The Republic’s Apex Court commits one more faux pas

Jay Bhattacharjee, 3 February 2011
Source: http://www.vijayvaani.com

Another step on the slippery path to hara-kiri
The recent decision of the Supreme Court bench to expunge certain key lines in their judgment on the Dara Singh appeal just 4 days after pronouncing the verdict in open court, has most damaging implications both for this country’s judicial system and its socio-political framework.

The facts are as follows: while upholding the life sentence on Dara Singh, main accused in the Staines murder case, Justices P. Sathasivam and B.S. Chouhan observed that the murder had taken place in an atmosphere that had been poisoned by the conversion activism of foreign missionaries in that part of Orissa. They said in their judgment pronounced in open court :

"It is undisputed that there is no justification for interfering in someone’s belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other."

Now, this was perfectly legitimate and completely non-controversial and irrefutable. In fact, it was a somewhat laboured reiteration of the settled law of the land, as pronounced by the Supreme Court as early as in 1977. In January of that year, a full Bench of the apex court, comprising 5 judges, delivered their landmark verdict in the Rev. Stainislaus case, and clarified the legal position unambiguously (more on this later).

Immediately after the Dara Singh verdict was announced on 21 January, the powerful Christian lobby in the country, spearheaded by the Catholics, swung into action. These "soul-harvesters" were touched to the quick; their bread and butter were once again under threat, if not their gateaux and caviar. The outbursts were coordinated by a motley group of rabble-rousers from various Christian groups, led by a certain John Dayal, a former journalist who runs a strident pressure group from Delhi.

Now, Dayal, who hobnobs with Kashmiri separatists as facilely as with the IIC lah-di-dah crowd, immediately went on the offensive and made a number of raucous statements, the main one being: "Although we are yet to analyse the full judgment of the Supreme Court, we are disturbed by the parts carried by the media, mentioning terms like fraud and forcible (sic) conversion. The Court must comment on Hindu conversions, termed Ghar Wapsi. But more than anything, we fear such remarks may negatively impact trials in Kandhamal, Orissa, and future challenges to so-called ‘freedom of religion laws’ in various states... We do not want any court to pre-judge the matter of conversions and violence. The real root cause of strife in which Staines lost his life with his two kids was a misunderstanding of conversion. We have seen communal violence not only against Christians, but also on Muslims and Sikhs since India’s Independence. It is unfortunate that Hindutva forces look for an excuse to attack Christians and others because they believe that India is for Hindus only. This goes against India’s spirit of secularism."

The All India Christian Council (yet another AICC, in the country’s political lexicon), under whose umbrella Dayal was crusading, went on to harrumph that "it might move (the) Supreme Court to revise the reference at an appropriate time."

However, our two Supreme Court judges, proved even more nimble-footed than what Dayal and company had expected. The original judgement was pronounced on 21 Jan. (a Friday), and the cacophony orchestrated by the Christian gang started straightaway, reaching a crescendo during the weekend and on the following Monday.

On 25 Jan. (Tuesday), Sathasivam and Chouhan re-opened the matter in open court and announced the deletions / changes. There are some reports that the counsels for the two parties (the State and Dara Singh) were given notice to attend, but this is not verifiable as yet. What is certain is that there was no application for a Review Petition or any other form of legal representation before the two judges, asking them to reconsider their observations already on record. It was a suo motu act by the two judges. Clearly, Dayal and his cohorts would have been delighted and overjoyed with the supersonic speed of the two judges and their commendable powers of foresight and anticipation.

What can possibly account for this change of mind and heart? Divine intervention, a hyperactive conscience? Impossible to pinpoint, for mere mortals. What happened was the observations quoted above ("It is undisputed that there is no justification for interfering in...) were deleted / expunged and replaced by the platitudinous and ambivalent sentence, "There is no justification for interfering in someone’s religious belief by any means." This piece of pontification has no judicial import at all, either in the case under discussion or in general. All that can be said is that the somersault of this Bench in this case will be debated for quite some time.

The relevant question that will be raised is whether such an act by the apex Court is legal, constitutional and proper? Does it violate the basic canons of justice that the Supreme Court is duty bound to uphold?

Under the circumstances, it is necessary to recall the momentous Full Bench judgement of 1977 (that is still the declared law of the land) and to study its core conclusions and their ramifications. The facts of the case and the historical background were as follows.

Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908
(Civil Appeal Nos. 1489 and 1511 of 1974: judgement pronounced in January 1977)
(Before A.N. Ray, Chief Justice, and Justices M.H. Beg, R.S. Sarkaria, P.N. Singhal, and Jaswant Singh)

This case was filed by a Roman Catholic priest, Father Stainislaus, who challenged the constitutional validity of a law (the Madhya Pradesh Dharma Swatantraya Adhiniyam) passed by the Madhya Pradesh Government in 1968. This state law prohibited conversion by forcible methods or by inducement.

Simultaneously, the Supreme Court also took up another case which challenged the Orissa Freedom of Religion Act, 1967, since the issues involved were the same. Other Christian parties also got themselves impleaded in the case.

The Full Bench of 5 judges of the Supreme Court unanimously upheld the constitutional validity of these two pieces of legislation (on grounds discussed below) and laid down the law of the land on the vital issues of freedom of religion and limitation of the right of conversion. The Supreme Court rejected every plea raised by the counsel representing the Christian petitioners.

Basically, the Court analysed Article 25 of the Constitution (freedom of conscience and free profession, practice and propagation of religion) and noted that it is not an absolute right, unlike some other fundamental rights like protection of life and liberty (Article 21) and right against exploitation (Article 23). Article 25 is subject to public order, morality and health and to the other provisions of Part III of the Constitution.

The act of "practice" of a religion is concerned primarily with religious worship, ritual and observations. Propagation means the right to communicate beliefs to another person or to expound the tenets of one’s religion, but does not include the right to conversion. "Propagation" of one’s religion cannot impinge on the "freedom of conscience" of other citizens.

Article 25 does not grant a fundamental right to convert persons of another faith to one’s own religion. The freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one is freedom for the other in equal measure, and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion.

If a person purposely undertakes the conversion of another person to his religion, that would impinge on the freedom of conscience guaranteed to all the citizens of the country.

Public order has wide connotation and signifies a state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government that they have established. If a thing disturbs the current of the life of the community, and does not merely affect an individual, it would amount to disturbance of the public order. Thus, if an attempt is made to raise communal passions, e.g. on the ground that some one has been forcibly converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large.

States have the right to make laws for the maintenance of public order, including legislation which is meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.

Freedom of religion guaranteed under Articles 25 of the Constitution is expressly made subject to public order, morality and health. It cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order, or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.

It is obvious that the Stainislaus judgement was a carefully thought-out verdict, judiciously crafted, and, above all, balanced. It is also unambiguous. The first thoughts of Sathasivam and Chouhan, enunciated on 21 Jan., were therefore perfectly legitimate and unobjectionable, since they echoed the conclusions of their eminent brother judges 34 years earlier.

Now, we come to the question that bothers all citizens. If judgments (of the highest judicial forum of the Republic) have no finality and have a shelf life of less than 5 days, we are in for trouble. Sathasivam and Chouhan are following in the footsteps of some of their colleagues, one of whom is particularly garrulous and verbose, and has withdrawn or changed observations in his judgments on at least two occasions. There are people who may well say that the changes and alterations pertain to obiter dicta and not to the substantive portion of the judgments. This would be a disingenuous view; observations of the apex court have definite influence on the legal working of juniors in the High Courts and lower courts.

After the ignominious performance of the previous Chief Justice and the extremely serious disclosures made by Messrs. Shanti Bhushan and Prashant Bhushan about the integrity of the country’s last 16 Chief Justices, the Supreme Court hardly needs another sword hanging on its head.

The author is a senior corporate and industry analyst