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United Nations General Assembly President Miguel d’Escoto Brockmann has called for a world ban on anyone defaming any religion. According to him, while there does exist a right to free speech and expression, the international community should aim towards the comity of religions. Notably,  there is a steady and worrisome trend of stories in Western countries restricting free speech in the name of tolerance of religion, sexual orientation and other values.For instance, in September criminal charges filed against leading French author Pierre Péan, who is charged with racial hatred for derogatory things said about Tutsis in a book in a book about Rwandan genocide.

Jonathan Turley puts forth the idea that this comment by the UNGA President is not way out of line as many Islamic states prosecute people for blasphemy and even issue fatwas against those who speak foul against their religion. He states;

A suspended Nicaraguan priest, D’Escoto is little concerned about the devastating blow to free speech and free press in such a rule — dangers already realized in various countries where speaking against a religion has resulted in criminal penalties and even death. In making this outrageous call, D’Escoto has given critics of international legal systems a great boost — showing the dangers of such rules in restricting cherished constitutional rights.

Looking at this in the context of Indian Law, the Indian Penal Code contains a series of sections from 295 where in words/ acts ‘deliberately’ said so as to hurt the feelings of any religion are a crime and punishable in law. However, in a series of case law, the Court has said that such acts would only constitute a crime when it is done ‘deliberately’, i.e. with an intent and tending to disrupt public order. This law is more of a synthesis between free speech and religious concerns.

The actions of the President, when not seen in isolation, as evidence to a general movement towards placing restrictions on rights in the name of public order and state security. We have seen that happening in India, the United States, UK and now coming from the President of the United Nations General Assembly.

Noted legal scholar Martha Nussbaum wrote a post on the Univ of Chicago Law School Blog terming the Mumbai Attacks a cloud over India’s muslims. Her post makes some sense and as a believer of free speech, she has the right to do so.

Her article focusses on the fact that terrorism in India is not peculiar only to Muslims and thatradical hindu groupsalso engage in terrorist activities in India. She cites the Gujarat carnage and the recent incidents in Orissa as examples to show that such happens in our country. Her argument is that even though these incidents take place, there is a targetting of the muslim population that is taking place in India similar to that that happened in USA after 9/11. To quote her here,

“All of this is terrorism, but most of it doesn’t reach the world’s front pages. When it does make it into newspapers outside India, the word “terrorism” is rarely used. The result is a perception, in India and abroad, that Muslims are the bad guys in every incident of terrorist violence.

Such stereotypes are so prevalent that many state bar associations in India refuse to defend Muslims accused of complicity in terrorism — despite the fact that India’s constitution guarantees all accused a cost-free defense.

Meanwhile, Muslim youths are often rounded up on suspicion of terrorism with little or no evidence, an analogue to the current ugly phenomenon of racial profiling in the United States.”

Martha Nussbaum has a point here and to appreciate that, we need to focus on a definition of terrorism in general. Once we agree to the fact that terrorism in not related to the muslim religion as such, we can understand her views.

The comments to her article however, do not show any signs of acceptance. One reader writes,

I cannot believe the indian students in Chicago are not knocking on Nussbaum’s door demanding an apology for the insensitivity she has shown in this article towards India. It seems to me that she is justifying the actions of the terrorist by citing the actions of Hindus. So, the pakistanis’ have come to avenge the treatment the Muslims in India get? It was just as horrifying to read her opinion in LA times as it was looking at pictures of the dead in Mumbai. Indians don’t need to be hurt anymore than we already are.

Scott comments on the post as,

“I view Nussbaum as a terror apologist who intentionally misdirects readers away from the true nature of the Mumbai attack and its root causes. Previous comments have addresed various aspects of her actions. I will limit my comment to the most recent post in which the writer defends her by pointing out that she ultimately seeks punishment for those responsible. As Nussbaum says…”Let’s go after criminals with determination, good evidence and fair trials,…”.

I have a MAJOR problem with her (mis)characterization of the actions as being merely “criminal” in nature. At the time she wrote her op-ed,it was publicly known that the terrorists were singling out Westerners and and Jews as primary targets. It was also known that specific victims were also singled out and tourtured. In short, she denies the global Jihadist nature of the attack despite the facts!”

While the comments on the post are quite interesting to read and the readers vehemently attack her. Nobody seems to repudiate her ultimate conclusion that some Muslims are criminals. But that this does not in any way justify demonizing Muslims, any more than the violent acts of the Hindu right justifying stereotyping all Hindus as rapists and murderers. She asks the readers and governments to go after criminals with determination, good evidence and fair trials, and to stop targeting people based on their religious affiliation.

The Kerala Law Reforms Commission, under the able guidance of Hon’ble Justice V.R. Krishna Iyer has mooted a draft legislation that may have far-reaching implications in the State and beyond; titled the Secular Norms for Administration of Places of Public Worship Bill, the draft seeks to ensure public access to all places of worship. Apart from such a step, the Bill ushers in sweeping changes in areas hitherto untouched by State machinery. It is pertinent to note its salient features and the ‘unsettling’ impact it may have on the polity.

Firstly, the Bill ensures access to all persons regardless of their faith, to all public places of worship belonging to various religions. The access is however, subject to the “solemn obligations consistent with the dignity, decorum, reverence and submission to the sublime conditions prescribed by respective religious authorities”. A very dubious provision, indeed. At the outset, there are problems in granting a statutory right to all persons the right of access to public places of worship; perhaps on a high moral ground, it might indicate our receptive religious traditions. However, the Reforms Commission, knowing well that an unconditional right might create problems with religious bodies and authorities, has sought to mask this right by subjecting it to their respective conditions. Such a submission would ensure prevalence of status quo; people have been refused entry by religious organizations on a host of grounds and since the Bill does not lay down a standard for the “sublime conditions” mentioned above, such organizations can continue to put their foot down on these matters. Not only would this fuel litigation between the right-holder and the largely administrative religious bodies in charge of places of worship, but result in unnecessary judicial intervention in each and every minor incident.

Secondly, the Bill attempts to establish an institute that will impart training to persons aspiring to become priests in performing pujas and other holy functions in all Hindu places of worship, irrespective of caste differences. This seemingly absurd provision, quite regrettably, ignores the ground realities existent in society today. Priesthood in India (by and large) is not in the nature of a vocation that applicants/job-seekers “aspire” to become. Mostly traditional and hereditary in character, priesthood is seen as a right by many that is the result of a sanctimonious life adherent to rituals. How can Government norms be the yardstick to measure the qualification of a priest?

Further, the training will cater to Hindu Philosophy, based on Vedas, Upanishads and other great teachings of Hindu theology. In a scenario where no single, uniform interpretation of these texts is prevalent, one wonders what the State would seek guidance from. Evidently, subscribing to the interpretation of one caste/sect can have disastrous implications, going contrary to the very soul of this draft.

Thirdly, the Bill envisages the formation of a Board that would lay out the “course of study” in these training institutions. The Board will comprise presidents of all Devaswom Boards and three “outstanding” Hindu religious personalities; the inclusions of Devaswom presidents, all of whom occupy purely administrative posts, leave much to be desired. The Bill also leaves any question as to the criteria for diversified selection of outstanding religious personalities in the dark. Inviting discontent among religious segments that are unhappy with the selection process may threaten our secular fabric itself. Moreover, with most Board members likely to belong to upper castes, reconciliatory measures that accomodate the opinion of oppressed lower castes must be taken into account.

Fourthly, the Government is also to frame rules prescribing minimum qualifications for admission to the institutions and the service conditions for teaching. Apart from the problems aforementioned, this provision also runs the risk of commodifying the entire norm of priesthood, the sanctity of which is undisputed in society. This proposition is further accentuated by the fact that the admission process is directed to take “due representation to Hindu Dalits, conventionally considered Sudras and Andhyodaya communities”. The provision is prima facie evidence of State-sponsored upward social mobility measures: when affirmative action policies face so much opposition, it is needless to outline the problems that such interference in religious ‘posts’ might create.

The Bill also vests the Board with powers to direct disposal of dakshina and presents that priests receive from devotees and temple-visitors. This disposal is subject to the emoluments due to the priests for improving facilities for worshippers and other temple requirements. Once again, the Bill adopts a very commercial outlook to the entire system, quite antagonistic to the concept of dakshina.

Fifthly, with regard to judicial remedies, the constitution of a Tribunal headed by a judicial officer in the rank of a Dist. Judge is envisaged in the Bill. The Tribunal will have jurisdiction to entertain complaints and initiate appropriate proceedings for violation of Bill provisions. An appeal against the Board’s decision may also be preferred before the Dist. Court with territorial jurisdiction. Quite certainly, many issues shall arise that concern the “right” interpretation and meaning of religious texts. Whereas the Supreme Court’s attempts to interpret the Quran in Shah Bano generated huge controversy, it would not be prudent to let the judiciary indulge in its own versions of the texts.

Lastly, another cause for concern is the absence of any similar regulatory provisions for other religions in the State. While this would not only expose the Bill to allegations of discriminatory treatment, but might also fall short of Constitutional requirements of equality. The very purpose of the Bill is to ensure greater public access regardless of faith, and it would surely then, be necessary to adopt regulatory measures that pertain to all religions?

In conclusion, one must say that the Bill must be subjected to intensive public scrutiny and debate. When matters concerning the realm of religion are at hand, it is imperative to juxtapose the law with secular norms as mandated by our Founding Fathers in the Constitution. While a strict divide between the Church and State is certainly not what Indian secularism is all about, the extent of State intervention in religion is an aspect to be given ample thought.