Subject: Indian Society

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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