A bit of the Cancer remains in Supreme court’s Judgment on Dara Singh

John Dayal

Oncologists, cancer surgeons, take extra care when excising a malignant tumor from the human body. They make sure not an iota, not one cell remains of the tumor, lest it blow up in full bloom some years later and send the patient to his or her death.

The Supreme Court of India, the last bulwark of justice and secularism from the point of view of micro minorities such as the Christians, seems not to have take such due diligence when in a rare suo moto action this week it modified its remarks in a judgement denying the investigating agency’s demand for the death penalty for Bajrang Dal activist Dara Singh who led a mob that burnt alive Australian mission and health worker Graham Stuart Staines and his two sons Timothy and Philips in Orissa on the night of 22 January 1999. The court upheld the High court judgement which had given Dara Singh a life term holding that the crime was not the rarest of the rare, and the trial court in Khurda had erred in giving Dara Singh and some of his associates the death penalty in the first place.

The Christian community is still divided on its support or opposition to the death penalty, but most in the Catholic and Protestant churches say capital punishment is an anathema in this age and time. I am myself a staunch opponent of the death penalty.

When the Supreme Court delivered its judgement, the community was slow to respond. I was on satellite television to welcome the life term, but to express my strong apprehensions to the implication of the Supreme Court judgment which made it seem that Dara Singh was justified in “punishing” Stainless for his Christiana activities including alleged conversions of the tribals I Orissa.

The Supreme Court through most of its judgement text dwelt on the circumstances of the case and held that Dara had been indirectly identified through slogans and identification through photographs. It did bold that the triple murder was horrendous. But in its concluding paragraphs, the court said the following: In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur." The Court had also said, "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, and incitement or upon a flawed premise that one religion is better than the other."

The All India Christian Council issued an immediate press statement, which expressed concern about affect of Judges’ comments about conversion on cases of communal violence. Dr. Joseph D’souza, President of the Council said, “We are satisfied with the Supreme Court’s decision upholding the 2005 Orissa High Court’s verdict which commuted a death sentence for Dara Singh to life imprisonment for killing Australian missionary Graham Staines and his two sons in Orissa in 1999. In dismissing Dara Singh’s petition for dropping of the case against him, the Apex Court clearly denounced the heinous hate crime perpetrated by communal forces.”

Dr. John Dayal, aicc Secretary General, said, “Most Indian Christians oppose the death penalty both on moral and theological grounds, as much as we oppose abortion and taking away life at any stage. Of course, as Citizens, we want the State and Central government to uphold the rule of law.” In the conclusion of the ruling on Criminal Appeal No 1366 of 2005, “Rabindra Kumar Pal @ Dara Singh Vs. Republic of India”, the judges wrote, “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.” Some media reports insinuated this meant ‘conversions’ are illegal or the root cause of the violent attack. Dayal said, “Although we are yet to analyse the full judgment of the Supreme Court, we are disturbed by the parts carried by the media, mentioning terms like fraud and forcible and conversion. The Court must comment on Hindu conversions, termed Ghar Wapsi. But more than anything, we fear such remarks may negatively impact trials in Kandhamal, Orissa and future challenges to so-called ‘freedom of religion laws’ in various states.”

The aicc said inquiries by the National Commission for Minorities, Right To Information (RTI) requests, and other investigations have proven repeatedly there have been no fraudulent or forceful conversions by Christians in India anywhere, anytime. After analyzing the Supreme Court reference to conversions, the aicc might move Supreme Court to revise the reference at an appropriate time. “We do not want any court to pre-judge the matter of conversions and violence. The real root cause of strife in which Staines lost his life with his two kids was a misunderstanding of conversion. We have seen communal violence not only against Christians, but also on Muslims and Sikhs since India’s Independence. It is unfortunate that Hindutva forces look for an excuse to attack Christians and others because they believe that India is for Hindus only. This goes against India’s spirit of secularism.”

A day later, civil society activists, among them Navaid Hamid, Shabnam Hashmi, Seema Mustafa, Harsh Mander, H S Hardenia, and former MP Shahid Sidiqi, and Christian activists John Dayal, Dominic Emmanuel, and Mary Scaria also issued an angry press note, widely covered on the internet and controversially covered by the Hindu on Page One -- leading to a hilarious editorial development, of which some other time – calling the comments gratuitous. The statement noted A bench of Justices P. Sathasivam and B. S. Chauhan went on to add: “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other. It strikes at the very root of the orderly society, which the founding fathers of our Constitution dreamt of. ”

“This statement patently is unconstitutional as it goes against guarantees of freedom of faith on the one hand and seems to acknowledge vigilante action of criminals like Dara Singh who take upon themselves ‘to teach lessons’ to persons serving lepers and the poor. Did the SC ever take into consideration the report of the Wadhwa Commission which was set up to probe the murder of Graham Staines and which had observed, “There has been no extraordinary increase in the Christian population in Koenjhar district between 1991 and 1998. The population had increased by 595 during this period and could have been caused by natural growth”. The SC ruling may in fact send the wrong signals to courts trying cases of religious violence in Kandhamal, for instance, and in other places. It also tends to preempt possible challenges to the black laws enacted by many states in the guise of Freedom of Religion Bills.

“The secular India looks at SC and other judicial forums as its last hope to preserve Constitutional guarantees given to religious minorities and other marginalized groups. It is therefore understand disturbed when judgments such as this one and the Allahabad-Lucknow Bench, ruling on Ayodhya are made and interpreted as supporting the bigoted point of view of right wing fundamentalists such as the Sangh Parivar. The state cannot abrogate its responsibilities to ensure the secular fabric of the country. We expect the government to ask the SC to expunge the unnecessary, uncalled for and unconstitutional remarks..”

The uproar had its impact. The Supreme Court did not wait for us to file an application. In a salutary rare revision of its own order, the two judges expunged most of the offending words.
The suo moto changes made by the court are:

"In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity."

has been replaced with:

“However, more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs," said the bench in its one of such replacement.”

And
We hope Mahatma Gandhi’s vision of religion playing a positive development integrating into a prosperous nation will be realized. "It is undisputed that there is no justification for interfering in someone's belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other."

has been replaced with:

"There is no justification for interfering in someone's religious belief by any means."

On the face of it, it is satisfactory. But senior Supreme court advocates I have consulted have told me there is enoiugh cause to go back to the Supreme court to seek clarifications on what it means by the term “interference” in someone else’s religion. Is talking about your own religion “interference”, or is evangelization interference. This suddenly gains in importance in view of the Somaekharan Commission report on the Karnataka attacks on churches in which it calls for drastic measures to regulate church activity, including registration of churches.

The bench of justices P Sathasivam and BS Chauhan, while dismissing the agency’s plea for death penalty, said the punishment can be imposed only in the “rarest of rare” cases depending upon the facts and situation of each case. Dara Singh and Mahendra Hembrom were found guilty of burning to death Staines and his sons, who were sleeping inside a van outside a church, at Manoharpur village in Koenjhar district of Orissa on January 22, 1999. The bench had on December 15 last year reserved its judgement after hearing at length the arguments of CBI’s counsel and Additional Solicitor General Vivek Tankha and counsel for the convicts.

Senior counsel KTS Tulsi and Ratnakar Dash, besides Counsel Sibo Shankara Mishra, appeared for the 12 convicts. Appearing for CBI, Tankha had told the bench that Dara Singh deserves death sentence as the murders were committed in a most “diabolic and dastardly manner” which warranted exemplary punishment. Dara had filed an appeal challenging his conviction and the life sentence awarded to him. The appeals were admitted by the apex court in October 2005. On May 19, 2005, the Orissa High Court had commuted to life imprisonment the death penalty imposed by the sessions court on Dara Singh for the murder of Staines and his two minor sons, 10 y3ear old Philip,6 year old Timothy. Mahendra Hembram, a tribal, was convicted but the High Court acquitted 11 others who were awarded life terms by the trial court in the case. The trial court in Khurda had in September 2003 convicted all the 13 accused. While Dara Singh was awarded death sentence, others were given life terms.

While the Christian Council has reserved its right to move the Supreme Court again, there seems to be a division in the church on what to do next. High level meetings in the Delhi archdiocese have not arched a unanimous decision on the course of action, but it is clear that senior counsel and even the National Commission of Minorities has to be consulted.

CBCI law panel secretary Sr Mary Scaria said; the freedom of religion is a Constitutional Right under Article 25 of the Constitution of India and it is accepted and respected both in the national and International laws. The right to freedom of religion allows Indian citizens to choose any religion that he / she wants to choose. This fundamental right was chosen after lot of thought regarding the process of person choosing his / her own religion. The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India. Article 25 reads as follows:-The judgment will give impetus and be used as a precedent to justify the "Freedom or Anti-Conversion" Acts and Bills in many states, besides emboldening religious fundamentalists and moral policing. As the Supreme Court itself have realized that they have made a mistake and expunged those portions which according to them were unconstitutional, the community after having gone through the judgment before and after expunging feel the urgency to go before the APEX COURT with another petition perhaps as it is a larger Constitutional issue pray for a proper dealing of the issue. Or referring to a larger bench?

One of the messages tome said “”The modified version of the Supreme Court judgement in the Graham Staines case may be less offensive, but it is in no way less dangerous. In some ways it is even more dangerous to liberty than the earlier offensive wording. While deleting references to "teaching the victim a lesson" etc, and direct use of the word "conversion", the Court still maintains that "There is no justification to interfere in someone's belief by any means", implying thereby, that propagating one’s beliefs is tantamount to interference in another’s beliefs. This judgement needs to be challenged – not under criminal law, but under Constitutional law.

Advocate P I Jose said: Rules of statutory interpretation are not applicable to reading of a Judgment. But there are well accepted judicial norms for this too. Keeping that in mind the basic question that scares every one, particularly Christians in India, is- what is the larger social evil that disturbed and prompted the two judges while dealing with the subject case to pen paragraph 47 as a post script to the Judgment? References to Shri K.R. Narayanan and Mahatma Gandhi in the same Para 47, which was retained even after suo-moto ‘clarification’ make it clear, the evil that disturbed them is “intolerance and disrespect for another’s religion The issue is whose intolerance or disrespect- the convict’s or the victims’? The replaced sentence answers it without any doubt as the words used are “religious belief” because Dara Singh did not interfere with helpless Stains and two innocent children’s “religious belief” but with their “right to life”. This takes us to the conclusion that the judges were disturbed by the victims’ way of life.
On the first place making a comment on the victims’ is out of place and against the basic principles of judicial thinking because a victim is not given an opportunity to explain their conduct in a criminal trial. Secondly, but more important, applying the yardstick of victims’ conduct while judging a criminal act not committed on a sudden provocation, rather in a case of cold blooded murder. Sadly the feeling of scare and deep hurt the comments made to the Christian community in India is because it fell from the highest court of the land. A comment deviating from the ordinary norms of judicial thinking from the Supreme Court has the potential not only to propel the conduct of a billion people but also determines the performance of a policeman’s lati in this country. “
This is still a story which is developing.

Indian Goverment adm,its its agencies support cause of Dalit Christians

The Government has said that the National Commission for Minorities (NCM) has recommended the Scheduled Caste/Scheduled Tribes(SC/ST) status to converts to Christianity.

Minister for Minority Affairs, Shri Salman Khurshid, made the statement during the Rajya Sabha session on August 3.

Khurshid, in a written letter, apprised the Upper House of the Parliament that "National Commission for Minorities, under Section 9(1) of the National Commission for Minorities Act 1992, recommended that Scheduled Caste/Scheduled Tribes(SC/ST) converts to Christianity or Islam should continue to enjoy all privileges and benefits as SCs/STs on par with the SC/ST converts to Buddhism."

He continued: "Further, in 1997, NCM recommended for the outright removal of the Proviso in Constitution (Scheduled Caste) Order, 1950 which confines the SC status strictly to three specified religions."

He also cited the annual report of the National Commission for Minorities, 2006-07 that recommended, “Christian and Muslim dalits be given the benefit of affirmative action through reservation.”

There are about 20 million Dalit Christians in India fighting against the deprival of their rights and discrimination faced on grounds of religion. Their social, economic and educational benefits have been dismantled due to their conversion to Christianity.

Today, the Supreme Court was to respond to a Public Interest Litigation filed by an NGO and Franklin Caesar, a Dalit activist based in New Delhi.

Caesar told Christian Today that the court adjourned the hearing for after eight weeks. He was very disappointed that in spite of substantial reasons to grant the SC status to Christians, the court and the government is delaying the case.

"The letter of Khurshid surely is a positive sign that the government wants to render SC status. But, it is being delayed due to fear of Opposition and various other reasons, the government is unable to disclose," Caesar, who is also the coordinator of National Council of Dalit Christians, said.

"The Congress govt in its 1996 manifesto had promised to extend the benefits to Christians. They further proposed a bill in the government. The Cabinet also discussed this in 2008. But, none have taken any concrete steps to bring justice," he rues.

The National Commission for Minorities has clearly stood positive on the side of Dalit Christians. In its report, last year, it said, "There is a strong case for according Scheduled Caste status to Dalit Muslims and Christians."

The National Commission for Religious and Linguistic Minorities, headed by Supreme Court Chief Justice Ranganath Misra (Retd), also have maintained that Dalit Christians and Dalit Muslims be included in the reserved category.

But sadly, since last year, the Supreme Court of India has repeatedly delayed the hearing on lawsuits by Dalit Christians and Muslims requesting restoration of full Constitutional rights.

If finally the court acts judiciously, fifty-nine year wait of Dalit Christians would come to an end

JOHN DAYAL’S NEW YEAR UPDATE ON ORISSA

Despite Supreme Court rap, Orissa government unable to keep peace in Kandhamal without help of federal police, Christians forced to compromise with criminals

Sister M recognises some of the rapist gang, but people fear a new armed gang fathered by the Sangh Parivar

In refugee camps and forests, expectant and nursing mothers go anaemic without Medicare

JANUARY 8, 2009

The Supreme Court of India’s ‘Quit if you can’t protect the minorities’ admonition to the Government of Orissa seems not to be taken too seriously by the Biju Janata Dal- Bharatiya Janata Party Coalition ministry in Bhubaneswar and the police headquarters in Cuttack.

Though six thousand federal troops of the Central Reserve Police Force and a Helicopter ensured a peaceful, if very un-Christmassy festival season in the forests and refugee camps of Kandhamal district of the State, shattered by two rounds of anti Christian bloodshed and arson in December 2007 and August-October 2008, ground level peace in forest villages remains a distant dream. A Supreme Court bench headed by Chief Justice KG Balakrishnan had made his remarks while hearing Colin Gonsalves, counsel for Archbishop Raphael Cheenath who had filed a Public Interest Litigation, informed the court that only “deceptive calm” existed in Kandhamal.

In fact, the State government is using its so called official peace committees, heavily loaded against the religious minority, to force withdrawal of criminal cases registered by Christians against those who burnt their houses in the first round of Sangh violence from 24-27 December 2007. As many as 107 churches and close to a thousand Christian homes were burnt at that time, as also some Hindu homes [in the Brahminigaon village]. The spirit behind the anti-Christian violence was Vishwa Hindu Parishad vice president Lakhmanananda Saraswati, whose murder by Maoists on 23 August 2008 sparked off the second round of mayhem.

Reports were then lodged with the police on January 2008. Criminal complaints were filed in the local courts. Of 127 cases registered in the 2007, only five were ever investigated, the National Commission for Minorities discovered. Affidavits were also filed with the Justice Panigrahi Commission of enquiry in which the VHP leader was named as the instigator. [The commission, after a few sittings in which we participated, has since then been formally boycotted by the Church and the Christian community for its blatant partisanship].

Now, in Brahminigaon, for instance, the District authorities are “encouraging’ victim Christians to reach an “accord” with the Hindu community with both parties agreeing to withdraw all criminal cases. Initial reports indicate that the authorities have ensured that there will be no one present when the criminal cases come up for hearing after some weeks.

The entire peace initiative has been under a shadow for want of transparency, and for the one-sided approach of the state officials who are totally under the sway of the BJP ministers in the Cabinet.

The same pressures are visible in the media coverage of the situation, especially in the Oriya language print and television groups. The media continues to target Christian politicians, religious heads and human rights activists. A particular target of criminal slander and coercion is Mr. Radha Kant Nayak, a former federal administrative officer, who is now a Congress member of the Rajya Sabha, the Upper House of Parliament in New Delhi.

The media attitude was also visible during the identification parade in Cuttack where some of them even found their way, much to the irritation of the magistrate, in the chamber where Sister “M”, raped in Nonagon village of Kandhamal in August 2008, recognised two of her assailants. While the Nun could recognise at least two men, Father Thomas Chellum, who was with her when she was attacked, and who was brutally beaten up himself in the presence of the local police and stripped naked, was still too disturbed to be able to identify his assailants from the mixed group of suspects and others paraded before him. Fr Thomas was one of several Catholic and protestant priests attacked and wounded in Kandhamal. A senior Catholic priest, Father Bernard Digal, treasurer of the Archdiocese of Bhubaneswar which covers Kandhamal, died later of his wounds. At least one Pentecost pastor was also butchered by the mobs.

NCM member Michael Pinto has said several Christians were still living under the threat of conversion. “This is not acceptable. The matter of conversions falls under the purview of the Freedom of Religion Act already in force in Orissa.

A new dimension to the terror in Kandhamal has been the emergence of two new groups which apparently will be working in tandem. One is the government sponsored civilian militia, of which 800 will be deployed in Kandhamal and paid out of state funds. The second is the group of 80 young men who had gone to Gujarat last year and have now returned, apparently well armed and well trained. This group has said they will execute Christian on the 23rd of every month to mark the killing of Saraswati. The Orissa government is quiet about it, but the media is trying hard to project it as a split in the Maoist group which killed Saraswati last August. [A detailed analysis of the Maoists and civilian militias operating in the forest areas of Orissa is being made, and will be circulated soon on this forum.]

At the human level, while the State government has gone on record to say it is not confident what will happen once the Federal police are withdrawn, possibly at month-end, the situation of the refugees remains dire. The European commission delegation surveyed refugee camps around Kandhamal and even in Andhra Pradesh before Christmas [they were refused permission to go to Kandhamal], and medical experts who have worked with refugees in the Raikia and G Udaygiri camps speak of widespread anaemia among pregnant and nursing mothers. The health of babies born in the camps since August 2008 is also pitiable for want of neo-natal Medicare and nutrition.

A new dimension was added his week when the authorities launched another phase of “thinning out” the camps by sending reluctant refugees back to their villages.

There has been a bumper crop of paddy this year, and ironically it remains unharnessed in most villages because the farmers with small land holdings are in the camps. While some of the crop has been stolen, much remains in the paddy fields and has to be harvested soon if the rice not to rot. The authorities are assuring safety, and some farmers are willing to go back to harvest the crops, but it remains to be seen how much protection the state forces will provide without the back-up strength of the federal police.

Responding to the Chief Justice of India to get justice for Dalit Christians

Your honour, we discriminate

HT, August 24, 2007 Mumbai edition Op-Ed page

George Menezes


I AM responding to an embarrassing question asked by the Chief Justice of India while disposing of our case for equal rights for Dalit Christians. He asked whether Christians also practise the caste system. He gave the Centre eight weeks to respond to the Court.
The case has reached this point, after over 57 years of peaceful agitation. The process has seen several judicial interventions and an unbelievable number of Commissions studying the problem.
I have been a part of the process since 1986 as National President of the All India Catholic Union, and, in the last few years, from the sidelines watching and advising a massive grassroots movement involving several lay organisations, both Catholic and non-Catholic, supported very strongly by the Bishops Commission for Scheduled Castes and Scheduled Tribes.
I speak in this piece only about the Catholic Church, and I have to say to the honourable Chief Justice, hanging down my head in shame like Tom Dooley, that there has been a rampant caste system, both in the community and in the hierarchical Church.
Today an activist judiciary almost walks the talk. I am therefore tempted to take Chief Justice KG Balakrishnan for a walk. Let us walk into the villages, where dalits live together no matter what religion they belong to. Let us enter the hut of the Chamar family. Ramesh Chamar and his parents are Hindus. His brother John befriended some Salesian priests, studied in the Don Bosco School and became a Catholic. The whole family continues to be discriminated against in humiliating ways, by the upper castes Hindus, as well as by upper caste Catholics in the village.
But there is discrimination, not just from the community, but from the Government. Ramesh gets all the benefits reserved for Hindu Dalits. John gets none. Ironically, the upper-class Catholics in the area would never consider marrying their daughter to him.
Let me take a longer walk. I am presiding over a meeting of the Working Committee of the All India Catholic Union in a Diocese in Southern India. Suddenly a group of Catholic Dalits from the Diocese barge into the meeting and shout slogans against us.
They ask me to stop the meeting and walk with them through the Diocese. They take me to the Church and show me the "side" their only access to the Church and the benches at the back earmarked only for them. They take me to the cemetery, where a wall separates the burial place of the Dalits from that of the upper castes. Due to space constraints I am listing only a very few of the acts of discrimination they are subjected to. I get really mad and feel terribly ashamed. Together with members of the Working Committee, we break the wall and invite being arrested by the police for trespass. I notice with sadness that the upper caste members of my Working Committee are reluctant to join me in breaking the wall.
No doubt, things have changed since then and both the Catholic community and the Church are aware of the mortal sins they are committing. But the progress is slow, and therefore even today, in answer to the question of the Chief Justice, I have reluctantly to admit that the Catholic community and the hierarchical Church are discriminating against Dalit Catholics. That this is happening is natural in a country like India. The Church is not an island. It lives and breathes in the social milieu in which it exists. The Hindu upper caste discrimination against Dalits has a natural fall out on the Church. The economic exploitation, cultural suppression and political domination of the Dalits in the whole country for hundreds of years have their own repercussions on the Catholic Church dominated by an upper caste clergy.
Christianity has certainly made a difference and diluted the effect of the presence of caste discrimination. But it still exists and needs to be taken cognisance of by the Supreme Court. If special benefits provided in the Constitution have been given to Hindus, Sikhs and Buddhist Dalits, based not on religion but on social discrimination, there is no reason why the Christian Dalits who still suffer indescribable social ostracisation, despite their Christianity, should not be included in the Presidential Order of 1950, and get the same benefits.
Fifty seven years is a long time to wait, your Honour.
George Menezes is President Emeritus, All India Catholic Union