Date: Thursday 10 August 2006
Subj: India: Supreme Court ruling will greatly advance persecution.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal.
On Friday 4 August 06, India's Supreme Court ruled that police do not require warrants in order to lodge First Issue Reports (FIRs), arrest and detain anyone accused of involvement in religious conversion activities.
Clearly this ruling opens the door for police with Hindutva sympathies to act as Hindu Taliban. It also opens the door for Hindutva forces to employ corrupt and sympathetic police as their agents of persecution.
Nuns, pastors, bishops and evangelists, as well as Christian aid workers, teachers and social workers, are all immediately at risk of arrest and imprisonment because of their Christian witness. In fact every Christian, actively witnessing or not, is at risk from hostile elements that may exploit the opportunity to bring false charges against them, inspired by a variety of motives, in the same manner that the blasphemy law is exploited for personal gain in Pakistan.
NO SANCTION REQUIRED
The Times of India reports: "Despite the bar on courts to take cognizance of an offence relating to proselytisation without the prosecution obtaining prior sanction either from the Central government, state government or the district magistrate, the police can lodge FIRs and arrest those indulging in such activity, the court has ruled." (Link 1)
"A Bench comprising Justices G P Mathur and Dalveer Bhandari said police do not require prior sanction of anybody in lodging an FIR or arresting a religious leader, if there is a complaint of proselytisation against him."
Previously the practice had been that police would follow Section 191(1-A) of the Criminal Procedure Code. The Times of India explains, "Section 191(1-A) of CrPC says that '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'." This protected religious leaders from harassment at the hands of police.
By its ruling, the Supreme Court has drawn a clear distinction between courts taking cognizance of an offence pertaining to proselytisation, and police lodging FIRs and arresting the religious figures alleged to be proselytising. So courts require a warrant before they hear a proselytism case, but police do not require a warrant to file criminal charges or to arrest and detain those so accused – those who should be regarded as innocent until proven guilty.
In January 2005, Pastor Paulraj Raju of Kanartaka state was beaten by local Hindus and later arrested by local police on charges of attempting to convert Hindus. A criminal case was registered against Pastor Raju on 15 January 2005. His wife filed a petition against the arrest on 27 January 2005 and the proceedings were quashed by the Karnataka High Court on 23 February 2005, while the investigation was continuing, on the grounds that police had arrested Pastor Raju and registered the case without first obtaining a warrant and therefore the proceedings were illegal. Pastor Raju was released on 3 March 2005. However, the Karnataka government then appealed against the High Court order which quashed the case against him.
FAMILIAR WITH PERSECUTION
Pastor Paulraj Raju is familiar with persecution. He was attacked also on 1 May 2005. On that occasion he was so badly beaten he required hospitalisation. According to Compass Direct around 60 people were meeting in Pastor Raju's home in Mangalwarapete village near the Mysore district in Karnataka state when a 500-strong mob of Hindu militants and nationalists entered and violently attacked Pastor Raju, his wife, and other Christians, leaving both Pastor Raju and his wife bleeding profusely.
SUPREME COURT EXPLAINS RULING – DENIES MISCARRIAGE OF JUSTICE
The Times of India reports: "The [Supreme] court explained that absence of prior sanction, a mandatory pre-requisite for a court to take cognizance of such offence, would not prevent a magistrate from remanding to police or judicial custody of an accused arrested by the police for the offence of proselytisation.
"There is no bar against registration of a criminal case or investigation by the police agency or submission of a chargesheet against the accused in such cases, Justice Mathur, writing for the Bench, said.
"Mere production of the arrested accused before the magistrate and the latter remanding him to custodial detention does not amount to taking cognizance of the offence, for which alone prior sanction is required, the Bench said."
IndLaw.com reports: "The apex court further ruled 'The specified authority empowered to grant sanction does so after applying its mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after FIR is lodged nor such a power can be exercised before completion of the investigation and collection of the evidence. Therefore the whole premises on the basis of which the proceedings have been quashed by the high court is wholly erroneous in law and is liable to be set aside." (Link 2)
IndLaw continues: "The Supreme Court in its concluding remarks observed, 'Power can be exercised to quash the criminal proceedings pending in any court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This being the settled legal position, 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.'
"The apex court also described as wholly unjustified the sweeping remarks made by the High Court that initiation of criminal proceedings was an abuse of the courts process court and miscarriage of justice."
That a person can be arrested and detained without warrant is indeed a gross miscarriage of justice and abuse of human rights. It will certainly advance the Hindutva agenda and the persecution of Christians in India.
1) SUPREME COURT'S NEW RULING ON PROSELYTISATION
Proselytisation FIR needs no sanction
by Dhananjay Mahapatra. 7 August 2006
2) Don't Quash Criminal Proceedings Till Probe Complete: SC To HC
6 August 2006