Fundamental rights v/s Religious hegemony

The purpose of this article is to list out the legal boundaries of the fundamental rights of freedom of expression and religious freedom as recognised by Indian constitution and laws.

The seven fundamental rights recognised by the Indian constitution are

1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.

2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.

3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;

4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.

5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

6) Right to constitutional remedies for enforcement of Fundamental Rights.

7) Right to education which ensures that children up to the age of 14 get education. It can also be free of cost.

These seven fundamental rights are required to be protected at any cost in India. This means that even other laws passed by the legislature cannot impede into the fundamental rights of a citizen of India.

 Before we dig deep into more legalities of fundamental rights and religions, it is also necessary for us to understand what a religion is as per our constitution.

The fact is there is no precise definition of religion. ‘Religion’, it is said, is a matter of faith and belief in God is not essential to constitute religion [In Shirur Mutt case (AIR 1954 SC 282)]

Often the activities of religious bodies are based on one of the above mentioned fundamental rights, the freedom to profess, practice, and propogate religion. So better clarity on these matters is also required. The next paragraph looks into this matter.

The freedom of conscience and the right to profess, practise and propagate religion is enshrined in Art.25 of the Constitution. The equality of all religions is expressly recognized by Art.25 thereby emphasizing the cherished ideal of secularism. The expression ‘practice’ is concerned primarily with religious worship, ritual and observations. Propagating the religion connotes the right to communicate the religious beliefs to others by expounding the tenets of that religion.Of course, in the name of propagation, no one has a right to convert a person to another religion under pressure or inducement (vide Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908). Religious practices are as much a part of religion as religious faith or doctrines (vide The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiratha Swamiar of Shirur Mutt, AIR 1954 SC 282). The fundamental right to freedom of conscience and the right to profess, practise and propagate a religion is subject to the 6 considerations of public order, morality and health. Clause (2) of Art.25 preserves the power of the State to make a law regulating any economic, financial, political or other secular activity which may be associated with religious practice. Art.26 gives effect to the concomitant right of the freedom to manage religious affairs and this right is again subject to public order, morality and health. Articles 25 and 26 undoubtedly extend to rituals also and not confined to doctrine. It is well-settled that the freedom of conscience and the right to profess a religion implies freedom to change the religion as well. It is pertinent to mention that Art. 18 of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change the religion or belief. The right to freedom of conscience thus implies the individual right of a person to renounce one’s religion and embrace another voluntarily.

It is also necessary to know what are the restrictions applicable to freedom of speech and expression.

Restrictions

The freedom of speech and of the press does not confer an absolute right to express without any responsibility. Lord Denning, in his famous book Road to Justice, observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. With the same token Clause (2) of Article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads:

• I. security of the State,
• II. friendly relations with foreign States,
• III. public order,
• IV. decency and morality,
• V. contempt of court,
• VI. defamation,
• VII. incitement to an offence, and
• VIII. sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s case (AIR 1950 SC 124). The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order.But mere criticism of the government does not necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.
Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book The Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.
Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy ((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which the United States Supreme Court observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”. In E.M.S. Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C.
Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offence.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.
In the opinion of Brajesh Rajak, author of ‘Pornography Law: XXX Must not be Tolerated' “Freedom of speech and expression can not be an excuse for distribution of indecent and immoral content to average person of the society"

We also need to understand what can be punished as "utterances deliberately tending to hurt the religious feelings of any class" with respect to the restriction of freedom of expression for the sake of public order. The details are given below:

" s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a)"

I hope the listed points helps us to evaluate within our own conscience the role that religions should play in our life, to what extent we can legally challenge citizens who criticize religions and to what extent we can exercise our freedom of expression. These points should help us all evaluate whether we need to punish (atleast as per Indian law) the people who released the video on Islam released in US and whether the violent reactions from a section of the soceity on the basis of the video is justified? A view point on these would be released in the next iteration of the post. So the discussion is to be continued.....

For never was a story of more woe, than this of Democracy and her India

A glooming peace this morning with it brings.
The sun for sorrow will not show his head.
Go hence, to have more talk of these sad things;
Some shall be pardon'd, and some (maybe none) punished;
For never was a story of more woe
Than this of Democracy and her India.

Indian democracy is a failure of shakespearean proportions on the world stage. Six decades back, India, a land of Kingdoms, a land ruled over centuries by Kings and Monarchs, and finally Imperialists, decided to woo Democracy, a rule of the people. Indian family of Dynasties and the Democratic family of Liberty, Freedom, and People were as far apart as the Montagues and the Capulets. To marry them, should naturally have been to script the greatest drama on the stage of modern global politics. And if fate woul be a dramatist of unparalled genius of tragedies, much like Shakespear, this drama too should fall its curtains to the audience, with the curtain a mere formality to a role already well carried out to perfection by the tears that have flooded the eyes, and blurred our vision for a better tomorrow for humanity across the world.

Like the Friar, shall I ask to put Democracy to sleep, ultimately to unite her with India? But then will India have the patience not to think Democracy dead? Can India stop Democracy stab herself to death upon finding him dead from the poison of our politics?

How I wish all the best dramas were not tragedies, or at least, our little drama be spared the merit of being the best, for then it might endure itself from being a tragedy. Tragedy or not, India and democracy has chosen each other, and they would be together even if in their deaths. Revolution might be to stab oneself, but then separation is not a solution. To liberate ourselves from the Dynasties, the Gandhis, the Dynasty masked itself as democratic, we need the characters to come alive on the stage, to re live the horrors of a revolution, once left half done in the hands of this family.

For never was a story of more woe
Than this of democracy and her India.
 

Indian Democracy: A critical analysis

Straight talk

I have often taken the path of indirect symbolism and projection of contradictions as a means to deliver messages. These methods, I believe are a better tool to send the message in a moderated manner, devoid of possible perception of abuse; a tool that can attract attention to the subject through the uniqueness of the mode of presentation, one that can make the human brain work differently and think differently, a method that does not always draws conclusions, but almost always aims to get the brain working on topics, letting individuals arrive at their own conclusions, but not based on propoganda, but based on true independent mode of thinking. Getting a man to think is the best way to liberate him from religious, ethnic, or political bias.

But some topics that are urgent in nature, and that normally do not come to the human brain, because they are largely hidden behind veils of deceit, need some straight talking. Straight talking risks getting thrown into the garbage bin as propoganda, or risks to be treated as or with abuse. The indirect path often has to take the tedious path of slow reform, which might be more effective on the long run, but may not work fast enough on urgent issues. Also some issues that are not explicitly visible as social challenges may not be noticed or thought upon by all stimulated brains. Hence mere stimulation to think may not make humans to identify some topics that need deep thinking. In these situations, I am forced to take the route of some straight talking.

What takes me out of the normal route are a set of events that are both urgent in nature and at the same time requires certain hidden underlying causes to be analysed or thought upon. I would start with the cause and why I think it is urgent.

I am driven to this article out of alarm at watching how fast my country, India, is getting polarized on the basis of religion and ethnicity by the events in Burma, and Assam. Modern social media allows us to communicate with people faster. It also opens the windows into the thought process (or belief process, because I find that most opinions are not derived out of free thought, but rather forced upon by religious propoganda) of different communities.

First of my concern is that the notion of nation is being replaced by the notion of religious identity. Recently we saw the nature of support inspired by violence in Assam. In a two sided violence between an Indian regional tribal community and those mainly supported by illegal immigrants, our country was divided on the basis of religion, rather than national identity, despite the fact that one side of the violence was inspired by illegal immigrants detrimental to our national security. In a fight of nation vs religion, people seem to take the side of religion. Second, in the events in Burma, which should not be a top priority for a nation like India, the religious communities in India are reacting in exaggerated tones. When thousands are getting massacred in Syria, the same set of citizens are bothered only about the roughly 50 people killed in Burma in ethnic clashes (forgetting the fact that an almost equal number of people perished among the other side of the same violence), just because in this particular clash, one side belongs to another religion while in the real massacre is Syria, both sides are from their own community. Why should the citizens in India protest agaisnt Indian governments inaction for a clash happening in Burma? Strange levels of rabid religious madness seems to be engulfing our religious communities.

But has not India had its fair bit of religious clashes? What makes this one particularly urgent? Because, this one saw our own citizens take the side of the foreigners in the name of religion, putting our nation and its unity to risk. Most of the violence were getting spread by exaggerated rumours and lies on the violence in Assam and Burma. Both were ethnic clashes in which both sides were equally guilty in their involvement in violence. Both sides were affected. But somehow the religious community leaders, both political as well as religious leaders, protested only the loss of lives from their own religion, and started interpreting these clashes as one sided oppressions on a community. Social media was getting misused by foreign and Indian religious elements to spread lies and create animosity. The MPs of the community were protesting the loss of a particular religious groups lives in Assam, showing no concern to the lives of the other Indians who were killed, making them representatives of a religion rather than of a nation. But this is not which makes this situation so very urgent. Its the fact that, in such a scenario, a certain section of Hindus too tried to jump into the propoganda bandwagon. A small part of the propoganda material found in internet sites were getting spread by radical right wing religious groups, showing attrocities on Hindus in Assam. Now I can see that the Hindus, who are less likely to be drawn into religious movements, were also getting organised under extremist elements, driven as a response to the extremism shown by the other communities. This will create a cycle, which will allow the minority community to increase their propoganda and then the Hindus to react more, and finally the so called tolerant Hinduism will become another propogandist religion, a group that will endorse violence rather than tolerance. Hindus have almost been stimulated religious activists, rather than an organized religious activists. But if they too start getting organized, then this inevitably leads to polarization.

A lot of my ideas on religions and the violence associated with them, and the need for religious tolerance and the need to curb religious extremism were inspired by couple of books by Karen Armstrong, 1. The Holy War and 2. The history of Religions.

The author mentions about the dangers of polarization, wherein the population will divide under extremists religious groups to fight each other. It is important to curb religious extremism, whether Muslim or Hindu. I can see signs of the Hindus themselves getting polarized.. Once both sides come under extremist idealogies, there is no way back. We will move to the never ending cycle of religious violence and hatred. Hence when I see signs of a thousands of year old tolerant religion like Hinduism getting polarized in the name of countering competitive extremism, I feel the time has come to deliver a quick message to stop religious extremism. This brings me to the second part of delivering a straight message, the hidden part which normal people are not likey to think about when viewing these incidents. Such a hidden part, a not easily concluded cause, is never likely to be thought about by the simple thinking mind that it needs explicit mentioning. This hidden part is the cause for both religious intolerance and extremism.

I call this cause, Organized Religion: The Real Evil. Hinduism, (even though people of other religions might aggresively contest) have been comparitively a tolerant religion. Other religions where quite capable of surviving on near equal terms with a Hindu majority, unlike in other parts of the world, where minority religions quickly dissapeared under a dominant and aggressive majority religion. A part of this tolerance is the nature of Hindu religion. It is a free religion which does not give rules, but rather gives philosophical directions (In fact it will be wrong to call it a religion, it has more the characteristics of a cultural heritage with philosophical wings rather than a religion). It does not communicate a specific message from God, but rather seeks to sent indirect messages and concepts. It does not bind people to a particularly strict religious mode of living, or mode of worship, in short a Hindu grows up with minimum direct religious teachings, most are indirect non binding teaching through stories and epics. A hindu is also not obliged to read and follow all the religious texts as is written. He can think over them, accept them if required, or ignore them otherwise. A hindu is never asked to pray at a particular time, he can go to a temple if required, at a time he might think is necessary. He does not have to undergo religious classes or sermons. In short, his religious life is dictated by his own beliefs and requirements rather than defined by his religion. It is a free form, an unorganized religion, that gives freedom of thought, and acceptance of change, in pace with the change of norms and beliefs in soceity. This nature of religion, makes it difficult for the religious propogandists to communicate their poisonous messages across to the masses. This makes it almost impossible for the religious leaders to dictate to the Hindus what needs to be done. In short religion does not drive a Hindu. But this setup will break down, the moment this religion gets organized.

Other organized religions, often teach their followers from childhood on religion and their texts. From childhood people go to religious classes, giving the religious leaders ample opportunity to mould or restrict their thought process. Often the followers are taught with such vigor that for the rest of their life they will refuse to believe anything else. They are thought that whatever is written in their Holy books are final and true and cannot be questioned, even if modern science prove otherwise. This leads to a minor brainwashed, ultra loyal religous follower, who will refuse to think out of the box, who will refuse to change with time, who will refuse to go against the religious leaders and their preachings. This, sadly kills free thought, and development of religion based on individual experiences. This will also prevent the bad side of religions from getting reformed since all that is written in the holy books cannot be challenged at any time.

The organized religions also try to create an opportunity to have all the followers gather at a common place for prayers and sermons. This gives them ample opportunity to spread both good and bad messages, and often nowadays, the messages are likely to be propoganda that creates religious distrust and a feeling of being oppressed. This organized approach makes the followers near slaves to their leaders. The leaders can easily spread poison among the community, through continued mis preaching and propoganda. And likely, we could see that during the recent prayer meetings in most areas of the country, the topic that was getting spread was that of stories of violence against their own communities in Assam and Burma, and like the stories that came in internet, most of them were exagerated religious propoganda. This led to violence and protests inspired by lies  througnout the country.

Is it not time for us to curb such religious activism? Do we need to encourage such organized religion. Do we not need to provide the followers of a religion the opportunity to think and act independently rather than be forced through religious propogandas? Religious freedom and reform will be possible only when there is a curb on organized religion. True religious freedom is possible only when we curb organized religion. Religious freedom is the freedom to subscribe to your own view of beliefs either fully or partially compatible to an existing religious system, and not the freedom to impose your views on others, either through soceital or community based pressure.

Seasons Greetings

New insights into Evolution

One God vs Many Gods vs No God

The world can be theologically classified into three broad categories (further sub categories would describe them more specifically).

1. The one god religions
2. The multi-god religions
3. The Atheists

The single god religions found a simple solution to the chicken and egg situation that theological historians have faced for centuries, "Did God create man or did man create God?"

The solution, the chicken created the egg. Now some eggs might ask why do I have to believe that? The chicken worshiping eggs would say because the master chicken who created all the eggs that came from the first Adam egg created, had sent a special egg to spread the message of the chicken to all the eggs world wide. So who created the chicken? Now that's the case of a rotten egg, and they don't belong to the society of eggs and need to be thrown out. So the rotten egg policy solved the issue, and all the eggs hatch away happily into obscurity of the broken shell, believing that on judgement day the master chicken would arrive and then make omelets out of the rotten ones in fire and take the rest to the heavenly hatchery.

In comparison to the political demographics of the world, this situation is comparable to one party governance, like the one found in China. As long as you do not question the party, you can survive, and lead a fairly comfortable life too, at least the lucky ones living in the cities. But we have to seriously sacrifice the virtue of freedom that is so close to human nature and desire to lead a life of luxury confined to the communist cells. These countries and religions can boast of their incredible achievements over the years, but everything needs to be taken with a pinch of salt.

The second kind of religions, the multi god ones, do not try to solve the chicken and egg problem. They will philosophically counter the problems with stories of the different kinds of chicken, the story of the turkey, the peacock, the hen, the duck, the cuckoo,  and the many varieties of birds and their even more varieties of eggs. Anyway solving the chicken and egg problem does not benefit the chicken nor the egg. So rather than waste their time on solving a problem whose solution does not help anyone, they tread more on enjoying the vast variety of eggs and the variety of ways they can be hatched and then finally teaches that the egg ones hatched, is worthless, the chicken does not take shell with it to heaven, and until the chicken is killed for a feast, the egg will be relayed and re hatched in the circle of life.

The above kind can often be compared to multi party democracies. Under them achievements seem to happen at tedious pace, with a lot of toil required on consensus to reach a solution. But on the other hand humanity can enjoy the greatest joy that they desire, freedom of life, and freedom of thoughts. Life is all not rosy, but then life is not about winning alone, it is about losing too, about experiencing the various facets of life, without bothering about winning or losing, about heaven or hell.

The third kind, the Atheist, are the kind who do not believe in the chicken, because no one can prove that the chicken exists. They are the propagators of the ultimate unhindered freedom,   often the kind that humanity cannot afford, not because they are not right, but because all eggs need a good basket to protect them, for they are so fragile. The truth is that no egg need to feel obliged to the chicken, but then hurling the egg around is not always the smartest thing to do in life.

A country without a government would be more comparable to the class described above. Now is there ever such a country anywhere? Probably not, because it is innate nature of humans to organize some form of governance to bring order into public life. Likewise even the most extreme of atheist is likely to pray even if it is mutest at the toughest of phases of his life, not because he believes there is God, but the innate nature of humans might require an ounce of God to propel them psychologically. A lawless governance less country, hence is not imaginable nor desirable. A little bit of law, a little bit of order, that which do not exceedingly interfere in your life, is necessary so that all the eggs can remain in the same basket without breaking each other.

So what is the best form of governance that humans can look for? That which do not interfere too much into your life, at the same time that will ensure that you will not interfere or inconvenience your fellow beings, that which can bring you in line with the aspirations of your fellow beings for a better world, that will not police you and control you day in and day out, but will support and help you when and only when you really need it. I would always love to have a police station two streets from my home, but not next to my home.

Similarly the religion that do not interfere with day to day living, that do not interfere in civil and social matters, that will relegate itself to purely theological matters and that which does not set binding laws of life and that which will be there to help you when you need it, rather than impose its help on you is the one that humanity requires. One that will remain in the personal domain of his life,rather than one put on him through an organised form that can interfere and dictate one on how to live. So let me have a religion and a God who let me be myself and do not ask me to pray when they want it, but will let me pray when I want and will be there for me when I need. Religion, a non intrusive, free, and non binding institution, that merely tries to help people at individual levels of need, rather than be imposed based on pre-meditated beliefs of requirements uniformly implemented on an entire community.