PRESS STATEMENT
31 July 2007
Civil Society, Human Rights and Freedom of Faith groups welcome decisions of Solicitor General of India and Gujarat Governor Nawal Sharma trashing so called Freedom of Religion Laws
Bills shame Secular India, encourage bigotry, hate campaigns and communal politics, says John Dayal; Congress-ruled Himachal urged to withdraw its law
New Delhi, 31 July 2007
Dr John Dayal, Member of the National Integration Council, has welcomed Gujarat Governor Nawal Kishore Sharma’s refusal to sign Chief Minister Narendra Modi’s controversial amendments to the notorious Freedom of Religion Bill, and has called upon the Congress ruled
Himachal Pradesh to recall a similar law enacted this year.
Speaking on behalf of the All India Catholic Union, the All India Christian Council and other groups, Dr Dayal said it was time the Union government also picked up the political courage to purge the Statute Books of all such laws which eroded fundamental rights as Freedom to profess the Faith of one’s choice. Such laws encourage religious bigotry and hate crimes, Dr Dayal said. They also lead to police brutalities and miscarriage of justice, especially in rural areas.
Data collected by the All India Christian Council, Dalit and Tribal groups and the Christian Lawyers Association in recent months clearly shows how emboldened fundamentalists groups have become in several states where they are being backed by the local police and political elements.
Mr. Sharma is the third Governor of a State in recent months to reject the so called Freedom of Religion Bills, which are a thinly disguised attempt to curb freedom of Faith under the pretext of preventing conversions by force or allurement by Christian missionaries.
Before Governor Sharma, President Pratibha Patil in her capacity as the then Governor of Rajasthan similarly rejected a Bill passed by the State assembly though the Christian population is less than one per cent. The third is the case of Madhya Pradesh where Governor Balram Jhakkar who has refused to sign amendments by the BJP government o an older Bills, has been told by Solicitor general of India that the measures are against the Constitution. In Tamil Nadu, the then Chief Minister Dr J Jayalalitha had herself withdrawn a Freedom of Religion Act her government had enacted a few months earlier.
In his ruling today, Gujarat Governor Sharma – a former Union Cabinet Minister and long time Congress leader from Rajasthan known for his secular credentials – has also debunked a popular Sangh Parivar thesis which snatches the rights of Sikhism, Buddhism, and Jainism as independent religions,. The Rashtriya Swayamsewak Sangh described them as wings of Hinduism.
The Gujarat Freedom of Religion (amendment) Bill, 2006 sought to replace the definition of convert by a new one under which a person renouncing one denomination and adopting another denomination of the same religion was to be excluded from the meaning of `convert'. Returning Bill the Governor said "what made it more objectionable were the three explanations stipulating that the "Jains" and "Buddhists" shall be construed as denominations of Hindu religion, Shia and Sunni of Muslim religion and Catholic and Protestant of Christian religion". The provisions of amendment Bill are violative to the Article 25 of the Constitution which guarantees to all citizens to freely profess, practice and propagate a religion.”
Ruling United Progressive Alliance’s Vice Presidential candidate Mr. Hamid Ansari in his earlier position as Chairman of the National Minorities Commission had asked States to disclose incidents of forcible conversions, and no state had been able to present a single genuine case.
Solicitor General of India Goolam E Vahanvati has similarly faulted several amendments in the Rajasthan Act as being against Constitutional Guarantees. His opinion was sought by Governor Balram Jhakkar. ”If somebody merely objects to the proposed conversion, does that make it forcible? A conversion may be purely voluntary but any objection can lead to an adverse report, he has held. The Solicitor General correctly rejects the new powers sought to be given to the police, and says a heavy burden is placed on citizens, which in turn violates article 25 of the Constitution.
--
Released to the Media by
Dr John Dayal
Member: National Integration Council,Government of India
National President: All India Catholic Union (Founded 1919)
Secretary General: All India Christian Council (Founded 1999)
President: United Christian Action, Delhi (Founded 1992)
505 Link, 18 IP Extension, Delhi 110092 India
Email: johndayal@vsnl.com
http://groups.google.com/group/JohnDayal
Phone: 91-11-22722262 Mobile 09811021072
Tuesday, July 31, 2007
Jains and Buddhist are Not Hindus, Governor tells Chief Minister Narendra Modi in Gujarat, throws out anti conversion Bill -- Dr John Dayal welcoems
Gujarat Governor Nawal Kishore Sharma refuses to signs Narendra Modi's amended Religious Conversion Bill, sends it back to government
Third to reject anti conversion Bills after Former Rajathan Governor [Now President of India} Pratibha Patil ad Madhya Pradesh Governor Balram Jhakkar
Ahmedabad, July. 31 (PTI)[The Hindu]
Setting up a possible showdown with the BJP government in Gujarat, Governor Nawal Kishore Sharma today returned a controversial amendment passed by the state assembly to a law to check religious conversion, saying the proposed measure violated the right to religious freedom.
The Gujarat Freedom of Religion (amendment) Bill, 2006 sought to replace the definition of convert by a new one under which a person renouncing one denomination and adopting another denomination of the same religion was to be excluded from the meaning of `convert'.
Returning `The Gujarat Freedom of Religion (amendment) Bill, 2006', the Governor said "what made it more objectionable were the three explanations stipulating that the "Jains" and "Buddhists" shall be construed as denominations of Hindu religion, Shia and Sunni of Muslim religion and Catholic and Protestant of Christian religion".
The provisions of amendment bill are violative to the Article 25 of the Constitution which gurantees to all citizens to freely profess, practice and propagate a religion, Sharma said, according to an official release from the Governor's office.
The bill should be reconsidered for suitable amendments so as to bring its contents in conformity with the Constitution, he said. The Gujarat Freedom of Religion Act 2003 was enacted with a view to preventing conversions of persons from one religion to another by use of force or by allurement or by fraudulent means.
In 2006, the state government had brought the bill to amend the Gujarat Freedom of religion Act 2003.
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Third to reject anti conversion Bills after Former Rajathan Governor [Now President of India} Pratibha Patil ad Madhya Pradesh Governor Balram Jhakkar
Ahmedabad, July. 31 (PTI)[The Hindu]
Setting up a possible showdown with the BJP government in Gujarat, Governor Nawal Kishore Sharma today returned a controversial amendment passed by the state assembly to a law to check religious conversion, saying the proposed measure violated the right to religious freedom.
The Gujarat Freedom of Religion (amendment) Bill, 2006 sought to replace the definition of convert by a new one under which a person renouncing one denomination and adopting another denomination of the same religion was to be excluded from the meaning of `convert'.
Returning `The Gujarat Freedom of Religion (amendment) Bill, 2006', the Governor said "what made it more objectionable were the three explanations stipulating that the "Jains" and "Buddhists" shall be construed as denominations of Hindu religion, Shia and Sunni of Muslim religion and Catholic and Protestant of Christian religion".
The provisions of amendment bill are violative to the Article 25 of the Constitution which gurantees to all citizens to freely profess, practice and propagate a religion, Sharma said, according to an official release from the Governor's office.
The bill should be reconsidered for suitable amendments so as to bring its contents in conformity with the Constitution, he said. The Gujarat Freedom of Religion Act 2003 was enacted with a view to preventing conversions of persons from one religion to another by use of force or by allurement or by fraudulent means.
In 2006, the state government had brought the bill to amend the Gujarat Freedom of religion Act 2003.
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Sunday, July 29, 2007
A Call to President Pratibha Patil
President Pratibha Patil must turn down Central and State Acts which erode Freedom of Faith
[John Dayal’s Note 30 July 2007-- President Pratibha Patil has, of course, to take a decision on 50 Mercy Petitions before her. Her Presidential powers, and legal expertise --I think she is the first President, after President Shankar Dayal Sharma, to have studied Law, and the first to have practiced as a Lawyer in her early professional years -- will also be called upon to bear on matters concerning the Religious Minorities in India.
These are Bills conceived in political sin, mired in deep controversy, denounced by Human Rights activists and Civil Society in general, but relentlessly pursued by the Sangh Parivar and by those within the Indian National Congress Party and other political groups who seem to espouse the same ideology when they interact with Christians and Muslims.
From the Central government may eventually come a law defining the term religious minorities on the basis of the population of various groups in the States. There are many who favour this addition to laws, saying it will only bring on the Statute books what the Supreme Court has ruled in the past. The opposition to the idea is equally strong. Civil Society and religious groups point out such a law will make a mockery of Constitutional rights given to religious minorities who now are members of the nationally recognised Parsee, Sikh, Buddhist, Christian and Muslim faiths. Christians may find themselves a majority in Nagaland, Mizoram, Meghalaya and Kerala, perhaps even in Goa, and lose the protection of the law over their institutions. Their students will no longer be eligible for admission in premier national institutions such as St John’s Medical College, Loyola, St Xavier’s, Jesus and Mary, and St Stephen’s.
The other major bundle of controversy pertains to the so called Freedom of Religion Bills from Rajasthan and Madhya Pradesh. In Madhya Pradesh, the Governor has sought the opinion of the Union government’s law officers. The Solicitor General of India in his letter to the Governor trashed the entire proposal as ultra vires of the Constitution in its detail and intent.
The most piquant is the situation with the similar Bill in Rajasthan. Mrs Patil, in her earlier incarnation as Governor of Rajasthan, had thrown back the Bill sent to her by the Rajasthan assembly. The Bill had been rushed through the Legislative Assembly without much of a debate. Civil society had risen against it in unison. It was my privilege, and that of many other activists, to send to Mrs Patil a detailed critique of the Bill by the eminent Constitutional expert, Dr Rajeev Dhawan, who practices before the Supreme Court of India. Dr Dhawan’s categorical view was that such a Bill would not stand constitutional scrutiny. She correctly refused to sing it. Inevitably, a decision will again have to be taken on the Bill sooner than later.
I on behalf of the All India Catholic Union, All India Christian Council and the United Christian Action, will be formally appealing to the new President of India to ensure that the rights of religious minorities are not eroded by any legislative or executive measure by the Central and State government.}
This note contains the following:
Letter of Solicitor General of India to the Governor of Madhya Pradesh saying Madhya Pradesh add-ons to Anti Conversion laws unconstitutional;
Text of amendments made to the original Freedom of Religion law in Madhya Pradesh
Text of the Rajasthan Freedom of Religion Act
Critique of the Rajasthan Bill by Dr Rajeev Dhawan
Analysis of similar laws in several India states by South Asia Human Rights
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[1]
Letter of Solicitor General of India G E Vahanvati to Madhya Pradesh Governor Balram Jhakkar:
Supreme Court of India New Delhi, Dy. No. 1166/07 dated 3/5/07 Deptt. of Legal Affairs
1. I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
2. Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
3. By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1), shall be punishable with fine which may extend to one thousand rupees.
(5) Whoever fails to comply with the provision of sub-section (2), shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”
4. The following changes may be highlighted:
(A) Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
(B) Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
(C) Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “ regarding the objections, if any, to the proposed conversion.”
(D) No provision is made for the consequences of an adverse report.
5. Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1)&(2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?
6. The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
7. I do not agree with the view that a Superintendent of Police may report that the conversion is “ forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
8. Looked at from another point of view, the assumption is that if a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.
9. I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report ( merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “ public order.”
10. In my opinion, lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion which can have the effect of curtailing the right under article 25 in an unreasonable manner.
11. In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the un-amended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“ The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
12. The Hon’ble Court in the Stanislaus case was not concerned with an “ adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.
In the premises, I will answer the queries as under.
Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.
Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&
Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.
Ans. In my opinion, it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent Court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.
Q.(iv) There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving an intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.
Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections (and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.
Goolam E Vahanvati
Solicitor General of India
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[2]
Text of Madhya Pradesh Freedom of Religion (Amendment) Act, 2006 Act 15 of 2006
[English translation from Hindi Original by Hyderabad Translation Bureau, Hyderabad, India Courtesy All India Christian Council]
This may be enacted through the Madhya Pradesh Assembly in the fifty-seventh year of the Indian Republic as under:
I. Short title and commencement.
(1) The short title of this Act is “Madhya Pradesh Freedom of Religion (Amendment) Act, 2006”.
(2) This will come into force from the date published in Gazette.
II. Re-enforcement of section 5.
The following section may be enforced in the place of Section 5 of the Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968). (After this, which will be specified with its original Act.) It means: -
“5. Declaration before conversion of religion and pre-report about purification (sanskar)
(1) One who desires to convert his religion, he will declare such idea in front of District Magistrate or in front of the Executive Magistrate specially authorized by District Magistrate of related District that he wishes to change his religion on his own and at his will and pleasure.
(2) The related religious priest, who directly or indirectly participates in such religious
conversion and performs himself necessary purification (sanskar) desires any person for the conversion of his religion from one to another will give the details of the related religion’s purification ceremony in which such conversion takes place along with the date, time, place and the name and address of the person whose religion is going to be changed. This will be given one month before the date of above conversion and such declaration (affidavit) will be given in the prescribed proforma and it will be given by the priest to the concerned District Magistrate in the prescribed manner. (3) The District Magistrate, after receiving the information under sub-section (1) and (2), will give the details of information pertaining to the proposed religion conversion to the Police
Superintendent, who in turn ensures through local investigation if any objections are there with regard to that proposed religion conversion through Bhaar Sadhak officer of respective police station and he will submit its report to the District Magistrate.
(4) Whoever fails to follow the provisions mentioned in sub-section (1) will be penalized with a fine amounting up to rupees one thousand.
(5) Whoever fails to follow the provisions mentioned in sub-section (2) will be imprisoned which may be up to one year or fine up to rupees five thousand or will punished with both.”
III. Revision of Section 8.
The section 8 of the original Act may be re-serialized in the form of its sub-section (1) and thus after re-serialization of sub-section (1) the following sub-section may be incorporated. It means: -
“(2) All the Rules framed under this Section will be tabled in the State Legislative Assembly.”
STATEMENT OF AIMS AND REASONS
The Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968) is in vogue since 21st Oct. 1968. It is prohibited to convert anybody forcibly, or by inducement or by using any fraudulent method from one religion to another. Even then, there are no such provisions included in the Act through which some help can be received to find out about the conversion of that religion which come under violation of the Act. In the sub-section (1) of section 5 of the existent Act, there is a provision of submitting a report by the religious priest to the District Magistrate who changes a person from one religion to another after purification ceremony of religion conversion is performed.
The person who gets himself converted from one religion into another one, it is not required to produce prior-report (Declaration) before any authorized official. The main purpose of the Act turns futile because of such deficiencies because there is no device to find out and prevent violation of the Act of any religion conversion. Therefore it is proposed to revise the section 5 of above said Act as proper to make provision related to previous report of proposed conversion of religion.
(2) The provision is also included in order to submit the rules on the table of the State Legislative Assembly after the revision properly in section 8.
(3) Hence the Bill is submitted.
Nagendra Singh
Bhaarsadhak member
Bhopal Date: 17th July 2006
MEMORANDUM PERTAINING TO RE-ENFORCED LAW FRAMING
The empowerment of applying draft and procedure of memorandum pertaining to religion conversion through sub-section (2) of section 5 of part 2 of proposed Bill is re-enforced.
This re-enforcement is of a common nature.
Dr. A.K. Payasi
Chief Secretary
M.P. Legislative Assembly
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[3]
OFFICIAL ENGLISH TEXT OF RAJASTHAN BILL NUMBER 12 OF 2006
A Bill for prohibition of conversion from one religion to another by the use of force or allurement or by fraudulent means and for matters incidental thereto:
Be it enacted by the Rajasthan State Legislature in the Fifty-seventh year of the Republic of India as follows:
1. Short Title, extent and commencement:
(1) This Act may be called the Rajasthan Swatantraya Act, 2006
(2) It extends to the whole State of Rajasthan
(3)It shall come into force at once.
2. Definitions – In this Act, unless this otherwise requires,
(a) “unlawful” means which is in contravention of the provisions of this Act
(b) “allurement” means offer of any temptation in the form of –
(i)any gift or ratification, either in cash or kind;
(ii)grant of any material benefit, either monetary or otherwise
©”conversion” means renouncing one’s own religion and adopting another
Explanation: Own religion means religion of one’s forefathers;
(d) “force” includes show of force or threat of injury of any kind including threat of divine displeasure or social excommunication;
(e) “fraudulent” means and includes misrepresentation or any other fraudulent contrivance.
3. Prohibition of conversion – No person shall convert or attempt to convert either directly or otherwise any person from one religion to another by use of force or by allurement or by any fraudulent means nor shall any person abet such conversion.
4. Punishment for contravention of provisions of section 3 – Whoever contravenes the provisions of section 3 shall, without prejudice to any other criminal liability, be punished with simple imprisonment for a term which shall not be less than two years but which may extend to five years and shall also be liable to a fine, which may extend to fifty thousand rupees.
5. Offence to be cognisable and non-bailable – Any offence under this Act shall be cognisable and non-bailable and shall not be investigated by an office below the rank of Deputy Superintendent of Police.
6. Power to make rules -- (1) The State government may make rules for the purpose of carrying out the provisions of this Act.
(2) All rules made under this act shall be laid, as soon as may be, after they are so made, before the House of the State legislature, while it is in session, f a period of not less than fourteen days day which may be comprised in one session or in two successive sessions and if, before the expiry of the session in which they are so laid or the session immediately following, the House of the State Legislature makes any modification in any of such rules or resolves that any such rule should not be made, such rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder..
STATEMENT OF OBJECTS AND REASONS
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State.
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose
The Bill seeks to achieve the aforesaid objective
Hence the Bill
Gulabdchand Katariya
Minister in Charge
----------------------------------------------------
[4]
PRELIMINARY SUBMISSIONS ON RajAsthan Dharma SWATANTRAYA Bill, 2006 by PUBLIC INTEREST LITIGATION SUPPORT AND RESEARCH CENTRE, DR RAJEEV DHAWAN
I. Introduction
1.1 This is a response to the Rajasthan Dharma Swatantraya Bill, 2006 which has presently been approved by the Rajasthan Cabinet and will be placed in the Legislature for approval.
II WHAT THE CONSTITUTION MAKERS DEVISED: RIGHT TO BELIEF, CONVERSION, PROPAGATION OF FAITH AND FREE SPEECH
2.1 The Constitution makers were concerned with the following fundamental rights:
(i) Freedom of speech and expression [Article 19(1)(a)]
(ii) Freedom of conscience [Article 25(1)]
(iii) Freedom to profess, practice and propagate religion [Article 25(1)]
2.2 While the initial draft of the Constitution did not include the term propagate, after deliberations in the Fundamental Rights Sub Committee, Minorities Sub Committee, the Advisory Committee and the Constituent Assembly, it was concluded that propagation would form a part of the right to religion.
Challenge in the Courts
2.3 This ambit of the Constitutional protection of conversion was examined by the Supreme Court in the Rev. Stanislaus case in which the Madhya Pradesh and the Orissa laws were challenged on the ground of violation of Art. 25. The salient features of the judgement are the following:
(i) It held that what Article 25(1) grants is not the right to convert another person to one's own religion by exposition of its tenets."
(ii) It was held that since any attempt at conversion was likely to result in a breach of public order affecting the community at large, the State legislatures would have the competence to enact the legislation.
iii CRITIQUE OF THE rajasthan LEgisLATION: PURPOSE AND INTENT
3.1 In order to critique the Bill, the purpose and intent of the Bill has to be examined. While the malafide of a legislative enactment cannot be challenged, the Supreme Court has rightly held that ‘the Court can tear the veil to decide the real nature of the statute’. Tearing the veil will show:
(i) the legislative purpose; and,
(ii) its predictable effect
3.2 The Statement of Objects and Reasons of the present Bill states as follows:
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State. [Emphasis added]
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose.
3.3 In the context of restrictions on fundamental rights, public order has specific technical meaning which has been narrowly tailored by the Supreme Court. The Court has held that public order is something more than the mere maintenance of law and order and acts which disturb law and order may not amount to a threat to the public order. Thus, public order is a narrower and more rigid classification of the former and the two cannot be used interchangeably.
3.4 According to the statement of objects and reasons, the introduction of this Bill was desirable and necessary because of the following reasons:
(i) Annoyance caused to a religious community; and
(ii) Law and order problems
Both of these reasons are completely inadequate to justify a restraint of the manner imposed in the Bill especially as:
(i) As has been seen, law and order is not congruous to public order and restrictions cannot be imposed on Constitutional freedoms on the ground of law and order. In the present context, if there are any inter-religious tensions because of conversion, the state has been amply empowered by the Indian Penal Code to deal with such situations. Chapter XV of the IPC gives the State wide ranging powers to deal with law and order problems arising out of religious tensions.
(ii) Annoyance caused to a religious community is completely unacceptable as a ground for restricting Constitutional freedoms. The State is empowered under the IPC and the CrPC to regulate behaviour such as speech, publications, demonstrations, etc which may cause annoyance to religious communities.
IV. DETAILED ANALYSIS OF THE BILL
4.1 Short title, extent and commencement (Section 1)
Most legislative amendments have a provision stating that they shall come into force when the Government, in its discretion, deems fit to notify it by publishing it in the Official Gazette. However, in this case, there is no such discretion as the Bill itself provides that it shall come into force at once. In this respect, the Bill is placed on par with legislations such as TADA, POTA, which involve matters of such grave public implication and urgency such that the Government can have no discretion in them coming into force.
4.2 Definitions Clause (Section 2)
(i) The definition of unlawful is overbroad, circular and open to misinterpretation especially as it is dependant on the other provisions of the Bill, which are in themselves over inclusive and vague.
(ii) This definition of allurement is identical to the definition of the term ‘inducement’ in the Orissa Freedom of Religion Act 1967, which was struck down by the Orissa High Court on the ground that it was open to the reasonable objection on the ground that it was too broad and surpassed into the field of morality. While the judgement was later overruled in the Rev. Stanislaus case, this aspect of the legislation was not discussed and is thus open to challenge
(iii) The definition of conversion shows the partisan nature of the Bill, which includes conversions, but does not include re-conversions. This means that, for example, conversions from Hinduism to other religions are covered in the section, but not re-conversions back to the original faith. It is pertinent to note that this narrow definition of conversion is an addition in the present Rajasthan Bill.
(iv) The definitions of force and fraudulent are extremely broad and cover a vast number of situations which could possibly be used to include activities of propagation. Any religious propaganda could be considered to be a misrepresentation or force within the meanings of these definitions.
4.3 Criminalization section (Section 3)
(i) This Section has criminalizes conversion or attempt to conversion, directly or otherwise. This is an extremely wide clause and within the scope of attempting, directly or otherwise, a whole range of religious activities can be included, including the propagation of religion.
(ii) It may also extend to cover incidental matters such as conversions according to personal laws. For instance, if a Hindu woman marries a Muslim and converts, and a Meher amount is fixed during the marriage according to Muslim personal laws, this would be covered under this section as conversion by allurement.
(iii) Further, the Section has also placed conversion and attempt to convert has been placed on the same footing, and the punishment is the same for both of them. This is in violation of the principle of criminal jurisprudence (recognized in the Indian Penal Code) that the attempt to commit an offence is less serious that the actual commission of the offence and thus must be differentially punished.
(iv) It also overlooks the various nuances of criminal liability for the abetment of an offence and simply provides a common liability.
4.4 Punishment section (Section 4)
(i) The punishment clause demonstrates the manner in which the Government has tried to criminalize religious conversions. The penalty is harsher than the penalty for offences like rioting, causing death by negligence, wrongful restraint, etc. Such a harsh punishment clause, combined with the broad inclusion in Section 3 creates a situation in which normal religious activities of propagation are hampered.
(ii) As has been mentioned earlier, the Bill ignores the principles of criminal jurisprudence with respect to the criminal liability for attempt and abetment.
4.5 Section 5
(i) While this Section provides for investigation by a senior level Police officer, it removes the prior sanction from the civilian district authorities which had been provided in preceding anti-conversion legislations. This concentration of authority in the hands of the Police and the lack of supervision from the district administration makes the Bill vulnerable to abuse.
(ii) Also, we see that it makes the offence non-bailable and this underscores the attempt of the Government to make any offence under this Bill a grave one.
(iii) There are no other provisions to ensure that the powers are not abused and that due process requirements are met.
(iv) The possibility of abuse of the powers under this Bill, especially at the hands of the Police leads to the Bill directly curtailing the right of religions, especially minorities, to propagate.
v Secularism
5.1 The present Bill can be challenged not only on the ground that is violative of the Constitutional freedoms of speech and religion, but also because it violates secularism, which is a part if the basic structure of the Constitution. In the case of the present legislation, it is clear that the State is actively intervening in a partisan manner to protect a particular religion from a perceived crisis. There can be no doubt that this Bill has been drafted with the legislative intent and purpose of preferring the rights of one religion at the cost of the minority religions. It targets particular communities both to stop efforts to convert and to create a situation of intimidation where others are unwilling to convert. Even in practice, the enforcement of the Bill will amount to community targeting and will be implemented in a manner which will exacerbate communal tensions. Thus, the Bill, both in purpose and in its inevitable effect is a violation of the secular structure of the Constitution.
Vi CONCLUSION
6.1 It is evident from the foregoing discussion that the present Rajasthan Bill is constitutionally invalid and flawed due to the following:
· The Bill seeks to impose restrict the right to freedom of religion and speech on the grounds of law and order, which is constitutionally impermissible.
· The Bill direct and inevitable effect of the Bill is not only to regulate conversions, but also to cripple the right of religions, especially minority religions to propagate their faith.
· This affects the rights of an individual to be converted, which is a part of the fundamental right to religion.
· The Bill is partisan in its purpose and intent as it seeks to protect the community from which the conversions are taking place.
· The provisions of the Bill are over inclusive and provide enough loopholes for abuse of the powers under the Bill.
· It violates the requirements of due process and ignores principle of criminal jurisprudence.
6.2 In view of the above, the constitutionality of the Bill is open to challenge. The possible objection to this may be the Stanislaus judgement of the Supreme Court, but those objections may be addressed as follows:
· The Supreme Court judgment in Stanislaus was directed towards only forced conversion or coercive conversion and thus has to be strictly interpreted.
· The judgement has not addressed the particular provisions of the legislations and they still remain open to challenge.
· .
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[5]
Acts of Bad Faith -- Anti-conversion laws in India
[Courtesy: Human Rights Features copyright © SAHRDC
On 29 December 2006, the government of the northern Indian state of Himachal Pradesh passed the Himachal Pradesh Freedom of Religion Bill 2006. The government claimed it was intended to prevent religious conversions through “force” or “inducement”.
The Bill – yet to be signed into law – is modelled on other existing anti-conversion laws in other Indian states, but it is unique in that it was adopted by a Congress Party-led state government. The Congress Party had opposed similar laws in the past in other states ruled by the Hindu nationalist Bharatiya Janata Party. However, Congress-ruled state governments in Arunachal Pradesh and Orissa have passed acts similar to the Himachal Pradesh Bill, and taken together, these pieces of legislation expose the hollowness of the Congress Party’s claims of being a secular party.
Once Himachal Pradesh signs the Bill into law, it would be the sixth Indian state to adopt anti-conversion legislation, joining the ranks of Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, and Gujarat. A seventh state, Jharkhand is also expected to pass an anti-conversion law.
There is no doubt that conversions brought about by violence or other equally illegitimate means of coercion cannot be permitted. Indeed, such conversions violate the freedom of religious beliefs protected within both the international instruments and the Indian Constitution. However, the language adopted by the Acts in these states goes far beyond protecting this fundamental right.
The definition of force
All the anti-conversion laws share a common definition of what constitutes “force” in forced conversions. As the Rajasthan Bill provides:
‘Force’ includes a show of force or a threat of injury any kind, including threat of divine displeasure or social ex-communication.
It is uncertain how this prohibition will work in practice. For example, if a religion teaches that non-adherents risk divine displeasure (as with Christianity, Islam, and Judaism), teaching this article of faith may constitute an act of force under the Act. This may be contrary to the freedom to change one’s religion. As H. M. Seervai points out in his discussion of the right to propagate, “[a] person cannot choose if he does not know what choices are open to him (sic)”. As a result of the overly broad definition of “force”, a person engaging another in order to bring about his or her conversion cannot inform the potential convert what the religion teaches about non-adherents. This limits the information that may be made available to the potential proselyte. An individual cannot fully exercise his or her freedom to change religion if such information is withheld.
The definition of allurement
According to the Rajasthan Bill:
‘[a]llurement’ means offer of any temptation in the form of
1) any gift or gratification, either in cash or in kind;
2) grant of any material benefit, either monetary or otherwise
The Madhya Pradesh, Chhattisgarh and Gujarat anti-conversion laws rely on an identical definition. The Orissa and Arunachal Pradesh laws are worded slightly differently:
[i]nducement shall include the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise.
The High Court of Orissa struck this definition down as being too vague and passing into the realm of morality. Though the High Court’s decision was overturned by the Supreme Court in Stanislaus v. Madhya Pradesh & Ors, the Supreme Court did not discuss this aspect of the High Court’s judgment.
The potentially broad scope of the term “allurement” is troubling. Christian groups have expressed concern that the provision might be used to prohibit acts of charity, as they might be interpreted as “temptations” to convert. As charitable acts are also fundamental to many religious traditions, such an interpretation may restrict the freedom of its adherents to practice their religion or religious beliefs. It is conceivable that the provision of education or medical care by religious denominations might also be interpreted as “temptations” intended to induce conversions.
The definition of fraud
The Rajasthan Bill and Gujarat Bill provide:
[f]raudulent’ means and includes misrepresentation or any other fraudulent contrivance.
The Acts in Orissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh Acts state:
[f]raud shall include misrepresentation or any other fraudulent contrivance’.
Once more, the imprecision of this definition is apparent. To take an extreme example, if an individual was told they would feel closer to God upon conversion and the converted person did not subsequently experience this degree of spirituality, would this constitute ‘misrepresentation’? The legislation provides no guidance about how such a definition should be understood, and potentially it is extraordinarily wide in scope. Indeed, the very idea of the concept of “fraud” in the context of religious belief is fraught with peril for a secular form of government. How can a Court adjudicate “fraud” in matters of faith without impermissibly entangling itself in the tenets of a religion?
The prohibition of conversions
All of the anti-conversion acts prohibit conversion in the following terms:
No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by inducement or by any fraudulent means, nor shall any person abet any such conversion.
Supporters of the laws argue they are intended to prohibit conversions or conversion attempts that are conducted by allurement, force or fraud. They suggest that such conversions are presently taking place, and that these laws are designed to criminalize such activities. The anti-conversion acts are therefore presented and titled as if their purpose were the protection of the ‘freedom of religion’.
These laws, however, actually serve to infringe upon religious freedom and contradict rights protected within international agreements and the Indian Constitution. Such laws are motivated by a religious ideology driven by an irrational and insecure Hindu xenophobia that is antagonistic to religious minorities.
Anti-conversion laws and the Indian Constitution
Articles 25 to 30 of the Indian Constitution deal with religion. Article 25 is most relevant for present purposes. It is similar to Article 18 of the Universal Declaration of Human Rights (UDHR). Article 25 reads in relevant part as follows:
25. Freedom of conscience and free profession, practice and propagation of religion.
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious Institutions of a public character to all classes and sections of Hindus.
The Supreme Court has commented on the scope of the protection of religious freedom within the Constitution as follows:
…while his (sic) religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the right to act in any way he pleased (sic).
The Constitution protects the freedom of individuals to hold any religious beliefs. However, the freedom to manifest one’s religion or belief is not absolute. Nonetheless, this freedom can only be limited according to the provisions of the Constitution.
Anti-conversion laws and international safeguards
While international instruments do not explicitly recognize a per se right to proselytise, there is a strong case to be made that the religious freedom within Article 18(1) of the International Covenant of Civil and Political Rights (ICCPR) encompasses the right to attempt to peacefully propagate one’s religious beliefs. That Article states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
The United Nations Human Rights Committee has commented that ‘[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. Further, the ‘practice and teaching of religion’ is said to include the ‘freedom to prepare and distribute religious texts and publications’. The Committee has concluded that the right to freedom of thought, conscience and religion is both ‘far-reaching and profound’. In light of these observations, it seems reasonable to conclude that the freedom should be interpreted to include distribution of texts and publications to non-adherents where the objective is to secure their conversion.
The Human Rights Committee has also declared any restrictions on the freedom to manifest one’s religion or beliefs pursuant to Article 18(3) must be ‘directly related and proportionate to the specific need on which they are based.’ The Special Rapporteur of the Commission of Human Rights on freedom of religion or belief has similarly concluded that Article 18 allows for restrictions ‘only in exceptional circumstances’. It is hard to understand what ‘exceptional circumstances’ exist in India that would justify the passage of so many anti-conversion laws.
Conclusion
The anti-conversion laws, both by their design and implementation, favour Hinduism over minority religions. This represents a significant challenge to Indian secularism. The erosion of the principles of secularism and toleration risks fanning inter-religious tensions. It is no exaggeration to say that India stands at a crossroads and must be careful to reassert its commitments to the tenets of religious toleration and secularism.
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[John Dayal’s Note 30 July 2007-- President Pratibha Patil has, of course, to take a decision on 50 Mercy Petitions before her. Her Presidential powers, and legal expertise --I think she is the first President, after President Shankar Dayal Sharma, to have studied Law, and the first to have practiced as a Lawyer in her early professional years -- will also be called upon to bear on matters concerning the Religious Minorities in India.
These are Bills conceived in political sin, mired in deep controversy, denounced by Human Rights activists and Civil Society in general, but relentlessly pursued by the Sangh Parivar and by those within the Indian National Congress Party and other political groups who seem to espouse the same ideology when they interact with Christians and Muslims.
From the Central government may eventually come a law defining the term religious minorities on the basis of the population of various groups in the States. There are many who favour this addition to laws, saying it will only bring on the Statute books what the Supreme Court has ruled in the past. The opposition to the idea is equally strong. Civil Society and religious groups point out such a law will make a mockery of Constitutional rights given to religious minorities who now are members of the nationally recognised Parsee, Sikh, Buddhist, Christian and Muslim faiths. Christians may find themselves a majority in Nagaland, Mizoram, Meghalaya and Kerala, perhaps even in Goa, and lose the protection of the law over their institutions. Their students will no longer be eligible for admission in premier national institutions such as St John’s Medical College, Loyola, St Xavier’s, Jesus and Mary, and St Stephen’s.
The other major bundle of controversy pertains to the so called Freedom of Religion Bills from Rajasthan and Madhya Pradesh. In Madhya Pradesh, the Governor has sought the opinion of the Union government’s law officers. The Solicitor General of India in his letter to the Governor trashed the entire proposal as ultra vires of the Constitution in its detail and intent.
The most piquant is the situation with the similar Bill in Rajasthan. Mrs Patil, in her earlier incarnation as Governor of Rajasthan, had thrown back the Bill sent to her by the Rajasthan assembly. The Bill had been rushed through the Legislative Assembly without much of a debate. Civil society had risen against it in unison. It was my privilege, and that of many other activists, to send to Mrs Patil a detailed critique of the Bill by the eminent Constitutional expert, Dr Rajeev Dhawan, who practices before the Supreme Court of India. Dr Dhawan’s categorical view was that such a Bill would not stand constitutional scrutiny. She correctly refused to sing it. Inevitably, a decision will again have to be taken on the Bill sooner than later.
I on behalf of the All India Catholic Union, All India Christian Council and the United Christian Action, will be formally appealing to the new President of India to ensure that the rights of religious minorities are not eroded by any legislative or executive measure by the Central and State government.}
This note contains the following:
Letter of Solicitor General of India to the Governor of Madhya Pradesh saying Madhya Pradesh add-ons to Anti Conversion laws unconstitutional;
Text of amendments made to the original Freedom of Religion law in Madhya Pradesh
Text of the Rajasthan Freedom of Religion Act
Critique of the Rajasthan Bill by Dr Rajeev Dhawan
Analysis of similar laws in several India states by South Asia Human Rights
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[1]
Letter of Solicitor General of India G E Vahanvati to Madhya Pradesh Governor Balram Jhakkar:
Supreme Court of India New Delhi, Dy. No. 1166/07 dated 3/5/07 Deptt. of Legal Affairs
1. I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
2. Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
3. By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1), shall be punishable with fine which may extend to one thousand rupees.
(5) Whoever fails to comply with the provision of sub-section (2), shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”
4. The following changes may be highlighted:
(A) Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
(B) Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
(C) Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “ regarding the objections, if any, to the proposed conversion.”
(D) No provision is made for the consequences of an adverse report.
5. Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1)&(2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?
6. The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
7. I do not agree with the view that a Superintendent of Police may report that the conversion is “ forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
8. Looked at from another point of view, the assumption is that if a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.
9. I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report ( merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “ public order.”
10. In my opinion, lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion which can have the effect of curtailing the right under article 25 in an unreasonable manner.
11. In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the un-amended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“ The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
12. The Hon’ble Court in the Stanislaus case was not concerned with an “ adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.
In the premises, I will answer the queries as under.
Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.
Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&
Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.
Ans. In my opinion, it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent Court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.
Q.(iv) There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving an intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.
Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections (and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.
Goolam E Vahanvati
Solicitor General of India
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[2]
Text of Madhya Pradesh Freedom of Religion (Amendment) Act, 2006 Act 15 of 2006
[English translation from Hindi Original by Hyderabad Translation Bureau, Hyderabad, India Courtesy All India Christian Council]
This may be enacted through the Madhya Pradesh Assembly in the fifty-seventh year of the Indian Republic as under:
I. Short title and commencement.
(1) The short title of this Act is “Madhya Pradesh Freedom of Religion (Amendment) Act, 2006”.
(2) This will come into force from the date published in Gazette.
II. Re-enforcement of section 5.
The following section may be enforced in the place of Section 5 of the Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968). (After this, which will be specified with its original Act.) It means: -
“5. Declaration before conversion of religion and pre-report about purification (sanskar)
(1) One who desires to convert his religion, he will declare such idea in front of District Magistrate or in front of the Executive Magistrate specially authorized by District Magistrate of related District that he wishes to change his religion on his own and at his will and pleasure.
(2) The related religious priest, who directly or indirectly participates in such religious
conversion and performs himself necessary purification (sanskar) desires any person for the conversion of his religion from one to another will give the details of the related religion’s purification ceremony in which such conversion takes place along with the date, time, place and the name and address of the person whose religion is going to be changed. This will be given one month before the date of above conversion and such declaration (affidavit) will be given in the prescribed proforma and it will be given by the priest to the concerned District Magistrate in the prescribed manner. (3) The District Magistrate, after receiving the information under sub-section (1) and (2), will give the details of information pertaining to the proposed religion conversion to the Police
Superintendent, who in turn ensures through local investigation if any objections are there with regard to that proposed religion conversion through Bhaar Sadhak officer of respective police station and he will submit its report to the District Magistrate.
(4) Whoever fails to follow the provisions mentioned in sub-section (1) will be penalized with a fine amounting up to rupees one thousand.
(5) Whoever fails to follow the provisions mentioned in sub-section (2) will be imprisoned which may be up to one year or fine up to rupees five thousand or will punished with both.”
III. Revision of Section 8.
The section 8 of the original Act may be re-serialized in the form of its sub-section (1) and thus after re-serialization of sub-section (1) the following sub-section may be incorporated. It means: -
“(2) All the Rules framed under this Section will be tabled in the State Legislative Assembly.”
STATEMENT OF AIMS AND REASONS
The Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968) is in vogue since 21st Oct. 1968. It is prohibited to convert anybody forcibly, or by inducement or by using any fraudulent method from one religion to another. Even then, there are no such provisions included in the Act through which some help can be received to find out about the conversion of that religion which come under violation of the Act. In the sub-section (1) of section 5 of the existent Act, there is a provision of submitting a report by the religious priest to the District Magistrate who changes a person from one religion to another after purification ceremony of religion conversion is performed.
The person who gets himself converted from one religion into another one, it is not required to produce prior-report (Declaration) before any authorized official. The main purpose of the Act turns futile because of such deficiencies because there is no device to find out and prevent violation of the Act of any religion conversion. Therefore it is proposed to revise the section 5 of above said Act as proper to make provision related to previous report of proposed conversion of religion.
(2) The provision is also included in order to submit the rules on the table of the State Legislative Assembly after the revision properly in section 8.
(3) Hence the Bill is submitted.
Nagendra Singh
Bhaarsadhak member
Bhopal Date: 17th July 2006
MEMORANDUM PERTAINING TO RE-ENFORCED LAW FRAMING
The empowerment of applying draft and procedure of memorandum pertaining to religion conversion through sub-section (2) of section 5 of part 2 of proposed Bill is re-enforced.
This re-enforcement is of a common nature.
Dr. A.K. Payasi
Chief Secretary
M.P. Legislative Assembly
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[3]
OFFICIAL ENGLISH TEXT OF RAJASTHAN BILL NUMBER 12 OF 2006
A Bill for prohibition of conversion from one religion to another by the use of force or allurement or by fraudulent means and for matters incidental thereto:
Be it enacted by the Rajasthan State Legislature in the Fifty-seventh year of the Republic of India as follows:
1. Short Title, extent and commencement:
(1) This Act may be called the Rajasthan Swatantraya Act, 2006
(2) It extends to the whole State of Rajasthan
(3)It shall come into force at once.
2. Definitions – In this Act, unless this otherwise requires,
(a) “unlawful” means which is in contravention of the provisions of this Act
(b) “allurement” means offer of any temptation in the form of –
(i)any gift or ratification, either in cash or kind;
(ii)grant of any material benefit, either monetary or otherwise
©”conversion” means renouncing one’s own religion and adopting another
Explanation: Own religion means religion of one’s forefathers;
(d) “force” includes show of force or threat of injury of any kind including threat of divine displeasure or social excommunication;
(e) “fraudulent” means and includes misrepresentation or any other fraudulent contrivance.
3. Prohibition of conversion – No person shall convert or attempt to convert either directly or otherwise any person from one religion to another by use of force or by allurement or by any fraudulent means nor shall any person abet such conversion.
4. Punishment for contravention of provisions of section 3 – Whoever contravenes the provisions of section 3 shall, without prejudice to any other criminal liability, be punished with simple imprisonment for a term which shall not be less than two years but which may extend to five years and shall also be liable to a fine, which may extend to fifty thousand rupees.
5. Offence to be cognisable and non-bailable – Any offence under this Act shall be cognisable and non-bailable and shall not be investigated by an office below the rank of Deputy Superintendent of Police.
6. Power to make rules -- (1) The State government may make rules for the purpose of carrying out the provisions of this Act.
(2) All rules made under this act shall be laid, as soon as may be, after they are so made, before the House of the State legislature, while it is in session, f a period of not less than fourteen days day which may be comprised in one session or in two successive sessions and if, before the expiry of the session in which they are so laid or the session immediately following, the House of the State Legislature makes any modification in any of such rules or resolves that any such rule should not be made, such rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder..
STATEMENT OF OBJECTS AND REASONS
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State.
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose
The Bill seeks to achieve the aforesaid objective
Hence the Bill
Gulabdchand Katariya
Minister in Charge
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[4]
PRELIMINARY SUBMISSIONS ON RajAsthan Dharma SWATANTRAYA Bill, 2006 by PUBLIC INTEREST LITIGATION SUPPORT AND RESEARCH CENTRE, DR RAJEEV DHAWAN
I. Introduction
1.1 This is a response to the Rajasthan Dharma Swatantraya Bill, 2006 which has presently been approved by the Rajasthan Cabinet and will be placed in the Legislature for approval.
II WHAT THE CONSTITUTION MAKERS DEVISED: RIGHT TO BELIEF, CONVERSION, PROPAGATION OF FAITH AND FREE SPEECH
2.1 The Constitution makers were concerned with the following fundamental rights:
(i) Freedom of speech and expression [Article 19(1)(a)]
(ii) Freedom of conscience [Article 25(1)]
(iii) Freedom to profess, practice and propagate religion [Article 25(1)]
2.2 While the initial draft of the Constitution did not include the term propagate, after deliberations in the Fundamental Rights Sub Committee, Minorities Sub Committee, the Advisory Committee and the Constituent Assembly, it was concluded that propagation would form a part of the right to religion.
Challenge in the Courts
2.3 This ambit of the Constitutional protection of conversion was examined by the Supreme Court in the Rev. Stanislaus case in which the Madhya Pradesh and the Orissa laws were challenged on the ground of violation of Art. 25. The salient features of the judgement are the following:
(i) It held that what Article 25(1) grants is not the right to convert another person to one's own religion by exposition of its tenets."
(ii) It was held that since any attempt at conversion was likely to result in a breach of public order affecting the community at large, the State legislatures would have the competence to enact the legislation.
iii CRITIQUE OF THE rajasthan LEgisLATION: PURPOSE AND INTENT
3.1 In order to critique the Bill, the purpose and intent of the Bill has to be examined. While the malafide of a legislative enactment cannot be challenged, the Supreme Court has rightly held that ‘the Court can tear the veil to decide the real nature of the statute’. Tearing the veil will show:
(i) the legislative purpose; and,
(ii) its predictable effect
3.2 The Statement of Objects and Reasons of the present Bill states as follows:
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State. [Emphasis added]
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose.
3.3 In the context of restrictions on fundamental rights, public order has specific technical meaning which has been narrowly tailored by the Supreme Court. The Court has held that public order is something more than the mere maintenance of law and order and acts which disturb law and order may not amount to a threat to the public order. Thus, public order is a narrower and more rigid classification of the former and the two cannot be used interchangeably.
3.4 According to the statement of objects and reasons, the introduction of this Bill was desirable and necessary because of the following reasons:
(i) Annoyance caused to a religious community; and
(ii) Law and order problems
Both of these reasons are completely inadequate to justify a restraint of the manner imposed in the Bill especially as:
(i) As has been seen, law and order is not congruous to public order and restrictions cannot be imposed on Constitutional freedoms on the ground of law and order. In the present context, if there are any inter-religious tensions because of conversion, the state has been amply empowered by the Indian Penal Code to deal with such situations. Chapter XV of the IPC gives the State wide ranging powers to deal with law and order problems arising out of religious tensions.
(ii) Annoyance caused to a religious community is completely unacceptable as a ground for restricting Constitutional freedoms. The State is empowered under the IPC and the CrPC to regulate behaviour such as speech, publications, demonstrations, etc which may cause annoyance to religious communities.
IV. DETAILED ANALYSIS OF THE BILL
4.1 Short title, extent and commencement (Section 1)
Most legislative amendments have a provision stating that they shall come into force when the Government, in its discretion, deems fit to notify it by publishing it in the Official Gazette. However, in this case, there is no such discretion as the Bill itself provides that it shall come into force at once. In this respect, the Bill is placed on par with legislations such as TADA, POTA, which involve matters of such grave public implication and urgency such that the Government can have no discretion in them coming into force.
4.2 Definitions Clause (Section 2)
(i) The definition of unlawful is overbroad, circular and open to misinterpretation especially as it is dependant on the other provisions of the Bill, which are in themselves over inclusive and vague.
(ii) This definition of allurement is identical to the definition of the term ‘inducement’ in the Orissa Freedom of Religion Act 1967, which was struck down by the Orissa High Court on the ground that it was open to the reasonable objection on the ground that it was too broad and surpassed into the field of morality. While the judgement was later overruled in the Rev. Stanislaus case, this aspect of the legislation was not discussed and is thus open to challenge
(iii) The definition of conversion shows the partisan nature of the Bill, which includes conversions, but does not include re-conversions. This means that, for example, conversions from Hinduism to other religions are covered in the section, but not re-conversions back to the original faith. It is pertinent to note that this narrow definition of conversion is an addition in the present Rajasthan Bill.
(iv) The definitions of force and fraudulent are extremely broad and cover a vast number of situations which could possibly be used to include activities of propagation. Any religious propaganda could be considered to be a misrepresentation or force within the meanings of these definitions.
4.3 Criminalization section (Section 3)
(i) This Section has criminalizes conversion or attempt to conversion, directly or otherwise. This is an extremely wide clause and within the scope of attempting, directly or otherwise, a whole range of religious activities can be included, including the propagation of religion.
(ii) It may also extend to cover incidental matters such as conversions according to personal laws. For instance, if a Hindu woman marries a Muslim and converts, and a Meher amount is fixed during the marriage according to Muslim personal laws, this would be covered under this section as conversion by allurement.
(iii) Further, the Section has also placed conversion and attempt to convert has been placed on the same footing, and the punishment is the same for both of them. This is in violation of the principle of criminal jurisprudence (recognized in the Indian Penal Code) that the attempt to commit an offence is less serious that the actual commission of the offence and thus must be differentially punished.
(iv) It also overlooks the various nuances of criminal liability for the abetment of an offence and simply provides a common liability.
4.4 Punishment section (Section 4)
(i) The punishment clause demonstrates the manner in which the Government has tried to criminalize religious conversions. The penalty is harsher than the penalty for offences like rioting, causing death by negligence, wrongful restraint, etc. Such a harsh punishment clause, combined with the broad inclusion in Section 3 creates a situation in which normal religious activities of propagation are hampered.
(ii) As has been mentioned earlier, the Bill ignores the principles of criminal jurisprudence with respect to the criminal liability for attempt and abetment.
4.5 Section 5
(i) While this Section provides for investigation by a senior level Police officer, it removes the prior sanction from the civilian district authorities which had been provided in preceding anti-conversion legislations. This concentration of authority in the hands of the Police and the lack of supervision from the district administration makes the Bill vulnerable to abuse.
(ii) Also, we see that it makes the offence non-bailable and this underscores the attempt of the Government to make any offence under this Bill a grave one.
(iii) There are no other provisions to ensure that the powers are not abused and that due process requirements are met.
(iv) The possibility of abuse of the powers under this Bill, especially at the hands of the Police leads to the Bill directly curtailing the right of religions, especially minorities, to propagate.
v Secularism
5.1 The present Bill can be challenged not only on the ground that is violative of the Constitutional freedoms of speech and religion, but also because it violates secularism, which is a part if the basic structure of the Constitution. In the case of the present legislation, it is clear that the State is actively intervening in a partisan manner to protect a particular religion from a perceived crisis. There can be no doubt that this Bill has been drafted with the legislative intent and purpose of preferring the rights of one religion at the cost of the minority religions. It targets particular communities both to stop efforts to convert and to create a situation of intimidation where others are unwilling to convert. Even in practice, the enforcement of the Bill will amount to community targeting and will be implemented in a manner which will exacerbate communal tensions. Thus, the Bill, both in purpose and in its inevitable effect is a violation of the secular structure of the Constitution.
Vi CONCLUSION
6.1 It is evident from the foregoing discussion that the present Rajasthan Bill is constitutionally invalid and flawed due to the following:
· The Bill seeks to impose restrict the right to freedom of religion and speech on the grounds of law and order, which is constitutionally impermissible.
· The Bill direct and inevitable effect of the Bill is not only to regulate conversions, but also to cripple the right of religions, especially minority religions to propagate their faith.
· This affects the rights of an individual to be converted, which is a part of the fundamental right to religion.
· The Bill is partisan in its purpose and intent as it seeks to protect the community from which the conversions are taking place.
· The provisions of the Bill are over inclusive and provide enough loopholes for abuse of the powers under the Bill.
· It violates the requirements of due process and ignores principle of criminal jurisprudence.
6.2 In view of the above, the constitutionality of the Bill is open to challenge. The possible objection to this may be the Stanislaus judgement of the Supreme Court, but those objections may be addressed as follows:
· The Supreme Court judgment in Stanislaus was directed towards only forced conversion or coercive conversion and thus has to be strictly interpreted.
· The judgement has not addressed the particular provisions of the legislations and they still remain open to challenge.
· .
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[5]
Acts of Bad Faith -- Anti-conversion laws in India
[Courtesy: Human Rights Features copyright © SAHRDC
On 29 December 2006, the government of the northern Indian state of Himachal Pradesh passed the Himachal Pradesh Freedom of Religion Bill 2006. The government claimed it was intended to prevent religious conversions through “force” or “inducement”.
The Bill – yet to be signed into law – is modelled on other existing anti-conversion laws in other Indian states, but it is unique in that it was adopted by a Congress Party-led state government. The Congress Party had opposed similar laws in the past in other states ruled by the Hindu nationalist Bharatiya Janata Party. However, Congress-ruled state governments in Arunachal Pradesh and Orissa have passed acts similar to the Himachal Pradesh Bill, and taken together, these pieces of legislation expose the hollowness of the Congress Party’s claims of being a secular party.
Once Himachal Pradesh signs the Bill into law, it would be the sixth Indian state to adopt anti-conversion legislation, joining the ranks of Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, and Gujarat. A seventh state, Jharkhand is also expected to pass an anti-conversion law.
There is no doubt that conversions brought about by violence or other equally illegitimate means of coercion cannot be permitted. Indeed, such conversions violate the freedom of religious beliefs protected within both the international instruments and the Indian Constitution. However, the language adopted by the Acts in these states goes far beyond protecting this fundamental right.
The definition of force
All the anti-conversion laws share a common definition of what constitutes “force” in forced conversions. As the Rajasthan Bill provides:
‘Force’ includes a show of force or a threat of injury any kind, including threat of divine displeasure or social ex-communication.
It is uncertain how this prohibition will work in practice. For example, if a religion teaches that non-adherents risk divine displeasure (as with Christianity, Islam, and Judaism), teaching this article of faith may constitute an act of force under the Act. This may be contrary to the freedom to change one’s religion. As H. M. Seervai points out in his discussion of the right to propagate, “[a] person cannot choose if he does not know what choices are open to him (sic)”. As a result of the overly broad definition of “force”, a person engaging another in order to bring about his or her conversion cannot inform the potential convert what the religion teaches about non-adherents. This limits the information that may be made available to the potential proselyte. An individual cannot fully exercise his or her freedom to change religion if such information is withheld.
The definition of allurement
According to the Rajasthan Bill:
‘[a]llurement’ means offer of any temptation in the form of
1) any gift or gratification, either in cash or in kind;
2) grant of any material benefit, either monetary or otherwise
The Madhya Pradesh, Chhattisgarh and Gujarat anti-conversion laws rely on an identical definition. The Orissa and Arunachal Pradesh laws are worded slightly differently:
[i]nducement shall include the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise.
The High Court of Orissa struck this definition down as being too vague and passing into the realm of morality. Though the High Court’s decision was overturned by the Supreme Court in Stanislaus v. Madhya Pradesh & Ors, the Supreme Court did not discuss this aspect of the High Court’s judgment.
The potentially broad scope of the term “allurement” is troubling. Christian groups have expressed concern that the provision might be used to prohibit acts of charity, as they might be interpreted as “temptations” to convert. As charitable acts are also fundamental to many religious traditions, such an interpretation may restrict the freedom of its adherents to practice their religion or religious beliefs. It is conceivable that the provision of education or medical care by religious denominations might also be interpreted as “temptations” intended to induce conversions.
The definition of fraud
The Rajasthan Bill and Gujarat Bill provide:
[f]raudulent’ means and includes misrepresentation or any other fraudulent contrivance.
The Acts in Orissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh Acts state:
[f]raud shall include misrepresentation or any other fraudulent contrivance’.
Once more, the imprecision of this definition is apparent. To take an extreme example, if an individual was told they would feel closer to God upon conversion and the converted person did not subsequently experience this degree of spirituality, would this constitute ‘misrepresentation’? The legislation provides no guidance about how such a definition should be understood, and potentially it is extraordinarily wide in scope. Indeed, the very idea of the concept of “fraud” in the context of religious belief is fraught with peril for a secular form of government. How can a Court adjudicate “fraud” in matters of faith without impermissibly entangling itself in the tenets of a religion?
The prohibition of conversions
All of the anti-conversion acts prohibit conversion in the following terms:
No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by inducement or by any fraudulent means, nor shall any person abet any such conversion.
Supporters of the laws argue they are intended to prohibit conversions or conversion attempts that are conducted by allurement, force or fraud. They suggest that such conversions are presently taking place, and that these laws are designed to criminalize such activities. The anti-conversion acts are therefore presented and titled as if their purpose were the protection of the ‘freedom of religion’.
These laws, however, actually serve to infringe upon religious freedom and contradict rights protected within international agreements and the Indian Constitution. Such laws are motivated by a religious ideology driven by an irrational and insecure Hindu xenophobia that is antagonistic to religious minorities.
Anti-conversion laws and the Indian Constitution
Articles 25 to 30 of the Indian Constitution deal with religion. Article 25 is most relevant for present purposes. It is similar to Article 18 of the Universal Declaration of Human Rights (UDHR). Article 25 reads in relevant part as follows:
25. Freedom of conscience and free profession, practice and propagation of religion.
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious Institutions of a public character to all classes and sections of Hindus.
The Supreme Court has commented on the scope of the protection of religious freedom within the Constitution as follows:
…while his (sic) religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the right to act in any way he pleased (sic).
The Constitution protects the freedom of individuals to hold any religious beliefs. However, the freedom to manifest one’s religion or belief is not absolute. Nonetheless, this freedom can only be limited according to the provisions of the Constitution.
Anti-conversion laws and international safeguards
While international instruments do not explicitly recognize a per se right to proselytise, there is a strong case to be made that the religious freedom within Article 18(1) of the International Covenant of Civil and Political Rights (ICCPR) encompasses the right to attempt to peacefully propagate one’s religious beliefs. That Article states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
The United Nations Human Rights Committee has commented that ‘[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. Further, the ‘practice and teaching of religion’ is said to include the ‘freedom to prepare and distribute religious texts and publications’. The Committee has concluded that the right to freedom of thought, conscience and religion is both ‘far-reaching and profound’. In light of these observations, it seems reasonable to conclude that the freedom should be interpreted to include distribution of texts and publications to non-adherents where the objective is to secure their conversion.
The Human Rights Committee has also declared any restrictions on the freedom to manifest one’s religion or beliefs pursuant to Article 18(3) must be ‘directly related and proportionate to the specific need on which they are based.’ The Special Rapporteur of the Commission of Human Rights on freedom of religion or belief has similarly concluded that Article 18 allows for restrictions ‘only in exceptional circumstances’. It is hard to understand what ‘exceptional circumstances’ exist in India that would justify the passage of so many anti-conversion laws.
Conclusion
The anti-conversion laws, both by their design and implementation, favour Hinduism over minority religions. This represents a significant challenge to Indian secularism. The erosion of the principles of secularism and toleration risks fanning inter-religious tensions. It is no exaggeration to say that India stands at a crossroads and must be careful to reassert its commitments to the tenets of religious toleration and secularism.
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Wednesday, July 25, 2007
Of Money and Caeser paying God
Government Funding of Religion
26 July 07
Following VHP’s demand for an end to government funding of madarsas, it will be interesting, using Right to Information, to find out government expenditure on religion in India. Such frank, correct data will for ever set to rest the Sangh Parivar’s fear it is getting less than the minorities – in absolute or pro rata terms
Salaries of imams
Doles to mosques for repairs
Upkeep of shrines, if any
Hajj subsidy
Telecast and broad cast expenses
Moneys for burial grounds
Hindus
Money to temples for upkeep
Salaries to priests
Salaries to Sanskrit ands other seminaries
Confessional land and land revenue. Regularization of temples lands
Moneys on Kailash and other Yatras
Money of full and ardh-kumbhs
Telecast and broadcast expenses
Christians
Money to churches
Money to priests’ salaries
Money to Christian shrines
Moneys for cemeteries
Money for Christian festivals
Sikhs
Moneys for upkeep of Gurudwara
Moneys for salaries
Money in subsidies for yatras to Nankana sahib etc
Broadcast and telecast expenses
Money for cremation and other grounds
NationalStop financial aid to madarsas, demands VHP
Bhopal, July 22 (PTI) The Hindu
Alleging that madrassas are promoting 'jehad', the Vishwa Hindu Parishad (VHP) yesterday demanded an immediate end to financial grants provided to these institutions by the Union government.
"Grants amounting to Rs 500 crore are given to madrassas for dealing with poverty and illiteracy but these bodies are engaged in promoting jehadis," VHP leader Pravin Togadia claimed at a press conference here.
Noting that the VHP had protested against financial aid given to madrassas by the previous National Democratic Alliance (NDA) government at the Centre, he said the organisation was sticking to its stand to oppose funds being provided to these institutions.
He said grants to madrassas virtually gave legitimacy to the activities taking place there.
26 July 07
Following VHP’s demand for an end to government funding of madarsas, it will be interesting, using Right to Information, to find out government expenditure on religion in India. Such frank, correct data will for ever set to rest the Sangh Parivar’s fear it is getting less than the minorities – in absolute or pro rata terms
Salaries of imams
Doles to mosques for repairs
Upkeep of shrines, if any
Hajj subsidy
Telecast and broad cast expenses
Moneys for burial grounds
Hindus
Money to temples for upkeep
Salaries to priests
Salaries to Sanskrit ands other seminaries
Confessional land and land revenue. Regularization of temples lands
Moneys on Kailash and other Yatras
Money of full and ardh-kumbhs
Telecast and broadcast expenses
Christians
Money to churches
Money to priests’ salaries
Money to Christian shrines
Moneys for cemeteries
Money for Christian festivals
Sikhs
Moneys for upkeep of Gurudwara
Moneys for salaries
Money in subsidies for yatras to Nankana sahib etc
Broadcast and telecast expenses
Money for cremation and other grounds
NationalStop financial aid to madarsas, demands VHP
Bhopal, July 22 (PTI) The Hindu
Alleging that madrassas are promoting 'jehad', the Vishwa Hindu Parishad (VHP) yesterday demanded an immediate end to financial grants provided to these institutions by the Union government.
"Grants amounting to Rs 500 crore are given to madrassas for dealing with poverty and illiteracy but these bodies are engaged in promoting jehadis," VHP leader Pravin Togadia claimed at a press conference here.
Noting that the VHP had protested against financial aid given to madrassas by the previous National Democratic Alliance (NDA) government at the Centre, he said the organisation was sticking to its stand to oppose funds being provided to these institutions.
He said grants to madrassas virtually gave legitimacy to the activities taking place there.
It takes just a few
From John Dayal: Two interesting notes on what a cult or two can do to a Faith and a Religion. We all, of course, know what the Sangh Hindutva Parivar has done in the last few years in India.
November 4, 2006
First Published: 00:49 IST(26/7/2007)
Last Updated: 00:57 IST(26/7/2007)
Sadia Dehlvi
July 25, 2007
Ideology of intolerance
Yes, the Muslim world is facing oppression and injustice, but we can no longer escape the fact that we have enemies within the community. The Glasgow attack and the Lal Masjid horror are recent examples of extremism and terror. Clearly there is a crisis of ignorance, leadership and faith. Muslims must acknowledge that there is a radical fringe which needs to be identified and rejected. We cannot allow the pulpits of our mosques or the institutions of learning to be seized for the discourse of anger and the rhetoric of rage. It has become imperative to understand the root of militancy, which is transforming the glorious tradition of spiritual quest and scholarship in Islam to one of terror.
Prophet Mohammad said, “Beware of extremism in your religion”. This ideology of extremism stems from religious outfits like Tablighi Jamaat whose recruits are operating world over. Tablighi Jamaat was founded by Deobandi cleric Maulana Mohammad Ilyas Kandhalawi in 1920. The Jamaat-e-Islami, Ahle Hadis and Salafis share similar views.
Islam in the subcontinent is the legacy of the Sufis. Wahabism is an import from Saudia Arabia, which seeks inspiration from Ibn Wahab who died in 1786 AD. Unfortunately its followers are unaware of the political and religious activities of its founder and have become victims of the mission rhetoric: “purify and spread Islam”, which allows emotion to rule over knowledge.
The Wahabis reject the historical Islamic belief that the spiritual chains of Sufi orders (silsilas) are linkages to Prophet Mohammad. Ibn Taymiyya, a 14th century scholar, remains the primary source for Wahabi ideology who was barred from teaching and jailed several times in Damascus for issuing heretical fatwas. Taymiyya’s life was spared because he publicly repented amid 700 scholars. He slandered the Caliphs Ali and Osman, discredited Sufi scholars like Ibn Arabi and Imam Ghazali, preaching that visiting the Prophet’s shrine was sin. Inspired by Taymiyyas forgotten teachings Abd al-Wahab of Nejd in East Arabia saw himself as a reformer and preached that Muslims who sought intercession to God through Prophet Mohammad and the Sufis are polytheists who practice shirk (innovation).
Ibn Wahab’s initial devotees were largely Bedouins and he declared those who did not believe in his teachings as unbelievers. He told them: “It is halal (permissible) to kill and plunder Muslims who make mediators of the prophet and auliyas (Sufis) with a view to attain closeness to Allah.” The Bedouins used the verdict to justify the loot of Haj pilgrims. Ibn Wahab taught that it was sinful to build tombs over graves and said: “If I could I would demolish the Prophet’s shrine.” He did not believe that waqf foundations were Islamic and pronounced that salaries to Qazis were unlawful bribes. Ibn Wahab burnt original Sufi manuscripts including copies of the world famous Muslim prayer manual “Dalail ul Khairaat” by the 15th century Moroccan Sufi scholar Jazuli because along with salutations and blessings to the Prophet, its narrative included an eloquent portrait of the Prophet’s shrine. His followers plundered and desecrated the tomb of the Prophet’s grandson Imam Hussain in Karbala.
Wahabi orthodoxy was a minor current in the Muslim world till promoted by the Al Saud dynasty that came to power in 1924. The house of Saud established matrimonial alliances with Ibn Wahab’s family furthering his strident teachings to justify their take-over of the holy cities and establish the Kingdom of Saudi Arabia. The royals ran bulldozers over the remnants of all meditation cells and the early Sufi tombs along with the adjoining mosques. The historical tombs of the Prophet’s family and his companions at Jannat ul-Maali and Jannat ul-Baqi, the sacred graveyards of Mecca and Medina were razed to the ground.
Mecca and Medina are now managed by the Wahabis and their control has robbed pilgrims of the right to express devotion in a manner of their choice. Constant patrol of the muttawas (religious police) ensures that pilgrims don’t touch the exteriors of the prophet’s shrine or offer salutations to him. At Medina turning towards the Prophet’s tomb for supplication (dua) is met with harsh reactions and pilgrims are forcibly turned around to face the direction of the Kabbah. Women are allowed in the compound but are subject to severe restrictions of time and space.
Through well-funded outreach organisations the Wahabis spread their version of Islam where listening to music, celebrating the annual birth anniversary of the Prophet (milad-e-nabi) and death anniversaries of the Sufis (Urs) are unlawful in Islam.
Be it for Muslims or non-Muslim, the Wahabi ideology is rooted in the politics of extremism and terror negating the Quranic message of peace and brotherhood. “Islam is a religion of peace,” has been reduced to a mere cliché. Muslims have to become good communicators of that Quranic and prophetic message by reclaiming their lost intellectual heritage and reviving academic discourse on the rightful traditions of Islam.
“… and who saves the life of one, it shall be as if he had saved the life of mankind.” — The Quran 5:32
http://hindustantimes.com/StoryPage/Print.aspx?Id=0db6dcaf-0bb8-4ddb-82f0-ea6db4ca6cb0
© Copyright 2007 Hindustan Times
November 4, 2006
Dipankar Gupta
July 25, 2007
First Published: 00:58 IST(26/7/2007)
Last Updated: 01:02 IST(26/7/2007)
The threat from within
Sikhs may be just 2 per cent of the population but in their self- image and deportment, it is as if they constitute 200 per cent of India’s one billion. As the saying goes: “Ek Sikh barabar sava lakh.” Even during the worst days of the Partition, Sikhs never felt insecure about their religion as their Hindu counterparts did, and continue to do.
Why then does a small, insignificant sect like the Dera Sacha Sauda, that does not even claim to be Sikh, get mainstream Akalis and a large number of everyday Sikhs so hot and bothered? This Baba is no medieval tyrant and martyrdom of any kind would be thoroughly wasted on him. He is a minor figure whose demonising by the Akalis raised his stature and downgraded their gurus who gave up their lives in far more glorious battlefields.
The question then is: How did the Sikhs suddenly turn so insecure? When did it happen and where were we all looking? Or did the lights suddenly go off in the changing room?
The original Panthic Party, which later morphed into the Akali Dal after 1947, never evinced such worries either, and those were very difficult times. They regularly participated with the Congress before Independence. The party even supplied the Congress with a stable of leaders from Pratap Singh Kairon to Swaran Singh. On election campaigns in undivided Punjab, the Panthic Party frequently displayed the Congress symbol along with its own. On no occasion did any of this to-and-fro movement from Panthic Party and back threaten Sikhism. Nor did the Shiromani Gurdwara Parbandhak Committee declare Kairon or Swaran Singh, or any of the others who took their political blood lines to the Congress, apostates or ‘tankhaiyas’. Sikhism had that much confidence.
In 1899, when Sardar Kahn Singh Nabha wrote “Hum Hindu Nahin (We are not Hindus),” he did not castigate any other religion but just said the plain truth. The Sikhs were not Hindus and let the record state the facts. It was not as if he was prompted to write this tract because of the perceived fear that Hinduism was eating up Sikhism. In this sense he was not the mirror opposite of Swami Dayanand who took every other religion, including Sikhism, as a threat to the Hindu faith.
Nabha’s interjection was to remind his readers of the symbolic energies at the heart of his faith without deriding non-Sikhs, nor, even for a moment, hoping to proselytise other religions to his own. Even the Singh Sabhas and Chief Khalsa Diwan of that period were intent on crafting a separate Sikh identity and not in impressing their own thought prints on their immediate religious neighbours.
Interestingly, in the 60 years after Independence, the Akali Dal has never used the Partition to evoke partisanship the way Hindu parties, and sadly, the Congress even, have done from time to time. This is indeed quite remarkable. Sikhs too had suffered along with Hindus in their migration to east Punjab and beyond. And yet, unlike Hindus, the Partition is history for Sikhs, and not a source of political energies.
When I was working with re-settled rural Sikh refugees in Punjab and Haryana, what struck me the most was that they found my questions, which recalled the Partition, quite stupid. So many of these Sikhs told me to move on and not keep looking over my shoulder for monsters and chimeras of the past.
That was such a relief. Hindu refugees, in general, were still agonising over the Partition and related stirring tales of their experiences during those times. Most of this recall was highly adorned as my Hindu respondents in the early 1990s were either babies or playing in the mud in knickers when 1947 happened. Some post-Partition Hindu families even held prayer meetings to solemnly remember the day they were ousted from their homes. I found none of this among Sikh refugees. It is no surprise then that even a sectarian party like the Akali Dal has no use for the Partition as a leavening political agent.
Later, during the bad days of Khalistan, a large number of Sikhs felt that they were humiliated by the Indian state, but on no account did they believe that their religion was under threat. Khalistanis were, of course, baying to the contrary from the margins, but an overwhelming majority of Sikhs did not politically side with these secessionists though they were widely admired for giving the hated agents of the government a tough time. This is not an ‘a-ha’ moment for, in spite of the trauma post-Bluestar, Sikhs were willing to look ahead the moment Prime Minister V.P. Singh visited Punjab with a healing balm.
The Khalistani years, if one may call them that, however demonstrated that in times of crisis, it was not as if there were Sikhs and Sikhs. Regardless of caste and origin, all Sikhs came together. This is where the difference lies when we come to the Sikh over-reaction to Dera Sacha Sauda. There are now Sikhs and Sikhs and the lines are drawn along the grooves of caste.
Most of the animus against Baba Ram Rahim came from the Malwa region of Punjab where Jat Sikhs are politically dominant. It does not matter really if Jats vote Congress today and Akali tomorrow, it would always be a fight between ‘lions’. Dera Sacha Sauda trampled on this territory by bringing in non-Jats to kick up dust and spoil the Jat versus Jat slugfest.
This is why Baba Ram Rahim was so profoundly despised in Jat-dominated Akali circles. It was not because he was undermining Sikhism so much as using his “low caste” followers to defeat Jats in their own lair that made Baba Ram Rahim such a hated poster-boy for the Akalis. If the Congress had won without his support, that would still have been acceptable.
It is not true, as the Akalis allege, that in the advertisement put out by Baba Ram Rahim he dressed like Guru Gobind. His turban did not have a ‘kalgi (or plume)’, he was stirring Rooh Afza (or something pink) with a ladle and not with a sword (which is Khalsa tradition), and further, he was wearing pink and not blue, not even white. No icon of Guru Gobind can ever be depicted in that colour. Chhatrapati Shivaji’s popular imagery looks closer to Guru Gobind than this pink spectacle.
And yet many Sikhs blindly believed the Akalis when they said that Baba Ram Rahim was imitating Guru Gobind and thus mocking Sikhism. The majority of such Sikhs did not bother to verify the facts as they were primed to believe anything against him. It was their Jatness, not their Sikhness, that Baba Ram Rahim deeply hurt. In the 1980s, Hindus too eagerly believed the tale that the Anandpur Sahib Resolution was secessionist. The drive to hate always numbs the better senses.
At the end of the day what is most depressing is that Sikhs are becoming caste-ridden, and more and more like Hindus. If this trend continues then Sikhism will probably find its greatest threat from within and not from figures clad in baby pink.
Dipankar Gupta is professor, social sciences, at Jawaharlal Nehru University, New Delhi
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© Copyright 2007 Hindustan Times
November 4, 2006
First Published: 00:49 IST(26/7/2007)
Last Updated: 00:57 IST(26/7/2007)
Sadia Dehlvi
July 25, 2007
Ideology of intolerance
Yes, the Muslim world is facing oppression and injustice, but we can no longer escape the fact that we have enemies within the community. The Glasgow attack and the Lal Masjid horror are recent examples of extremism and terror. Clearly there is a crisis of ignorance, leadership and faith. Muslims must acknowledge that there is a radical fringe which needs to be identified and rejected. We cannot allow the pulpits of our mosques or the institutions of learning to be seized for the discourse of anger and the rhetoric of rage. It has become imperative to understand the root of militancy, which is transforming the glorious tradition of spiritual quest and scholarship in Islam to one of terror.
Prophet Mohammad said, “Beware of extremism in your religion”. This ideology of extremism stems from religious outfits like Tablighi Jamaat whose recruits are operating world over. Tablighi Jamaat was founded by Deobandi cleric Maulana Mohammad Ilyas Kandhalawi in 1920. The Jamaat-e-Islami, Ahle Hadis and Salafis share similar views.
Islam in the subcontinent is the legacy of the Sufis. Wahabism is an import from Saudia Arabia, which seeks inspiration from Ibn Wahab who died in 1786 AD. Unfortunately its followers are unaware of the political and religious activities of its founder and have become victims of the mission rhetoric: “purify and spread Islam”, which allows emotion to rule over knowledge.
The Wahabis reject the historical Islamic belief that the spiritual chains of Sufi orders (silsilas) are linkages to Prophet Mohammad. Ibn Taymiyya, a 14th century scholar, remains the primary source for Wahabi ideology who was barred from teaching and jailed several times in Damascus for issuing heretical fatwas. Taymiyya’s life was spared because he publicly repented amid 700 scholars. He slandered the Caliphs Ali and Osman, discredited Sufi scholars like Ibn Arabi and Imam Ghazali, preaching that visiting the Prophet’s shrine was sin. Inspired by Taymiyyas forgotten teachings Abd al-Wahab of Nejd in East Arabia saw himself as a reformer and preached that Muslims who sought intercession to God through Prophet Mohammad and the Sufis are polytheists who practice shirk (innovation).
Ibn Wahab’s initial devotees were largely Bedouins and he declared those who did not believe in his teachings as unbelievers. He told them: “It is halal (permissible) to kill and plunder Muslims who make mediators of the prophet and auliyas (Sufis) with a view to attain closeness to Allah.” The Bedouins used the verdict to justify the loot of Haj pilgrims. Ibn Wahab taught that it was sinful to build tombs over graves and said: “If I could I would demolish the Prophet’s shrine.” He did not believe that waqf foundations were Islamic and pronounced that salaries to Qazis were unlawful bribes. Ibn Wahab burnt original Sufi manuscripts including copies of the world famous Muslim prayer manual “Dalail ul Khairaat” by the 15th century Moroccan Sufi scholar Jazuli because along with salutations and blessings to the Prophet, its narrative included an eloquent portrait of the Prophet’s shrine. His followers plundered and desecrated the tomb of the Prophet’s grandson Imam Hussain in Karbala.
Wahabi orthodoxy was a minor current in the Muslim world till promoted by the Al Saud dynasty that came to power in 1924. The house of Saud established matrimonial alliances with Ibn Wahab’s family furthering his strident teachings to justify their take-over of the holy cities and establish the Kingdom of Saudi Arabia. The royals ran bulldozers over the remnants of all meditation cells and the early Sufi tombs along with the adjoining mosques. The historical tombs of the Prophet’s family and his companions at Jannat ul-Maali and Jannat ul-Baqi, the sacred graveyards of Mecca and Medina were razed to the ground.
Mecca and Medina are now managed by the Wahabis and their control has robbed pilgrims of the right to express devotion in a manner of their choice. Constant patrol of the muttawas (religious police) ensures that pilgrims don’t touch the exteriors of the prophet’s shrine or offer salutations to him. At Medina turning towards the Prophet’s tomb for supplication (dua) is met with harsh reactions and pilgrims are forcibly turned around to face the direction of the Kabbah. Women are allowed in the compound but are subject to severe restrictions of time and space.
Through well-funded outreach organisations the Wahabis spread their version of Islam where listening to music, celebrating the annual birth anniversary of the Prophet (milad-e-nabi) and death anniversaries of the Sufis (Urs) are unlawful in Islam.
Be it for Muslims or non-Muslim, the Wahabi ideology is rooted in the politics of extremism and terror negating the Quranic message of peace and brotherhood. “Islam is a religion of peace,” has been reduced to a mere cliché. Muslims have to become good communicators of that Quranic and prophetic message by reclaiming their lost intellectual heritage and reviving academic discourse on the rightful traditions of Islam.
“… and who saves the life of one, it shall be as if he had saved the life of mankind.” — The Quran 5:32
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© Copyright 2007 Hindustan Times
November 4, 2006
Dipankar Gupta
July 25, 2007
First Published: 00:58 IST(26/7/2007)
Last Updated: 01:02 IST(26/7/2007)
The threat from within
Sikhs may be just 2 per cent of the population but in their self- image and deportment, it is as if they constitute 200 per cent of India’s one billion. As the saying goes: “Ek Sikh barabar sava lakh.” Even during the worst days of the Partition, Sikhs never felt insecure about their religion as their Hindu counterparts did, and continue to do.
Why then does a small, insignificant sect like the Dera Sacha Sauda, that does not even claim to be Sikh, get mainstream Akalis and a large number of everyday Sikhs so hot and bothered? This Baba is no medieval tyrant and martyrdom of any kind would be thoroughly wasted on him. He is a minor figure whose demonising by the Akalis raised his stature and downgraded their gurus who gave up their lives in far more glorious battlefields.
The question then is: How did the Sikhs suddenly turn so insecure? When did it happen and where were we all looking? Or did the lights suddenly go off in the changing room?
The original Panthic Party, which later morphed into the Akali Dal after 1947, never evinced such worries either, and those were very difficult times. They regularly participated with the Congress before Independence. The party even supplied the Congress with a stable of leaders from Pratap Singh Kairon to Swaran Singh. On election campaigns in undivided Punjab, the Panthic Party frequently displayed the Congress symbol along with its own. On no occasion did any of this to-and-fro movement from Panthic Party and back threaten Sikhism. Nor did the Shiromani Gurdwara Parbandhak Committee declare Kairon or Swaran Singh, or any of the others who took their political blood lines to the Congress, apostates or ‘tankhaiyas’. Sikhism had that much confidence.
In 1899, when Sardar Kahn Singh Nabha wrote “Hum Hindu Nahin (We are not Hindus),” he did not castigate any other religion but just said the plain truth. The Sikhs were not Hindus and let the record state the facts. It was not as if he was prompted to write this tract because of the perceived fear that Hinduism was eating up Sikhism. In this sense he was not the mirror opposite of Swami Dayanand who took every other religion, including Sikhism, as a threat to the Hindu faith.
Nabha’s interjection was to remind his readers of the symbolic energies at the heart of his faith without deriding non-Sikhs, nor, even for a moment, hoping to proselytise other religions to his own. Even the Singh Sabhas and Chief Khalsa Diwan of that period were intent on crafting a separate Sikh identity and not in impressing their own thought prints on their immediate religious neighbours.
Interestingly, in the 60 years after Independence, the Akali Dal has never used the Partition to evoke partisanship the way Hindu parties, and sadly, the Congress even, have done from time to time. This is indeed quite remarkable. Sikhs too had suffered along with Hindus in their migration to east Punjab and beyond. And yet, unlike Hindus, the Partition is history for Sikhs, and not a source of political energies.
When I was working with re-settled rural Sikh refugees in Punjab and Haryana, what struck me the most was that they found my questions, which recalled the Partition, quite stupid. So many of these Sikhs told me to move on and not keep looking over my shoulder for monsters and chimeras of the past.
That was such a relief. Hindu refugees, in general, were still agonising over the Partition and related stirring tales of their experiences during those times. Most of this recall was highly adorned as my Hindu respondents in the early 1990s were either babies or playing in the mud in knickers when 1947 happened. Some post-Partition Hindu families even held prayer meetings to solemnly remember the day they were ousted from their homes. I found none of this among Sikh refugees. It is no surprise then that even a sectarian party like the Akali Dal has no use for the Partition as a leavening political agent.
Later, during the bad days of Khalistan, a large number of Sikhs felt that they were humiliated by the Indian state, but on no account did they believe that their religion was under threat. Khalistanis were, of course, baying to the contrary from the margins, but an overwhelming majority of Sikhs did not politically side with these secessionists though they were widely admired for giving the hated agents of the government a tough time. This is not an ‘a-ha’ moment for, in spite of the trauma post-Bluestar, Sikhs were willing to look ahead the moment Prime Minister V.P. Singh visited Punjab with a healing balm.
The Khalistani years, if one may call them that, however demonstrated that in times of crisis, it was not as if there were Sikhs and Sikhs. Regardless of caste and origin, all Sikhs came together. This is where the difference lies when we come to the Sikh over-reaction to Dera Sacha Sauda. There are now Sikhs and Sikhs and the lines are drawn along the grooves of caste.
Most of the animus against Baba Ram Rahim came from the Malwa region of Punjab where Jat Sikhs are politically dominant. It does not matter really if Jats vote Congress today and Akali tomorrow, it would always be a fight between ‘lions’. Dera Sacha Sauda trampled on this territory by bringing in non-Jats to kick up dust and spoil the Jat versus Jat slugfest.
This is why Baba Ram Rahim was so profoundly despised in Jat-dominated Akali circles. It was not because he was undermining Sikhism so much as using his “low caste” followers to defeat Jats in their own lair that made Baba Ram Rahim such a hated poster-boy for the Akalis. If the Congress had won without his support, that would still have been acceptable.
It is not true, as the Akalis allege, that in the advertisement put out by Baba Ram Rahim he dressed like Guru Gobind. His turban did not have a ‘kalgi (or plume)’, he was stirring Rooh Afza (or something pink) with a ladle and not with a sword (which is Khalsa tradition), and further, he was wearing pink and not blue, not even white. No icon of Guru Gobind can ever be depicted in that colour. Chhatrapati Shivaji’s popular imagery looks closer to Guru Gobind than this pink spectacle.
And yet many Sikhs blindly believed the Akalis when they said that Baba Ram Rahim was imitating Guru Gobind and thus mocking Sikhism. The majority of such Sikhs did not bother to verify the facts as they were primed to believe anything against him. It was their Jatness, not their Sikhness, that Baba Ram Rahim deeply hurt. In the 1980s, Hindus too eagerly believed the tale that the Anandpur Sahib Resolution was secessionist. The drive to hate always numbs the better senses.
At the end of the day what is most depressing is that Sikhs are becoming caste-ridden, and more and more like Hindus. If this trend continues then Sikhism will probably find its greatest threat from within and not from figures clad in baby pink.
Dipankar Gupta is professor, social sciences, at Jawaharlal Nehru University, New Delhi
http://hindustantimes.com/StoryPage/Print.aspx?Id=a2baa6ea-d1f3-449c-bc65-3ce6bb4f1a9a
© Copyright 2007 Hindustan Times
Are Union and State governmetns listening to the new boss?
We must all stand united in the fight against such divisive and destructive tendencies as communalism, casteism, extremism and terrorism. -- President Pratibha Patil in her first address after the swearing in ceremony
Tuesday, July 24, 2007
Crazu Andhra Pradesh order that bans freedom of faith in parts of the State
Andhra Pradesh Propagation of Other Religion in the Places of Worship or Prayer
(Prohibition) Ordinance, 2007
No. 3 of 2007
The following is the authoritative text in English Language of the Ordinance promulgated by the
Governor on the 22nd May, 2007 being published under article 348 (3) of the Constitution of India
for general information:-\
Andhra Pradesh Ordinance 3 of 2007.
Promulgated by the Governor in the Fifty-eighth Year of the Republic of India.
An Ordinance empowering the state to prohibit propagation of religion in places of worship or
prayer other than the religion traditionally practiced at such place and the matters connected
therewith or incidental thereto.
Whereas, the founding fathers of our Republic had envisaged a polity that gave each citizen in
our Country the right to profess, practice and propagate religion of his or her choice; and this is the
foundation of our Pluralist Society;
And whereas, the fundamental right is circumscribed by the overarching concern to maintain
public order, morality, and health;
And whereas, the right to profess, practice and propagate religion is voluntary without any
element of coercion;
And whereas, if an activity of any individual or group of individuals is likely to adversely to impact
public order, it needs to be curbed and reasonable restrictions can be placed on such activities;
And whereas, in recent past, there have been number of instances where propagation of
religious tenets in places of worship or prayer of one religious group by others has deeply hurt
sentiments, disturbing peace and tranquillity of that area;
And whereas, such incidents were reported from the world-renowned, ancient temple like
Tirumala, and there were strong protests;
And whereas, the Government perceived these as unwarranted intrusion into one religious
group’s domain which potentially could disturb public order;
And whereas, the Constitution of our Country guarantees to all citizens an equal entitlement to
freedom of conscience and this recognition of individual freedom and the spirit of mutual respect
and coexistence among various religious denominations is the bedrock of our Country’s ideological
framework enshrined in the Constitution;
And whereas, the State Government intends to bring an Ordinance to prohibit the propagation
of other religions in certain notified places of worship belonging to any particular religion mainly to
ensure that the sentiments of that religious group are not hurt and public order is not disturbed;
And whereas, the Legislature of the State is not now in session and the Governor of Andhra
Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate
action;
Now, therefore, in exercise of the powers conferred by clause (1) of article 213 of the Constitution
of India, the Governor hereby promulgates the following Ordinance.
1. Short title, extent and commencement.
(1) This Ordinance may be called the Andhra Pradesh Propagation of other religion in the
places of worship or prayer (Prohibition) Ordinance, 2007.
(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force at once.
Collected by the All India Christian Council, www.christiancouncil.in Page 2 of 2
2. Prohibition of propagation of religion in places of worship etc.
(1) The Government with a view to maintain public order, tranquillity and serenity of a
place of worship or prayer, prohibit propagation of a religion other than the religion
traditionally practiced at such place, by words, either spoken or written or signs or by
visible representation or distribute any printed material or other forms of religious
literature.
(2) The Government by order shall notify such places of worship or prayer from time to
time.
3. Offences and penalties.
Whoever contravenes the provisions contained in section 2 shall be punished with imprisonment
which may extend to three years or with fine up to Rs.5,000/- (Rupees five thousand) or with both.
4. Placing order before the Legislature.
Every order passed by the State Government under section 2 shall as soon as it is made be laid
before the Legislature of the State.
RAMESHWAR THAKUR,
Governor of Andhra Pradesh.
T. MADAN MOHAN REDDY,
Secretary to Government,
Legislative Affairs & Justice,
Law Department.
(Prohibition) Ordinance, 2007
No. 3 of 2007
The following is the authoritative text in English Language of the Ordinance promulgated by the
Governor on the 22nd May, 2007 being published under article 348 (3) of the Constitution of India
for general information:-\
Andhra Pradesh Ordinance 3 of 2007.
Promulgated by the Governor in the Fifty-eighth Year of the Republic of India.
An Ordinance empowering the state to prohibit propagation of religion in places of worship or
prayer other than the religion traditionally practiced at such place and the matters connected
therewith or incidental thereto.
Whereas, the founding fathers of our Republic had envisaged a polity that gave each citizen in
our Country the right to profess, practice and propagate religion of his or her choice; and this is the
foundation of our Pluralist Society;
And whereas, the fundamental right is circumscribed by the overarching concern to maintain
public order, morality, and health;
And whereas, the right to profess, practice and propagate religion is voluntary without any
element of coercion;
And whereas, if an activity of any individual or group of individuals is likely to adversely to impact
public order, it needs to be curbed and reasonable restrictions can be placed on such activities;
And whereas, in recent past, there have been number of instances where propagation of
religious tenets in places of worship or prayer of one religious group by others has deeply hurt
sentiments, disturbing peace and tranquillity of that area;
And whereas, such incidents were reported from the world-renowned, ancient temple like
Tirumala, and there were strong protests;
And whereas, the Government perceived these as unwarranted intrusion into one religious
group’s domain which potentially could disturb public order;
And whereas, the Constitution of our Country guarantees to all citizens an equal entitlement to
freedom of conscience and this recognition of individual freedom and the spirit of mutual respect
and coexistence among various religious denominations is the bedrock of our Country’s ideological
framework enshrined in the Constitution;
And whereas, the State Government intends to bring an Ordinance to prohibit the propagation
of other religions in certain notified places of worship belonging to any particular religion mainly to
ensure that the sentiments of that religious group are not hurt and public order is not disturbed;
And whereas, the Legislature of the State is not now in session and the Governor of Andhra
Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate
action;
Now, therefore, in exercise of the powers conferred by clause (1) of article 213 of the Constitution
of India, the Governor hereby promulgates the following Ordinance.
1. Short title, extent and commencement.
(1) This Ordinance may be called the Andhra Pradesh Propagation of other religion in the
places of worship or prayer (Prohibition) Ordinance, 2007.
(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force at once.
Collected by the All India Christian Council, www.christiancouncil.in Page 2 of 2
2. Prohibition of propagation of religion in places of worship etc.
(1) The Government with a view to maintain public order, tranquillity and serenity of a
place of worship or prayer, prohibit propagation of a religion other than the religion
traditionally practiced at such place, by words, either spoken or written or signs or by
visible representation or distribute any printed material or other forms of religious
literature.
(2) The Government by order shall notify such places of worship or prayer from time to
time.
3. Offences and penalties.
Whoever contravenes the provisions contained in section 2 shall be punished with imprisonment
which may extend to three years or with fine up to Rs.5,000/- (Rupees five thousand) or with both.
4. Placing order before the Legislature.
Every order passed by the State Government under section 2 shall as soon as it is made be laid
before the Legislature of the State.
RAMESHWAR THAKUR,
Governor of Andhra Pradesh.
T. MADAN MOHAN REDDY,
Secretary to Government,
Legislative Affairs & Justice,
Law Department.
Sunday, July 22, 2007
Dalit Christians get home from Buta Singh, Chairman, national Scheduled Caste Commission
PRESS STATEMENT
NEW Delhi, July 23, 2007
National Scheduled Caste Commission chairman Buta Singh’s assurance to High Powered Christian delegation: SC Commission supports SC rights for Dalit Christians and Muslims, but will also ask Government to increase quota from present 15 per cent to embrace actual Census data.
[
The following is the text of the Statement issued by Dr John Dayal, Member, National Integration Council, Government of India]
Top leaders of the Christian lay community, including the All India Catholic Union and the All India Christian Council, met with National Scheduled Caste Commission chairman Dr Buta Singh, a former Union Home Minister, on Sunday, 22 July 2007. The meeting came immediately after the Government of India, through additional Solicitor General Gopal Subramaniam, told the Supreme Court of India bench headed by chief Justice, that it was awaiting a report from the National Scheduled Caste Commission, a statutory body, to give its opinion on the issue of Scheduled rights for Dalit Christians. The Supreme Court on 19 July 2007 resumed hearings on a Public Interest writ litigation challenging the Presidential Order of 1950o which denies scheduled rights to Christians and Muslims converted from the former untouchable castes. Buddhist and Sikhs, who were also excluded earlier, were restored scheduled rights by previous Congress and United Front governments through legislation in Parliament after protracted agitation.
After the writs were filed in the Supreme Court last year by the Public Interest Litigation centre of former Union Law Minister Shanti Bhushan, Vellore lawyer D David, a Dalit, and Br Jose Daniel’s Dalit movement, the Union government urged the National Commission for Religious and Linguistic Minorities (NCRLM) to examine the issue. The NCRLM, headed by another former Chief justice of India Rangnath Misra, gave its report to Prime Minister Dr Manmohan Singh two months ago before it was wound up at the expiry of its term. The NCRLM accepted the demands of the Dalit Christians and Dalit Muslims that they suffered from the impact of caste in Indian society and therefore should be given the privileges and the protection of law given to people of the Scheduled caste of the Hindu, Buddhist and Sikh Faiths, In effect, the Justice Misra Commission said the Dalits of India suffered the same disabilities in society and opportunity and should not be discriminated against on grounds of religion. It suggested legislative and legal remedies to undo the impact of the Presidential order of 1950. Instead of publishing the report and accepting it as demanded by the Dalit Christians and Muslims, the Government told the court it will await the opinion of the National SC Commission.
The Chief Justice has given government eight weeks to come before the Supreme Court again to disclose its decision on the issue.
The Dalit Christian community has long agitated on the issue. Community leaders representing many organisations, including the Catholic Union, the Christian Council, the United Christian Action and the Union of Dalit Christians Movements India, an umbrella organisation, met over the weekend to plan their course of action and demand that the government accept the Justice Misra Commission report.
A delegation later met Mr. Buta Singh, chairman of the National Scheduled Caste Commission. The delegation, led by Dr. John Dayal, consisted of Mr. Issac Behera, Advocate Edward Arokio Doss and Mr. C Francis. The delegation gave a detailed memorandum to Dr Buta Singh. The delegation told Dr But Singh that two previous chairmen of the SC Commission, who were nominated by the then Bharatiya Janata party and who and allegiance to the Hindutva groups, had spoken against Dalit Christians and Muslims out of political bigotry, without going into the merits of the case.
In the 90 minute meeting at his official residence, Dr Buta Singh said he was committed to the cause of all Dalits, whatever is their region. He said his Commission would examine the issues in the Justice Misra Report compassionately. He said he was of the opinion that Scheduled Caste protection and rights should be available to people of very religion who suffered from this social infirmity which existed in every religion. He said while Caste as no doubt a product of the Hindu religion, but every other religion which was born in India or came to India became contaminated with this malaise. Quoting a Persian couplet, he said “anything which enters a salt mine becomes salt.”
Dr Buta Singh said his SC Commission will submit its report expeditiously. It will also tell the Government to implement Constitutional processes to raise the quota for Scheduled Castes and tribes, which was at present 15 per cent and 7.15 per cent to their actual numbers in the population. He said the Fathers of the Constitution had desired that the quota percentage be fixed on the basis of data that emerged from the National Census after ten years. The Justice Misra report has also recommended that groups such as Dalit Christians who it wants in the Scheduled caste category may be deleted from the OBC grouping of the population.]
TEXT OF MEMORANDUM
The following is the text of the memorandum submitted to Dr Buta Singh by Dr John Dayal, Member, National Integration Council, Government of India, Mr. Issac Behera IAS [Retd] Former Secretary to the Government of Orissa, President All India Catholic Union, Orissa, Mr. Edward Arokio Doss, Advocate Madras High Court, National Convenor, Union of Dalit Christian Movements India and Mr. C Francis:
Dr Buta Singh
Chairman
National Scheduled Caste Commission
Lok Nayak Bhawan
New Delhi
Re: Appeal to the National SC Commission to accept and support the recommendations of the Justice Rangnath Misra National Commission for Religious and Linguistic Minorities supporting grant of Scheduled Caste Status to Dalit Christians
Dear Dr Buta Singh
Greetings from the 1.60 crore Dalit Christians in India.
This memorandum is submitted to you on behalf of
The All India Catholic Union, New Delhi
The Union of Dalit Christian Movements India, Madurai
The All India Christian Council, Hyderabad, and
The United Christian Action, New Delhi
Requesting you to accept and support the recommendations of the Justice Rangnath Misra National Commission for Religious and Linguistic Minorities supporting grant of Scheduled Caste Status to Dalit Christians.
Dear Sir,
Dalit Christians have filed various PILs in the Supreme Court of India for restoration of their Human, Civil an Legal rights and Human Dignity which were curtailed by the Presidential Order of 1950 which restricted affirmative action and protection of law only to Dalits of the Hindu faith.
The National Commission for Religious and Linguistic Minorities headed by former Chief Justice of India Rangnath Misra to whom the matter was referred by the Government of India, after hearing our petitions and ordering extensive research by academic institutions such as the Tata Institute of Social Sciences, Mumbai, in its report submitted to the Government some weeks ago accepted that grave and historic injustice had been done t religious minorities including Dalit Christians, by the said Presidential order and that these rights had to be restore in the cause of justice.
The Government of India told the Honourable Supreme Court of India [in Court Number One of the Chief Justice of India] that it has submitted the Justice Misra Commission recommendations to the Honourable National Scheduled Caste Commission which was statutory body for its views.
Dear Dr Buta Singh, Sir,
We are very happy the Government has asked for your recommendations. You Sir, perhaps better than anyone else in India, about the discrimination that Dalits face irrespective of the faith they may profess, because of endemic and deep rooted caste divisions in Indian society.
Sir, in Punjab, those called Mazhabi Sikhs still face discrimination at the hands of the upper castes even though the lofty and great Sikh Faith and teachings of its founder the Revered Guru Nanak and the Holy Guru Granth Sahib abhor such social ills. We recall with pride the valiant struggle of the Sikhs to regain their full human and citizen rights. The Government of the Day removed them from the persecution of the Presidential Order of 1950.
The egalitarian Buddhist faith also abhors casteism. The government of the day similar recognised the unreasonableness and illegality of the Presidential Order of 1950 and resorted to Dalit Buddhists, also called Ambedkarites, and restored to them the full protection of the affirmative action of the Constitutional provisions made for the protection of all people listed as Scheduled Castes.
Dear Sir,
The Union government headed by the Congress party with the late Mr. Narasimha Rao as Prime Minister had also heard our appeal in 1996. The Union Cabinet after a detailed analysis, as contained the Cabinet note of the period, decided to bring forward suitable legislation to also restore Dalit Christian’s full rights as Scheduled Castes. The legislation was prepared and in fact presented to Parliament by the then Union Welfare Minister, the late Mr. Sita Ram Kesri. The Bill fell through not for any reason other than the fact that Parliament was dissolved and fresh General elections called.
As a veteran political leader and Union Minister for long years holding the important portfolios including that of Home Affairs, you are fully cognizant of these facts. We therefore have full faith in your wisdom and sensitivity, and are sure of your support for our cause. We are sure you will reverse the extremely politically motivated, partisan and communally-tainted statements of your predecessor who sought to divide and polarize the victimized Dalit community on religious lines.
Dear Dr Buta Singh, Sir,
As Plaintiffs before the Supreme Court, and then immediately as witnesses before the Misra Commission, we Christians of Scheduled Caste origin had again adduced tens of thousands of pages of sociological, statistical and legal evidence, historical data, Constitutional history and judicial precedence, to establish beyond the shadow of doubt that the vagaries and infirmities, the barriers and obscene and racist social practice of untouchability because of caste, continues to hound people of Scheduled Caste origin despite their conversion to Christianity in the mass conversions of the late Nineteenth and early Twentieth century, and even those who convert today.
There is no ambiguity, or scope for confusion, in identifying current Christians of Scheduled caste origin. Whether they are in Jammu or the Punjab, Andhra Pradesh, Kerala or Tamil Nadu, Christians of Scheduled caste origin continue to live where they have lived for centuries – together with their brethren of Hindu or Buddhist or Sikh faith in the `Cheri’ on the outskirts of the upper caste villages. The neighbours know who they are, the upper caste bigots know who they are; the schools know it in their records [which we have handed over to the NCRLM] and the 1931 census knows who they are. Identifying them will no more difficult than identifying a Scheduled caste of the Hindu faith.
Nonetheless, we present here some more points for your consideration:
1. Poverty Line: There can be several sources of deprivation in a complex society such as India. Economic assistance to the poor, that is, those who are below the poverty line, is accepted as legitimate by most of the population. But when the absolute size and the proportion of population which falls below the poverty line is substantial, the limited state resources will not permit such a measure. In India at least 30 percent falls below the poverty line as of now. In such a situation the state would be compelled to provide a critical minimum of economic assistance only to the destitute.
2. Power Line Secondly, in matters of citizenship, there is a section of population (not only women) below the Power line.
3. Pollution line Thirdly, there is the pollution line, a phenomenon peculiar to a caste society. According to the traditional caste hierarchy, the population was divided into two polar opposites--the ritually clean and the ritually unclean--the latter being those who were believed to be permanently in ritual pollution and consequently excluded from social interaction and eternally stigmatized. The deprivation of India’s ex-untouchables’ counting over 160 million today, constituting 16 per cent, designated as Scheduled Castes (SCs) by officialdom, but preferred by them to be labeled as Dalits, is primarily not entirely rooted in the social stigma attributed to them. In fact the SCs are the only group, which combines the deprivations associated with poverty, power and pollution.
The vast majority of Indians are deprived on one or the other count. The State has to take into account two factors: multiple deprivations suffered by some of the groups/communities and the hierarchy of factors contributing to deprivation.
The Constitution’s Secularism means the State accords (a) equal respect for all religions and/or (b) the state keeping equal distance from all religions. But this doctrine is not consistently applied to all religious collectivities which in turn has implications for the application of the policy of protective discrimination.
The inconsistency begins with the mode of defining religious collectivities. According to the Hindu Code Bill “Hindus” include Jains, Buddhists and Sikhs. This legal expansionism cuts at the very root of Indian secularism.
The Presidential Order of 1950 covered only Hindu lower castes designated as Scheduled Castes to start with, but extended to the Sikhs of Scheduled Caste background in 1956 and to neo-Buddhists in 1990. But Muslims and Christians of Scheduled Caste origin are yet to be brought under the purview of the Presidential Order.
There is yet another anomaly when one notes that all Scheduled Tribes are entitled to all the benefits of the policy of protective discrimination, irrespective of their religion. In contrast Scheduled Caste persons who convert to Islam and Christianity are denied the benefits. Thus the salient defining criterion is different in the two cases: tribe in the case of STs and religion in the case of SCs; the two social categories who are entitled to all the benefits of reservation. This means the conversion of SCs and STs to Islam and Christianity has differing consequences for the converts. While it affects the SCs adversely, it is neutral in regard to STs. There is inconsistency both in principle (denial of freedom of religion to SCs) and in practice in the application of secularism.
And the Supreme Court of India is unambiguous in its pronouncement: ‘….to deny the constitutional protection of reservation solely by reason of change of faith or religion is to endanger the very concept of secularism.’ This entitlement exclusion of a section of Indian citizens because of their religious identity imperils one of the foundational principles of Indian constitution namely equality of all citizens irrespective of their religious faith.
It is clear that the people of India are vivisected into ‘insiders’ and ‘outsiders’ in terms of the application of the policy of reservation. Those who profess religions of ‘Indian’ origin are insiders and the followers of religions of ‘alien’ origin are outsiders. Islam and Christianity are widely perceived not only as alien religions but are also stigmatized as products of conquest and colonialism in India. Not only are these widely held popular beliefs historically incorrect but the vast majority of those who profess these faiths are native, indigenous pre-Aryan people of India converted from Scheduled Castes, Scheduled Tribes and Other Backward Classes. Only their religion in ‘alien’.
It is crucial to recall here that from 1936 onwards religious minorities such as Muslims and Christians as well as Scheduled Castes enjoyed political reservations. In the post-Partition Constituent Assembly debates (1947-49) the SCs were removed from the category of ‘minorities’ and were made an integral part of Hinduism. At the same time reservations for religious minorities were abolished. In this process Muslims and Christians of Scheduled Caste origin lost entitlement to reservation both as religious minorities and as Scheduled Castes.
This is the original sin committed by the Indian state with regard to Christians of Scheduled Caste Origin. It is high time to rectify it.
We formulate the following distinct reasons to urge that Christians too be brought under the purview of the 1950 Presidential Order.
1. There is ample evidence that the majority of Christians in India are converts from Scheduled Castes, Scheduled Tribes. Even after their conversion their social status continues to be the same.
2. The First Backward Classes Commission (Kaka Kalelkar Commission) in its report on 30 March 1955 said: ‘…we found that segregation of converts from Scheduled Castes was not successfully overcome in certain parts of South India….Harijan converts were not allowed to pray together with upper class Christians….in some places in the south these classes are forced to have a separate cemetery for their dead’.
3. The Second Backward Classes Commission (Mandal Commission) appointed in 1979 in its report on 31 December 1980 said: ‘Though caste system is peculiar to Hindu Society yet in actual practice it also pervades the non-Hindu communities in India in varying degrees….lower caste converts to a very egalitarian religion like Christianity, ever anxious to expand its membership even after generation were not able to efface the effect of their caste background.’
4. The National Commission for Minorities in its third Annual Report, 1980 opined: ‘The Commission has prima facie felt that since the Christians, Muslims and Buddhists of Scheduled Caste origin continue to suffer from social and economic disabilities even after their conversion there should be no objection to their availing of the concessions admissible to them before their conversion.’(The case of Buddhists is settled in 1990)
5. Though Christian theology does not recognize caste and untouchability, the Supreme Court of India in the case of S. Anbalagan vs. Devarajan AIR 1984 SC 411 realised that , ‘The practice of caste … is so deep rooted in Indian people that its mark does not seem to disappear on conversion to a different religion…. The mark of caste does not seem to really disappear even after some generation after conversion’. In the celebrated case of Indira Sawhney and others vs. Union of India SCR 2 1992, the Supreme Court commented: ‘The concept of caste…is not confined to castes among Hindus. It extends to castes, where ever they obtain as a fact, irrespective of religious sanction for such practice’.
6. On 1 January 1995, as many as 149 Members of Parliament submitted a Memorandum to the then Prime Minister P.V. Narasimha Rao for the immediate extension of statutory benefits to Scheduled Caste converts to Christianity and also requested to introduce a Bill in the ongoing session of the parliament. In a proposal dated 6 March 1996 the Welfare Ministry proposed the inclusion of Scheduled Caste converts to Christianity in the category of Scheduled Castes. The Cabinet approved the proposal at its meeting held on 7 March 1996. The Cabinet decided to introduce the Bill to amend the Presidential Order 1950 (the third amendment) so as to include Scheduled Caste converts to Christianity under the purview of the Order. The Bill was listed for introduction as a supplementary item in Lok Sabha on 12 March 1996. But it could not be introduced due to procedural lapses. The Cabinet then decided on 14 March 1996 that an Ordinance be promulgated. Although the Ordinance was proposed to the President it could not be effected because a new Government was to assume office soon.
7. A Memorandum signed by 103 Bishops of India on 20 February 996 was submitted to the then Prime Minister of India requesting the extension of all the benefits available to SCs to Christians of Scheduled Caste background. This was an admission of the existence of caste-based discrimination within the Church.
8. The National Coordination Committee for Dalit Christians in its publication: Demand for the Restoration of Equal Rights for Christian Dalits, 1996 and the booklet entitled Equal Rights to Dalit Christians, published by the Centre for Dalit Studies in 2001, documented extensively the discrimination and atrocities to which Christians of Scheduled Caste origin are subjected to.
9. It is necessary (a) to recognise that a hierarchy of deprivations exists and (b) that a selective application of the policy of protective discrimination to particular categories in terms of the sources of their deprivation is necessary and feasible.
10. The cumulatively deprived in India are mainly the poor SCs irrespective of their religious faiths. An analysis of the existential conditions of Christians and Muslims of Scheduled Caste origin unfolds that they are cumulatively deprived. And yet they are not entitled to all the benefits of reservation. This is because of the deep-rooted prejudices prevalent in India against Christianity and Islam as religions, due to their past association with colonialism and conquest. Unfortunately, this prejudice is articulated not only in everyday life at the popular level but it is also reflected in the Indian Constitution and in state policies. This is a matter not just or reservations in a few Government jobs. It is a question of empowerment in all its dimensions – social, economic, and political.
Accepting our demands does not hurt our brethren in the Hindu, Sikh or Buddhist faith. It poses no threat for the security and integrity of our beloved nation. It does not add to societal tensions. Ours is a demand not for a mere few seats by way of reservations in education or government employment. Our’s is a demand for social justice and human dignity, of universally accepted human rights and the full scope of citizenship and protection of the Law. This involves empowerment – social, economic and political. In these areas, the cake is humungous, very, very large. There is sufficient for every religious community amongst the scheduled castes.
You, Sir, and the National Commission for Scheduled Castes have in your power to reverse a historic injustice.
Thank you
For and on behalf of the above organisations
Dr. John Dayal
Member: National Integration Council, Government of India
National President: All India Catholic Union (Founded 1919)
Secretary General: All India Christian Council (Founded 1999)
President: United Christian Action, Delhi (Founded 1992)
505 Link, 18 IP Extension, Delhi 110092 India
Email: johndayal@vsnl.com ; http://groups.google.com/group/JohnDayal
Phone: 91-11-22722262 Mobile 09811021072
Enclosures:
ABSTRACTS FROM THE RECOMMENDATIONS OF THE NATIONAL COMMISSION FOR RELIGIOUS AND LINGUISTIC MINORITIES HEADED BY JUSTICE RANGNATH MISRA -REPORT PUBLISHED ON 21ST MAY 2007
Additional Term of Reference
Para 3 of the Constitutional (Scheduled Caste) Order 1950
¨ On a careful examination of prevalence of the caste system among various actions of the Indian Citizenry we have concluded that caste is in fact a social phenomenon shared by almost all Indian Communities irrespective of their religious persuasions. Many of the particular castes are found simultaneously in various religious communities, equally facing problems of social degradation and mistreatment both by their co-religionists and the others.
¨ We are also conscious of the fact that the Constitution of India prohibits any discrimination between the citizens on the basis of caste, and yet it sanctions special affirmative measures for Scheduled Castes. At the same time it prohibits any discrimination on the ground of religion. Reading all these constitutional provisions together, we are convinced that any religion-based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions. We are accordingly making the following recommendations on the additional Term of Reference added by the government to our original Terms Reference several months after we began our work
¨ We recommend that the caste system should be recognized as a general social characteristic of the Indian Society as a whole, without questioning whether the philosophy and teachings of any particular religion recognize it or not – since the Indian brands of certain faith traditions like Christianity and Islam have never assimilated many puritan principles of those religions, posting this question in respect of the caste system only and singling out for a differential treatment is unreasonable and unrealistic.
¨ We should like this fact to be duly recognized that among the Muslims of India the concepts of Zat (caste) and arzal (lower castes) are very much in practice; and even the Muslim law of marriage recognizes the doctrine of kufw – parity in marriage between the parties in all vital respects including social status and descent – which in this country means nothing but caste.
¨ In view of what has been said above, we recommend that para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link the Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.
¨ We further recommend that all those groups and classes among the Muslims and Christians, etc. whose counterparts among the Hindus, Sikhs or Buddhists, are included in the Central or State Scheduled Castes lists should also be covered by the Scheduled Caste net. If any such group or class among the Muslims and Christians, etc. is now included in an OBC list, it should be deleted from there while transferring it to the Scheduled Castes – Placing the same persons in the Scheduled Caste list if they are Hindu, Sikh or Buddhist but in the OBC list if they follow any other religion – which is the case in many States – in our opinion clearly amounts to religion-based discrimination.
¨ We further recommend that as the Constitution of India guarantees freedom of conscience and religious freedom as a Fundamental Right, once a person has been included in a Scheduled Caste list a willful change if religion on his part should not affect adversely his or her Scheduled Caste status – as that would in our opinion conflict with the basic constitutional provisions relating to equality, justice and non-discrimination on religious grounds; as also with the spirit of the old and time-tested Caste Disabilities Removal Act of 1850.
Modalities for implementing our recommendations
¨ We have been asked also “to suggest the necessary constitutional, legal and administrative modalities” required for the implementation of our recommendations. In this regard we have to say as follows.
¨ We are not suggesting any amendment in the Constitution - as we are fully convinced that none or our recommendations requires for its implementation any amendment of the Constitution and that each of these can be fully implemented by legislative or/and administrative action.
¨ We recommend that all Central and State Acts, Statutory Rules and Regulations be suitably amended to implement those of our recommendations which in the opinion pf the Ministry of Law and Justice or any another concerned authority may require such amendments.
¨ More specifically, we recommend the following legislative actions which in our opinion of the Ministry of Law and Justice or any another concerned authority may require such amendments.
¨ More specifically, we recommend the following legislative actions which in our opinion are required either for the implementation of some of our recommendations stated above or otherwise in the interest of the welfare of minorities: -
a) Enactment of a detailed law to enforce the dictates of Article 30 of the Constitution;
b) Amendment of the National Commission for Backward Classes Act 1993;
c) Amendment of the constitution (Scheduled Cates) order 1950 and the Constitution (Scheduled Castes) Order 1951 as also for the Central and State lists of the Scheduled Castes and Scheduled Tribes;
d) Review of the laws and rules, processes and procedures, relating to selection and notification of OBCs at the Central and State level;
e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime Minister’s 15 – Point Program for Minorities 1983 as modified in 2006;
f) Amendment of the National Commission for Minorities Act 1992 and the National Commission for Educational Institutions Act 2004 so as to make it necessary for the government to appoint as the chair persons and members of these bodies – through a Search Committee as in the case of the National Human rights Commission – Only reputed experts in the constitutional, legal, educational and economic matters relating to the minorities;
g) Necessary amendments in the Wakf Act 1933 and all the Rules framed under its provisions;
h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes relating to the National Minorities Development and Finance Corporation and Maulana Azad Education Foundation.
NEW Delhi, July 23, 2007
National Scheduled Caste Commission chairman Buta Singh’s assurance to High Powered Christian delegation: SC Commission supports SC rights for Dalit Christians and Muslims, but will also ask Government to increase quota from present 15 per cent to embrace actual Census data.
[
The following is the text of the Statement issued by Dr John Dayal, Member, National Integration Council, Government of India]
Top leaders of the Christian lay community, including the All India Catholic Union and the All India Christian Council, met with National Scheduled Caste Commission chairman Dr Buta Singh, a former Union Home Minister, on Sunday, 22 July 2007. The meeting came immediately after the Government of India, through additional Solicitor General Gopal Subramaniam, told the Supreme Court of India bench headed by chief Justice, that it was awaiting a report from the National Scheduled Caste Commission, a statutory body, to give its opinion on the issue of Scheduled rights for Dalit Christians. The Supreme Court on 19 July 2007 resumed hearings on a Public Interest writ litigation challenging the Presidential Order of 1950o which denies scheduled rights to Christians and Muslims converted from the former untouchable castes. Buddhist and Sikhs, who were also excluded earlier, were restored scheduled rights by previous Congress and United Front governments through legislation in Parliament after protracted agitation.
After the writs were filed in the Supreme Court last year by the Public Interest Litigation centre of former Union Law Minister Shanti Bhushan, Vellore lawyer D David, a Dalit, and Br Jose Daniel’s Dalit movement, the Union government urged the National Commission for Religious and Linguistic Minorities (NCRLM) to examine the issue. The NCRLM, headed by another former Chief justice of India Rangnath Misra, gave its report to Prime Minister Dr Manmohan Singh two months ago before it was wound up at the expiry of its term. The NCRLM accepted the demands of the Dalit Christians and Dalit Muslims that they suffered from the impact of caste in Indian society and therefore should be given the privileges and the protection of law given to people of the Scheduled caste of the Hindu, Buddhist and Sikh Faiths, In effect, the Justice Misra Commission said the Dalits of India suffered the same disabilities in society and opportunity and should not be discriminated against on grounds of religion. It suggested legislative and legal remedies to undo the impact of the Presidential order of 1950. Instead of publishing the report and accepting it as demanded by the Dalit Christians and Muslims, the Government told the court it will await the opinion of the National SC Commission.
The Chief Justice has given government eight weeks to come before the Supreme Court again to disclose its decision on the issue.
The Dalit Christian community has long agitated on the issue. Community leaders representing many organisations, including the Catholic Union, the Christian Council, the United Christian Action and the Union of Dalit Christians Movements India, an umbrella organisation, met over the weekend to plan their course of action and demand that the government accept the Justice Misra Commission report.
A delegation later met Mr. Buta Singh, chairman of the National Scheduled Caste Commission. The delegation, led by Dr. John Dayal, consisted of Mr. Issac Behera, Advocate Edward Arokio Doss and Mr. C Francis. The delegation gave a detailed memorandum to Dr Buta Singh. The delegation told Dr But Singh that two previous chairmen of the SC Commission, who were nominated by the then Bharatiya Janata party and who and allegiance to the Hindutva groups, had spoken against Dalit Christians and Muslims out of political bigotry, without going into the merits of the case.
In the 90 minute meeting at his official residence, Dr Buta Singh said he was committed to the cause of all Dalits, whatever is their region. He said his Commission would examine the issues in the Justice Misra Report compassionately. He said he was of the opinion that Scheduled Caste protection and rights should be available to people of very religion who suffered from this social infirmity which existed in every religion. He said while Caste as no doubt a product of the Hindu religion, but every other religion which was born in India or came to India became contaminated with this malaise. Quoting a Persian couplet, he said “anything which enters a salt mine becomes salt.”
Dr Buta Singh said his SC Commission will submit its report expeditiously. It will also tell the Government to implement Constitutional processes to raise the quota for Scheduled Castes and tribes, which was at present 15 per cent and 7.15 per cent to their actual numbers in the population. He said the Fathers of the Constitution had desired that the quota percentage be fixed on the basis of data that emerged from the National Census after ten years. The Justice Misra report has also recommended that groups such as Dalit Christians who it wants in the Scheduled caste category may be deleted from the OBC grouping of the population.]
TEXT OF MEMORANDUM
The following is the text of the memorandum submitted to Dr Buta Singh by Dr John Dayal, Member, National Integration Council, Government of India, Mr. Issac Behera IAS [Retd] Former Secretary to the Government of Orissa, President All India Catholic Union, Orissa, Mr. Edward Arokio Doss, Advocate Madras High Court, National Convenor, Union of Dalit Christian Movements India and Mr. C Francis:
Dr Buta Singh
Chairman
National Scheduled Caste Commission
Lok Nayak Bhawan
New Delhi
Re: Appeal to the National SC Commission to accept and support the recommendations of the Justice Rangnath Misra National Commission for Religious and Linguistic Minorities supporting grant of Scheduled Caste Status to Dalit Christians
Dear Dr Buta Singh
Greetings from the 1.60 crore Dalit Christians in India.
This memorandum is submitted to you on behalf of
The All India Catholic Union, New Delhi
The Union of Dalit Christian Movements India, Madurai
The All India Christian Council, Hyderabad, and
The United Christian Action, New Delhi
Requesting you to accept and support the recommendations of the Justice Rangnath Misra National Commission for Religious and Linguistic Minorities supporting grant of Scheduled Caste Status to Dalit Christians.
Dear Sir,
Dalit Christians have filed various PILs in the Supreme Court of India for restoration of their Human, Civil an Legal rights and Human Dignity which were curtailed by the Presidential Order of 1950 which restricted affirmative action and protection of law only to Dalits of the Hindu faith.
The National Commission for Religious and Linguistic Minorities headed by former Chief Justice of India Rangnath Misra to whom the matter was referred by the Government of India, after hearing our petitions and ordering extensive research by academic institutions such as the Tata Institute of Social Sciences, Mumbai, in its report submitted to the Government some weeks ago accepted that grave and historic injustice had been done t religious minorities including Dalit Christians, by the said Presidential order and that these rights had to be restore in the cause of justice.
The Government of India told the Honourable Supreme Court of India [in Court Number One of the Chief Justice of India] that it has submitted the Justice Misra Commission recommendations to the Honourable National Scheduled Caste Commission which was statutory body for its views.
Dear Dr Buta Singh, Sir,
We are very happy the Government has asked for your recommendations. You Sir, perhaps better than anyone else in India, about the discrimination that Dalits face irrespective of the faith they may profess, because of endemic and deep rooted caste divisions in Indian society.
Sir, in Punjab, those called Mazhabi Sikhs still face discrimination at the hands of the upper castes even though the lofty and great Sikh Faith and teachings of its founder the Revered Guru Nanak and the Holy Guru Granth Sahib abhor such social ills. We recall with pride the valiant struggle of the Sikhs to regain their full human and citizen rights. The Government of the Day removed them from the persecution of the Presidential Order of 1950.
The egalitarian Buddhist faith also abhors casteism. The government of the day similar recognised the unreasonableness and illegality of the Presidential Order of 1950 and resorted to Dalit Buddhists, also called Ambedkarites, and restored to them the full protection of the affirmative action of the Constitutional provisions made for the protection of all people listed as Scheduled Castes.
Dear Sir,
The Union government headed by the Congress party with the late Mr. Narasimha Rao as Prime Minister had also heard our appeal in 1996. The Union Cabinet after a detailed analysis, as contained the Cabinet note of the period, decided to bring forward suitable legislation to also restore Dalit Christian’s full rights as Scheduled Castes. The legislation was prepared and in fact presented to Parliament by the then Union Welfare Minister, the late Mr. Sita Ram Kesri. The Bill fell through not for any reason other than the fact that Parliament was dissolved and fresh General elections called.
As a veteran political leader and Union Minister for long years holding the important portfolios including that of Home Affairs, you are fully cognizant of these facts. We therefore have full faith in your wisdom and sensitivity, and are sure of your support for our cause. We are sure you will reverse the extremely politically motivated, partisan and communally-tainted statements of your predecessor who sought to divide and polarize the victimized Dalit community on religious lines.
Dear Dr Buta Singh, Sir,
As Plaintiffs before the Supreme Court, and then immediately as witnesses before the Misra Commission, we Christians of Scheduled Caste origin had again adduced tens of thousands of pages of sociological, statistical and legal evidence, historical data, Constitutional history and judicial precedence, to establish beyond the shadow of doubt that the vagaries and infirmities, the barriers and obscene and racist social practice of untouchability because of caste, continues to hound people of Scheduled Caste origin despite their conversion to Christianity in the mass conversions of the late Nineteenth and early Twentieth century, and even those who convert today.
There is no ambiguity, or scope for confusion, in identifying current Christians of Scheduled caste origin. Whether they are in Jammu or the Punjab, Andhra Pradesh, Kerala or Tamil Nadu, Christians of Scheduled caste origin continue to live where they have lived for centuries – together with their brethren of Hindu or Buddhist or Sikh faith in the `Cheri’ on the outskirts of the upper caste villages. The neighbours know who they are, the upper caste bigots know who they are; the schools know it in their records [which we have handed over to the NCRLM] and the 1931 census knows who they are. Identifying them will no more difficult than identifying a Scheduled caste of the Hindu faith.
Nonetheless, we present here some more points for your consideration:
1. Poverty Line: There can be several sources of deprivation in a complex society such as India. Economic assistance to the poor, that is, those who are below the poverty line, is accepted as legitimate by most of the population. But when the absolute size and the proportion of population which falls below the poverty line is substantial, the limited state resources will not permit such a measure. In India at least 30 percent falls below the poverty line as of now. In such a situation the state would be compelled to provide a critical minimum of economic assistance only to the destitute.
2. Power Line Secondly, in matters of citizenship, there is a section of population (not only women) below the Power line.
3. Pollution line Thirdly, there is the pollution line, a phenomenon peculiar to a caste society. According to the traditional caste hierarchy, the population was divided into two polar opposites--the ritually clean and the ritually unclean--the latter being those who were believed to be permanently in ritual pollution and consequently excluded from social interaction and eternally stigmatized. The deprivation of India’s ex-untouchables’ counting over 160 million today, constituting 16 per cent, designated as Scheduled Castes (SCs) by officialdom, but preferred by them to be labeled as Dalits, is primarily not entirely rooted in the social stigma attributed to them. In fact the SCs are the only group, which combines the deprivations associated with poverty, power and pollution.
The vast majority of Indians are deprived on one or the other count. The State has to take into account two factors: multiple deprivations suffered by some of the groups/communities and the hierarchy of factors contributing to deprivation.
The Constitution’s Secularism means the State accords (a) equal respect for all religions and/or (b) the state keeping equal distance from all religions. But this doctrine is not consistently applied to all religious collectivities which in turn has implications for the application of the policy of protective discrimination.
The inconsistency begins with the mode of defining religious collectivities. According to the Hindu Code Bill “Hindus” include Jains, Buddhists and Sikhs. This legal expansionism cuts at the very root of Indian secularism.
The Presidential Order of 1950 covered only Hindu lower castes designated as Scheduled Castes to start with, but extended to the Sikhs of Scheduled Caste background in 1956 and to neo-Buddhists in 1990. But Muslims and Christians of Scheduled Caste origin are yet to be brought under the purview of the Presidential Order.
There is yet another anomaly when one notes that all Scheduled Tribes are entitled to all the benefits of the policy of protective discrimination, irrespective of their religion. In contrast Scheduled Caste persons who convert to Islam and Christianity are denied the benefits. Thus the salient defining criterion is different in the two cases: tribe in the case of STs and religion in the case of SCs; the two social categories who are entitled to all the benefits of reservation. This means the conversion of SCs and STs to Islam and Christianity has differing consequences for the converts. While it affects the SCs adversely, it is neutral in regard to STs. There is inconsistency both in principle (denial of freedom of religion to SCs) and in practice in the application of secularism.
And the Supreme Court of India is unambiguous in its pronouncement: ‘….to deny the constitutional protection of reservation solely by reason of change of faith or religion is to endanger the very concept of secularism.’ This entitlement exclusion of a section of Indian citizens because of their religious identity imperils one of the foundational principles of Indian constitution namely equality of all citizens irrespective of their religious faith.
It is clear that the people of India are vivisected into ‘insiders’ and ‘outsiders’ in terms of the application of the policy of reservation. Those who profess religions of ‘Indian’ origin are insiders and the followers of religions of ‘alien’ origin are outsiders. Islam and Christianity are widely perceived not only as alien religions but are also stigmatized as products of conquest and colonialism in India. Not only are these widely held popular beliefs historically incorrect but the vast majority of those who profess these faiths are native, indigenous pre-Aryan people of India converted from Scheduled Castes, Scheduled Tribes and Other Backward Classes. Only their religion in ‘alien’.
It is crucial to recall here that from 1936 onwards religious minorities such as Muslims and Christians as well as Scheduled Castes enjoyed political reservations. In the post-Partition Constituent Assembly debates (1947-49) the SCs were removed from the category of ‘minorities’ and were made an integral part of Hinduism. At the same time reservations for religious minorities were abolished. In this process Muslims and Christians of Scheduled Caste origin lost entitlement to reservation both as religious minorities and as Scheduled Castes.
This is the original sin committed by the Indian state with regard to Christians of Scheduled Caste Origin. It is high time to rectify it.
We formulate the following distinct reasons to urge that Christians too be brought under the purview of the 1950 Presidential Order.
1. There is ample evidence that the majority of Christians in India are converts from Scheduled Castes, Scheduled Tribes. Even after their conversion their social status continues to be the same.
2. The First Backward Classes Commission (Kaka Kalelkar Commission) in its report on 30 March 1955 said: ‘…we found that segregation of converts from Scheduled Castes was not successfully overcome in certain parts of South India….Harijan converts were not allowed to pray together with upper class Christians….in some places in the south these classes are forced to have a separate cemetery for their dead’.
3. The Second Backward Classes Commission (Mandal Commission) appointed in 1979 in its report on 31 December 1980 said: ‘Though caste system is peculiar to Hindu Society yet in actual practice it also pervades the non-Hindu communities in India in varying degrees….lower caste converts to a very egalitarian religion like Christianity, ever anxious to expand its membership even after generation were not able to efface the effect of their caste background.’
4. The National Commission for Minorities in its third Annual Report, 1980 opined: ‘The Commission has prima facie felt that since the Christians, Muslims and Buddhists of Scheduled Caste origin continue to suffer from social and economic disabilities even after their conversion there should be no objection to their availing of the concessions admissible to them before their conversion.’(The case of Buddhists is settled in 1990)
5. Though Christian theology does not recognize caste and untouchability, the Supreme Court of India in the case of S. Anbalagan vs. Devarajan AIR 1984 SC 411 realised that , ‘The practice of caste … is so deep rooted in Indian people that its mark does not seem to disappear on conversion to a different religion…. The mark of caste does not seem to really disappear even after some generation after conversion’. In the celebrated case of Indira Sawhney and others vs. Union of India SCR 2 1992, the Supreme Court commented: ‘The concept of caste…is not confined to castes among Hindus. It extends to castes, where ever they obtain as a fact, irrespective of religious sanction for such practice’.
6. On 1 January 1995, as many as 149 Members of Parliament submitted a Memorandum to the then Prime Minister P.V. Narasimha Rao for the immediate extension of statutory benefits to Scheduled Caste converts to Christianity and also requested to introduce a Bill in the ongoing session of the parliament. In a proposal dated 6 March 1996 the Welfare Ministry proposed the inclusion of Scheduled Caste converts to Christianity in the category of Scheduled Castes. The Cabinet approved the proposal at its meeting held on 7 March 1996. The Cabinet decided to introduce the Bill to amend the Presidential Order 1950 (the third amendment) so as to include Scheduled Caste converts to Christianity under the purview of the Order. The Bill was listed for introduction as a supplementary item in Lok Sabha on 12 March 1996. But it could not be introduced due to procedural lapses. The Cabinet then decided on 14 March 1996 that an Ordinance be promulgated. Although the Ordinance was proposed to the President it could not be effected because a new Government was to assume office soon.
7. A Memorandum signed by 103 Bishops of India on 20 February 996 was submitted to the then Prime Minister of India requesting the extension of all the benefits available to SCs to Christians of Scheduled Caste background. This was an admission of the existence of caste-based discrimination within the Church.
8. The National Coordination Committee for Dalit Christians in its publication: Demand for the Restoration of Equal Rights for Christian Dalits, 1996 and the booklet entitled Equal Rights to Dalit Christians, published by the Centre for Dalit Studies in 2001, documented extensively the discrimination and atrocities to which Christians of Scheduled Caste origin are subjected to.
9. It is necessary (a) to recognise that a hierarchy of deprivations exists and (b) that a selective application of the policy of protective discrimination to particular categories in terms of the sources of their deprivation is necessary and feasible.
10. The cumulatively deprived in India are mainly the poor SCs irrespective of their religious faiths. An analysis of the existential conditions of Christians and Muslims of Scheduled Caste origin unfolds that they are cumulatively deprived. And yet they are not entitled to all the benefits of reservation. This is because of the deep-rooted prejudices prevalent in India against Christianity and Islam as religions, due to their past association with colonialism and conquest. Unfortunately, this prejudice is articulated not only in everyday life at the popular level but it is also reflected in the Indian Constitution and in state policies. This is a matter not just or reservations in a few Government jobs. It is a question of empowerment in all its dimensions – social, economic, and political.
Accepting our demands does not hurt our brethren in the Hindu, Sikh or Buddhist faith. It poses no threat for the security and integrity of our beloved nation. It does not add to societal tensions. Ours is a demand not for a mere few seats by way of reservations in education or government employment. Our’s is a demand for social justice and human dignity, of universally accepted human rights and the full scope of citizenship and protection of the Law. This involves empowerment – social, economic and political. In these areas, the cake is humungous, very, very large. There is sufficient for every religious community amongst the scheduled castes.
You, Sir, and the National Commission for Scheduled Castes have in your power to reverse a historic injustice.
Thank you
For and on behalf of the above organisations
Dr. John Dayal
Member: National Integration Council, Government of India
National President: All India Catholic Union (Founded 1919)
Secretary General: All India Christian Council (Founded 1999)
President: United Christian Action, Delhi (Founded 1992)
505 Link, 18 IP Extension, Delhi 110092 India
Email: johndayal@vsnl.com ; http://groups.google.com/group/JohnDayal
Phone: 91-11-22722262 Mobile 09811021072
Enclosures:
ABSTRACTS FROM THE RECOMMENDATIONS OF THE NATIONAL COMMISSION FOR RELIGIOUS AND LINGUISTIC MINORITIES HEADED BY JUSTICE RANGNATH MISRA -REPORT PUBLISHED ON 21ST MAY 2007
Additional Term of Reference
Para 3 of the Constitutional (Scheduled Caste) Order 1950
¨ On a careful examination of prevalence of the caste system among various actions of the Indian Citizenry we have concluded that caste is in fact a social phenomenon shared by almost all Indian Communities irrespective of their religious persuasions. Many of the particular castes are found simultaneously in various religious communities, equally facing problems of social degradation and mistreatment both by their co-religionists and the others.
¨ We are also conscious of the fact that the Constitution of India prohibits any discrimination between the citizens on the basis of caste, and yet it sanctions special affirmative measures for Scheduled Castes. At the same time it prohibits any discrimination on the ground of religion. Reading all these constitutional provisions together, we are convinced that any religion-based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions. We are accordingly making the following recommendations on the additional Term of Reference added by the government to our original Terms Reference several months after we began our work
¨ We recommend that the caste system should be recognized as a general social characteristic of the Indian Society as a whole, without questioning whether the philosophy and teachings of any particular religion recognize it or not – since the Indian brands of certain faith traditions like Christianity and Islam have never assimilated many puritan principles of those religions, posting this question in respect of the caste system only and singling out for a differential treatment is unreasonable and unrealistic.
¨ We should like this fact to be duly recognized that among the Muslims of India the concepts of Zat (caste) and arzal (lower castes) are very much in practice; and even the Muslim law of marriage recognizes the doctrine of kufw – parity in marriage between the parties in all vital respects including social status and descent – which in this country means nothing but caste.
¨ In view of what has been said above, we recommend that para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link the Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.
¨ We further recommend that all those groups and classes among the Muslims and Christians, etc. whose counterparts among the Hindus, Sikhs or Buddhists, are included in the Central or State Scheduled Castes lists should also be covered by the Scheduled Caste net. If any such group or class among the Muslims and Christians, etc. is now included in an OBC list, it should be deleted from there while transferring it to the Scheduled Castes – Placing the same persons in the Scheduled Caste list if they are Hindu, Sikh or Buddhist but in the OBC list if they follow any other religion – which is the case in many States – in our opinion clearly amounts to religion-based discrimination.
¨ We further recommend that as the Constitution of India guarantees freedom of conscience and religious freedom as a Fundamental Right, once a person has been included in a Scheduled Caste list a willful change if religion on his part should not affect adversely his or her Scheduled Caste status – as that would in our opinion conflict with the basic constitutional provisions relating to equality, justice and non-discrimination on religious grounds; as also with the spirit of the old and time-tested Caste Disabilities Removal Act of 1850.
Modalities for implementing our recommendations
¨ We have been asked also “to suggest the necessary constitutional, legal and administrative modalities” required for the implementation of our recommendations. In this regard we have to say as follows.
¨ We are not suggesting any amendment in the Constitution - as we are fully convinced that none or our recommendations requires for its implementation any amendment of the Constitution and that each of these can be fully implemented by legislative or/and administrative action.
¨ We recommend that all Central and State Acts, Statutory Rules and Regulations be suitably amended to implement those of our recommendations which in the opinion pf the Ministry of Law and Justice or any another concerned authority may require such amendments.
¨ More specifically, we recommend the following legislative actions which in our opinion of the Ministry of Law and Justice or any another concerned authority may require such amendments.
¨ More specifically, we recommend the following legislative actions which in our opinion are required either for the implementation of some of our recommendations stated above or otherwise in the interest of the welfare of minorities: -
a) Enactment of a detailed law to enforce the dictates of Article 30 of the Constitution;
b) Amendment of the National Commission for Backward Classes Act 1993;
c) Amendment of the constitution (Scheduled Cates) order 1950 and the Constitution (Scheduled Castes) Order 1951 as also for the Central and State lists of the Scheduled Castes and Scheduled Tribes;
d) Review of the laws and rules, processes and procedures, relating to selection and notification of OBCs at the Central and State level;
e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime Minister’s 15 – Point Program for Minorities 1983 as modified in 2006;
f) Amendment of the National Commission for Minorities Act 1992 and the National Commission for Educational Institutions Act 2004 so as to make it necessary for the government to appoint as the chair persons and members of these bodies – through a Search Committee as in the case of the National Human rights Commission – Only reputed experts in the constitutional, legal, educational and economic matters relating to the minorities;
g) Necessary amendments in the Wakf Act 1933 and all the Rules framed under its provisions;
h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes relating to the National Minorities Development and Finance Corporation and Maulana Azad Education Foundation.
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