Author: Jay Bhattacharjee
Publication: Vijayvaani.com
Date: February 3, 2011
URL: http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=1610
Another step on the slippery path to hara-kiri
The recent decision of the Supreme Court bench
to expunge certain key lines in their judgment on the Dara Singh appeal just
4 days after pronouncing the verdict in open court, has most damaging implications
both for this country's judicial system and its socio-political framework.
The facts are as follows: while upholding
the life sentence on Dara Singh, main accused in the Staines murder case,
Justices P. Sathasivam and B.S. Chouhan observed that the murder had taken
place in an atmosphere that had been poisoned by the conversion activism of
foreign missionaries in that part of Orissa. They said in their judgment pronounced
in open court:
- "It is undisputed that there is no
justification for interfering in someone's belief by way of use of force,
provocation, conversion, incitement or upon a flawed premise that one religion
is better than the other."
Now, this was perfectly legitimate and completely
non-controversial and irrefutable. In fact, it was a somewhat laboured reiteration
of the settled law of the land, as pronounced by the Supreme Court as early
as in 1977. In January of that year, a full Bench of the apex court, comprising
5 judges, delivered their landmark verdict in the Rev. Stainislaus case, and
clarified the legal position unambiguously (more on this later).
Immediately after the Dara Singh verdict was
announced on 21 January, the powerful Christian lobby in the country, spearheaded
by the Catholics, swung into action. These "soul-harvesters" were
touched to the quick; their bread and butter were once again under threat,
if not their gateaux and caviar. The outbursts were coordinated by a motley
group of rabble-rousers from various Christian groups, led by a certain John
Dayal, a former journalist who runs a strident pressure group from Delhi.
Now, Dayal, who hobnobs with Kashmiri separatists
as facilely as with the IIC lah-di-dah crowd, immediately went on the offensive
and made a number of raucous statements, the main one being: "Although
we are yet to analyse the full judgment of the Supreme Court, we are disturbed
by the parts carried by the media, mentioning terms like fraud and forcible
(sic) conversion. The Court must comment on Hindu conversions, termed Ghar
Wapsi. But more than anything, we fear such remarks may negatively impact
trials in Kandhamal, Orissa, and future challenges to so-called 'freedom of
religion laws' in various states… We do not want any court to pre-judge
the matter of conversions and violence. The real root cause of strife in which
Staines lost his life with his two kids was a misunderstanding of conversion.
We have seen communal violence not only against Christians, but also on Muslims
and Sikhs since India's Independence. It is unfortunate that Hindutva forces
look for an excuse to attack Christians and others because they believe that
India is for Hindus only. This goes against India's spirit of secularism."
The All India Christian Council (yet another
AICC, in the country's political lexicon), under whose umbrella Dayal was
crusading, went on to harrumph that "it might move (the) Supreme Court
to revise the reference at an appropriate time."
However, our two Supreme Court judges, proved
even more nimble-footed than what Dayal and company had expected. The original
judgement was pronounced on 21 Jan. (a Friday), and the cacophony orchestrated
by the Christian gang started straightaway, reaching a crescendo during the
weekend and on the following Monday.
On 25 Jan. (Tuesday), Sathasivam and Chouhan
re-opened the matter in open court and announced the deletions / changes.
There are some reports that the counsels for the two parties (the State and
Dara Singh) were given notice to attend, but this is not verifiable as yet.
What is certain is that there was no application for a Review Petition or
any other form of legal representation before the two judges, asking them
to reconsider their observations already on record. It was a suo motu act
by the two judges. Clearly, Dayal and his cohorts would have been delighted
and overjoyed with the supersonic speed of the two judges and their commendable
powers of foresight and anticipation.
What can possibly account for this change
of mind and heart? Divine intervention, a hyperactive conscience? Impossible
to pinpoint, for mere mortals. What happened was the observations quoted above
("It is undisputed that there is no justification for interfering in…)
were deleted / expunged and replaced by the platitudinous and ambivalent sentence,
"There is no justification for interfering in someone's religious belief
by any means." This piece of pontification has no judicial import at
all, either in the case under discussion or in general. All that can be said
is that the somersault of this Bench in this case will be debated for quite
some time.
The relevant question that will be raised
is whether such an act by the apex Court is legal, constitutional and proper?
Does it violate the basic canons of justice that the Supreme Court is duty
bound to uphold?
Under the circumstances, it is necessary to
recall the momentous Full Bench judgement of 1977 (that is still the declared
law of the land) and to study its core conclusions and their ramifications.
The facts of the case and the historical background were as follows.
Rev. Stainislaus v. State of Madhya Pradesh,
AIR 1977 SC 908
(Civil Appeal Nos. 1489 and 1511 of 1974:
judgement pronounced in January 1977)
(Before A.N. Ray, Chief Justice, and Justices
M.H. Beg, R.S. Sarkaria, P.N. Singhal, and Jaswant Singh)
This case was filed by a Roman Catholic priest,
Father Stainislaus, who challenged the constitutional validity of a law (the
Madhya Pradesh Dharma Swatantraya Adhiniyam) passed by the Madhya Pradesh
Government in 1968. This state law prohibited conversion by forcible methods
or by inducement.
Simultaneously, the Supreme Court also took up another case which challenged
the Orissa Freedom of Religion Act, 1967, since the issues involved were the
same. Other Christian parties also got themselves impleaded in the case.
The Full Bench of 5 judges of the Supreme
Court unanimously upheld the constitutional validity of these two pieces of
legislation (on grounds discussed below) and laid down the law of the land
on the vital issues of freedom of religion and limitation of the right of
conversion. The Supreme Court rejected every plea raised by the counsel representing
the Christian petitioners.
Basically, the Court analysed Article 25 of
the Constitution (freedom of conscience and free profession, practice and
propagation of religion) and noted that it is not an absolute right, unlike
some other fundamental rights like protection of life and liberty (Article
21) and right against exploitation (Article 23). Article 25 is subject to
public order, morality and health and to the other provisions of Part III
of the Constitution.
The act of "practice" of a religion
is concerned primarily with religious worship, ritual and observations. Propagation
means the right to communicate beliefs to another person or to expound the
tenets of one's religion, but does not include the right to conversion. "Propagation"
of one's religion cannot impinge on the "freedom of conscience"
of other citizens.
Article 25 does not grant a fundamental right
to convert persons of another faith to one's own religion. The freedom of
religion enshrined in the Article is not guaranteed in respect of one religion
only, but covers all religions alike and it can be properly enjoyed by a person
if he exercises his right in a manner commensurate with the like freedom of
persons following the other religions. What is freedom for one is freedom
for the other in equal measure, and there can, therefore, be no such thing
as a fundamental right to convert any person to one's own religion.
If a person purposely undertakes the conversion
of another person to his religion, that would impinge on the freedom of conscience
guaranteed to all the citizens of the country.
Public order has wide connotation and signifies
a state of tranquillity which prevails among the members of a political society
as a result of internal regulations enforced by the Government that they have
established. If a thing disturbs the current of the life of the community,
and does not merely affect an individual, it would amount to disturbance of
the public order. Thus, if an attempt is made to raise communal passions,
e.g. on the ground that some one has been forcibly converted to another religion,
it would, in all probability, give rise to an apprehension of a breach of
the public order, affecting the community at large.
States have the right to make laws for the
maintenance of public order, including legislation which is meant to avoid
disturbances to the public order by prohibiting conversion from one religion
to another in a manner reprehensible to the conscience of the community.
Freedom of religion guaranteed under Articles
25 of the Constitution is expressly made subject to public order, morality
and health. It cannot be predicated that freedom of religion can have no bearing
whatever on the maintenance of public order, or that a law creating an offence
relating to religion cannot under any circumstances be said to have been enacted
in the interests of public order.
It is obvious that the Stainislaus judgement was a carefully thought-out verdict,
judiciously crafted, and, above all, balanced. It is also unambiguous. The
first thoughts of Sathasivam and Chouhan, enunciated on 21 Jan., were therefore
perfectly legitimate and unobjectionable, since they echoed the conclusions
of their eminent brother judges 34 years earlier.
Now, we come to the question that bothers
all citizens. If judgments (of the highest judicial forum of the Republic)
have no finality and have a shelf life of less than 5 days, we are in for
trouble. Sathasivam and Chouhan are following in the footsteps of some of
their colleagues, one of whom is particularly garrulous and verbose, and has
withdrawn or changed observations in his judgments on at least two occasions.
There are people who may well say that the changes and alterations pertain
to obiter dicta and not to the substantive portion of the judgments. This
would be a disingenuous view; observations of the apex court have definite
influence on the legal working of juniors in the High Courts and lower courts.
After the ignominious performance of the previous
Chief Justice and the extremely serious disclosures made by Messrs. Shanti
Bhushan and Prashant Bhushan about the integrity of the country's last 16
Chief Justices, the Supreme Court hardly needs another sword hanging on its
head.
- The author is a senior corporate and industry
analyst
