House Holds Hearings On Human Rights Issues In India's Jammu and Kashmir

Last Thursday, the House of Representatives Tom Lantos Human Rights Commission held hearings on Jammu and Kashmir in Context. The Committee sets out the context:

The Indian government’s decision to change the legal status of the Muslim-majority state of Jammu and Kashmir, announced in August and effective as of October 31, 2019, has attracted intense attention due to persistent reports of human rights violations, including a crackdown on freedom of expression; the arbitrary “preventive” detention of hundreds of politicians, lawyers, journalists, and other civil society figures and related fears of enforced disappearance; and the use of excessive force against protesters. The increased militarization of the security presence in the region and the economic and social consequences of the central government’s actions, including continuing restrictions on internet and phones, have also provoked widespread concern. In addition, militants have targeted migrant workers from outsider Kashmir, and have threatened businesses to maintain a protest shutdown.

A video of the two and one-half hour hearing along with transcripts of witness' prepared statements and material submitted for the record are all available at the Commission's website. These include testimony from the U.S. Commission on International Religious Freedom focusing on religious freedom for minorities in India.

India's Supreme Court Awards Disputed Ayodhya Site To Hindus

In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, (India Supreme Court, Nov. 9, 2019), in an opinion that spans 1,045 pages, the Supreme Court of India ruled on a decades-old dispute over a piece of land claimed by both Hindus and Muslims.  BBC summarized the decision:

India's Supreme Court has ruled that the disputed holy site in Ayodhya in northern India should be given to Hindus who want to build a temple there.

The case, which has been bitterly contested for decades by Hindus and Muslims, centres on the ownership of the land in Uttar Pradesh state.

At the centre of the row is the 16th Century Babri mosque which was demolished by Hindu mobs in 1992, sparking riots that killed nearly 2,000 people.

Muslims would get another plot of land to construct a mosque, the court said.

In its opinion, the court explained:

The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site. For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.

Reuters has more extensive reporting on the decision. [Thanks to Scott Mange for the lead.]

Court In India Reduces Power of Ecclesiastical Courts In Goa

Hindustan Times of Oct. 19 reports:

After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony

The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”

The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See.... The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree....

Interpreting the judgement, [a former law commissioner] said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage....

Court In Indian State Bans Animal Sacrifice

In Bhattacharjee v. State of  Tripura, (Tripura High Ct., Sept. 27, 2019), a 2-judge panel of the High Court in a state in northeast India prohibited the sacrifice of animals or birds in any temples in the state. In its 72-page opinion, the court held that only practices which are an "essential and integral part of religion" are protected by Art. 25(1) of India's Constitution.  The court said in part:

[I]t cannot be said that the practice of animal sacrifice is essential to the core of the tenets rituals, ceremonies, ceremonies, beliefs observances or the practice of religion within the temple of Mata Tripureswari or other temples managed by the State within the State of Tripura....

In the instant case, sacrifice of animal in temples is not done out of necessity but merely on the unsighted conviction and credence that such activity would please the deity, who in return would bestow them with blessings and wellbeing. ...

The ban on sacrifice of animal ... does not infringe the fundamental right as enshrined in Part III under Art 25(1) of the constitution for the reason that such practice is contrary to constitutional morality and health....

The animals have basic rights and we have to recognise and protect them. The animal and bird breath like us. They are also creation of God. They have also a right to live in harmony with human beings and the nature.... 

The Leaflet discusses the decision at length.

Indian Parliament Outlaws Triple Talaq

India's Parliament yesterday gave final passage to The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (full text) (bill summary). The bill now goes to the President for his assent. The new law outlaws "triple talaq", the procedure under which a Muslim husband divorces his wife by uttering the word "talaq" three times to her.  The law makes talaq (including in written and electronic form) illegal and provides for a fine and up to three years in prison for anyone declaring talaq. It also allows award of child custody and subsistence to a wife against whom talaq has been invoked. The bill replaces a presidential Ordinance issued earlier this year.  In 2017, India's Supreme Court held that triple talaq is invalid and ordered the government to consider appropriate legislation on the mater. (See prior posting.)  Rediff and Reuters report on the bill. [Thanks to Scott Mange for the lead.]

Indian Court Says Hindu Marriage Act Covers Marriage Involving Transgender Woman

A trial court in India has held that a marriage between a man and a transgender woman, both of whom profess the Hindu religion, is valid under the Hindu Marriage Act and the Registrar of Marriages is required to register the marriage. In Arunkumar v. Inspector General of Registration, (Madras High Ct., April 22, 2019), the court said in part:

For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream....

When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

Deccan Herald reports on the decision.

Twitter CEO Charged In Indian Court With Outraging Religious Feelings

According to Times of India yesterday, a local court in Jodhpur, India has agreed to move ahead with a complaint against Twitter CEO Jack Dorsey for his Tweet of an anti-Brahmin photo.  The photo taken by Dorsey during his recent trip to India shows a woman holding a sign reading "Smash Brahminical Patriarchy". The petition filed against Dorsey charges him with violation of India's Penal Code Sec. 295A (Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs), as well as with defamation and criminal conspiracy. A hearing is set for Dec. 1.

Indian Court Says Jewish Divorce By Mutual Consent Not Permitted

Times of India today reports on a Sept. 24 decision by the Family Court in Mumbai denying a Jewish couple's petition for divorce by mutual consent.  Unlike the situation of numerous other religious groups, there is no codified statutory law in India governing Jewish divorces.  The court held that the divorce is governed by uncodified Jewish personal law, and the parties have not shown that divorce by mutual consent is allowed under Jewish law.

Indian Supreme Court's Ruling On Temple Access By Women Meets Resistance

As previously reported, last month India's Supreme Court struck down a ban on women between the age of 10 and 50 years from entering the Sabarimala Temple.  However, yesterday's New York Times reports that implementing the Court's ruling has been difficult:

When the temple reopened for six days on Wednesday, for the first time since the court’s decision, the pilgrimage path became a kind of conflict zone, pitting traditionalists against police officers who vowed to enforce the law and protect any woman who wished to visit.

At least 12 women attempted the journey. Each was met with a mob that variously shouted in her face, pummeled the police, set vehicles on fire, hurled rocks and blocked the steep, three-mile trail leading to the temple by lying on its slippery stones. All of the women were forced to turn back. One was so overwhelmed that she fainted.

India's Supreme Court Invalidates Ban On Women In Temple

In Indian Young Lawyers Association v. State of Kerala, (India Sup. Ct., Sept. 28, 2018), the Supreme Court of India by a vote of 4-1 struck down a rule of the Sabarimala Temple that prevents women between the age of 10 and 50 years from entering. Four separate opinions spanning 411 pages were filed. Chief Justice Misra, who began his plurality opinion by quoting Susan B. Anthony, said in part:

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.  

Economic Times reports on the decision.

India's Supreme Court Legalizes Consensual Homosexual Relations

In four separate opinions spanning 493 pages, India's Supreme Court yesterday struck down Section 377 of the India Penal Code insofar as it bans consensual homosexual relationships. In Johar v. Union of India, (India Sup. Ct., Sept. 6, 2018), Justice Misra wrote:

Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

CNN reports on the decision.

Burning In Effigy Does Not Violate Ban In India On Mock Funerals

In Jadaun v. State of Upper Pradesh, (Allahabad High Court, Aug. 9, 2018), a trial court in India held that the burning in effigy of a living person by protesters does not violate the statutory ban on participation in a mock funeral ceremony.  LiveLaw reports on the decision.

NYT Profiles Wealthy Hindu Holy Man With Rising Political Power In India

Today's New York Times Magazine carries a lengthy profile of Baba Ramdev, holy man and billionaire who has increasing political power in India. Here is an excerpt:

Ramdev has been a prominent voice on the Hindu right, and his tacit endorsement during the landmark 2014 campaign helped bring Prime Minister Narendra Modi to power.... Although Modi campaigned heavily on promises to reform India’s economy and fight corruption, there were frequent dog whistles to the Hindu nationalist base, some of them coordinated with Ramdev. A month before Modi’s landslide victory, a trust controlled by Ramdev released a video in which senior leaders of Modi’s party, the Bharatiya Janata Party (B.J.P.) ... appeared alongside him with a signed document setting out nine pledges. These included the protection of cows — animals held sacred in Hinduism — and a broad call for Hindu nationalist reforms of the government, the courts, cultural institutions and education....

But Ramdev is far more than a useful holy man. Even beyond his political patrons, Ramdev is the perfect messenger for a rising middle class that is hungry for religious assertion and fed up with the socialist, rationalist legacy of Jawaharlal Nehru, India’s first post-independence leader. Ramdev has led vastly popular campaigns against corruption, donning the mantle of swadeshi, or Indian economic nationalism, to cast foreign companies as neocolonial villains. In a sense, Ramdev has changed Hinduism itself. His blend of patriotic fervor, health and religious piety flows seamlessly into the harder versions of Hindu nationalism, which are often openly hostile to India’s 172 million Muslims. Although Ramdev prefers to speak of Indian solidarity, his B.J.P. allies routinely invoke an Islamic threat and rally crowds with vows to build temples on the sites of medieval mosques.

In his own way, Ramdev is India’s answer to Donald Trump, and there is much speculation that he may run for prime minister himself.

India Supreme Court Affirms Right To Choose Religion and Marriage Partner

In Jahan v. Asokan K.M., (India Sup. Ct., April 9, 2018), a 3-judge panel of India's Supreme Court, in 61 pages of opinions, set aside a High Court's order that had annulled the marriage of a 26-year old student who had converted to Islam in order to marry. The court strongly affirmed the right of individuals to choose their religious faith and their marriage partner. The court's opinion by Chief Justice Misra said in part

It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression ... destroy the individualistic entity of a person.  The social values and morals have their space  but they are not above the constitutionally guaranteed freedom.  The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.  Faith of a person is intrinsic to his/her meaningful existence.  To have the freedom of faith is essential to his/her autonomy....

In the case at hand, the father ... may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant.

A concurring opinion by Justice Chandrachud added:

The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life.... Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.... Society has no role to play in determining our choice of partners. 

One India and The Hindu report on the decision.

India Supreme Court Orders Protection For Inter-Religious Marriages

In Vahini v. Union of India, (India Sup. Ct., March 27, 2018), a 3-judge panel of the India Supreme Court in a 54-page opinion ordered India's central government and its state governments to take various measures to prevent assemblies of Khap Panchayats -- community assemblies that decide to take steps to prevent inter-caste or inter-religious marriages through violence or honor killing. The court ordered state governments to identify areas where honor killings or Khap Pahchayats have been reported in the last 5 years, and take special steps in those areas.  Authorities are to warn against action when they receive a tip.  The court went on:

Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action....

Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code....

Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception.

India Today reports on the decision.

Indian State Moves To Grant Minority Religion Status To Lingayats

In the Indian state of Karnataka, the cabinet (on the recommendation of the State Minorities Commission)  has voted to grant the status of a separate religious minority to Lingayats, instead of treating them as a Hindu sect.  More controversially, the cabinet also voted to include Veerashaivas as part of the same community.  Lingayats, and Veerashaivas constitute 17% of the state's population.  India West and The Mirror report that the move is seen as an attempt by the ruling Congress party to attract the sect's votes away from the Hindu nationalist Bharatiya Janata Party in the state assembly elections that will be held in April and May. The cabinet recommendation now goes to the central government for approval under §2(c) of the Central Minority Commission Act.

British Court Issues FGM Protection Order To Protect 1-Year Old

According to the Manchester Evening News this week, a Family Court judge in Manchester, England has entered an "FGM protection order" at the request of social workers.  The order prohibits a 1-year old girl's family from flying the child back to India, their country of origin, for purposes of female genital mutilation.  The child's three older sisters had previously been flown to India for the procedure.  FGM protection orders have been available from British judges for about three years. (Background on obtaining an FGM Order).

Valentine's Day Remains Controversial In Some Conservative Muslim and Hindu Areas

Again this year, Valentine's Day is countering opposition from conservative religious leaders in some nations.  Voice of America reports that Pakistan's  Electronic Media Regulatory Authority sent instructions to radio and television stations based on a ruling last year by the Islamabad High Court that Valentine's Day is un-Islamic, spreading immorality, nudity and indecency.  PEMRA told its licensees:

Respondents are directed to ensure that nothing about the celebrations of Valentine's Day and its promotion is spread on the Electronic and Print media," PEMRA's directive stated. "No event shall be held on an official level and at any public place. PEMRA is directed to ensure that all the TV channels shall stop the promotion of Valentine's Day forthwith."

Meanwhile, the Indonesian province of South Sulawesi has also continued its ban of the celebration of Valentine's Day. (Jakarta Post). And in the Indian state of  Karnataka, Shri Ram Sena pro-Hindu activists have been burning Valentines in effigy, claiming Valentine's Day as anti-Hindu. (MeriNews). Arab News reports however that Valentine's Day has become one of the most celebrated events in Egypt.

New Delhi Reacts To Diwali Fireworks Ban

Today's New York Times reports on the impact in New Delhi of a ruling by India's Supreme Court reinstating a ban, motivated by environmental concerns, on the sale of fireworks in the National Capital Region. In September, the court had temporarily suspended the ban. Traditionally the Hindu festival of Diwali-- celebrated this Thursday-- has been marked by extensive fireworks.  However last year the fireworks led to ten days of dangerous pollution in New Delhi and led to a temporary closing of public primary schools.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India.  The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state.  The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.