Thursday, August 24, 2006

India: Laws leave Church vulnerable to Hindutva intolerance.

Date: Thursday 24 August 2006
Subj: India: Laws leave Church vulnerable to Hindutva intolerance.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal.


Some further clarification can be offered concerning the recent Supreme Court ruling in India whereby the Supreme Court, in one ruling, clarified two issues: that police do not require a warrant to arrest those accused of proselytisation; and that while courts may not take cognizance of an offence without a warrant, a magistrate's remanding an accused to judicial custody does not amount to taking cognizance of an offence. (For background, see earlier WEA RLC posting: "India: Supreme Court ruling will greatly advance persecution." Link 1)

Some Indian dailies reported quite erroneously that no sanction was required to try a conversion case. Some advocates claim that the ruling cannot be used a precedent as it only applies to the Karnataka case of Pastor Raju, while others note that in case law any ruling may be used as a precedent. Some analysts believe that because the law has not actually been changed, only clarified, it can be assumed that nothing else will change and Christians will not be adversely affected. Many observers wonder why the issue of conversions is even relevant in Karnataka when there is no anti-conversion legislation in that state.

There have been many question and varied opinions and I will endeavour here to expand and clarify my analysis – that the ruling will serve to advance persecution – on the basis of the further information and opinion received. Two submissions have been added as an appendix to the posting.

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INDIAN PENAL CODE

Pastor Raju was not charged under State anti-conversion legislation as none exists in Karnataka. He was charged under Article 153B of the Indian Penal Code which is applicable across all India. (Link 2)

Under Article IPC 153B it is a criminal, jailable offence to make or publish any assertion concerning religion (or race or caste etc) that causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.

These kinds of religious laws can be easily exploited and abused to make the victim indictable for the hatred and disharmonious, unsettling, even violent acts of an intolerant aggressor. In the present hostile climate, those who engage in peaceful religious expression will need to be pro-actively protected from the schemes of the intolerant.

CRIMINAL PROCEDURE CODE

The Supreme Court ruling simply clarified two elements of Section 196(1-A) of the Criminal Procedure Code (CrPC): No Court shall take cognizance of an offence involving inducement for conversion unless the prosecution has obtained previous sanction of the Central government or of the state government or of the district magistrate.

FIRSTLY: the Supreme Court ruling clarified that Section 196 (1-A) clearly refers to court procedure and not to police procedure. Courts require warrants before they can take cognizance of an offence, but police do not.

As noted in the previous WEA RLC posting on this issue, the police have until now followed the procedure laid down for courts and sought warrants. The Supreme Court has simply clarified that the police are not required to do that. The police may legally arrest an accused, and, according to the CrPC, have 24 hours to present the accused before a magistrate who will rule as to whether the accused should be release on bail or remand to judicial custody.

SECONDLY: the Supreme Court ruling clarified what it means to "take cognizance" of an offence. The Supreme Court has declared that a magistrate's remanding of an accused to judicial custody is not the same as taking cognizance of an offence. Therefore the magistrate does not require a warrant in order to remand the accused to judicial custody.

Normally it has been assumed that a magistrate makes the decision to release on bail or remand to prison on the basis of their consideration of several factors, such as the degree of threat the accused poses to the community and the risk that they might flee or hinder the investigation. This decision is presumably made on the grounds of evidence. One would assume that such a decision, made on evidence, would require some degree of taking cognizance of the offence.

So the situation is: police do not require a warrant to arrest anyone accused of hurting religious feelings or creating religious disharmony. The police may then hold the accused for 24 hours before they have to present them before a magistrate who may then, without a warrant and without (allegedly) giving cognizance to the offence, remand the accused to judicial custody.

In essence the law has not been changed. However, misconceptions that had served to restrain police, slow down procedures and prevent abuses, have been removed. So in reality, while the law has not changed, the heat on the ground surely will, especially in the present climate of resurgent Hindutva and anti-proselytising hysteria – a hysteria driven by the fear-inducing, anger-inciting disinformation and propaganda campaigns of Hindutva forces that equate Christian gospel witness and service with an alleged American conspiracy to subvert and control India. (See "The Hindu Nation and its enemies", in the current edition of the Hindutva journal, The Organiser, Link 3)

Now that India's laws concerning religion have been clarified, it is difficult to imagine that those with malicious intent to hamstring and silence Christians will not rush to exploit and abuse these laws to further escalate the persecution of the Church in India and reap the political gain that comes from fear mongering.

Elizabeth Kendal

Links

1) India: Supreme Court ruling will greatly advance persecution.
WEA RLC News & Analysis. 10 August 2006.
http://www.worldevangelicalalliance.com/news/view.htm?id=659

2) Indian Penal Code: http://www.indialawinfo.com/bareacts/ipc.html
Article 153B is one of several sections in the IPC that refer to promoting enmity between religious groups and hurting religious sentiments. See also 153A, and Chapter XV : Of Offences Relating to Religion

3) The Hindu Nation and its enemies
By Sandhya Jain. 27 August 2006
http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=145&page=33

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APPENDIX

To assist those following, and trying to make sense of this situation, I have copied here two submissions

The first submission comes from the Global Council of Indian Christians, who, motivated by the numerous enquiries they received after the news of the Supreme Court ruling broke, obtained a copy of the Supreme Court ruling and elicited a legal opinion upon it from a senior counsel of the High Court. Here, copied in full, is the legal opinion of that senior counsel.

"Opinion regarding Judgment of the Hon. Supreme Court of India

Dated: 4-8-2006, Case # 814 of 2006.
(Pastor Raju, Channapatna, Karnataka (Respondent) Petitioner- State of Karnataka)

"The following points arise for the purpose of rendering an opinion regarding the judgment.

"At the outset it may be noted that the said judgment has considered the effect of Section 196(1-A) CR.PC. The court has not gone into the merits of the case and has proceeded to give a finding on two aspects; firstly, whether sanction of the central government, state government or district magistrate is required to prosecute a person under section 153-B IPC and secondly, the court has proceeded to give a finding whether an order remanding an accused to judicial custody amounts to taking cognizance of an offence.

"It is noticed that the said judgment pertains only to this particular case and since the settled position of law has been referred to in the body of the judgment. This order may not act as a precedent. Moreover the Honorable Supreme Court has made a categorical statement that the observations made in the said order are only for a limited purpose to decide the appeal. Since the matter was decided in a narrow compass and the trial being still open, the said judgments may not have any repercussions on the merits of the case."

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The second submission is from the Christian Legal Association of India which explains, without analysis or comment, the legal meaning of the ruling.

Legal opinion on Pastor Raju vs. State of Karnataka

Many national dailies, referring to a recent judgment the Supreme Court of India claimed that "No sanction was needed for trying conversion cases", leading to wide scale speculation on the implications in the event of arrest of person under sections 153 B of the Indian Penal Code. Most papers have, however, reported the judgment erroneously.

Contrary to newspaper reports, the Supreme Court has not negated the need for sanction as required under section 196 but has decided a very narrow point of law. First, that an order of remand does not amount to taking of cognizance of the offence and second that the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage.

Section 196 (1) of the Criminal Procedure Code contemplates sanction from the central or state government or of the district magistrate concerned for prosecution of offences under Section 153-B of the Indian Penal Code. Section 482 Cr.P.C. gives inherent powers of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court.

In the present case, the Supreme Court was merely making a distinction between taking cognizance of an offence by the court and registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation.

The judgment states that "a plain reading of Section 196 Cr.P.C. will show that no Court can take cognizance of an offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of Indian Penal Code or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The opening words of the Section are 'No Court shall take cognizance' and consequently the bar created by the provision is against taking of cognizance by the Court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Cr.P.C. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) Cr.P.C. and no illegality of any kind would be committed."

Drawing on various previous judgments the Supreme Court observed that "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. The Court further observed that it is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

Court has stated that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.

In the present case neither any complaint had been filed nor any police report had been submitted nor had any information been given by any person other than the police officer before the Magistrate competent to take cognizance of the offence. After the FIR had been lodged and a case had been registered under Section 153-B IPC, the respondent was arrested by the police and thereafter he had been produced before the Magistrate. The Magistrate had merely passed an order remanding him to judicial custody.

Further the court observed that in this present case the High Court had acted in haste to quash the FIR even though the investigation had only just commenced. The petition was allowed by the High Court while the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the in charge of the police station concerned to the Magistrate empowered to take cognizance of the offence.

Christian Legal Association of India
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