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

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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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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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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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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Amid opposition, the Karnataka Protection of Right to Freedom of Religion Bill, 2021, was introduced in the Assembly.

What is the Bill about?

• The Bill envisages stringent provisions for forced or induced conversions.
• The government wants to prohibit conversion by:

1. Misrepresentation
2. Force
3. Allurement
4. Fraudulent means
5. Marriage
6. Coercion and undue influence

Key features of the Bill

(1) Filing of Complaints

• Complaints of conversions can be filed by family members of a person who is getting converted, or any other person who is related to the person who is getting converted, or any person associated with the person getting converted.

(2) Punishment and fines

• The offense of conversion is cognisable and non-bailable and will attract a jail term of three to five years and a fine of ₹25,000 for people found violating the law.
• There is a jail term of three to 10 years, and a fine of ₹50,000 for people converting minors, women and persons from the SC and ST communities.
• The Bill also envisages a compensation of ₹5 lakh to victims of forced conversions.

Do you know?

Odisha was the first State to enact anti-conversion legislation, the Orissa Freedom of Religion Act, 1967. Madhya Pradesh enacted the same the following year.

What about willful conversion?

• Prior information: After the law comes into force, any person intending to convert to another religion will have to inform the district magistrate at least thirty days in advance.
• Due inquiry of purpose: The person executing the conversion must also give a notice one month in advance, following which an inquiry will be conducted by the district magistrate through the police to establish the real intent of conversion.
• Defying the conversion: Not informing the district magistrate will lead to the conversion being declared null and void.

Impact of non-conformance

• Not informing authorities will carry a prison term of six months to three years for persons who are converted and one year to five years for the persons carrying out the conversions.
• After getting converted, the person has to again inform the district magistrate within 30 days after conversion and must appear before the district magistrate to confirm his/her identity.

What happens once the Conversion is held valid?

• Post conversion, the district magistrate has to inform revenue authorities, the social welfare, minority, backward classes and other departments of the conversion.
• These authorities will, in turn, take steps with respect to the entitlements of the person in terms of reservations and other benefits.

How many states have enacted the legislation?

• Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh and Uttarakhand have laws restricting religious conversion.
• Penalties for breaching the laws can range from monetary fines to imprisonment, with punishments ranging from one to three years of imprisonment and fines from ₹5,000 to ₹50,000.
• Some of the laws provide for stiffer penalties if women, children, or members of Scheduled Castes or Scheduled Tribes (SC/ST) are being converted.
• Some other States, including Manipur, are reportedly “considering similar laws.”

How has Parliament handled anti-conversion bills?

After independence, Parliament introduced a number of anti-conversion bills which were not enacted for want of majority approval.

• In post-Independent India, the first Indian Conversion (Regulation and Registration) Bill, 1954, which sought to enforce “licensing of missionaries and the registration of conversion.”
• This was followed by the introduction of the Backward Communities (Religious Protection) Bill, 1960, “which aimed at checking conversion of Hindus to ‘non-Indian religions’ .
• Non-India religions included Islam, Christianity, Judaism and Zoroastrianism,.
• The Freedom of Religion Bill in 1979, which sought “official curbs on inter-religious conversion.”

Religious conversion: A Constitutionality check

• Indian Constitution aspires toward tolerance of all religions and guaranteed that each person was “equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” (Article 25).
• This formulation did not come without dispute; the word “propagate” was one of the most contested in the whole of Indian Constitution.

Core issue: Prevalence of Inter-faith Marriage

• India has the Special Marriage Act, 1954, which can be used by inter-faith/inter-community couples to get married.
• The Act, however, requires an advance notice of 30 days to the magistrate before a couple is able to register their marriage.
• When the parties are from different faiths, communities or castes, such a public notice can be, and has been, a great source of danger and harm from their family/community members.
• Consequently, the only option exercised by the inter-faith couples is for one of them to convert to the religion of the other and get married.

Issues with such laws

The anti-conversion laws have been challenged on the ground that innocent persons were being booked under these Acts.

• Patriarchal dominance: It is widely presumed that such conversions involve ‘coercion’ or ‘deceit’, and hence, Hindu women ought to be ‘protected’ from the danger of conversion.
• Targeting minorities: These laws target Muslims and quoted instances of such inter-faith couples having been harassed by militant activists and state government authorities.
• Freedom of Conscience: Women, it is clear, are being treated in a paternalistic way which assumes that they need protection at the cost of their right to make reasoned decisions about changing faith or choosing a friend or life partner.

What about Incentivised Conversions?

• There are many cases of incentivized conversions for the poor sections of society in exchange for a dignified social life.

For them, the solution lies in addressing the root issues:

1. Ending discrimination
2. Providing high quality and free education to the poor and disenfranchised
3. Improving access and quality of free health facilities and medicines
4. Improving nourishment and
5. Providing adequate employment opportunities to all

Conclusion

• Clearly, anti-conversion laws amount to discrimination and a violation of the right to equality.
• However, inter-faith marriages should not be pre-conditioned with religious conversion. This certainly raises concerns for the majority of society.
• Instead of pursuing this disastrous course, the government could work towards removing impediments to inter-faith marriages and eradicating the social stigma attached to such marriages.
• The couples who wish to enter into an inter-faith alliance are enabled and protected.

 

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The Gujarat High Court this week stayed key provisions of The Gujarat Freedom of Religion (Amendment) Act, 2021 pertaining to marriages involving religious conversion of either of the two parties.

What is the Anti-Conversion Law?

• The legislation has amended the 2003 Gujarat Freedom of Religion Act.
• The amendment was brought in line with several similar laws enacted last year by right-wing-ruled states, starting with Uttar Pradesh.
• The laws seek to end conversion through unlawful means, specifically prohibit any conversion for marriage, even if it is with the consent of the individual except when a prior sanction is obtained from the state.
• Apart from UP and Gujarat, Madhya Pradesh and Himachal Pradesh too, have also enacted similar laws.

Controversial provisions

• Vagueness: It gives powers to the state to conduct a police inquiry to verify the intentions of the parties to convert for the purposes of marriage.
• Burden of proof: Section 6A reverses the burden of proof on the partner of the converted spouse to prove that he/she did not coerce the other spouse.
• Intent of marriage: Section 4 allows the aggrieved person, their parents, brother, sister, or any other person related by blood or marriage or adoption to file an FIR challenging the conversion and subsequent marriage.
• Conversion as Allurement: The law considers lawful conversions as “allurement” in vague.
• Discrimination: It defines over-broad terms; prescribes different jail terms based on gender; and legitimizes the intrusion of family and the society at large to oppose inter-faith marriages.

Issues with such laws

• Stereotyping of lawful conversion: The new anti-conversion laws shift the burden of proof of a lawful religious conversion from the converted to his/her partner.
• Curb on individual freedom: Legal experts have pointed out that the laws interfere in an individual’s agency to marry a partner from different faith and to choose to convert from one’s religion for that purpose.
• Interference of state: Apart from being vague and sweeping, the laws also test the limits to which the state can interfere in the personal affairs of individuals.
• Violative of FRs: The freedom to propagate one’s religion (A25) and the right to choose a partner are fundamental rights (A21) that the new anti-conversion laws impinge upon.

What has the Gujarat High Court held?

• A Division Bench of the Gujarat High Court has granted an interim stay on certain provisions of the amendment that interfere with inter-faith marriages.
• It has held that the bill interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21.
• The interim stay on certain provisions will have to be confirmed when the larger challenge is decided.

What was the government’s defence?

• The state government had argued that the law did not prohibit all inter-faith marriages, but only the ones based on fraud and coercion.
• To buttress its submission, Advocate General had argued that the Act must be read as a whole to interpret the provision, and the provision alone could not be read by itself.
• However, the court said that the wider interpretation would happen at a later stage, and stayed the provisions for the time being. A larger challenge would determine the fate of the law eventually.

Significance of the ruling

• The HC ruling, although preliminary, comes as a relief to interfaith couples from being harassed.
• The reading could have a bearing on challenges pending in other HCs (namely in MP, UP, Himachal etc).
• However, its real impact on the ground could be limited, as larger constitutional nuances are often difficult to permeate, especially when it is not a final and binding verdict.

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Favouring the introduction of the Uniform Civil Code (UCC), the Delhi High Court has said the Indian youth need not be forced to struggle with issues arising due to conflicts in various personal laws in relation to marriage and divorce.

Why did the HC promote this idea?

• The modern Indian society was gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating said the Delhi HC.
• The youth of India is often forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.

Shah Bano reference

• In the Shah Bano case, the apex court had said that a common civil code would help the cause of national integration by removing disparate loyalties to laws having conflicting ideologies.
• It had also observed that the State was charged with the duty of securing UCC for the citizens of the country.

What is a Uniform Civil Code?

• A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• 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.

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.

Issues with UCC

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on 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.