There are hardly any decisions of the high courts or the Supreme Court that have come down heavily on people and parties spreading communal hatred. The judgments are generally full of pious sentiments and the lofty ideals of secularism, but lack practical measures penalising religious fundamentalists. Because of a lack of concern by the Apex Court, there has rarely been a successful prosecution of rioters. The anti-Sikh riots in Delhi in 1984, the anti-Muslim riots in Mumbai in 1993, and the anti-Muslim riots in Gujarat in 2002 are some of the most glaring examples.

In 1962, in the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853), the Supreme Court, struck down a statute outlawing the practice of excommunication by the Syedna, the head of the Dawoodi-Bohras, as going beyond the provisions of Articles 25(2)(b) of the Constitution. The majority judgment held that not only could the Syedna expel members from the religious life of the community, but that the loss of some civil rights of the excommunicated member was acceptable as a "necessary consequence of excommunication." The court further held that "the fact that civil rights of a person are affected by the exercise of the fundamental right under Article 26(b) is of no consequence."

In his strong and correct dissent, Chief Justice Sinha noted: "The right of excommunication is not a purely religious matter. The effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.

"The Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act is thus aimed at fulfilment of the individual liberty of conscience guaranteed by Art.25(1) of the Constitution, and not in derogation of it.

"The position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practices to be void has only carried out the strict injunction of Art.17 of the Constitution, by which untouchability has been abolished and its practice in any form forbidden. The Article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law."

Three decisions

Between 1976 and 1986 there were three important decisions of the Supreme Court that deal firmly with the issue of secularism. In Z.B. Bukhari v. B.R. Mehra (1976 2 SCC 17) the court laid down, for the first time, that a secular State must be neutral or impartial - "The term secular is used to distinguish all that is done in this world without seeking the intervention of a Divine Power. Secularism is quite independent of religion. The Secular State is neutral or impartial"

Then in 1980 in Baburao Patel v. State (1980 2 SCC 402) the Supreme Court held that the scope of section 153-A(1)(a) of the Indian Penal Code 1980, which dealt with promotion of feeling of enmity, hatred or ill-will between religious groups or communities, was not only confined to such promotion on grounds of religion alone but also covers other grounds such as race, place of birth, residence, language, caste or community.

Thereafter, in 1986 in the case of Bijoe Emmanuel v. State of Kerala (1986 3 SCC 615) a controversy arose when three school children who were Jehovah's witnesses - a sect of Christians - were expelled from a school in Kerala because they refused to sing the national anthem. The complaint reached the Supreme Court which ruled that "the expulsion of children from school for the reason that because of their conscientiously held religious faith, they did not join in the singing of the national anthem, though they stood up respectfully when it was sung, is a violation of their fundamental right under Article 25 'to freedom of conscience and freely to profess, practice and propagate religion.' They cannot be denied that right on the ground that the appellants belonged to a religious denomination and not a separate religion."

1994: controversial year

A nine-judge constitutional court in S.R. Bommai v. Union of India (1994 3 SCC) held that "[t]he State stands aloof from religion. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State. State is neither pro-particular religion nor anti-particular religion. It stands aloof[.]"

But in the same year, in a retrogressive decision in Ismail Faruqui v. UOI (1994 6 SCC 360), the majority of the judges let pass the acquisition of the mosque at Ayodhya holding that "a mosque is not an essential part of the practice of the religion of Islam."

The minority judgment of Justice Ahmedi and Justice Bharucha is of interest. Not only did it reiterate the position that the State has no religion, it also recorded the fact that the State would not have honoured the opinion of the Supreme Court by rebuilding a mosque, had the Supreme Court held that there was originally on the disputed site a mosque and not a temple.

To make matters worse came Mohd. Islam v. Union of India (1994 (6) SCC 442), which demonstrated just how lightly the Supreme Court takes the issue of communal riots. For having disobeyed the orders of the Supreme Court and allowing the demolition of the Babri Masjid, Kalyan Singh, the then chief minister of U.P., was convicted and sentenced to a "token imprisonment of one day" and a fine of Rs.2000 to be paid within a period of two months.

1996: tumultuous year

Despite Hindutva being the main plank of the communal forces, the Supreme Court in Manohar Joshi v. N.B. Patil (1996 (1) SCC 169) said "however despicable be such a statement (that the first Hindu State will be established in Maharashtra) it cannot be said to amount to an appeal for votes on the ground of religion."

The Judges of the Bombay High Court had correctly held that because Manohar Joshi campaigned on the basis of his party programme which made "Hindutva" the main plank he was guilty of the charge of corrupt practices within the meaning of section 123 of the R.P. Act and it declared his election void. The result of the Bombay High Court decision was that a candidate of a political party was bound by the programme of that party and if the programme of that party was a communal programme the stigma of the corruption charge would attach both to the party as well as to the individual. This is correct way to look at the law and to stamp out communalism in elections.

The Bombay High Court was correct in its judgment.

A contrary progressive trend was noticed in Bal Thackray v. P.K. Kunte (1996. 1. SCC 130). The returned candidate Dr. Ramesh Yeshwant Prabhoo was present in all the three meetings in which speeches were given by Bal Thackray. The Supreme Court held:

"The appeal made to the voters by Bal Thackray in his aforesaid speech was a clear appeal to the Hindu voters to vote for Dr. Ramesh Prabhoo because he is a Hindu. The clear import of each of the three speeches is to this effect. The first speech also makes derogatory reference to Muslims by calling them 'snake' and referring to them as 'lande' (derogatory term used for those practicing circumcision). The language used in the context, amounted to an attempt to promote feelings of enmity or hatred between the Hindus and the Muslims on the ground of religion. The first speech, therefore, also constitutes the corrupt practice under sub-section (3-A).

"Our conclusion is that all the three speeches of Bal Thackray amount to corrupt practice under [the law]. Since the appeal made to the voters in these speeches was to vote for Dr. Ramesh Prabhoo on the ground of his religion as a Hindu and the appeal was made with the consent of the candidate Dr. Ramesh Prabhoo, he is guilty of these corrupt practices. For the same reason, Bal Thackray also is guilty of these corrupt practices and, therefore, liable to be named in accordance with section 99 of the R.P. Act of which due compliance has been made in the present case."

The last decision of 1996 was A.S. Narayana Deeshitalyu v. State of A.P. (1996 9 SCC 548) where the court held: "The right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right, they are subject to reform on social welfare by appropriate legislation by the State. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community."

Conversions

An early significant decision of relevance to conversions came in Rev. Stainislaus v. State of Madhya Pradesh (1977 I SCC 677). The controversy related to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and a similar statute in Orissa which sought to penalise conversions based on force and fraud. The M.P. High Court held this Act constitutional, the Orissa High Court held otherwise. The challenge reached the Supreme Court

"Article 25(1) by giving the right to propagate one's religion, does not give the right to convert another person but to transmit or spread one's religion by the exposition of its tenets.

"What is penalised is conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force, fraud or allurement can, in our opinion, be said to contravene Article 25(1) of the Constitution of India, as the Article guarantees religious freedom subject to public health. As such, we do not find that the provisions of Sections 3, 4 and 5 of the M.P. Dharma Swatantrya Adhinyam, 1968 are violative of Article 25(1) of the Constitution of India. On the other hand, it guarantees that religious freedom to one and all including those who might be amenable to conversion by force, fraud or allurement. As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual."

The meaning of guarantee under Article 25 of the Constitution came up for consideration in this Court in Ratilal Panachand Gandhi v. State of Bombay (1954 S.C.R. 2055) and it was held as follows:

"Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.

The Acts therefore clearly provide for the maintenance of public order for if forcible conversion had not been prohibited, that would have created public disorder in the State".

Restrictions

In Om Prakash v. State of U.P. (2004 3 SCC 402), a petition was filed in the Allahabad High Court challenging the government notification prohibiting the sale of eggs within the municipal limits of Rishikesh on the ground that the notifications imposed unreasonable restrictions affecting the rights of parties under Article 19(1)(g) of the Constitution. The High Court upheld the notification even though it was pointed out that the eggs sold contained no chicks, on the ground that "the welfare of the people was paramount." The High Court's dismissal of the case was appealed to the Supreme Court.

In its decision, the Supreme Court refers to its earlier decision in State of Maharashtra v. H. N. Rao. In Rao, S. 385 of the Bombay Municipal Corporation Act was challenged because it affected Dalits by imposing restrictions on dealing with the skin and carcasses of animals within the municipal limits. The Supreme Court dismissed the challenge, relying almost exclusively on the customs and traditions of the dominant community with no regard to the livelihood of the Dalits. Similarly, in deciding Om Prakash, the court again used the dominant community as the reference The court held that Haridwar and Rishikesh were "pilgrim centres" and "[a] major section of the society in the three towns considers it desirable that vegetarian atmosphere is maintained in the three towns for the inhabitants and the pilgrims."

With no factual basis, the court went on to say that "it is a matter of common knowledge that members of several communities in India are strictly vegetarian and shun meat, fish and eggs. In the three towns people mostly assemble for spiritual attainment and religious practices. Maintenance of clean and congenial atmosphere in all the religious places is in common interest. Peculiar culture of the three towns justifies complete restriction on trade and dealing in non-vegetarian items including eggs within the municipal limits." The court's drawing of doubtful conclusions without any factual basis regarding vegetarianism being widespread in the city of Rishikesh is especially ironic in the light of recent studies indicating that the majority of Indians are, in fact, non-vegetarian and that the notion of Indian society being vegetarian is largely a myth.

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005 8 SCC 534) was an astonishing case relating to cow slaughter. The State of Bombay had enacted the Bombay Animal Preservation Act, 1948, prohibiting the slaughter of animals which were useful for milch, breeding or agricultural purposes. This Act was extended to the State of Gujarat by the Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961. This Act was amended in 1994 by the Bombay Animal Preservation (Gujarat Amendment) Act, 1994. This statute was challenged by the representative bodies of Kureshis. The Akhil Bharat Krishi Goseva Sangh, the Hinsa Virodhak Sangh, the Jeevan Jagriti Trust and the Gujarat Prantiya Arya Pratinidhi Sabha were impleaded as party respondents. The High Court allowed the writ petition and struck down the impugned legislation as ultra-vires the Constitution holding that the statute imposed an unreasonable restriction on fundamental rights.

The challenge to the constitutional validity of the legislation was founded on three grounds. That the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is sanctioned by Islam. Secondly, that such a ban offended the fundamental rights of the Kasais (butchers) under Art. 19(1)(g) and was not a reasonable and valid restriction on their right. Thirdly, that a total ban was not in the interest of the general public.

Chief Justice S.R. Das speaking for the constitutional bench held that the total ban on the slaughter of cows and calves of cows and she-buffaloes was valid. The constitutional bench further held that the total ban on the slaughter of she-buffaloes or breeding calves or working bullocks so long as they are capable of being used as milch or draught cattle was also valid. However, the constitutional bench held that a total ban on the slaughter of she-buffaloes, calves and bullocks after they cease to be incapable of yielding milk or breeding or working could not be supported as reasonable and in the interests of the general public and was invalid.

It appears that in this case, the first ground of challenge namely, that the sacrifice of a cow sanctioned by Islam was turned down by the court due to the meagre material placed before the court. It appears that no one specially competent to expound the religious tenets of Islam filed an affidavit making reference to any particular Surah of the Holy Quran which requires the sacrifice of a cow. The Constitutional Bench, in this case, concluded that the cow progeny ceased to be useful as a draught cattle after a certain age.

In Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat (1986 3 SCC 12) a ban on the slaughter of bulls and bullocks below the age of 16 years was challenged. The Supreme Court held on facts that with the improvement of scientific methods of cattle-breeding, cattle remain useful even above the age of 16 and hence the cut-off period of 16 years was held to be reasonable restriction and the prohibition on slaughter of bulls and bullocks below the age of 16 years was upheld.

In the latest case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005 8 SCC 534), a Constitutional Bench of five judges in 2005 felt that the issue of cow slaughter was sufficiently important an issue to justify the constitution of a bench of seven Justices. Reference was made to Art. 48 of the Constitution of India requiring the State to take steps towards prohibiting slaughter of cattle. Reference was made to Art. 51-A requiring the State to have compassion for living creatures. It was then said in paragraph 50 that cow dung would enable the farmers to avoid the use of chemicals. In a country where human beings are neglected by the State when they grow old and they die of hunger in thousands, the Supreme Court displayed rare compassion for the aged cattle. "A cattle which has served human beings is entitled to compassion in its old age. It will be an act of reprehensible ingratitude to condemn cattle in its old age as useless. We have to remember: the meek and weak need more protection and compassion."

How ironic that while petitions relating to people rotting in prisons on drummed-up charges, cases of extreme exploitation of labour, and reams of other petitions relating to the poor remain pending for years in the Supreme Court, this utterly frivolous issue of cow-slaughter took several weeks and the valuable time of seven highly skilled justices of the Supreme Court.

The larger bench was constituted in order to get over the findings of the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar (1959 SCR 629) which had concluded as follows. First, the maintenance of useless cattle involves a wasteful drain on the nation's cattle feed. Second, the total ban on cattle slaughter would seriously dislocate though not completely stop the business of a considerable section of butchers and hide merchants. Third, the ban would deprive a large section of the people of their staple food and protein diet. And fourth, the preservation of useless cattle by establishment of gosadan is not a practical proposition "as they are like concentration camps where cattle are left to die a slow death."

According to the seven judge bench, the findings of the Supreme Court delivered in 1958 was no longer valid as "constitutional jurisprudence has indeed changed from what it was in 1958. Our socio-economic scenario has progressed from being gloomy to a shining one, full of hopes and expectations."

Then, in an unbelievable waste of time and public money, seven erudite Justices began to look into data relating to the shortage of fodder, the production of cowdung and urine and other factual matters of grave constitutional and national importance. They concluded that the main source of staple food is vegetables and that the poor would not suffer on account of a ban on slaughter. They disagreed with the findings of the Supreme Court in Mohd. Hanif Qureshi's case relating to the conditions of the gosadans and concluded without any actual data or other evidence that the "gosadans and goshalas are being maintained." This is again a conclusion of doubtful truth value. Aged cattle are generally left to rot and the conditions of the gosadans are truly pathetic even today.

Of particular interest is the emphatic dissent of Justice A.K. Mathur who held that there was no need to overrule the earlier decisions of the Supreme Court that have held the field from 1958 because the ground realities have not materially changed. He held that "the unanimous opinion of the experts is that after the age of 15, bulls, bullocks and buffaloes are no longer useful for breeding, draught and other purposes and whatever little use they may have is greatly offset by the economic disadvantage of feeding and maintaining unserviceable cattle."

The data produced before the Supreme Court according to Justice Mathur showed that after 16 years, urine, cowdung and draught ability is substantially reduced. The data produced before the Court was not such as to justify the reversal of the earlier decisions of the Court. The Judge could not understand as to how the interests of the public at large would be advanced by depriving butchers of their profession. Relying on the principle of stare decisis he protested that the law should "not be so fickle that it changes with change of guard. If the courts start changing their views frequently, then there will be a lack of certainty in the law and it is not good for the health of the nation."

In Akhil Bharat Goseva Sangh (3) v. State of Andhra Pradesh (2006 4 SCC 162), a two judge bench of the Supreme Court distinguished the constitutional bench decision in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and refused to stop Al Kabir Exports Ltd. from slaughtering cattle and exporting meat. Al Kabir was given permission by the central government to slaughter old and useless buffaloes. Some organisations opposed the setting up of the slaughter-house. The state government constituted the Krishnan Committee to examine the matter and report to the High Court. The Krishnan Committee found that fundamentalist organisations had opposed the establishment of the slaughter-house. After extensively referring to the constitutional bench decision of the Supreme Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, the Supreme Court held, "it is true that it has been held the total prohibition of cow and cow progeny slaughter may be justified. However, it has not been held in that decision that laws and policies which permit such slaughter are unconstitutional."

Land and housing

In Zoroastrian Cooperative Housing Society v. District Registrar (2005 5 SCC 632), the cooperative society was given certain lands by the Government of Bombay on which residential premises were made and the society made a bye-law that the owners of the plots or bungalows who were from the Parsi community could not sell them to any non-Parsi. A dispute arose when a member attempted to transfer the property to a non-Parsi and the board appointed under the Bombay Cooperative Societies Act informed the society that it could not restrict its membership only to the Parsi community.

The Supreme Court held that for the promotion of a housing society there should be "a bond of common habits and common usage among the members which should strengthen their neighbourly feelings, their loyal adherence to the will of the society. In India, this bond was most frequently found in a community or caste."

It was submitted by the society that members have a right to be associated only with those whom the consider eligible and the right to deny admission to those with whom they do not want to associate and that this right cannot be interfered with by the registrar appointed under the Act. The Supreme Court agreed with the society, holding that it was not permissible for the State government to compel the society to amend its bye-laws, even though the registrar was empowered under the Act to direct amendment. This is because, according to the Supreme Court, the paramount consideration was the interest of the society, not the public interest.

This conclusion is utterly wrong. The interest of a cooperative society must yield to the interest of society as a whole. If according to the public interest, maintaining a heterogeneous composition is needed rather than having sections of the public cordon themselves off into caste or religious conclaves like an apartheid system, then surely the registrar's action restraining the society from insisting that only Parsis can come into the society was reasonable. The conclusion of the Supreme Court, that notwithstanding public interest, the interest of the society is paramount has laid the legal foundation for the caste and communal ghettoisation of India.

In Gujarat, for example, Muslims have been forced to leave cooperative societies which are today all-Hindu societies. Is it constitutionally permissible for the society to enforce through its bye-laws a social boycott of Muslims? Will it be legitimate to have areas of a city which are Hindu only or Muslim only? Is it in the public interest that such an apartheid system be allowed to proliferate?

The Supreme Court concluded, "We are satisfied that by introducing a theory of what the Court considers to be public policy a society registered under the cooperative societies act cannot be directed to admit a member who is not qualified in terms of the bye-laws."

Then in para 25, the Court recognises the dangerous abyss into which it has fallen:

"It is true that it is very tempting to accept an argument that Arts. 14 and 15 prevent any discrimination based on religion or origin in the matter of equal treatment or employment and to apply the same even in respect of a cooperative society. Courts have to be cautious in trying to ride the unruly horse of public policy. It is not possible to import one's inherent abhorrence to religious groups or other groups coming together to form what learned counsel for the respondents called ghettoes. It is true that our Constitution has set goals for ourselves and one such goal is the doing away with discrimination based on religion or sex. But that goal has to be achieved by legislative intervention and not by the Court.

The doctrine of public policy could be applied only to clear and undeniable cases of harm to the public, although, theoretically, it was permissible to evolve a new head of public policy in exceptional circumstances, such a cause would be inadvisable in the interest of stability of society. It is open to the community to try to preserve its culture and way of life. We have cooperative societies of religious groups who believe in vegetarianism. It will be impermissible to thrust upon the society persons who are regular consumers of non-vegetarian food. Maybe, it is time to legislate or bring about changes in the Cooperative Societies Acts."

With these words the Supreme Court declined to exercise jurisdiction vested in the Court and failed to recognise a matter of grave public interest. By this decision, ghettoisation based on caste and religion and the social ostracism and boycott of the minorities has now become permissible.