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GS Paper: GS1-10.Social empowerment, communalism, regionalism & secularism.

  • Take immediate action against hate speech: SC

    hate-speech

    The Supreme Court has expressed concern over growing incidents of hate speeches in the country and directed the governments and police authorities to take suo motu action in such cases without waiting for lodging of formal complaints.

    Why in news?

    • There has been rising incidents of hate speeches targeting a particular community in India.

    What is ‘Hate Speech’?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    • 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
    • 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
    • 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    Why curb hate speeches?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

    Way forward

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

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  • Official Language Panel and a fresh ‘Hindi Imposition’ Row

    The 11th volume of the Report of the Official Language Committee headed by Home Minister submitted to President has triggered angry reactions from the CMs of Tamil Nadu and Kerala, who have described the Report as an attempt to impose Hindi on non-Hindi-speaking states.

    About the Official Language Panel (for Hindi)

    • The Committee of Parliament on Official Language was set up in 1976 under Section 4 of The Official Languages Act, 1963.
    • Section 4 of the Act says there shall be constituted a Committee on Official language, on a resolution to that effect being moved in either House of Parliament.
    • It should have the previous sanction of the President and passed by both Houses.

    Terms of reference of the committee

    • The Committee is chaired by the Union Home Minister, and has, in accordance with the provisions of the 1963 Act, 30 members — 20 MPs from Lok Sabha and 10 MPs from Rajya Sabha.
    • The job of the Committee is to review the progress made in the use of Hindi for official purposes, and to make recommendations to increase the use of Hindi in official communications.

    History of its establishment

    • With the active promotion of Hindi being mandated by Article 351 of the Constitution, the Official Language Committee was set up to review and promote the use of Hindi in official communications.
    • The first Report of the Committee was submitted in 1987.

    Issues with the committee

    • The name of the Committee is a little misleading.
    • This is because unlike the other Parliamentary panels, the Committee on Official Language is constituted by the Home Ministry.
    • It does not submit its report to Parliament like other Committees of Parliament.
    • The contents of the report submitted are not in the public domain.
    • The panel has the largest representation from the ruling majority party. This has made states more furious.

    What has the Shah panel recommended in its latest (2021) report?

    • Medium of instruction: The panel has made around 100 recommendations, including that Hindi should be the medium of instruction in IITs, IIMs, and central universities in the Hindi-speaking states.
    • Administrative communication: The language used for communication in the administration should be Hindi, and efforts should be made to teach the curriculum in Hindi, but the latter is not mandatory.
    • Hindi translation of HC verdicts: High Courts in other states, where proceedings are recorded in English or a regional language can make available translations in Hindi, because verdicts of High Court of other states are often cited in judgments.
    • Mandate for govt. officials: The panel wants state governments to warn officials that their reluctance to use Hindi would reflect in their Annual Performance Assessment Report (APAR).

    Why are these recommendations under criticism?

    The crux of the recommendations is being ‘perceived’ that-

    • There is a deliberate attempt to reduce the usage of the English language in official communication and to increase the usage of Hindi.
    • Knowledge of Hindi would be compulsory in a number of government jobs.

    Is this the first time that such recommendations have been made?

    • The makers of the Constitution had decided that both Hindi and English should be used as official languages for the first 15 years of the Republic.
    • But in the wake of intense anti-Hindi agitations in the south, the Centre announced that English would continue to be used even after 1965.
    • On January 18, 1968, Parliament passed the Official Language Resolution to build a comprehensive program to increase the use of Hindi for official purposes by the Union of India.

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  • SC takes up pleas against Places of Worship Act

    The Supreme Court has set the ball rolling on a series of petitions challenging the validity of the Places of Worship Act of 1991, a parliamentary law that protects the identity and character of religious places as on August 15, 1947.

    What are the petitions about?

    • A slew of petitions has been filed against the Act.
    • The Act has fixed a retrospective cut-off date illegally barring Hindus, Jains, Buddhists and Sikhs from approaching courts to re-claim their places of worship which were invaded and encroached.
    • The main objective of these petitions is to set right a historical wrong committed by barbaric invaders.

    Places of Worship Act, 1991

    • It was passed in 1991 by the P V Narasimha Rao-led government.
    • The law seeks to maintain the “religious character” of places of worship as it was in 1947 — except in the case of the Ram Janmabhoomi-Babri Masjid dispute, which was already in court.
    • The law was brought in at the peak of the Ram Mandir movement, exactly a year before the demolition of the Babri Masjid.
    • Introducing the law, then Home Minister S B Chavan said in Parliament that it was adopted to curb communal tension.

    What are its provisions?

    What are its provisions?

    • Anti-conversion: Section 3 of the Act bars the conversion, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination — or even a different segment of the same religious denomination.
    • Holiness of a place: Section 4(1) declares that the religious character of a place of worship “shall continue to be the same as it existed” on August 15, 1947.
    • Litigation: Section 4(2) says any suit or legal proceeding with respect to the conversion of the religious character of any place existing on August 15, 1947, pending before any court, shall abate — and no fresh suit or legal proceedings shall be instituted.
    • Exception for Ayodhya: Section 5 stipulates that the Act shall not apply to the Ramjanmabhoomi-Babri Masjid case, and to any suit, appeal or proceeding relating to it.

    Why is the law under challenge?

    • The cut-off date of August 15, 1947, is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship.
    • Such places, he argued, were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
    • The right-wing politicians have opposed the law even when it was introduced, arguing that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
    • Another criticism against the law is that the cut-off is the date of Independence, which means that the status quo determined by a colonial power is considered final.

     

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  • Gyanvapi -Kashi Vishwanath Temple Complex Dispute

    gyanvapi

    The Varanasi District and Sessions Court has rejected the plea of the organization which manages the Gyanvapi mosque complex, challenging the maintainability of the civil suits filed by some women seeking the right to worship Goddesses on the outer wall of the complex.

    About Gyanvapi Mosque

    • The Gyanvapi Mosque was built in 1669 during the reign of the Mughal emperor Aurangzeb, who ordered the demolition of the existing Vishweshwar temple at the site, and its replacement by a mosque.
    • The plinth of the temple was left untouched, and served as the courtyard of the mosque.
    • One of the walls too was spared, and it became the qibla wall, the most important wall in a mosque that faces Mecca.
    • Material from the destroyed temple was used to build the mosque, evidence of which can be seen today.
    • The name of the mosque is said to have derived from an adjoining well, the Gyanvapi, or Well of Knowledge.
    • An old sculpture of the Nandi bull inside the compound of the present Kashi Vishwanath Temple faces the wall of the mosque instead of the sanctum sanctorum of the temple.
    • It is believed that Nandi is in fact, facing the sanctum sanctorum of the original Vishweshwar temple.

    The temple to Lord Shiva

    • For more than 100 years after the mosque was built, there was no temple at the site.
    • The present Kashi Vishwanath Temple was built in the 18th century by Rani Ahilyabai Holkar of Indore, immediately to the south of the mosque.
    • Over the decades it emerged as one of the most prominent and revered centres of the Hindu religion.
    • Many Hindus have long believed that the original deity of the erstwhile Vishweshwar temple was hidden by the priests inside the Gyanvapi well during Aurangzeb’s raid.
    • This has fired the desire to conduct puja and rituals at the sacred place where the mosque now stands.

    Longstanding claims

    • From time to time, petitioners have laid claim to the mosque, saying it remains the original sacred place of Hindu worship.
    • The Ayodhya movement also aimed to “liberate” the Kashi-Vishwanath Temple-Gyanvapi mosque site and the Shri Krishna Janmabhoomi in Mathura as well.

    What laws restrict such acts?

    • The Places of Worship (Special Provisions) Act, 1991 — which mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947.
    • It maintains that no encroachment of any such place prior to the date can be challenged in courts — applies to the disputed complex in Varanasi.

    What was the case before the Court?

    • The temple worshipers side had argued that the mosque was built on the site of an older temple, while the another side pleaded that the mosque was built on Wakf premises.
    • The plea also said that The Places of Worship Act of 1991 barred the changing of the character of the mosque.
    • The case was initially heard by the Civil Judge (Senior Division), Varanasi, but it was transferred by the Supreme Court to the District Judge on grounds of the “complexity of the issues involved in the civil suit”.
    • The Supreme Court said it would wait for the district court’s decision on the mosque committee’s application before intervening in the matter.

    Issue in Limelight

    • In April 2021, Fast Track Court Civil Judge ordered the Archaeological Survey of India to get a comprehensive archaeological physical survey” done of the Kashi Vishwanath Temple-Gyanvapi Mosque complex.
    • It was tasked to find out as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is a structural overlapping of any kind, with or over, any religious structure.
    • The mosque is not an ASI-protected site, and the ASI has no role in its maintenance or upkeep.

    What are the people seeking now?

    • Worshippers find the cut-off date of August 15, 1947, is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship.
    • Such places, they argue, were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
    • Certain groups have opposed the law even when it was introduced, arguing that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which are under the state list.

     

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  • Uniform Civil Code

    uniform civil code

    The expert committee formed by the Uttarakhand government to examine ways for the implementation of a Uniform Civil Code (UCC) has launched a website, seeking public opinion on the plan.

    What is a Uniform Civil Code?

    • A Uniform Civil Code (UCC) is one that would provide for one personal civil law for the entire country.
    • This would be applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

    Basis for Uniform Civil Code

    • Article 44, one of the Directive Principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

    Personal Laws And Uniform Civil Code: Timeline

    # British period
    During the British Raj, Personal laws were first framed mainly for Hindu and Muslims citizens.

    # Start of 20th Century
    In the beginning of the twentieth century, the demand for a uniform civil code was first put forward by the women activists. The objective behind this demand was the women’s rights, equality and secularism.

    # 1940 – The Idea of Uniform Civil Code is born
    The idea of Uniform Civil Code was tabled by the National Planning Commission (NPC) appointed by the Congress. There was a subcommittee who was to examine women’s status and recommends reforms of personal law for gender equality.

    # 1947 – Question of UCC as a Fundamental Right
    UCC was sought to be enshrined in the Constitution of India as a fundamental right by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr. B.R Ambedkar.

    # 1948 – Constitution Assembly debated UCC
    Article 44 of the Indian Constitution i.e. Directive Principles of State Policy sets implementation of uniform civil laws which is the duty of the state under Part IV.

    # 1950 – Reformist Bill passed
    Reformist bills were passed which gave the Hindu women the right to divorce and inherit property. Bigamy and child marriages are outlawed. Such reforms were resisted by Dr. Rajendra Prasad.

    # 1951 – Dr. Ambedkar Resigns
    Dr. Ambedkar resigned from the cabinet in 1951 when his draft of the Hindu Code Bill was stalled by the Parliament.

    # 1985 – Shah Bano Case
    In this case, a divorced Muslim woman was brought within the ambit of Section 125 of Code of Criminal Procedure, 1973 by the Supreme Court in which it was declared by the Apex court that she was entitled for maintenance even after the completion ofiddatperiod.

    # 1995- Sarla Mudgal v. Union of India
    In this case, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.

    # 2000 – Supreme Court advocates UCC
    The case of Lily Thomas v. Union of India (2000),where the Supreme Court said it could not direct the centre to introduce a UCC.

    # 2015 – The Debate lives through
    The apex court refused to direct the government to take a decision on having a UCC.

    # 2016 – Triple Talaq Debate
    When PM asked the Law Commission to examine the issue.

    # 2017 – Ruling of the Triple Talaq case
    Triple Talaq (Talaq -e- biddat) was declared unconstitutional on August 22, 2017.

    UCC vs. Right to Freedom of Religion

    1. Article 25 lays down an individual’s fundamental right to religion
    2. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
    3. Article 29 defines the right to conserve distinctive culture

    Reasonable restrictions on the Freedom of Religion

    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Minority Opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

    Enacting and Enforcing UCC

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

    What about Personal Laws?

    • Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • “Personal Laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on the registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

     Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by minorities as an encroachment of religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

    These questions need to be addressed which are being completely ignored in the present din around UCC.

    1. Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
    2. Secondly, what makes us believe that practices of one community are backward and unjust?
    3. Thirdly, has other uniformities been able to eradicate inequalities that diminish the status of our society as a whole?

    Way forward

    • It should be the duty of the religious intelligentia to educate the community about its rights and obligations based on modern liberal interpretations.
    • A good environment for the UCC must be prepared by the government by explaining the contents and significance of Article 44 taking all into confidence.
    • Social reforms are not overnight but gradual phenomena. They are often vulnerable to media evils such as fake news and disinformation.
    • Social harmony and the cultural fabric of our nation must be the priority.

     

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  • Kashmiri pandits

    Kashmiri panditsContext

    • Recent events of targeted killings of Kashmiri pandits and other Hindus by the militants in the valley lead to the protests which once again brought forward the question of their right to return and the safety of minorities living in the valley

    Who are the Kashmiri pandits?

    • The Kashmiri Pandits are one of the highest ranked Brahman castes who are the natives of the valley, locally known as pundits.
    • They were the minority in the valley comprising only 5% of the total population.
    • Traditionally dependent on agriculture and small-scale business and one of the favored sections in the administration.

    What is the conflict?

    • Radical Islamists and militants started targeting the Kashmiri pundits putting in front the option of either of conversion or persecution.
    • The Growth of militancy in the 1990s forced Kashmiri pandits to leave the valley in greater numbers. They started migrating to the other states, leaving every belonging behind and seeking refuge in other parts.
    • While many of them started migrating some decided to stay back in their homeland.
    • Conflict arose between radical Islamists organization and the Hindus leading to the mass killings of the Kashmiri Hindus in waves which is termed as exodus.

    kashmiri panditWhat has been done so far?

    • After the Pandit exodus from the Valley in the 1990s, the first few years of this century saw government efforts to send Pandits back to the Valley.
    • Under the Prime Minister’s return and rehabilitation of Kashmir migrants scheme, created government postings in the Valley for Kashmiri Pandit “migrant” youth.
    • Mostly, teachers and these government employees have lived in protected high security enclaves, but their work requires them to leave these enclaves and mingle with the rest of the population. Another segment, known as “non-migrant” Pandits because they never left the Valley, has lived in their own homes, without state-provided protection.

    What is CDR?

    • Centre for dialogue and reconciliation (CDR) is a Delhi-based think-tank incorporated in March 2001, aims to be a catalyst for peace in South Asia.
    • CDR working for the peace-building process in Jammu Kashmir, supported the initiative of dialogue between the two communities as a part of self-assessment, acknowledging the mistakes.

    kashmiri panditsWhat did CDR do in Kashmir?

    • CDR supported the initiative for a dialogue proposed by two prominent young Kashmiris one a Muslim and the other a Pandit both who have witnessed the violence of 1990 and the subsequent years.
    • They believe in the principle of talking could lead to healing.
    • It led to CDR’s ‘Shared Witness’, a Pandit-Muslim dialogue series, in December 2010.
    • Public intellectuals and other influential persons from both communities were participants

    Observations of the dialogue

    • The dialogue series coincided with the launching of the Prime Minister’s job scheme.
    • Dialogues created a social environment that enabled Kashmiri Pandits to take up government postings in the Valley.
    • They focused on the events in and around 1990, and the incidents that triggered the displacement of the Pandit community.
    • By the third dialogue, participants were sharing individual experiences that did not fit into the narrative that each community had built about the other.
    • The process of the conversation lead them to think on the actual reason behind the conflict, was it communal differences, or was it only religion?

    From the eyes of the pandits

    • Pandits were aggrieved that the Muslims did not protest the Pandit killings, not even when the killers claimed them. That greater responsibility lay with the Muslims as they were the majority.
    • If some social organizations had acted quickly, the exodus could have been stopped.
    • They observed that the Pandit community too had suffered from a lack of leadership.
    • They demand an apology and to set up of possible “Truth commission”

    What do the Muslims say?

    • The Muslim participants felt the Pandits were in denial of the struggle of the Muslims in the Valley, who were facing violence from the system.
    • The Kashmiri Muslim was always portrayed as being misguided, aided, and abetted by Pakistan.
    • The protest in Kashmir was not against religion but against structures of power and oppression.

    What is the Current situation?

    • The fresh spate of targeted killings of Kashmir pandits created an environment of fear and provided a major setback to their rehabilitation in the Kashmir valley.

    Way ahead:

    • We need urgent civil society engagement between communities in Kashmir once again.
    • The government can enable it, but individuals and civil society will need to create conditions on the ground. They will have to encourage people to give up the blame game.

     

    Mains question

    Q. Dialogue can bring peace in Kashmir valley. Critically examine.

     

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  • Positive Secularism is allowed: Student to SC in hijab case

    India believes in ‘positive secularism’ based on tolerance of all religious faiths and not ‘negative secularism’ followed in countries like France which holds that display of religion in public is offensive, said a student from Karnataka who has challenged the ban on wearing hijab to school.

    What is Positive Secularism?

    • Secularism is most commonly defined as the separation of religion from civic affairs and the state.
    • It may be broadened to a similar position seeking to remove or to minimize the role of religion in any public sphere.
    • Positive secularism is where the state plays an enabler role in the exercise of fundamental rights and the religious freedoms of all communities.

    What did the petitioner argue?

    • The petitioner replied that the Constitution itself says that all religions have to be treated with equal respect.
    • It said that the Supreme Court has also held in the Aruna Roy Judgment that there should be no discrimination on the ground of any religion.
    • It went on to say that the State should show ‘reasonable accommodation’ of Muslim students’ right to wear hijab to school as a part of her right to expression, religion and dignity.

    Circumstances where hijab can be prohibited in school

    The State can only restrict her right in three circumstances, the petition highlighted.

    1. One, to protect public order, morality and health.
    2. Two, to protect another fundamental right.
    3. Three, if such a restriction is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform.

    What was the judgment announced by Karnataka HC?

    • The HC held that wearing hijab is not an essential religious practice in Islam and is not, therefore, protected under by the right to freedom of religion guaranteed by Article 25 of the Constitution.
    • The court said it was a reasonable restriction that was constitutionally permissible.
    • The Bench also upheld the legality of the order prescribing guidelines for uniforms in schools and pre-university colleges under the provisions of the Karnataka Education Act, 1983.
    • The court said that school uniform will cease to be a uniform if hijab is also allowed.

    Also read

    [Burning Issue] Freedom of religion and attire

     

     

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  • Challenging the Special Marriage Act, 1954

    The Supreme Court has dismissed a writ petition challenging the Constitutional validity of certain provisions of the Special Marriage Act, 1954 under which couples seek refuge for inter-faith and inter-caste marriages.

    What is Special Marriage Act, 1954?

    • The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
    • However, some practical problems arise in registering such marriages.
    • The law’s features on prior public notice being given and objections for the safety and privacy of those intending to marry across religions.
    • To overcome this, many settle for marriage under the personal law of one of them, with the other opting for religious conversion.

    What does the petition seek?

    • The Supreme Court dismissed a writ petition challenging the Constitutional validity of certain provisions of the SMA under which couples seek refuge for inter-faith and inter-caste marriages.
    • The writ petition has called these provisions violative of Article 21, which guarantees the right to privacy.
    • Under this act, the couples require to give a notice of 30 days before the date of marriage inviting objections from the public.
    • The provisions contravene Article 14 on prohibition of discrimination on grounds of religion, race, caste and sex as well as Article 15 on right to equality as these requirements are absent in personal laws.

    What did the court say?

    • The SC Bench rejected the writ petition on the grounds that the petitioner was no longer an aggrieved party as she had already solemnised her marriage under SMA.
    • The petitioner’s lawyers said that they were now deliberating on an alternative approach to initiate this litigation such as through a public interest litigation involving other victims.
    • Another writ petition is admitted by the Supreme Court in 2020 and the government’s reply to is awaited.

    What are the provisions that have been challenged?

    • Section 5 of the SMA requires couples getting married under it to give a notice to the Marriage Officer 30 days before the date of marriage.
    • Section 6 requires such a notice to be then entered into the Marriage Notice Book maintained by the Marriage Officer, which can be inspected by any person desirous of inspecting the same.
    • These notices have to be also affixed at a “conspicuous place” in the office of the Marriage Officer so that anyone can raise an objection to the marriage.
    • Section 7 provides the process for making an objection such as if either party has a living spouse, is incapable of giving consent due to “unsoundness of mind” or is suffering from mental disorder resulting in the person being unfit for marriage or procreation.
    • Section 8 specifies the inquiry procedure to be followed after an objection has been submitted.

    Why are these provisions contentious?

    • The provisions throw the personal information of the individuals open to public scrutiny. This may result into vigilantism.
    • This seriously damages one’s right to have control over her or his personal information and its accessibility.
    • By making the personal details of the couple accessible to everyone, the very right of the couple to be the decision makers of their marriage is being hampered by the state.

    How do these provisions make couples vulnerable?

    • These public notices have been used by anti-social elements to harass couples getting married.
    • For many who often marry without their parent’s consent this can be life-threatening.
    • Many states publicly share the details of couples marrying under SMA on their websites.
    • Many also complain about the behaviour of the staff at the SDM’s office who often delete or delay applications and dissuade couples from marrying under SMA.
    • With as many as 11 States passing anti-conversion (or so-called love-jihad) laws, parents and the State are now armed to punish and harass such couples.

     

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  • Parliamentary panel reviews Goa Civil Code

    A parliamentary panel has reviewed Goa’s uniform civil code, and some of its members feel that there are some peculiar and outdated provisions related to matrimony in it.

    What is Goa Civil Code?

    • The Goa Civil Code is a set of civil laws that governs all residents of the coastal State irrespective of their religion and ethnicity.
    • Citing various positives of the Goa Civil Code, Goa CM had urged that it could be a model for implementing the UCC across the country.

    Why in news?

    • GCC has come under focus amid a call for the implementation of a Uniform Civil Code (UCC) across the country.
    • The UCC features prominently on the present regime’s ideological agenda, and the party had made promises on it in the run-up to the Lok Sabha elections in 2014 and 2019.
    • This had an intimidating impact on certain sections of the population whose archaic provisions of personal laws were untouched for the sake of appeasement.

    Why Goa model is in news?

    • It was observed that a majority of the State’s people are “quite happy and content with it”.
    • It is a living example of peaceful implementation of UCC.
    • There were, however, some peculiar clauses in the law related to matrimony and division of property, which were outdated and not based on the principle of equality.

    What is a Uniform Civil Code?

    • A Uniform Civil Code (UCC) is one that would provide for one personal civil law for the entire country.
    • This would be applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

    Basis for UCC

    • Article 44, one of the Directive Principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

    UCC vs. Right to Freedom of Religion

    1. Article 25 lays down an individual’s fundamental right to religion
    2. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
    3. Article 29 defines the right to conserve distinctive culture

    Reasonable restrictions on the Freedom of Religion

    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Minority Opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organizations, including Hindu organizations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

    What about Personal Laws?

    • Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • “Personal Laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

     Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by the minorities as an encroachment of religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

    These questions need to be addressed which are being completely ignored in the present din around UCC.

    1. Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
    2. Secondly, what makes us believe that practices of one community are backward and unjust?
    3. Thirdly, has other uniformities been able to eradicate inequalities which diminish the status of our society as a whole?

    Way forward

    • It should be the duty of the religious intelligentia to educate the community about its rights and obligations based on modern liberal interpretations.
    • A good environment for the UCC must be prepared by the government by explaining the contents and significance of Article 44 taking all into confidence.
    • Social reforms are not overnight but gradual phenomenon. They are often vulnerable to media evils such as fake news and disinformation.
    • Social harmony and cultural fabric of our nation must be the priority.

     

    Also read this comprehensive article:

    [Sansad TV] Perspective: Uniform Civil Code

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  • IPC Sec 295A: Dealing with Hate Speech and Blasphemy

    The debate surrounding the comments by some political spokespersons has put the spotlight on the IPC Sec 295A which deals with criticism of or insult to religion.

    What is the news?

    • India does not have a formal legal framework for dealing with hate speech.
    • However, a cluster of provisions, loosely termed hate speech laws, are invoked.
    • There are primarily some laws to deal with offences against religions.

    What is Section 295A?

    • Section 295A, define the contours of free speech and its limitations with respect to offences relating to religion.
    • It prescribes punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
    • It calls for imprisonment of either description for a term which may extend to [three years], or with fine, or with both.
    • It has been invoked on a wide range of issues from penalising political satire and seeking bans on or withdrawal of books to even political critique on social media.

    Chapters to penalise religious offences

    Section 295A is one of the key provisions in the IPC chapter to penalise religious offences. The same chapter includes offences to penalise:

    1. Damage or defilement of a place of worship with intent to insult the religion (Section 295)
    2. Trespassing in a place of sepulture (burial) (Section 297)
    3. Uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298) and
    4. Disturbing a religious assembly (Section 296)

    Origins of the law

    • Colonial origins of the hate speech provisions are often criticised for the assumption that Indians were susceptible to religious excitement.
    • Section 295A was brought in 1927.
    • The antecedents of Section 295A lie in the communally charged atmosphere of North India in the 1920s.
    • The amendment was a fallout of an acquittal under Section 153A of the IPC by the Lahore High Court in 1927 in Rajpaul v Emperor, popularly known as the Rangila Rasool case.

    Frequency of use

    • The state often invokes Section 295A along with 153A of the IPC, which penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
    • It acts prejudicial to maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief.

    What about online hate speech?

    • In cases where such speech is online, Section 66A of the Information Technology Act was invoked.
    • However, in a landmark verdict in 2015, the Supreme Court struck down Section 66A as unconstitutional on the ground that the provision was “vague” and a “violation of free speech”.
    • However, the provision continues to be invoked.

    Issues with such laws

    • The broad, vague terms in the laws are often invoked in its misuse.
    • Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment.
    • Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.

     

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