The condition of civil and human rights in India depends on who you ask. Many non-government organizations (NGOs) I know will say that it is appalling; but the Government – particularly in many states of India – will say that it has never been better! The reality is somewhere in between. Violations of civil and human rights in a vast continent like India are legion, but the silver lining is that they are often exposed by a free press, and where possible, remedied by judicial activism.

The Chapter on fundamental rights (Part-III) of the Indian Constitution is directed to the States and their agencies. Courts may and do grant relief where the executive or legislative branches of government infringe on fundamental rights. But no provisions of the Constitution prohibit individual citizens from violating the civil and human rights of other citizens, nor do laws impose any penalty, nor provide a remedy, for violations by citizens of human rights of other citizens. As a result, a large number of people in India are deprived of a life of peace and justice. This was pointed out to me some years ago, when high-profile American judges visited India to participate in an Indo-US Legal Forum, a Supreme Court of India program. Justice Antonin Scalia, a man known not to mince words, said that the rights granted to U.S. citizens under the Civil Rights Act of 1964, enacted in response to the pressures of the civil rights movement, were not granted to Indians under India’s laws or Constitutional framework. He was right. We do have a Civil Rights Act, but that only prohibits the practice of “untouchability” in all its forms. The Constitution and the laws guarantee rights against the State and its agencies, but do not protect the rights of a group of citizens against another – a crying need in these fractious times.

The Inhuman Practice of “Untouchability” Continues

A few months ago, the Supreme Court of India sentenced five persons to life imprisonment for brutally killing seven Dalits, those belonging to the lowest caste in Hindu society, in Uttar Pradesh, India’s largest State. And this is what the Judges said:

Unfortunately the centuries old Indian caste system still takes its toll from time to time. This case unfolds the worst kind of atrocities committed by a so called upper caste (Kashtriyas or Thakurs) against the so called lower castes in a civilised country.

This “civilised country” has abolished “untouchability” and social backwardness in its Constitution. But alas, many of its inhabitants have not yet eliminated it from their hearts.

Restrictions Against Residing and Working Anywhere in the Nation?

While old forms of discrimination continue, new forms of discrimination – discrimination despite law – have surfaced. Articles 19(1)(d) and 19(1)(e) of the Indian Constitution confer on all citizens a fundamental right to move freely throughout the territory of India and also to settle in any part of India. Permanent restrictions on such freedom of movement are suspect. There are many Court decisions that establish this. But politics trumps law, even constitutional law, perhaps best exemplified by the growing phenomenon called “preference-for-sons-of-the-soil”: it seeks to reserve for locals jobs and places in educational institutions: “Maharashtra only for the Maharashtrians,” “Punjab only for the Punjabis,” is the clarion call. But, in this “land of a thousand mutinies,” as V.S. Naipaul has pertinently called it, we cannot truthfully say Bihar only for the Biharis, because what would Maharashtra and Punjab and the rest of the country do without the hardworking Biharis, who earn their living in states outside Bihar? This new ogre of discrimination that has raised its ugly head needs to be eradicated; it can only be done with astute political will, and by firmness of judicial diktat. Political parties who indulge in it must be disenfranchised by the Election Commission. But unfortunately popular Governments hate to lose votes thus perpetuating “preference-for-sons-of-the-soil” policies: this is one of the great dilemmas of modern Indian Democracy.

A change in attitudes will not occur through laws and edicts, but only by meaningful education, education that alters settled habits of the mind. We will have to go through many more difficulties before it dawns on the mass of the voting populace of India (about 700 million) that when we achieved independence we failed to attain standards of education that would enable WE THE PEOPLE of India to live up to the ideals of a truly free, and independent nation. The sons-of-the-soil agitation is not good for India. The strength of this great country lies in its vastness and in its being home to a pluralist society in which diverse and varied ethnic, social, and cultural interests co-exist, sometimes peaceably, sometimes not. Ending discrimination is very important for this country, but we cannot end discrimination without tolerance and a spirit of accommodation: qualities which are at present in short supply.

Growing Intolerance – A Violation of Personal Rights

Article 25 of our Constitution guarantees, subject to public order, morality and health, that all persons be equally entitled to freedom of conscience and the right to freely profess, practice and propagate their religion. But what use is this Article if it is not enforced or observed in its true spirit? I recall the case of a minuscule sect in this country, numbering only a few thousands, called Jehovah’s Witnesses. They live mostly in Kerala. They are Christians, although with a particular belief not shared by other Christians. Their belief revolves around three short passages in the Book of Exodus in the Bible, which they believe are the words of God. This is what an angry God says in the fiery Old Testament.

20:3 Thou shalt have no other gods before me.

20:4 Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.

20:5 Thou shalt not bow down thyself to them, nor serve them . . .

Jehovah’s Witnesses interpret these words literally and will not bow down to graven images, salute the national flag, or sing the national anthem. In Nazi Germany, they gladly went to the concentration camps for refusing to raise their hands in the Nazi salute because of these words of God found in the Old Testament.

Until 1985, children of this faith in Kerala regularly attended the public schools. In one such school, the Indian National Anthem – “Jana Gana Mana” was sung at the beginning of each day. Children belonging to the Jehovah’s Witnesses stood at attention but refused to sing, not because they were opposed to the words or thoughts expressed in the National Anthem, but because of the tenets of their religious faith. No one considered this disrespectful. Besides, there was no law compelling any one to sing, or to play, the National Anthem.

But in July, 1985, a member of the Legislative Assembly of Kerala on a visit to the school noticed that three children whose parents were Jehovah’s Witnesses did not sing the National Anthem at the morning assembly. He considered this unpatriotic and raised a question in the Kerala Legislative Assembly. The Assembly appointed a Commission of Inquiry, which reported that, although the children did not sing, they were law-abiding, and showed no disrespect to the national anthem, they stood in respectful silence when it was sung. On the instructions of the Inspector of Schools, the three children were expelled from the school.

A writ petition was filed in the High Court of Kerala seeking a writ of prohibition against the authorities preventing the children from attending the school. The High Court rejected the plea. I was consulted. We decided to file an appeal to the Supreme Court of India invoking Article 25 of the Constitution and we succeeded. The Supreme Court of India reversed the verdict of the High Court. The Supreme Court held that the children did not join the singing of the National Anthem in the morning assembly because of their conscientiously-held religious faith, which did not permit them to join in any rituals, except prayers to Jehovah.

The Court noted “Jehovah’s Witnesses wherever they are, do hold religious beliefs which may appear strange, even bizarre to us, but the sincerity of their beliefs is beyond question.” The Court held that the childrens’ expulsion from school violated the fundamental right of “freedom of conscience” guaranteed in Article 25(1) of the Constitution of India. At the end of their judgment, the Justices encapsulated the consistent attitude of the highest court in matters of genuine religious faith, in eloquent words that need to be remembered:

We only wish to add: (said the Judges) that our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.

The Justices directed the authorities to readmit the children to the school and to permit them to pursue their studies without insisting they sing the National Anthem in the morning assembly.   But they were not admitted – Tolerance in the face of unpatriotic behaviour? Never!

The Judge, who delivered the judgment of the Court was castigated by a high ranking leader of the then ruling Congress party as having forfeited his right to be called “either an Indian or a Judge”! When this party leader was hauled up before a Bench of three Judges for “scandalising the Court,” the Judges pusillanimously refused to issue even a notice of contempt on the Congress leader on the specious ground that the Attorney General had not given his consent to the initiation of contempt proceedings! In short, the judgment, though correct in law, and enforceable was simply unacceptable to a large majority of what was then characterised as “right thinking people.” Despite the verdict of the Highest Court in the land the children would not be admitted to any school in Kerala. They are still not admitted: they get their tuition only at home.

Jehovah’s Witnesses had won their constitutional case, but lost their constitutional right which the decision in the case had affirmed. Discrimination against this small miniscule sect of Christians continues — despite law.

Fali S. Nariman is a distinguished Indian constitutional jurist and senior advocate in the Supreme Court since 1971. He may be contacted at falinariman@yahoo.com.

 

 

 

by Fali S. Nariman