In A.S. Narayana Deekshitulu vs. State
of Andhra Pradesh (AIR 1997 SC 3702), the Honourable Supreme Court
defined Dharma as
-
Sarblok Priyo
Nityamubachaidahar Nisham
Nandantu Sarb
Bhutani Snidyantu Vijanepwapi
Swastyastu Sarb
Bhurtesu Nirantakani Santu cha
Ma Vyadhirastu
Bhutanamadhyon Bhawantu cha
Maitrimashesh
Bhutani Tushyantu Sakle Jane
Shibmastu
Dwijatinam Pritirastu Parasparam.
The learned apex
court was quoting from Chapter 188 (Verse 12-17) of the Markandeya
Purana. It went on to preach that expressing the purpose of Dharma is
that all persons may be happy, may express each other's happiness,
that there may be the welfare of all, all being free from fear and
disease; cherish good feelings and sense of brotherhood, unity and
friendship. It looks all hunky-dory until we ask a simple but
beguiling question - Why is the learned Supreme Court preaching
Dharma to Hindus? After all, it is a temple of justice, not a temple
of gods. For a court of law to describe a man’s faith to him, is to
unilaterally disparage his religion in at least two distinct ways: by
describing, and by characterizing. It is an authority a democratic
government must not possess.
Such forced
constitutional morality must be seen as a transgression. It seems the
legal system prioritises its perceived morality over the sea of
masses or even individual assertions, which is disturbing because in
the case Navtej Singh Johar and Ors. vs. Union of India (UOI) and
Ors. (2018 10 SCC 1), the learned apex court explained that
constitutional morality requires in a democracy the assurance of
certain minimum rights, which are essential for free existence to
every member of the society for both individual and communal living.
Constitutional morality cannot be nurtured unless, as recognised by
the Preamble, there exists fraternity. In the US, Thomas Jefferson
gave the battle cry "all men are born equal and they are endowed
with the inalienable rights of life and liberty and pursuit of
happiness". When the French soldiers fought the revolution
barefooted, they had the battle cry, 'liberty, equality and
fraternity'. Some jurists have said that there is hardly a sovereign,
democratic, republic constitution preamble of this character, but it
is imperative for a fraternity to exist that it provides everyone’s
conscience liberty and equality.
If people who agree
with certain beliefs or loyalties or both are the only ones allowed
to have liberties such as those of speech and expression, faith,
trade etc, the concept of equality becomes null and void. On 26th of
April, Bihar Police booked some Bajrang Dal men for installing
saffron flags (Patāka) at Hindu shops and vends. The FIR alleged
that they were requesting passersby Hindus to purchase stuff from
those shops which had saffron flags or were owned by Hindus (CN
147/2020, Laheri PS, Nalanda). They were booked under IPC sections
147, 149, 188, 153A, 295A and Section 66 of the IT Act. The
complaint was made via a social media platform - Twitter.
It is difficult to
understand how simple community strengthening exercises like
installation of saffron-coloured flags at Hindu proprietorships that
too done with prior consent and blessings of the proprietors, and
gently requesting buyers to buy from these particular shops can be
painted as an attack on communal harmony in view of disability, race,
creed, colour, sex, sexual orientation, marital status, national
origin, or ancestry. Section 147 of the IPC is for rioting but the
men were merely putting up flags with consent and cooperation of the
vendors after a Ram Navami procession was withheld because of the
Chinese virus led lockdown. Section 149 is for unlawful assembly
guilty of an offence committed in prosecution of a common object. The
'offence' comprised of simply putting up Hindu flags. Section 188 is
for disobedience to order duly promulgated by a public servant which
is justifiable considering they were out doing the 'offence' during
Coronvirus pandemic led government-imposed lockdown. Section 153A is
for promoting enmity between different groups on grounds of religion
but the police failed to discern how the installation of the said
flags was promoting enmity and between which communities.
Section 295A is for
deliberate and malicious acts, intended to outrage religious feelings
of any class by insulting its religion or religious beliefs. It is
tough to comprehend how the installation of flags by Hindu vendors in
their private stalls or shops is a deliberate malicious act towards
any religion's or the government's beliefs. It appears that Bihar
Police has suddenly found religion. Constitution commits government
itself to religious tolerance, and upon even slight suspicion that
proposals for state intervention stem from animosity to religion or
distrust of its practices, all officials must pause to remember their
own high duty to the constitution and to the rights it secures.
Such conundrums are
not limited to India. In 2007, the airport commission of the Twin
Cities of Minneapolis–Saint Paul was peeved at Somali Muslim taxi
drivers refusing service to passengers who were ferrying wine. The
commission suspended the permits of drivers who refused to comply
with service rules. It held that Muslim cab drivers didn’t have to
transport booze, but if they chose not to, they couldn’t be an
airport taxi driver. The appeals court agreed with the lower court
that cab drivers who faced suspension didn't suffer irreparable harm.
In 2013, a baker couple settled in Colorado (Oregon, USA) declined to
make a wedding cake for a same-sex wedding. A state commission held
they were violating the state’s non-discrimination statute while
the bakers said the state was violating the free exercise of
religion. They were fined $135,000, putting them out of business. In
a similar case of 2012, baker Jack Phillips (Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Comm'n 06/04/2018) was disparagingly
told by the commissioners at the Colorado Civil Rights Commission
that religious beliefs cannot legitimately be carried into the public
sphere or commercial domain.
The men who were
installing the saffron flags in Nalanda requested locals to buy from
these particular vends, an act very similar to what advertisers and
salesmen do. In a similar incident, some Hindu fruit sellers of
Jharkhand’s Jamshedpur have been booked by the police for writing
‘Hindu’ on their stalls. Additionally, legal action is being
taken against shopkeepers under section 107 of CRPC. This section
deals with action against persons who are likely to commit a breach
of the peace or disturb the public tranquillity. It
is blatantly unfair to deem the act of Hindus who wrote the
word 'Hindu' on their fruit-shops as a
breach of peace when we see many missionaries and Sai Kiranas, Ali
tailors, Khalsa spare parts going about their businesses freely.
Similar to the
American bakery cases, on 21st April, a man in Maharashtra's Thane
district refused to accept delivery of items he had ordered online.
The delivery agent complained to the police citing religious
discrimination while the man claimed that the delivery agent was not
wearing proper protective gear during the delivery despite the
Coronavirus scare and he was wary of some videos and posts doing
rounds on the internet where some showed the malevolent intention of
spreading the Coronavirus by spitting, licking food items, attacking
health-workers etc. It appears Maharashtra police feels it is illegal
for a man to be scared of the Chinese Virus during a global pandemic
caused by it. While there are laws against discrimination, they are
no laws against misconstrued principles, this leads to societal
friction hence breakage of fraternity. Bihar, Jharkhand and
Maharashtra police are seeing a surge in saffron flags. Will they
care to explain why?
Provocative
comments or actions which have a destructive tendency to lead to an
outburst of violence or disturbance of public order must be
prevented. No democratic government can administer the nation unless
there are public safety and public peace but the government must
explain how and why it considers the installation of Hindu flags on
Hindu shops and a legally tenable refusal of an individual for a
business transaction. The delivery agent is a resident of Naya Nagar,
Mira Road which falls in the Chinese virus Red Zone. The man not
correct in turning him away if he found him not wearing masks and
gloves. No reasonble man would take such
risks.
Next, the police
might allege that wearing a tika or a kalawa is a provocation. Was
honourable Prime Minister’s call for ‘thaali bajao' a provocation
too because people were lighting diyas and blowing shankhs? The
governments can not escape such probing questions because if the
governmental actions are wholly unjustified and draconian, democratic
society has the right to judge them. Any legal action that assails
life and personal liberty under Article 21 of the Indian Constitution
must be tried by a court of law within the definitions of life and
personal liberty as laid down by the honourable Supreme Court.
The deprivation of
Article 21 of the Indian Constitution is only possible through the
procedure established by law. In Meyer v. Nebraska (1923), hon'ble
Supreme Court of the USA held that while the state has a legitimate
interest in encouraging the growth of a homogenous population that
can engage in discussions of civic matters, the does not mean that it
can go overboard in this objective. pursue this objective is
excessive. Without doubt, not merely freedom from bodily restraint
but also the right of any individual to contract, to engage in any of
the common occupations of life, to acquire useful knowledge to marry,
establish a home and bring up children, to worship God according to
the dictates of his conscience, and generally to enjoy those
privileges long recognised at common law is essential to the orderly
pursuit of happiness by free men1.
A man deserves full
and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public accommodation. If
people belonging to only certain sections or groups are allowed to
live freely by governments, the hallowed freedoms get hollowed out.
Such a society is not governed by laws but by men of caprice
organised within cabals and coteries. Such a society is trampled upon
by governments by simply playing divide and rule, by pitting and
favouring one group against the other, just like the colonial British
did.
Harold Laski wrote
- “The citizen seeks for happiness, and the state is an institution
which exists to make his happiness possible. He judges this
institution by its capacity to respond to the needs he infers from
the experience he encounters. That experience is private to himself.
Its predominant quality is its uniqueness. Either it is his own, or
it is nothing. The substitution for it of someone else's experience
is, where it is based upon constraint, a denial of freedom2.”
We can see it around. More and more people are criticizing successive
governments. People are gradually losing trust in governmental
institutions as evidenced by rising protests, mob lynchings,
militancy etc.
In recent times,
social media platforms like WhatsApp, Instagram, Twitter and Tiktok
have become means for sharing rumours, incitement, and
misinformation. Fake news and rumours on WhatsApp have caused over
30 recorded deaths in 2019. Rumours such as the kidnapping of kids
have led to the killing of individuals. How does police define
rumour? Is every information not emanating from an official source or
not permitted to be published by the censor a rumour? Rumours can be
innocuous or provocative. Some provocative rumours that are fueling
communal tensions are on the internet for all to see.
Democracy is a free
market of thoughts and has a free trade in ideas, but selective and
vested governmental actions are building walls of suppressed angst
within the Indian democracy. How long before the angst turns to anger
as we saw in the gruesome Hyderabad rape and encounter case? It is a
universal truth that eternal vigilance is the price of liberty,
another universal truth is that selective and biased vigilance means
no vigil at all. It means corruption.
Justice Bhagwati
wrote in Manubhai Tribhovandas Patel v. the State of Gujarat and Anr
(12 Gujarat Law Reports 968), "It
is not for the government of the day nor for the judges presiding
over our court to decide what doctrine or philosophy is good for our
people. It is for the people to choose what is best for them and in
order that they may be able to make a wise and intelligent choice,
free propagation of ideas is an essential requisite. The ideas
propagated may be unorthodox and unconventional; they may disturb the
complacency of a handful minority or they may challenge deep-seated,
sacred, beliefs and question the most fundamental postulates of our
social, political or economic thinking. There can indeed be no real
freedom unless thought is free and unchecked, not free thought for
those who agree with us but freedom for the thought that we hate. It
is only from the clash of ideas that truth can emerge, for the best
test of truth is the power of the thought to get itself accepted in
the competition of the market.”
Learned Chief
Justice Chandrachud spoke in Smt. Indira Nehru Gandhi v. Shri Raj
Narain (AIR 1975 SC 2299) "That
the nation shall be governed by a Government of laws, not of men is a
pillar of our constitutional philosophy and therefore a pillar of the
basic structure of our Constitution."
The learned judge was re-iterating the firm basis for the Rule of Law
theory, expounded by A. V. Dicey.
Eminent jurist and
diplomat-politician par excellence MC Chagla once
pondered over two
questions. The first question is - Do we want to live in a Police
State or in a democratic State? The second question is - “Do
I want to live in a free society or a captive society? Do I as a
follower of Mahatma Gandhi want to walk with my head up as a free man
or am I going to be controlled, restricted and put down by an
omnipotent Government? Absence of civil liberties makes a society a
captive society3.”
The test of popular
acceptance does not furnish a valid basis to disregard rights which
are conferred with the sanctity of constitutional protection.
Discrete and insular minorities face grave dangers of discrimination
for the simple reason that their views, beliefs or way of life does
not accord with the 'mainstream'. Does it deem the majority rights to
be sacrificed at the altar of constitutional morality for no-fault?
The word ‘Secular’ was not enshrined right from the beginning, it
was implicit until its introduction into the Preamble of the Indian
Constitution in 1976. Does it mean pre-1976 India can not be said to
be secular? The learned Supreme Court eventually went on to list
secularism under the basic structure doctrine.
Whether a
particular feature forms part of the basic structure has to be
necessarily determined on the basis of that provision of the
Constitution. Subject to specific confinements, Article 25 presents a
major ideal for everyone allowing one to not only to engage in such
religious convictions as might be affirmed by conscience but also
allowing to display convictions and thoughts by such unmistakable
acts and practices which are authorized by faith4.
Presently, what
rights are secured under the article is chosen by the courts. The
courts have frequently gone into Hindu religious sacred texts to find
out the status of a rite in question. It seems adherence to
‘secularism’ itself has become a religion which is problematic
considering the Indian Constitution has no unequivocal meaning of
“religion” or ‘matters of religion’. It is tough to believe
that a millennia-old polytheistic civilisation was waiting for the
validation of a modern government, a government that takes pride in
secularism while twisting it in many 'innovative' ways5.
In Durgah
Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402), the learned
Chief Justice Gajendragadkar observed, "Unless
such practices found to constitute a fundamental piece of religion
their case for the security under Article 26 may be precisely
examined; as such, the insurance must be kept to such religious
practices like a basic and a necessary piece of it and no other."
If one imagines a
Hindu temple, the imagination has a high possibility of including a
fluttering Hindu Patāka. Dr S Radhakrishnan spoke in the Constituent
Assembly, "Bhagwa or
the Saffron colour denotes renunciation of disinterestedness. Our
leaders must be indifferent to material gains and dedicate themselves
to their work6."
The best way to lead is to lead by example. The police are supposed
to lead the society by example, without fear and favour. As
the wisdom goes, no man
who has played an important role in society
can ever hope or expect to be praised by all.
Mahatma Gandhi
spoke on civil liberties - "Liberty of speech means that it is
unassailed, even when the speech hurts; Evolution of democracy is not
possible if we are not prepared to hear the other side. We shut the
doors of reason when we refuse to listen to our opponents, or having
listened, make fun of them. If intolerance becomes a habit, we run
the risk of missing the truth7."
On the rule of the majority, the Mahatma (Young India, 02-03-22) wrote, "The rule of the majority has a narrow application, i.e.
one should yield to the majority in matters of detail. But it is
slavery to be amenable to the majority, no matter what its decisions
are. Democracy is not a state in which people act like sheep. Under
democracy, individual liberty of opinion and action is jealously
guarded."
The US Supreme
Court held in the baker Jack Phillips' case that the government had
no role in expressing or even suggesting whether the religious ground
for Phillips’ conscience-based objection is legitimate or
illegitimate since it was the bakery service that was being denied.
The same-sex couple was treated as any other customer would have been
treated, no better or no worse. Similarly, the fruit-sellers were not
discriminating in trade. They are seeking more customers by the help
of some friends who went around requesting people of their community
to buy from the said fruit-sellers, which at last check, was
completely legal. The man refusing a grocery delivery, upon seeing
the delivery agent without a mask or gloves in the midst of a global
Chinese virus pandemic, is well within his rights to protect himself
and his kith and kin. He need not succumb to politeness at the cost
of his life.
2
‘Liberty
in the Modern State’ (Chapter II, pages 94 & 95)
4
http://www.nja.nic.in/Concluded_Programmes/2018-19/P-1110_PPTs/6.Doctrine%20of%20Basic%20Structure.pdf
6
http://mha.nic.in/nationalflag2002.htm
7
https://www.thehindu.com/opinion/lead/What-it-means-to-be-independent/article14570147.ece
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