The process is the punishment
With this we must turn to the effect of anti-conversion
surveillance regimes on the minority communities who are targeted by this
and other legislation. Such legislation immediately puts them on the
defensive. They cannot praise their own faith. When people want to
convert, they are subject to report back and policing. This is followed by
criminal investigation and prosecution. Eventually, they may be acquitted.
But in real terms, the process is the punishment.
The fact that the process can be the punishment is what
concerns me in respect of a recent judgement of the Supreme Court in the
Pastor Raju case (2006). India has created many offences which are aimed
at preserving religious and communal harmony. The upshot of these offences
is that they prohibit promoting enmity between groups (Section 153A of the
Indian Penal Code), imputations and assertions which are a threat to
national integrity (Section 153B) and the acts which deliberately outrage
religious feelings or insult the religion or religious beliefs of a class
(Section 295A). Such offences may be necessary. But there is a significant
aspect to these offences that cannot be overlooked. Under the Indian legal
system, any individual can simply file a First Information Report (FIR)
for serious (cognisable) cases. The effect of this is that as soon as an
FIR is filed, the police start investigating and there is an even chance
that the perpetrator will be subject to pre-trial imprisonment. If the
offence is not serious, the process can be triggered off by complaints to
the magistrate to initiate the legal process with all its ensuing
consequences. This means anyone can put a religious adversary into a
position where they are investigated and jailed. The government was aware
of the mischief that could emanate from these provisions. Such mischief
could create antagonism between communities.
Wisely, Indian law has interposed a safeguard whereby
these sensitive offences can only proceed if the government in question
sanctions the prosecution. A similar safeguard is given in cases of
corruption by civil servants and actions in defamation of government
servants and some matrimonial offences (See Sections 195-199 of the Indian
Penal Code). The purpose behind such a sanction procedure is to ensure
that there is no frivolous prosecution and trial. In the cases that we are
concerned with, if there was no sanction safeguard the forces of
Hindutva would unleash prosecution after prosecution on minority
communities on the basis of some or imagined hurt to the sensitivities of
Hindutva. The question is how comprehensive and complete is the sanction
safeguard so as to make sure that the offences to prevent religious strife
are not used to create strife.
Pastor Raju lives in Karnataka. On January 14, 2005 there
were great celebrations in Rampura, Channapatna. The occasion was the
festival of Sakranti. Pastor Raju was also there. It is alleged that he
spoke to various people to convert to Christianity in that the latter had
more to offer than the Hindu faith. It is not entirely clear as to how and
in what manner this speech was made – if indeed such a speech was made at
all. This must have irritated a Shri Lokesha who then proceeded to file an
FIR and an offence under Section 153B was made out. This section was
introduced in 1972 and seeks to criminalise any imputation or assertion
which is prejudicial to national integration. The purpose behind this
section is to prevent a collective condemnation of any religious, racial,
language, regional group, caste or community by asserting that they are
not worthy citizens who believe in the integrity and sovereignty of India
(Section 153B (a) and (b)). But Section 153B also criminalises assertions,
pleas and appeals which cause disharmony, enmity or ill will between
people (Section 153B (1)(c)). Where such offences are in (a) religious
place or during a religious event, the punishment would increase from
three years and/or a fine to five years and/or a fine (Section 153B (2)).
Thus the offence is a serious offence subject to considerable penalties.
The police decided to arrest Pastor Raju. It is not clear
why he was arrested. But there must have been some compulsions to do so.
Pastor Raju was then taken to a magistrate and remanded to judicial
custody. Later, a bail application was rejected. Pastor Raju moved the
high court to say that the entire proceeding should be quashed because the
safeguard of getting a sanction from the state government was not
fulfilled. In common sense terms, it seemed fair to raise this plea. The
very purpose of the sanction safeguard was to ensure that frivolous and
vexatious proceedings should not be launched in cases of this nature. In
Pastor Raju’s case the wheel seemed to have turned at least half circle.
He was arrested and in jail. The high court took the view that this was
clearly a case where sanction under Section 196 (1-A) of the Criminal
Procedure Code was required. It seemed like vexatious victimisation where
the accuser was creating strife through prosecutorial investigation and
litigation. This may have influenced the high court’s decision.
But, in the Supreme Court, the decision of the high court
was reversed. The judgement of the Supreme Court by Justice GP Mathur for
himself and Justice Dalveer Bhandari concerned itself with the technical
interpretation of the sanction requirement. Unfortunately, the court did
not go into the intent of the sanction safeguard and why it was part of
the criminal process. This might have helped both to interpret the
sanction safeguard and apply it to the facts of the case. At this stage,
it might be useful to reproduce the offences which contain the sanction
safeguard in the Criminal Procedure Code.
"S. 196: Prosecution for offences against the state
and for criminal conspiracy to commit such offence.-
(1) No Court shall take cognisance of –
(a) any offence punishable under Chapter VI or under
Section 153A, Section 153B, Section 295A or Section 505 of the Indian
Penal Code, (45 of 1860) or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108A of
the Indian Penal Code, (45 of 1860)
except with the previous sanction of the central
government or of the state government.
(1A) No court shall take cognisance of –
(a) any offence punishable under Section 153B or
subsection (2) or subsection (3) of Section 505 of the Indian Penal Code
or
(b) a criminal conspiracy to commit such offence
except with the previous sanction of the central
government or of the state government or of the district magistrate."
The entire controversy in this case rotates around the
idea that cases concerning offences which deal with national integration
and religious strife should proceed only with the previous sanction of the
central government, state government or the district magistrate. The role
of the government in this regard is a critical one. Religious leaders
might be arrested out of spite to give rise to public disorder. In
sanction cases, the government is expected to make a comprehensive
decision and to examine the facts and evidence as well (See Jaswant Singh
AIR 1958 SC 125 generally). It is obvious that without a sanction the
criminal process must come to an end.
But there is an important distinction between the stage of
investigation and the stage of trial. One view is that unless the sanction
requirement specifically says so, an offence requiring sanction may be
investigated but the trial cannot proceed unless and until government
sanctions a prosecution. But in many cases it is the process of
investigation under conditions of imprisonment that is onerous. So when
does the safeguard of sanction begin to operate?
In dealing with the sanction safeguard, the Criminal
Procedure Code does not use clear-cut language to distinguish between
‘investigation’ and trial. Had the code clearly said that an investigation
in respect of such offences may continue but a trial may not there would
have been no controversy. Whether that distinction may be implied is
another matter. The code simply says that cognisance may not be
taken of an offence without a sanction from the government. What
does this mean? This cannot mean that no investigation of the offence can
take place. But can we go to the other extreme and say that the arrest and
judicial remand of Pastor Raju could take place and the sanction was only
to prevent the trial from proceeding further? Where exactly does
the protection of the accused from vexatious prosecution begin? Of course,
the sanction safeguard is not just a protection for the accused but also a
matter of public interest which necessarily recognises that random
prosecutions in the area of potential religious strife are against the
public interest.
If Parliament had intended the sanction safeguard to
operate only to prevent trials until the government agrees, it would have
said so. There are many recognised stages which could have been
specifically mentioned including (a) the judicial remand stage or (b) the
stage when the challan (police report) is filed or (c) the stage
where the trial court draws up the charge sheet or (d) when the trial
commences. But Parliament preferred to say that a ‘court’ shall not take
cognisance of the offence unless sanction was given. Justice Mathur, in
Pastor Raju’s case, accepts that "…(t)here was no special charm or any
magical formula in the expression ‘taking cognisance’ which merely means
judicial application of mind of the magistrate to the facts mentioned in
the complaint and with a view to taking further action." He also admits
that "...the word ‘cognisance’ has not been defined by the Criminal
Procedure Code" and that the dictionary meaning is "judicial hearing of
the matter". Matters of definition need not detain us. In RR Chari’s case
(AIR 1951 SC 207), the Supreme Court laid down that "taking cognisance
does not involve any formal action or indeed action of any kind but occurs
as soon as the magistrate as such applies his mind to the case." This
broad approach has been accepted in a large number of cases.
Unfortunately, Justice Mathur does not quite tell us when cognisance is
taken. He proceeds on the basis that since the sanctioning authority has
to apply its mind to all the material collected during the investigation,
cognisance must take place later. The real question then must be: When
does the magistrate apply his judicial mind to a case? Perhaps when the
magistrate simply orders an investigation he cannot be said to take
cognisance of the offence (See Gopal Das AIR 1961 SC 986; Devarapally
(1976) 3 SCC 252). There is some room for saying that in police cases
based on FIRs the investigation takes place without an initial judicial
application of mind. But there is considerable room for saying that when a
person is remanded to judicial custody there has to be an application of
the judicial mind and remand orders should not be "patently routine and
appear to have been made mechanically" (Madhu Limaye’s case (1969) 1 SCC
292 at 299). The function of remanding a person to judicial custody
is essentially a judicial function and not an administrative one. If we
apply the "application of mind" test it would clearly be the case that
when the magistrate decided that Pastor Raju should be kept in jail under
judicial custody he applied his mind to whether an offence was committed
and whether Pastor Raju should be remanded into custody during the
investigation. If this was so, the decision to remand Pastor Raju was
cognisance within the meaning of the sanction safeguard in Section 196 of
the code.
I think we need to go one step further and assert that the
term cognisance of an offence may mean different things in different
contexts. Such a differentiated meaning has been accepted by the courts
and on various occasions the court even took the view that the same word
may have a different meaning in the same sentence of a statute (Printers (Mysore)
Ltd (1994) 2 SCC 434; Ismail Faruqui (1994) 2 SCC 434). This might have
been a better approach to take. Cognisance can mean cognisance for
custody, cognisance of the challan, cognisance by way of the charge
sheet, cognisance for the purpose of the trial. Ultimately, the purpose of
the section must be looked at. The purpose of the sanction safeguard is to
prevent the further harassment of a person in certain matters in the
public interest. This purpose cannot be lost sight of. This is a matter of
juristic policy. Justice Mathur observed; "on the view taken by the high
court, no person accused of an offence which is of a nature which requires
previous sanction of a specified authority before taking of cognisance by
a court can ever be arrested nor can such an offence be investigated by
the police." This summary is only partly correct. Investigation can take
place. An arrest can be made. But the period for which a police arrest can
be made is limited. As soon as this period is over, a judicial decision on
custody cannot be made without a sanction. Justice Mathur seemed to have
got lost in technical details and lost sight of the purpose of the
section.
Arresting people is a serious invasion of civil liberties.
That is the reason why so many judicial safeguards exist in matters of
pre-trial imprisonment. The sanction safeguard was intended to prevent
harassment other than starting a process of investigation. If the police
think that they are right to effect an arrest and ask for judicial
custody, the sanction safeguard must apply. We cannot forget or lose sight
of the evocative phrase: the process is the punishment. Ever so
often, it is only the process that is the punishment. Generally, in common
law countries, the arrest takes place when the investigation is complete.
In India, arrest and judicial custody are treated as routine affairs. This
is precisely what should not happen. But if the police decide to combine
arrest and investigation, in some classes of cases they must get sanction
for the arrest from the government before the magistrate examines the case
for custody. If this is not done, the punishment will be the process. In
these religious and communal offences cases, Parliament wanted to be more
careful than in respect of other offences.
Conversion and secularism
India is witnessing the rise of politically motivated
communalism. For this purpose, an entirely new religion called ‘Hindutva’
has been invented. Hindutva lays claim to India as an exclusively Hindu
nation. The tactics of Hindutva are unscrupulous. Buildings have been
destroyed. Places of learning have been looted. Paintings have been
destroyed. Books have been banned. All this in the name of a
pseudo-religion which claims secular credentials. Unfortunately, the
Supreme Court has supported the case for an assimilative Hinduism (as in
the Swami Narayan case; Yagnapurushdasji AIR 1966 SC 1119) and treated
Hindutva as if it were a natural celebration of India’s culture (See
election decision in Ramesh Prabhoo (1996) 1 SCC 130; textbooks decision
in Aruna Roy (2002) 7 SCC 368). At the same time, the court has espoused
the case for secularism being part of the basic structure of the
Constitution. At some stage the judges must declare the inarticulate
premises on which they have wandered in these lost directions.
But what we are also seeing is the harassment of
minorities through killing and various kinds of actions and inaction. New
legislations, like the conversion statutes, are being drawn up to harass
the minorities. The campaign to intimidate the minorities is done both
through legal and illegal means. Manipulating the law and using the police
to arrest and detain people is yet another form of intimidation. This is
what has happened in Pastor Raju’s case.
Unfortunately, India’s secular governance is allowing a
large number of such instances of abuse and intimidation to occur.