Court Says Indian Penal Code Does Not Punish Insults to Religion That Do Not Outrage Targets

In Kumar v. State of Karnataka, (High Ct. Karnataka, Sept. 13, 2024), a single-judge bench of the High Court of the Indian state of Karnataka gave a narrow interpretation to Section 295A of the Indian Penal Code which prohibits the deliberate and malicious outraging of the religious feelings of any class of citizens. At issue are the acts of two individuals who barged into a mosque and shouted "Jai Sriram" (Glory to Lord Rama). While the perpetrators have not yet been identified by investigators, this suit was filed to quash the ongoing investigation of the incident. Agreeing to quash the investigation, the court said in part:

Section 295A deals with deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.  It is ununderstandable as to how if someone shouts ‘Jai Sriram’ it would outrage the religious feeling of any class. When the complainant himself states that Hindu – Muslims are living in harmony in the area the incident by no stretch of imagination can result in antimony....

The acts that have no effect on bringing out peace or destruction of public order will not lead to an offence under Section 295A of the IPC.

Law Beat reports on the decision.

India's Supreme Court Says Muslim Women Can Invoke Secular Law for Maintenance Award After a Religious Divorce

In Mohd v. State of Telangana, (India Sup. Ct., July 10, 2024), a 2-judge panel of India's Supreme Court held that a Muslim woman who has been divorced under Muslim law, has a choice of seeking maintenance under the secular provisions of Section 125 of the Code of Criminal Procedure in addition to remedies available under the 1986 Muslim Women (Protection of Rights on Divorce) Act. Each of the two justices wrote an opinion. Justices Nagarathna in his opinion said in part:

... [A] technical or pedantic interpretation of the 1986 Act would stultify not merely gender justice but also the constitutional right of access to justice for the aggrieved Muslim divorced women who are in dire need of maintenance. This Court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act. Thus, an application for maintenance under Section 125 of the CrPC would not prejudice another application under Section 3 of the 1986 Act insofar as the latter is additional in nature and does not pertain to the same requirements sought to be provided for by Section 125 of the CrPC. One cannot be a substitute for or supplant another; rather it is in addition to and not in derogation of the other.

The Independent reports on the decision.

Controversial Hindu Temple Dedication Takes Place In India

In the Indian holy city of Ayodhya, the politically and religiously controversial dedication of the Ram Mandir, a Hindu Temple, took place this morning. An article last week in Time explains the significance of the event. Here are excerpts:

A decades-long flashpoint in India’s sectarian politics is poised to reach a climax next week. The Ram Mandir, a Hindu temple, will be consecrated Jan 22. on a contested holy site once home to a mosque in India’s northern city of Ayodhya. The special ceremony for the temple, which is still in construction, has been a decades-long effort in the making.

For Hindus, site marks the birthplace of Lord Ram, one of the most revered deities in the Hindu faith. But the site is also revered by Muslims for having once housed the 16th century Babri Mosque, a monument of faith for Indian Muslims that stood on the site for centuries before it was razed by a Hindu nationalist mob in 1992. Sectarian riots ensued, killing thousands of people....

Indian Prime Minister Narendra Modi, whose Hindu-nationalist government has overseen a steady rise in violence against Muslims and other religious minorities, will play a key role in the ceremony—one observers say will mark the unofficial start of his campaign to win a third consecutive term when Indians go to the polls in the spring....

In 2019, India's Supreme Court awarded the site to the Hindu community. (See prior posting.).

Indian Court Bars Exclusion of Scheduled Caste from Temple Festival

Last week in the Indian state of Tamil Nadu, the Madras High Court issued an order to prevent members of a Scheduled Caste from being excluded from a Temple Festival. In Pandiarajan v. District Collector, (Madras High Ct., Dec. 19, 2023), the court said in part:

... [P]etitioner submits that the people from Maravar community in their Village are not permitting the Scheduled caste people to participate in the temple festival and they are preventing them from taking mulaippari and not collecting tax from them for the temple festival.... [A] peace committee meeting ... between both the groups ... [decided] that the village festival has to be performed only as per the advice of the HR & CE [Hindu Religious and Charitable Endowments] Department that no community people is entitled to conduct the festival by collecting tax separately that the parties are restrained from spreading any rumors in the social media.... [P]etitioner submits that even after this resolution... the caste hindus are not permitting the scheduled caste people to participate inthe Margazhi festival of the above temple.... 

Even after 75 years of independence, if this state of affairs prevails on account of community in the village, it needs to be addressed and prevented. No person nor any group can restrain a person from performing his religious duties and it is the right guaranteed under the Constitution.

... The temple worshipped by the public is a public temple and the HR & CE Department is having every right to interfere with the affairs of the temple.  It was, in fact agreed between the parties in the peace committee meeting that the festival has to be conducted by the HR & CE Department.

LiveLaw 10 reports on the decision.

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

New South Asian Congressional Caucus Launched Amid Criticism from Some Civil Rights Groups

Last week, Michigan Congressman Shri Thanedar announced formation of the 28-member "Hindu, Buddhist, Sikh, Jain US Congressional Caucus." According to India West Journal: "The group will address cultural misunderstandings, promote interfaith dialogue and harmony, and support initiatives to promote the well-being, education, and empowerment of the Hindu, Buddhist, Sikh, and Jains in the US." However, four Hindu, Sikh and Muslim civil rights groups issued a press release sharply criticizing formation of the caucus, saying it does not represent all parts of the South Asian community across faith, caste and ethnic lines.  The press release says in part:

"... In June of this year, Congressman Thanedar announced his intention to form a Hindu Caucus without input from the full spectrum of Hindu American civil society, including Dalit and linguistic community organizations. This caucus seems to be a new iteration of that previous announcement.”

“If this caucus is that announcement repackaged with a more inclusive label but the same makeup, it will likely combat meaningful oversight of the U.S.-India relationship, ongoing work to protect the civil rights and safety of Sikhs and other marginalized groups, and efforts to ban caste discrimination at a federal level. Moreover, given the lack of Muslim representation, it may oppose ongoing efforts to combat Islamophobia. In short, any caucus without inclusive representation from the Indian diaspora will serve as nothing more than a vehicle for Hindu nationalist policies that will inevitably harm the entire South Asian American community, including Sikh, Muslim, Dalit, Buddhist, Jain, and even Hindu Americans.

Biden, Modi Respond To Questions About Religious Freedom In India

Yesterday, President Biden and Indian Prime Minister Narendra Modi who is making a state visit to the United States held a joint Press Conference (full transcript) at the White House. Reporters raised questions regarding India's treatment of religious minorities. Here is the relevant portion of the questions and answers:

Q    So, as you raise these broader issues of human rights and democracy, what is your message to those — including some members of your own party — who believe that your administration is overlooking the targeting of religious minorities and a crackdown on dissent in India?

PRESIDENT BIDEN:  Well, look, the Prime Minister and I had a good discussion about democratic values.  And ... that’s the nature of our relationship: We’re straightforward with each other, and — and we respect each other.

One of the fundamental reasons that I believe the U.S.-China relationship is not in the space it is with the U.S.- Indian relationship is that there’s an overwhelming respect for each other because we’re both democracies.  And it’s a common democratic ... character of both our countries that — and our people — our diversity; our culture; our open, tolerant, robust debate. 

And I believe that we believe in the dignity of every citizen.  And it is in America’s DNA and, I believe, in India’s DNA that the whole world — the whole world has a stake in our success, both of us, in maintaining our democracies.  It makes us appealing partners and enables us to expand democratic institutions across — around the world.  And I believe this, and I still believe this.

Q    Mr. Prime Minister, India has long prided itself as the world’s largest democracy, but there are many human rights groups who say that your government has discriminated against religious minorities and sought to silence its critics.  As you stand here in the East Room of the White House, where so many world leaders have made commitments to protecting democracy, what steps are you and your government willing to take to improve the rights of Muslims and other minorities in your country and to uphold free speech?

PRIME MINISTER MODI:  (As interpreted.)  I’m actually really surprised that people say so.  And so, people don’t say it.  Indeed, India is a democracy. 

And as President Biden also mentioned, India and America — both countries, democracy is in our DNA.  Democracy is our spirit.  Democracy runs in our veins.  We live democracy.  And our ancestors have actually put words to this concept, and that is in the form of our constitution.

Our government has taken the basic principles of democracy.  And on that basis, our constitution is made and the entire country runs on that — our constitution and government.  We have always proved that democracy can deliver.  And when I say deliver, this is regardless of caste, creed, religion, gender.  There’s absolutely no space for discrimination. 

And when you talk of democracy, if there are no human values and there is no humanity, there are no human rights, then it’s not a democracy.

And that is why, when you say “democracy” and you accept democracy and when we live democracy, then there is absolutely no space for discrimination.  And that is why India believes in moving ahead with everybody with trust and with everybody’s efforts.

These are our foundation principles, which are the basis of how we operate, how we live our lives.  In India, the benefits that are provided by the government is accessible to all.  Whoever deserves those benefits is available to everybody.  And that is why, in India’s democratic values, there’s absolutely no discrimination neither on basis of caste, creed, or age, or any kind of geographic location.

India's Supreme Court Rejects Petition on Renaming of Historical Cultural Religious Places

In Upadhyay v. Union of India, (Sup. Ct. India, Feb. 27, 2023), the Supreme Court of India dismissed a petition brought by a leader of a Hindu nationalist party seeking to require the government to research and publish the "original names of ‘ancient historical cultural religious places’, named after barbaric foreign invaders." According to the court:

[Petitioner] invokes the right to dignity as flowing from Article 21 of the Constitution of India. He further submits that there is his fundamental right to culture which is protected in Articles 19 and 29. Again, he refers to Article 25 as the source of his right to religion and in regard to his fundamental right to know, he leans on Article 19(1)(a). He also has brought up the concept of ‘sovereignty’ being compromised by the continuous use of the names of the ‘brutal invaders’....

Rejecting petitioner's contention, the court said in part:

India, that is ‘Bharat’ in terms of the preamble, is a secular country....

The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State’s action....

VOA has a lengthy background article discussing the case, explaining in part:

Beginning in the 12th century, a succession of Muslim empires — most notably the Delhi sultanate and the Mughal empire — dominated the Indian subcontinent for almost seven centuries. During Muslim rule, the growth of trade and commerce was accompanied by the brisk growth of towns and cities across the country.

The Muslim rulers established many towns, naming them after themselves or their ancestors....

In the last few years, several places with Muslim-sounding names have been renamed by BJP governments....

With the rise of Prime Minister Narendra Modi, the Hindutva — nationalist groups — have increased demands for renaming many Muslim-sounding locations.

Indian Court Upholds Hijab Ban In Schools and Colleges

As reported by CBS News:

The top court in the southern Indian state of Karnataka on Tuesday upheld a ban on hijabs, or Muslim headscarves, in schools and colleges in a ruling that could deepen the religious divide in the country.

In Resham v. State of Karnataka, (High Ct. Karnataka, March 15, 2022), a 3-judge panel of the High Court of the Indian state of Karnataka in a 129-page opinion upheld the ban, saying in part:

wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.

India Refuses To Allow Mother Theresa's Charity To Receive Further Funds From Abroad

The Guardian reports that on Christmas Day, India's Ministry of Home Affairs refused to renew the license allowing Missionaries of Charity to continue to receive financial support from abroad.  Missionaries of Charity, which runs a network of charities across India, was founded by Mother Theresa in 1950. Accusations, denied by the Charity, are that it lures poor young Hindu women into becoming Christians by forcing them to read the Bible, recite Christian prayers and wear a cross around their neck. Hardline Hindus say that the Charity is intentionally hurting the religious sentiments of Hindus.

Local Officials In India Take Aim At Food Carts Selling Eggs

Deccan Herald reported yesterday on the India's most recent religious-cultural controversy-- the sale of eggs by food cart operators. A recent raid by authorities in Ahmedabad confiscated eggs and supplies from street vendors. According to the report:

The place of the humble egg in the street food culture of Gujarat, a state in western India where people take their snacks seriously, has become the latest flashpoint in the growing role of religion in everyday life. Under Prime Minister Narendra Modi, the national government has taken steps in recent years to promote the religion and to sideline Muslims and other groups. 

Emboldened local governments have followed suit, enacting rules in some places that adhere adhere closely to Hindu doctrine. That is especially true in Gujarat, which Modi led for 13 years before becoming prime minister and which is often seen as a laboratory for pushing policies to reshape India along with his Hindu nationalist vision....

Many Hindus are vegetarian, particularly among the elite within India’s traditional caste system, and some of them consider eggs to be meat products.

Indian Court Says Religious Conversion Does Not Change Person's Caste

In Raj v. The Tahsildar, (Madras High Ct., Nov. 17, 2021), the High Court in the Indian city of Madras (Chennai) held that "conversion from one religion to another religion will not change the caste of a person which he belongs." The case involved a petition from a couple seeking an "inter-caste marriage certificate" in order to obtain the priority in public employment that is available to inter-caste couples.  The claim was based on petitioner's possession of a Backward Class certificate which he was issued when he converted to Christianity. However, according to the court:

by birth, the petitioner belongs to 'Adi-Dravidar' community and change of religion will not change the community.

Thus the court upheld the denial of the certificate. Normally this would still allow petitioner to claim the benefits reserved for Scheduled Classes. However, under a 1950 Presidential Order, members of Scheduled Classes that convert to Islam or Christianity are denied these benefits.

Indian Court Orders Wide-Ranging Protections For LGBTIA+ Community

In an unusual 107-page opinion earlier this month, a Justice of the Madras High Court in India handed down a wide ranging series of directives to be undertaken by various government agencies to protect the safety of the LGBTQIA+ community, and to eliminate prejudice against them.  In Sushma v. Commissioner of Police, (Madras High Ct., June 7, 2021), Justice Venkatesh set out at length the process he went through to educate himself on the challenges faced by the LGBTQIA+ community. The decision says in part:

[I]t is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof.

The case was brought originally by a lesbian couple seeking protection from their parents, and police with whom their parents had filed missing person complaints, interfering with their relationship. Jurist also reports on the decision.

Court In India Dismisses Charge That Facebook Post Violated Blasphemy Law

In India, the High Court of the State of Tripura dismissed a complaint filed against petitioner claiming that he violated Section 295A of the Indian Penal Code through a Facebook post. That section prohibits deliberate and malicious acts intended to outrage religious feelings by insulting religion or religious beliefs. In Gosh v. State of Tripura,  (High Ct. Tripura, Feb. 26, 2021), the court concluded that Section 295A was not violated by the post that was in Bengali script, and whose meaning was unclear. The court said in part: 

According to the complainant, by putting such an un-tasteful and obscene comment on Hindu religion by saying that Gita, the sacred religious text is “thakbaji Gita”, the petitioner has hurt the religious feelings of Hindu community....

As I have noted earlier, there is a dispute about what exactly did the petitioner convey through the said post.... The word ‘ঠক’ is explained as deceitful, swindling and knavish. When suffix „বাজজ‟ is added, it conveys the meaning of cheating, swindling or knavery whereas the term ‘ভাজা’ is explained as to fry or roast. What the petitioner has written on his Facebook post is „ঠগভাজী’. Whatever this term coined by the petitioner may mean or may not mean anything at all, it certainly does not convey the meaning which the complainant wants to ascribe namely that Bhagavad Gita, is a deceitful document.

Swaddle reports on the decision.

India's Hindu Nationalist Government Cancels Scheduled Exam On Cows

New York Times reports that in India, Prime Minister Narendra Modi’s Hindu nationalist government has postponed offering a widely criticized exam on cows for which 500,000 people had already registered:

Critics said the curriculum, devised by the National Cow Commission set up by Mr. Modi’s government, was an especially bold move by his ruling party to push its  ideology and undercut the secularism that is enshrined in India’s Constitution but seems to be increasingly imperiled with each passing day....

Many academics see the fact that a government body tried to push a curriculum on cows — one that included many completely unsubstantiated claims — as evidence that the government has increasingly fallen under the sway of Hindu supremacist groups like the R.S.S., in which Mr. Modi and many top officials were once active....

The test was not made mandatory, but India’s University Grants Commission, a federal agency, encouraged students — in fact, all citizens — to study the material and take the exam as an extracurricular activity.

Critics across the country urged the cow commission to call off the exam, saying students would feel pressured by the government to take it. They said parents would urge their children to take the exam, because the government was planning to issue a certificate that could be helpful to the students’ future careers. The commission also dangled prize money for top scorers.

Indian State Places New Restrictions On Religious Conversion

On Nov. 27, the Indian state of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (full text) (section-by-section explanation). It outlaws religious conversions entered solely for the purpose of marriage, as well as religious conversions by means of misrepresentations, force, coercion, undue influence, allurement or fraud. Violations are punishable by imprisonment of 1 to 5 years, and a fine of up to $200(US)-- with higher punishments where a minor, a woman or member of a Scheduled Caste are involved, or a mass conversion. 

The new law also sets out an elaborate procedure for anyone who wishes to change his or her religion. The procedure includes a 60-day advance notice to the District Magistrate, followed by a police investigation, and a post-conversion filing. The clergy planning to conduct a conversion must file a notice 30 days in advance. The Hindu reports on the new law.

Time reports on the "love jihad" conspiracy theory that has given impetus to laws such as this one:

Love Jihad is a baseless conspiracy theory that Muslim men are attempting to surreptitiously shift India’s demographic balance by converting Hindu women to Islam through marriage. The narrative has been pushed by Hindu nationalist groups close to India’s ruling BJP since Prime Minister Narendra Modi was first elected in 2014....

The new law comes just two weeks after judges in Uttar Pradesh’s high court overturned a previous decision that religious conversions for the sake of marriage are unacceptable....

The high court case referred to is Priyanshi @ Km. Shamren and others v. State of U.P. and Another, (Allahabad High Court, Nov. 11, 2020). The court said in part:

Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

USCIRF Hearing On Citizenship Laws and Religious Freedom

The U.S. Commission on International Religious Freedom held a hearing yesterday on Citizenship Laws and Religious Freedom. The hearing focused on the use of citizenship laws to deny rights to religious minorities, with emphasis on developments in India and past actions in Burma. The written statements submitted in the hearings are available on USCIRF's website.

Trump Praises Modi's Efforts On Religious Freedom In India

At his press conference (full text) in New Delhi, India yesterday, President Donald Trump responded to a question about religious freedom in India:

Q    While you’ve been here in the country, in the capital, the northeast part of Delhi, there have been violent clashes.  Police have been killed, some demonstrators.  Nine deaths so far, we hear, and about 100-plus injured.  What did Prime Minister Modi say to you about this amended citizenship law?  And how concerned are you about this kind of religious violence in India?

THE PRESIDENT:  So, we did talk about religious freedom.  And I will say that the Prime Minister was incredible on what he told me.  He wants people to have religious freedom, and very strongly.  And he said that in India they have — they have worked very hard to have great and open religious freedom.  And if you look back and look at what’s going on, relative to other places especially, but they have really worked hard on religious freedom.

I asked that question in front of a very large group of people today.  And he talked about it; we talked about it for a long time.  And I really believe that’s what he wants.

As far as the individual attack, I heard about it but I didn’t discuss that with him.  That’s up to India.

The Hill reports on these remarks.

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

India Supreme Court: State Commission Can Choose Teachers For Madrassas

In Rafique v. Managing Committee, Contai Rahamania High Madrasah,(India Sup. Ct., Jan. 6, 2020), a 2-judge panel of India's Supreme Court in a 151-page opinion upheld a law in the state of West Bengal under which a government appointed Commission selects teachers for Islamic Madrassas. The Court held that the Act does not infringe on the right of minority institutions to choose their own teachers, saying in part:

the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of...

Times of India reports on the decision.