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

  • 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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  • What is the Places of Worship Act?

    The Supreme Court will hear a challenge to the order of a civil court in Varanasi directing a videographic survey of a temple- mosque complex upholding the Places of Worship (Special Provisions) Act, 1991.

    What is the Places of Worship Act?

    • The long title describes it as an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship.
    • It holds places of worships as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto.

    When was this law passed?

    • The Act was brought in 1991 by the then pseudo-secular government at a time when the Ram temple movement was at its peak.
    • Then, communal tensions in India were at peak.
    • Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past.
    • It sought to provide the confidence to every religious community that their places of worship will be preserved and that their character will not be altered.

    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.

    Issues with the law

    • The law has been challenged on the ground that it bars judicial review, which is a basic feature of the Constitution.
    • It imposes an “arbitrary irrational retrospective cutoff date”, and abridges the right to religion of Hindus, Jains, Buddhists and Sikhs.

    What is the recent controversy?

    • The temple-mosque complex in Varanasi clearly shows that the mosque stands over a rundown temple.
    • Videography shows the presence of Hindu deities inside the mosque.
    • Right-wing propagandists highlight the intention of Aurangzeb behind leaving remnants of the temple to keep reminding communities of their historical fate and to remind coming generations of rulers of their past glory and power.

    What did the Supreme Court say in its Ayodhya judgment?

    • The constitutional validity of the 1991 Act was not under challenge, nor had it been examined before the Supreme Court Bench that heard the Ramjanmabhoomi-Babri Masjid title suit.
    • The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.
    • The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution.
    • The Places of Worship Act is a legislative intervention which preserves non-retrogression as an essential feature of our secular values.

     

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  • Anti-Mob lynching Bills passed by States go unimplemented

    Bills passed against mob lynching in some states have not been implemented since lynching is not defined as a crime under the Indian Penal Code (IPC).

    Why are the bills pending?

    • Most bills have been reserved by the Governor for consideration of the President.
    • The President has to go with the advice given by the Council of Ministers, in the case of such legislations, represented by the MHA.
    • The Union Home Ministry examines the State legislations on three grounds-
    1. Repugnancy with Central laws
    2. Deviation from national or central policy and
    3. Legal and constitutional validity

    What is Mob Lynching?

    • Lynching is a premeditated extrajudicial killing by a group.
    • It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, or to intimidate a group.
    • Recent incident can be recalled from Pakistan where a Sri Lankan national was set ablaze over blasphemy charges.

    Dealing with lynching in India

    • In 2017, the National Crime Records Bureau (NCRB) collected data on mob lynching, hate crimes and cow vigilantism but it was not published and discontinued.
    • This is because, there is “no separate” definition for lynching under the IPC.
    • However, lynching incidents could be dealt with under Sections 300 and 302 of the IPC, pertaining to murder.
    • In 2018, the Supreme Court asked Parliament to make lynching a separate offense.
    • Since then, the government is working to overhaul the IPC framed in 1860 and the Code of Criminal Procedure (CrPC) to consider mob-lynching.

    Why anti-lynching law is necessary?

    • Fills the void: It fills a void in our criminal jurisprudence.
    • Lawlessness: The Indian Penal Code has provisions for unlawful assembly, rioting, and murder but nothing that takes cognizance of a group of people coming together to kill (a lynch mob).
    • Rise in Lynching incidents: There has been a rise in lynching incidents in recent years.

    Reason for the rise in lynchings

    • Impunity: The lynch mobs are confident of getting away with it. So far, the state has done little to shake that confidence.
    • Communalism: In the case of cow-linked lynchings, a lot depends on whether the incumbent in power considers it compatible with its political interests to crack down on such attacks.
    • Fake news: Another factor that gave rise to lynchings is the spread of fake news through social media platforms which incite a sudden wave of antagonism.
    • Alienation: With modernity, there is a growth of individualism and erosion of associational life. The sense of fraternity has been fading away due to this.
    • Unemployment: High Unemployment rates leave millions of youth unengaged.

    Effect of lynching

    (1) State

    • Violation of FR: It is against the values upheld in the constitution of India. Every individual have certain fundamental rights any violence would be a curtailment of this right.
    • Law and order crisis: Lynchings have led to degrading regard to law and order.

    (2) Economy

    • Reputation damage: Many International agencies warned India against mob lynching incidents. This impacts both foreign and domestic investment thereby adversely affecting sovereign ratings.
    • Impact on migration patterns: It directly hampers internal migration which in turn affects economy.
    • Damage of public property: Large resources deployed to tackle such menaces induces extra burden on state-exchequer.

    (3) Society

    • Fear of radicalization: Radical and extremist organizations such as ISIS etc could take leverage of the atmosphere created by such incidents.
    • Communal disharmony: This impact solidarity of society and idea of Unity in diversity. This create an atmosphere of majority v/s minority.
    • Intolerance: It could aggravate caste, class and communal hatred. Such acts shows loss of tolerance in society and people are being swayed by emotions, prejudices etc.

    Way forward

    • States should be more vigilant and proactive in flagging rumors using social media and other platforms.
    • Some states are doing it, others need to emulate these examples.
    • The more proactive the administration is in this regard, the stronger a deterrent it will be.
    • There is also a need for a special court for the trial of mob violence.

     

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  • What is Public Order?

    The Karnataka High Court is hearing a challenge to the constitutionality of the state government’s ban on students wearing a hijab in educational institutions. The judges heard an argument on whether the state can justify the ban on the ground that it violates ‘public order’.

    What is Public Order?

    • Public order is one of the three grounds on which the state can restrict freedom of religion.
    • It is also one of the grounds to restrict free speech and other fundamental rights.
    • Article 25 of the Constitution guarantees to all people’s right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.

    Who can check it?

    • Public order is normally equated with public peace and safety.
    • What affects public order is contextual and is determined by the state.
    • According to List 2 of the Seventh Schedule of the Constitution, the power to legislate on aspects of public order rests with the states.

    How does it relate to the hijab ban?

    • According to the government order issued under the Karnataka Education Act, 1983, “public order” is one of the reasons for not allowing students to wear a headscarf in educational institutions along with “unity” and “integrity”.
    • The petitioners have asked the state to show how the mere wearing of a hijab by students could constitute a public order issue.
    • Another argument made is that the government cannot delegate the power to college committees the function of determining whether the hijab was detrimental to public order.
    • The government order states that while individual college committees are free to determine the uniform, in the absence of such rules the government order banning the headscarf would apply.
    • Only the government can make an assessment of public order.

    How has the state responded?

    • The government order makes no mention of “public order” and that the petitioners reading of the order could be an error in translation.
    • The order, in Kannada, uses the words “sarvajanika suvyavasthe”.
    • Incidentally, the official Kannada translation of the Constitution uses “sarvajanika suvyavasthe” for “public order” in all nine instances.

    How has public order been interpreted by courts?

    • Courts have broadly interpreted it to mean something that affects the community at large and not a few individuals.
    • In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the case of ‘public order’, the community or the public at large have to be affected by a particular action.
    • One has to imagine three concentric circles:
    1. the largest representing ‘law and order’
    2. the next representing ‘public order’ and
    3. the smallest representing ‘security of State’

    Arguments against the K’taka Order

    • In the Karnataka case, the petitioners have argued:
    1. Public order is not every breach of law and order.
    2. Public order is an aggravated form of disturbance that is much higher than a law and order issue.

    Conclusion

    • Thus it is evident that wordplay is given more cognisance over the interpretation of constitution.

     

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  • Debate over Freedom of Religion and Attire

    A row over whether educational institutions can impose a strict dress code that could interfere with the rights of students has spilled in the Udupi district of Karnataka.

    Don’t you think that such instances incite fear among the politically destitute minorities?

     

    Religious Freedom in India

    • Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
    • It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.

    Restrictions on religious freedom

    • Like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
    • Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.
    • In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion.

    The test to determine what is integral is termed the “Essential Religious Practices” test.

    What is the essential religious practices test?

    • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
    • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
    • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
    • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

    Issues with this Test

    • In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself, the SC had held in the Shirur Mutt case.
    • So the test, a judicial determination of religious practices, has often been criticized by legal experts as it pushes the court to delve into theological spaces.
    • In criticism of the test, scholars agree that it is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected.
    • In several instances, the court has applied the test to keep certain practices out.

    Precursors related to Hijab

    • Two set of rulings of the Kerala High Court, particularly on the right of Muslim women hold dressing according to the tenets of Islam.
    • In 2015, Kerala HC ruled the prescription of dress code for AIPMT exam which prescribed wearing light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser and slippers and not shoes.
    • In 2016, it examined the issue more closely. It held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule.
    • The court once again allowed for the “additional measures” and safeguards put in place the previous year.

     

     

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