Opinion Freedom,faith,fear
The SCs expunging of its remarks on conversion is welcome.
Two decisions of the Supreme Court of India in the month of January projected starkly contrasting symbols about the rights of tribal people in India. On the one hand,the court made a very powerful symbolic statement in a case which highlighted atrocities committed against tribal women,holding that tribal people in India should be entitled to equal respect. However,on the other hand,in the infamous Graham Staines murder case,the court upheld the decision to sentence the accused to life imprisonment instead of death and,as part of its argument,had cited the fact that Staines was engaged in work that included converting tribal people in Orissa to Christianity. The court has now rightly expunged the controversial remark.
Symbolically,these two decisions could have been seen as standing for contrasting propositions: tribals in India are entitled to equal rights as everyone but they cannot decide for themselves whether they can convert to a different religion. In Kailas vs Maharashtra,the
victim,a 25-year-old tribal woman in Maharashtra,was beaten with fists and kicks before being stripped and paraded on the street in the nude by a higher caste couple. The accused were sentenced to rigorous imprisonment and a fine. They filed an appeal before the SC. While dismissing the appeal,the court strongly condemned their actions,and even reproached the state government for not asking for a stronger sentence.
In a symbolic break from the convention of only deciding what is necessary for the resolution of a case,the SC held that the original inhabitants of India were pre-Dravidian aborigines,and that tribal people must therefore be given the respect they deserve as the original inhabitants of India. Strangely,the court cited Google as its reference,and referred to a paragraph seen in Wikipedia,the encyclopaedia which anyone can edit. Yet,the courts message of fostering tolerance and respect for all communities and sects,and its emphasis on changing the mentality of our countrymen towards… tribals,was vociferous. The SC even went to the extent of rebuking Dronacharya,a character in the epic Mahabharata,for cutting off the tribal Eklavyas thumb.
However,barely a fortnight later,the SC delivered its opinion in the Graham Staines murder case. The accused,Dara Singh,had murdered the Australian missionary and his two minor sons,Philip (10) and Timothy (6),by burning them alive while they were sleeping in a station wagon at Manoharpur. Graham Staines was engaged in professing and propagating Christianity in the tribal interior of Orissa,and he was entitled to do so under the bill of rights chapter in Indias Constitution.
In the remarks that are now expunged,the SC had held that Staines killer did not deserve death because his intention was to teach a lesson to Graham Staines about his religious activities,namely,converting poor tribals to Christianity. The court declared that the high court had correctly appreciated this aspect of the case. The question thus became: does the motive of punishing a missionary for trying to convert poor tribals to Christianity offer sufficient justification for refusing to apply the death penalty?
Article 25 of the Indian Constitution grants to every person,including non-citizens,the right to profess and propagate religion. In propagating Christianity to tribals in Orissa,Staines was exercising this fundamental constitutional right. It would have been different if the court had found Staines was forcibly converting tribals to Christianity,in which event he could be said to have been interfering with the religious rights of others. Yet,absent a finding of coercion,the court had found it justifiable to refuse to sentence the accused to death on the ground that Staines was attacked purely for exercising the constitutional right to propagate religion.
Further,Indias Constitution also grants to every person including poor tribals the freedom of conscience and to practice the
religion of their choice. If the freedom of speech includes the right to receive information,then the freedom of conscience surely includes the right to know about other religions. By giving Dara Singh life imprisonment instead of death,it could be asked if the court symbolically undermined the right of poor tribals to hear missionaries and decide for themselves whether they want to convert to another religion.
Dara Singh wanted to punish Staines for exercising his constitutional right to profess and propagate religion. A debate on the moral aspects of the death penalty aside,if the motive of punishing a person for exercising a fundamental constitutional right is considered a mitigating factor by our courts then constitutional rights will cease to have meaning. For this reason,the courts decision to expunge the controversial remark must be welcomed. However,public memory is not as easily erasable as a paragraph in a judgment; it is difficult to see how the courts decision to give Dara Singh life imprisonment does not symbolically contradict the right to religion under the Indian Constitution,and its previous tribal rights decision.
The writer is an associate attorney at a US law firm express@expressindia.com
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