petition was filed
in the Allahabad High Court challenging the government notification
prohibiting the sale of eggs within the municipal limits of Rishikesh
on the ground that the notifications imposed unreasonable
restrictions affecting the rights of parties under Article 19(1)(g)
of the Constitution. The High Court upheld the notification even
though it was pointed out that the eggs sold contained no chicks, on
the ground that "the welfare of the people was paramount." The High
Court's dismissal of the case was appealed to the Supreme Court.
The court's drawing of doubtful conclusions without any factual basis
regarding vegetarianism being widespread in the city of Rishikesh is
especially ironic in the light of recent studies indicating that the
majority of Indians are, in fact, non-vegetarian and that the notion
of Indian society being vegetarian is largely a myth.
In its decision, the Supreme Court refers to its earlier decision in
State of Maharashtra v. H. N. Rao. In Rao, S. 385 of the Bombay
Municipal Corporation Act was challenged because it affected Dalits
by imposing restrictions on dealing with the skin and carcasses of
animals within the municipal limits. The Supreme Court dismissed the
challenge, relying almost exclusively on the customs and traditions
of the dominant community with no regard to the livelihood of the
Dalits. Similarly, in deciding Om Prakash, the court again used the
dominant community as the reference The court held that Haridwar and
Rishikesh were "pilgrim centres" and "[a] major section of the
society in the three towns considers it desirable that vegetarian
atmosphere is maintained in the three towns for the inhabitants and
the pilgrims."
With no factual basis, the court went on to say that "it is a matter
of common knowledge that members of several communities in India are
strictly vegetarian and shun meat, fish and eggs. In the three towns
people mostly assemble for spiritual attainment and religious
practices. Maintenance of clean and congenial atmosphere in all the
religious places is in common interest. Peculiar culture of the three
towns justifies complete restriction on trade and dealing in non-
vegetarian items including eggs within the municipal limits." The
court's drawing of doubtful conclusions without any factual basis
regarding vegetarianism being widespread in the city of Rishikesh is
especially ironic in the light of recent studies indicating that the
majority of Indians are, in fact, non-vegetarian and that the notion
of Indian society being vegetarian is largely a myth.
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005 8 SCC
534) was an astonishing case relating to cow slaughter. The State of
Bombay had enacted the Bombay Animal Preservation Act, 1948,
prohibiting the slaughter of animals which were useful for milch,
breeding or agricultural purposes. This Act was extended to the State
of Gujarat by the Bombay Animal Preservation (Gujarat Extension and
Amendment) Act, 1961. This Act was amended in 1994 by the Bombay
Animal Preservation (Gujarat Amendment) Act, 1994. This statute was
challenged by the representative bodies of Kureshis. The Akhil Bharat
Krishi Goseva Sangh, the Hinsa Virodhak Sangh, the Jeevan Jagriti
Trust and the Gujarat Prantiya Arya Pratinidhi Sabha were impleaded
as party respondents. The High Court allowed the writ petition and
struck down the impugned legislation as ultra-vires the Constitution
holding that the statute imposed an unreasonable restriction on
fundamental rights.
The challenge to the constitutional validity of the legislation was
founded on three grounds. That the total ban offended the religion of
the Muslims as the sacrifice of a cow on a particular day is
sanctioned by Islam. Secondly, that such a ban offended the
fundamental rights of the Kasais (butchers) under Art. 19(1)(g) and
was not a reasonable and valid restriction on their right. Thirdly,
that a total ban was not in the interest of the general public.
Chief Justice S.R. Das speaking for the constitutional bench held
that the total ban on the slaughter of cows and calves of cows and
she-buffaloes was valid. The constitutional bench further held that
the total ban on the slaughter of she-buffaloes or breeding calves or
working bullocks so long as they are capable of being used as milch
or draught cattle was also valid. However, the constitutional bench
held that a total ban on the slaughter of she-buffaloes, calves and
bullocks after they cease to be incapable of yielding milk or
breeding or working could not be supported as reasonable and in the
interests of the general public and was invalid.
It appears that in this case, the first ground of challenge namely,
that the sacrifice of a cow sanctioned by Islam was turned down by
the court due to the meagre material placed before the court. It
appears that no one specially competent to expound the religious
tenets of Islam filed an affidavit making reference to any particular
Surah of the Holy Quran which requires the sacrifice of a cow. The
Constitutional Bench, in this case, concluded that the cow progeny
ceased to be useful as a draught cattle after a certain age.
In Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat (1986 3 SCC
12) a ban on the slaughter of bulls and bullocks below the age of 16
years was challenged. The Supreme Court held on facts that with the
improvement of scientific methods of cattle-breeding, cattle remain
useful even above the age of 16 and hence the cut-off period of 16
years was held to be reasonable restriction and the prohibition on
slaughter of bulls and bullocks below the age of 16 years was upheld.
While petitions relating to people rotting in prisons on drummed-up
charges, cases of extreme exploitation of labour, and reams of other
petitions relating to the poor remain pending for years in the
Supreme Court, this utterly frivolous issue of cow-slaughter took
several weeks and the valuable time of seven highly skilled
justices.
In the latest case of State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat (2005 8 SCC 534), a Constitutional Bench of five judges
in 2005 felt that the issue of cow slaughter was sufficiently
important an issue to justify the constitution of a bench of seven
Justices. Reference was made to Art. 48 of the Constitution of India
requiring the State to take steps towards prohibiting slaughter of
cattle. Reference was made to Art. 51-A requiring the State to have
compassion for living creatures. It was then said in paragraph 50
that cow dung would enable the farmers to avoid the use of chemicals.
In a country where human beings are neglected by the State when they
grow old and they die of hunger in thousands, the Supreme Court
displayed rare compassion for the aged cattle. "A cattle which has
served human beings is entitled to compassion in its old age. It will
be an act of reprehensible ingratitude to condemn cattle in its old
age as useless. We have to remember: the meek and weak need more
protection and compassion."
How ironic that while petitions relating to people rotting in prisons
on drummed-up charges, cases of extreme exploitation of labour, and
reams of other petitions relating to the poor remain pending for
years in the Supreme Court, this utterly frivolous issue of cow-
slaughter took several weeks and the valuable time of seven highly
skilled justices of the Supreme Court.
The larger bench was constituted in order to get over the findings of
the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar (1959 SCR
629) which had concluded as follows. First, the maintenance of
useless cattle involves a wasteful drain on the nation's cattle feed.
Second, the total ban on cattle slaughter would seriously dislocate
though not completely stop the business of a considerable section of
butchers and hide merchants. Third, the ban would deprive a large
section of the people of their staple food and protein diet. And
fourth, the preservation of useless cattle by establishment of
gosadan is not a practical proposition "as they are like
concentration camps where cattle are left to die a slow death."
According to the seven judge bench, the findings of the Supreme Court
delivered in 1958 was no longer valid as "constitutional
jurisprudence has indeed changed from what it was in 1958. Our socio-
economic scenario has progressed from being gloomy to a shining one,
full of hopes and expectations."
Then, in an unbelievable waste of time and public money, seven
erudite Justices began to look into data relating to the shortage of
fodder, the production of cowdung and urine and other factual matters
of grave constitutional and national importance. They concluded that
the main source of staple food is vegetables and that the poor would
not suffer on account of a ban on slaughter. They disagreed with the
findings of the Supreme Court in Mohd. Hanif Qureshi's case relating
to the conditions of the gosadans and concluded without any actual
data or other evidence that the "gosadans and goshalas are being
maintained." This is again a conclusion of doubtful truth value. Aged
cattle are generally left to rot and the conditions of the gosadans
are truly pathetic even today.
Of particular interest is the emphatic dissent of Justice A.K.
Mathur who held that there was no need to overrule the earlier
decisions of the Supreme Court that have held the field from 1958
because the ground realities have not materially changed. He held
that "the unanimous opinion of the experts is that after the age of
15, bulls, bullocks and buffaloes are no longer useful for breeding,
draught and other purposes and whatever little use they may have is
greatly offset by the economic disadvantage of feeding and
maintaining unserviceable cattle."
The data produced before the Supreme Court according to Justice
Mathur showed that after 16 years, urine, cowdung and draught ability
is substantially reduced. The data produced before the Court was not
such as to justify the reversal of the earlier decisions of the
Court. The Judge could not understand as to how the interests of the
public at large would be advanced by depriving butchers of their
profession. Relying on the principle of stare decisis he protested
that the law should "not be so fickle that it changes with change of
guard. If the courts start changing their views frequently, then
there will be a lack of certainty in the law and it is not good for
the health of the nation."
In Akhil Bharat Goseva Sangh (3) v. State of Andhra Pradesh (2006 4
SCC 162), a two judge bench of the Supreme Court distinguished the
constitutional bench decision in State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat and refused to stop Al Kabir Exports Ltd. from
slaughtering cattle and exporting meat. Al Kabir was given permission
by the central government to slaughter old and useless buffaloes.
Some organisations opposed the setting up of the slaughter-house. The
state government constituted the Krishnan Committee to examine the
matter and report to the High Court. The Krishnan Committee found
that fundamentalist organisations had opposed the establishment of
the slaughter-house. After extensively referring to the
constitutional bench decision of the Supreme Court in State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, the Supreme Court
held, "it is true that it has been held the total prohibition of cow
and cow progeny slaughter may be justified. However, it has not been
held in that decision that laws and policies which permit such
slaughter are unconstitutional."
Land and housing
In Zoroastrian Cooperative Housing Society v. District Registrar
(2005 5 SCC 632), the cooperative society was given certain lands by
the Government of Bombay on which residential premises were made and
the society made a bye-law that the owners of the plots or bungalows
who were from the Parsi community could not sell them to any non-
Parsi. A dispute arose when a member attempted to transfer the
property to a non-Parsi and the board appointed under the Bombay
Cooperative Societies Act informed the society that it could not
restrict its membership only to the Parsi community.
The Supreme Court held that for the promotion of a housing society
there should be "a bond of common habits and common usage among the
members which should strengthen their neighbourly feelings, their
loyal adherence to the will of the society. In India, this bond was
most frequently found in a community or caste."
It was submitted by the society that members have a right to be
associated only with those whom the consider eligible and the right
to deny admission to those with whom they do not want to associate
and that this right cannot be interfered with by the registrar
appointed under the Act. The Supreme Court agreed with the society,
holding that it was not permissible for the State government to
compel the society to amend its bye-laws, even though the registrar
was empowered under the Act to direct amendment. This is because,
according to the Supreme Court, the paramount consideration was the
interest of the society, not the public interest.
This conclusion is utterly wrong. The interest of a cooperative
society must yield to the interest of society as a whole. If
according to the public interest, maintaining a heterogeneous
composition is needed rather than having sections of the public
cordon themselves off into caste or religious conclaves like an
apartheid system, then surely the registrar's action restraining the
society from insisting that only Parsis can come into the society was
reasonable. The conclusion of the Supreme Court, that notwithstanding
public interest, the interest of the society is paramount has laid
the legal foundation for the caste and communal ghettoisation of
India.
In Gujarat, for example, Muslims have been forced to leave
cooperative societies which are today all-Hindu societies. Is it
constitutionally permissible for the society to enforce through its
bye-laws a social boycott of Muslims? Will it be legitimate to have
areas of a city which are Hindu only or Muslim only? Is it in the
public interest that such an apartheid system be allowed to
proliferate?
Is it constitutionally permissible for a cooperative society to
enforce through its bye-laws a social boycott of Muslims?
The Supreme Court concluded, "We are satisfied that by introducing a
theory of what the Court considers to be public policy a society
registered under the cooperative societies act cannot be directed to
admit a member who is not qualified in terms of the bye-laws."
Then in para 25, the Court recognises the dangerous abyss into which
it has fallen:
"It is true that it is very tempting to accept an argument that Arts.
14 and 15 prevent any discrimination based on religion or origin in
the matter of equal treatment or employment and to apply the same
even in respect of a cooperative society. Courts have to be cautious
in trying to ride the unruly horse of public policy. It is not
possible to import one's inherent abhorrence to religious groups or
other groups coming together to form what learned counsel for the
respondents called ghettoes. It is true that our Constitution has set
goals for ourselves and one such goal is the doing away with
discrimination based on religion or sex. But that goal has to be
achieved by legislative intervention and not by the Court.
The doctrine of public policy could be applied only to clear and
undeniable cases of harm to the public, although, theoretically, it
was permissible to evolve a new head of public policy in exceptional
circumstances, such a cause would be inadvisable in the interest of
stability of society. It is open to the community to try to preserve
its culture and way of life. We have cooperative societies of
religious groups who believe in vegetarianism. It will be
impermissible to thrust upon the society persons who are regular
consumers of non-vegetarian food. Maybe, it is time to legislate or
bring about changes in the Cooperative Societies Acts."
With these words the Supreme Court declined to exercise jurisdiction
vested in the Court and failed to recognise a matter of grave public
interest. By this decision, ghettoisation based on caste and religion
and the social ostracism and boycott of the minorities has now become
permissible. ⊕
Colin Gonsalves
20 Jun 2007
This article is reproduced from Combat Law, through Space Share, our
collaborative program for other publishers. This is an updated
version of an article that appeared five years ago, by the same
author, in Volume 1, Issue 2 of Combat Law.
------------------------------------
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