the myLaw.net blogThe Supreme Court has held in Board of Control for Cricket in India v. Cricket Association of Bihar and Others that the Board of Control for Cricket in India (“the BCCI“) was not “State” under Article 12. In holding so, the two-judge bench was bound by the Court’s precedent. The table below illustrates this precedent.
(Akriti Gupta is a student at the Jindal Global Law School.)
Many incidents of mass conversion have taken place in India since Independence. Half a million Dalits, under the leadership of Dr. B.R. Ambedkar, embraced Buddhism in Nagpur in 1956. In 1981 in Kanyakumari, hundreds of families turned to Islam citing social reasons and in Delhi in 2002, thousands of Dalits, overcoming several political obstacles, converted to Buddhism. Last year in Agra, 57 Muslim families were converted to Hinduism, allegedly coerced by political factions.
Freedom to ‘propagate’ religion
The contemporary debate about the introduction of a national anti-conversion law begs us to re-examine Article 25 of the Constitution, the bedrock of the freedom of religion in India. Article 25 states that every person has the fundamental right to freedom of conscience and the right to freely profess, practice, and propagate any religion of his choice. This right applies equally to all religions and the only restrictions placed on it are the restrictions of public order, health and morality, and that it must not violate other fundamental rights.
The issue of whether the controversial ‘right to convert’ falls within or outside the ambit of the expression “propagate” is a question of fundamental importance to determine the constitutionality of any anti-conversion law. A few revered members of the Constituent Assembly were of the view that “Propagation does not necessarily mean seeking converts by force of arms, by the sword, or by coercion. But why should obstacles stand in the way if by exposition, illustration and persuasion you could convey your own religious faith to others?” This would constitute the very essence of our fundamental right to freedom of religion. Another member was of the view that even if the word “propagate” were absent from the Article, it would be open to any religious community to persuade others to join their faith using their fundamental right to freedom of speech. It is only when conversion is tainted with undue influence such as money or pressure by other means, should the state step in to regulate such activities. It is abundantly clear that the intent of the drafters of our Constitution was to recognise conversion by the free exercise of the conscience.
State anti-conversion legislation
Five states – Madhya Pradesh, Orissa, Gujarat, Chattisgarh, and Himachal Pradesh – already have anti-conversion laws in force. Enacted with the objective of preserving freedom of religion, these laws do little to curtail forced conversions and are in fact an impediment on the freedom of choice and conscience of individuals wishing to convert freely.
A 19th century lithograph depicting the conversion of the Paravas, a fisherfolk caste from southern India, to Christianity by St. Francis Xavier.
These state laws attempt to ban conversions that occur by force, fraud, allurement, and inducement. With these terms defined vaguely or not at all, they leave much scope for abuse. For instance, under the Orissa Freedom of Religion Act, 1967, the grant of any benefit, either pecuniary or otherwise, is considered as allurement and the charitable work done by religious organisations could easily fall under the definition of “allurement”. Other laws, such as those in Gujarat and Madhya Pradesh, require consent from a magistrate before a conversion. Such provisions give too much power to state authorities and curtail the individual’s fundamental right to freedom of religion.
Rev. Stanislaus v. State of Madhya Pradesh and Kokkinakis v. Greece
Provisions of the Indian Penal Code, such as those dealing with criminal intimidation (Chapter XXII) and forcible attempts in the name of religion (Section 153), already provide adequate remedies to curb forcible conversions. In light of the available remedies, the landmark ruling of the Supreme Court in the case of Rev. Stanislaus v. State of Madhya Pradesh (1997), where the Court considered the constitutionality of the Orissa Freedom of Religion Act, 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 is a disappointing one. The two acts prohibit forceful conversion and make it a punishable offence. Even though the Orissa High Court ruled that the expression ‘propagate’ includes the right to convert, making it a fundamental right, the Supreme Court overruled that decision and upheld the constitutionality of both the acts presumably with the bona fide intention to curtail forceful conversions. The Supreme Court held that the Article does not grant the right to convert another person to one’s own religion but only to transmit or spread one’s religion by an exposition of its tenets. What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion”.
Perhaps the introduction of a national anti-conversion law will give the apex court the chance to revisit and overrule its past decision and uphold the tenets of secularism, religious liberty, and the freedom of conscience in India. While doing so, the law makers of this country and the judiciary will be well advised to refer to India’s international obligations under the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, all of which recognise the freedom of religion and freedom of conscience as an inalienable right. The decision of the European Court of Human Rights in Kokkinakis v. Greece (1993) is also relevant. In contrast to the Stanislaus Case, the European Court held that the right to try to persuade one’s neighbor in matters of religious belief is included in an individual’s right to freedom of religion under Article 9 of the European Convention.
While it goes without saying that any act of forceful religious conversion must be met with harsh sanctions, we cannot allow any infringements on our fundamental right to freedom of religion and freedom of conscience which will be a likely consequence of the proposed national anti-conversion law.
Vera Shrivastav, an Associate at the Legalogic law firm, is also a researcher and writer and was awarded a Junior Research Fellowship in 2014.
In the second half of December 2014, the Supreme Court began to hear a series of challenges to various provisions of the Information Technology Act of 2008 (“IT Act”). Hearings will commence again when the Court reopens in January after the winter break. The batch of petitions, clubbed under Shreya Singhal v. Union of India, impugn – inter alia – the constitutional validity of Section 66A of the IT Act.
Section 66A has attained a degree of notoriety in recent times, having been used to arrest people for posting (and liking) Facebook comments, for critical political speech, and so on. Section 66A is largely borrowed from the English Communications Act (the scope of which has been severely curtailed after allegations of abuse), and was originally intended to tackle spam and online harassment. It hardly bears repeating that its implementation has gone far beyond its objective. Beyond poor implementation, however, there is a strong case for the Court to hold at least part of Section 66A unconstitutional, on the ground that it violates the freedom of speech guarantee under Article 19(1)(a) of the Constitution.
Among other things, Section 66A criminalises the sending, by a computer resource or a communication device, any information that is “grossly offensive” or has a “menacing character” (S. 66A(a)), as well as the sending of “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience.” The components of the offence, therefore, include online speech that is “grossly offensive”, “menacing”, or causes “annoyance” or “inconvenience”.
Legitimate restrictions permitted on the fundamental right in Article 19(1)(a)
The State’s authority to legitimately restrict speech can be sourced to Article 19(2) of the Constitution, which allows for the State to impose, by law, “reasonable restrictions on the freedom of speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” S. 66A’s restrictions might be connected with three of these concepts: public order, decency or morality, and defamation.
In a series of cases, the Supreme Court has made it clear that the connection between “public order” and a free speech restriction ought to be proximate, like that of a “spark in a powder keg”, and not far-fetched or remote. Clearly, while certain forms of offensive or menacing speech might, at some point, lead to a public order disturbance, the connection is anything but proximate. Similarly, the “decency and morality” prong has been invoked to deal with cases of obscenity, where the offending work appeals solely to the prurient interest, as seen from the point of view of the reasonable, strong-minded person. And lastly, the ingredients of defamation are highly specific, and much narrower than causing offence or annoyance – they are limited to lowering the reputation of the plaintiff in society (subject to certain defences).
Over-breadth and disproportionate restrictions
I
t is therefore clear that certain terms of Section 66A suffer from the vice of “overbreadth”, that is, they authorise the restriction of expression that the government is entitled to prohibit, as well as that which it is not. In Chintaman Rao v. State of Madhya Pradesh, the Supreme Court, while striking down certain restrictions on agricultural labour under Article 19(1)(g) of the Constitution, held that “the law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In other words, as far as fundamental rights are concerned, over-breadth is constitutionally fatal to a statute. This conclusion is further buttressed by the fact that in State of Madras v. V.G. Row, the Supreme Court also held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” Proportionality and over-breadth are closely linked: if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.
Vagueness
In addition to over-breadth, the provisions of Section 66A suffer from an additional problem: that of vagueness. “Menacing”, “annoyance”, “inconvenience” and “grossly offensive” are all highly subjective, and open to numerous varying interpretations depending upon individual and diverse standpoints. Their scope and boundary are both large and ill defined. Consequently, they create a zone of uncertainty for Internet users. What kind of speech might land you in trouble? It is hard to tell.
Vagueness is constitutionally problematic. In Kartar Singh v. State of Punjab, the Supreme Court – citing American precedent – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Thus, the twin problems of uncertainty and impermissible delegation to the executive, are inextricably connected with vague statutes.
Vague and over-broad statutes are especially problematic when it comes to free speech, because of the chilling effect that they cast upon speech. As the Court put it in Kartar Singh, “uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.” When faced with uncertain, speech-restricting statutes, citizens are likely to self-censor, in order to ensure that they steer well clear of the prohibited line.
In the Shreya Singhal petitions, the Supreme Court will be faced with the choice of striking down Section 66A, or reading it down and (perhaps) issuing guidelines aimed at checking abuse. There is no doubt that the objectives of preventing scam and protecting Internet users against cyber-harassment and online bullying are important. But there are other parts of Section 66 that can be used to curtail such activities. If the Court is not minded to strike down Section 66A in its entirety, it ought to at least sever the words that have the greatest and most unbounded catchment area, and are most prone to abuse, and excise them from the statute.
(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)
On December 3, 2014, the Supreme Court of the United States of America heard the case of Young v. United Parcel Service, a case filed by Peggy Young of Maryland. An employee of the respondent company, she was placed on unpaid leave when she became pregnant in 2006, resulting in the loss of her medical benefits. A district judge and the U.S. Court of Appeals have already ruled in favour of the shipping company, but activists in favour of Young are hopeful that the Supreme Court will take a different stand on the issue.
While the Court ponders the issue, let us look closer home. What has been the stand of the Supreme Court of India on the issue of maternity leave and benefits?
Invasive questionnaires
In Mrs. Neera Mathur v. Life Insurance Corporation of India, the petitioner’s employment with the LIC was terminated after she returned from maternity leave. The reason given was that she had withheld information about her pregnancy in a questionnaire she had filled out at the time of her appointment. After a perusal of the questionnaire, the Supreme Court found that it required female candidates to provide information about the dates of their menstrual cycles and past pregnancies. The Court held that the questionnaire was an invasion of privacy and directed the LIC to reinstate the petitioner and delete the offending columns from its future questionnaires.
Consider Sundays and unpaid holidays for computing period of work to qualify for maternity benefits
In Ram Bahadur Thakur (P) Ltd. v Chief Inspector of Plantations, a female worker employed at the Pambanar Tea Estate was denied maternity benefits on the grounds that she had actually worked for 157 days instead of the 160 days required to qualify for them. The Supreme Court, however, held that for the purposes of computing maternity benefits, all days including Sundays and unpaid holidays must be taken into consideration.
Daily wagers must get benefits too
In Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and Another, the Municipal Corporation of Delhi stated that it granted maternity leave to its regular female workers but not to the daily wage ones, that is, the ones on the muster rolls. The respondents argued that the practice was unfair as there was hardly any difference in the work allotted to female workers who were regular and those who were on daily wage. Accepting the contention, the Supreme Court upheld the right of female construction workers to be granted maternity leave by extending the scope of the Maternity Benefits Act, 1961 to daily wage workers.
Two years uninterrupted childcare leave
In a landmark case last year, Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration and Others, the main question was whether a female employee of the Central Government could ask for 730 days of uninterrupted child care Llave under the Central Civil Services (Leave) Rules, 1972. Justices S.J. Mukhopadhaya and V. Gopala Gowda of the Supreme Court held that a female employee of the Central Government is entitled to two years uninterrupted leave for childcare, which may also include illnesses and schoolwork. It held that the judgment of the Calcutta High Court, Circuit Bench at Port Blair was ignorant of the rules framed by the Central Government and directed the respondents to comply with the directions issued by the Central Administrative Tribunal, Calcutta, Circuit Bench at Port Blair.
Justice V.R. Krishna Iyer, a judge of the Supreme Court of India between 1973 and 1980, and a champion of individual liberties and social justice, died on Thursday in Kochi at the age of 100. As a Supreme Court judge, Krishna Iyer infused life into the otherwise abstract rendering of constitutionally guaranteed fundamental rights. In so doing, he changed the core of the Court’s jurisprudence; the Court, during Krishna Iyer’s tenure, moved from being a decidedly positivist body into one that, howsoever briefly, thought of social justice as the underlying aim of the Constitution. His ability to coalesce his inherent sense of compassion and integrity with an intellect of stupendous brilliance allowed him to make indelible marks on the development of the law as a means to justice.
Krishna Iyer began his practice as a lawyer in 1937 in the courts of Thalassery, where he often represented labourers and menial workers. But he soon found himself gravitating towards a more active political life. In 1952, at the young age of 37, he was elected to the Madras Legislative Assembly, with the support of the Communist Party. Later, he would also serve as a minister in Kerala’s first government. To politics he brought an invigorating blend of empathy and statesmanship, but it is his revolutionary role as a judge of the Supreme Court that he will be most remembered for.
In 1973, after a mere five years as a judge of the Kerala High Court, Krishna Iyer was elevated to the Supreme Court. Here, his judgments, written in effusive—and often dynamic—prose, quickened the march of the law in numerous and diverse fields. The law, he believed, was a means to achieving the ends of justice. And it was this fundamental ethos that allowed him to imbue in the court’s philosophy, a proclivity for loosening the standards of locus standi. In fact, it was Krishna Iyer’s judgment in The Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, which served to forge the movement towards public interest litigation, which has today achieved a hallowed status. Where public interest demanded, “even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights,” he wrote. “Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.”
It was his indefatigable concern for equality as an all-pervading value that allowed him to foster a jurisprudence, which would give new meaning to a hitherto tepid Constitution. In both Sunil Batra and M.H. Hoskot’s Case, Krishna Iyer’s fundamental concern for the rights of the prisoner spoke to his larger commitment to a constitutional morality. “I hold that bar fetters are a barbarity generally and, like whipping, must vanish,” wrote Krishna Iyer, in Sunil Batra v. Delhi Administration. “Civilised consciousness is hostile to torture within the walled campus. We hold that solitary confinement, cellular segregation and marginally modified editions of the same process are inhuman and irrational.” In appealing to similar values, Krishna Iyer ruled in M.H. Hoskot v. State of Maharashtra that if a prisoner sentenced to imprisonment was unable to exercise his right of appeal, for want of legal assistance, “there is implicit in the Court under Article 142, read with Articles 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice.” Krishna Iyer’s dogged commitment to equality as a virtue also saw him make colossal contributions to labour law. His expansion of the mere textual meaning of the word “industry,” in Bangalore Water Supply and Sewerage Board v. A. Rajappa continues to resonate even today.
Krishna Iyer’s mark on the polity did not end with his tenure on the bench. In the years since his retirement, he used his tireless verve to advocate causes that appealed deeply to his conscience, and, as it would so happen, to the Constitution’s essential values, properly understood. Of the death penalty, for example, he wrote that a legislative abolition of the punishment would be “a statutory tribute to the Founding Fathers of Article 14.” Were the legislators to do so, it would also equally be a fitting tribute to the glorious ideas of Justice Krishna Iyer, ideals that, more than anything else, appealed to the securing of an equal society.
(Suhrith Parthasarathy is an advocate practising at the Madras High Court.)