Thursday 18 Apr 2024

Invoking the criminal law to imbibe religious tolerance

Adv Moses Pinto | FEBRUARY 25, 2024, 12:33 AM IST

According to Section 300 of the Indian Penal Code, 1860 which describes the offence of Murder, Exception 4 clarifies that:

“Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

Therefore, in the event that a Minister were to choose to descend upon a quiet village in Salcete, Goa and attempt to inaugurate the unveiling of a statue of religious significance, it could be argued that the habitual residents of the area, who can be presumed to be otherwise law abiding citizens could take the defence that their passions and primal instincts of fight or flight were invoked at the sight of a Minister who attempted to evade the ‘rule of law’ by invoking to sanctify illegally intentioned installations under the garb of religious tolerance.

In the event any person receives provocation, that would spurn the basic understanding of the scope of the rule of law, that person is bound to retaliate with their own choice of outwardly expression.

It is not uncommon for the police authorities to slap charges of attempted murder upon the persons who attempt to express themselves through physical means in reacting against the high handedness of constitutional functionaries themselves, such as Ministers attempting to inaugurate structures that did not have the proper legal permissions. This is merely a contemptuous way of settling scores against the common man by utilising the letter and spirit of the law for infamous purposes.

According to Article 25 which guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens, it needs to be clarified that these freedoms are subject to public order, health, and morality.

While it would be undeniable that the Constitutional Provision under Article 25 provides that the  State can make laws to regulate and restrict any financial, economic, political, or other secular activity associated with any religious practice, it also provides that Article 25(2)(b) empowers the state to enact laws “providing for social welfare and reform or the throwing open of Hindu religious institutions” to “all classes and sections of Hindus”.

Article 26 provides that every religious denomination has the following rights, subject to morality, health, and public order:

- The right to form and maintain institutions for religious and charitable intents.

- The right to manage its own affairs in the matter of religion.

- The right to acquire the immovable and movable property.

- The right to administer such property according to the law.

Hence, the retention of the phrase “according to the law” in Article 26 ensures that the freedom to practice one’s religion would have to be in consonance with the prevailing laws of the region and the state. 

Therefore, in the event that the follower of a particular religious sect intends to install a specific statue which idolises his religious beliefs in the form of an installation upon immovable property within the jurisdiction of the Panchayat, all the requisite No Objection Certificates (NOCs) as well as the Construction Permissions under Section 66 of the Goa Panchayat Raj Act, 1994 would have to be obtained prior to any installation of structures within the immovable property notwithstanding the purpose of the installation being of a religious nature.

Ascribing to religious fervour does not befit to justify the contravention of any local laws that are secular in their application and which would inevitably guarantee equal treatment before the laws for all persons irrespective of their beliefs, in consonance with Article 14 of the Constitution of India.

Therefore, in resurging to the point as to whether the habitual resident of a peaceful village would have the right to assemble peaceably and to freely express their opinions against the installation of structures within the local jurisdiction that breach the regulatory power of the prevailing laws, it would be well within their fundamental rights guaranteed under Part III of the Constitution of India.

The police personnel would not be able to justify the decision to implement a lathi-charge unless the assembly of persons would be adjudicated as being unlawful.

In the case of Madhu Limaye versus SDM, Monghyr & Ors. (1970), a Constitutional bench of the Apex Court held that mere disobedience of the law was not enough, and there must be obstruction, annoyance, danger to human life, health or safety or riot or an affray for passing an order under the section. For instance, the Court interpreted “annoyance” to be an act of such a scale that it results in public disorder. Therefore, the underlying threshold for invoking this power is disturbance of public order or public safety.

Therefore, the authorities need to be circumspect while evaluating as to whether their actions of setting the criminal law in motion against the habitual residents within the local jurisdiction of a given village would lead to the suppression of freedom of speech and opinion while enforcing stringent degrees of religious tolerance that could disrupt the secular fabric of the community values in that region.

The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences

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