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India: Supreme Court Ruling Will Greatly Advance Persecution

August 11, 2006
Date: Thursday 10 August 2006
Subj: India: Supreme Court ruling will greatly advance persecution.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal.

On Friday 4 August, India\'s Supreme Court ruled that police do not
require warrants in order to lodge First Issue Reports (FIRs),
arrest and detain anyone accused of involvement in religious
conversion activities.

HINDU TALIBAN

Clearly this ruling opens the door for police with Hindutva
sympathies to act as Hindu Taliban. It also opens the door for
Hindutva forces to employ corrupt and sympathetic police as their
agents of persecution.

Nuns, pastors, bishops and evangelists, as well as Christian aid
workers, teachers and social workers, are all immediately at risk of
arrest and imprisonment because of their Christian witness. In fact
every Christian, actively witnessing or not, is at risk from hostile
elements that may exploit the opportunity to bring false charges
against them, inspired by a variety of motives, in the same manner
that the blasphemy law is exploited for personal gain in Pakistan.

NO SANCTION REQUIRED

The Times of India reports: "Despite the bar on courts to take
cognizance of an offence relating to proselytisation without the
prosecution obtaining prior sanction either from the Central
government, state government or the district magistrate, the police
can lodge FIRs and arrest those indulging in such activity, the
court has ruled." (Link 1)

"A Bench comprising Justices G P Mathur and Dalveer Bhandari said
police do not require prior sanction of anybody in lodging an FIR or
arresting a religious leader, if there is a complaint of
proselytisation against him."

Previously the practice had been that police would follow Section
191(1-A) of the Criminal Procedure Code. The Times of India
explains, "Section 191(1-A) of CrPC says that \'no court shall take
cognizance\' of an offence involving inducement for conversion unless
the prosecution has obtained previous sanction of the \'Central
government or of the state government or of the district
magistrate\'." This protected religious leaders from harassment at
the hands of police.

By its ruling, the Supreme Court has drawn a clear distinction
between courts taking cognizance of an offence pertaining to
proselytisation, and police lodging FIRs and arresting the religious
figures alleged to be proselytising. So courts require a warrant
before they hear a proselytism case, but police do not require a
warrant to file criminal charges or to arrest and detain those so
accused – those who should be regarded as innocent until proven guilty.

TRIGGER

In January 2005, Pastor Paulraj Raju of Kanartaka state was beaten
by local Hindus and later arrested by local police on charges of
attempting to convert Hindus. A criminal case was registered against
Pastor Raju on 15 January 2005. His wife filed a petition against
the arrest on 27 January 2005 and the proceedings were quashed by
the Karnataka High Court on 23 February 2005, while the
investigation was continuing, on the grounds that police had
arrested Pastor Raju and registered the case without first obtaining
a warrant and therefore the proceedings were illegal. Pastor Raju
was released on 3 March 2005. However, the Karnataka government then
appealed against the High Court order which quashed the case against
him.

FAMILIAR WITH PERSECUTION

Pastor Paulraj Raju is familiar with persecution. He was attacked
also on 1 May 2005. On that occasion he was so badly beaten he
required hospitalisation. According to Compass Direct around 60
people were meeting in Pastor Raju\'s home in Mangalwarapete village
near the Mysore district in Karnataka state when a 500-strong mob of
Hindu militants and nationalists entered and violently attacked
Pastor Raju, his wife, and other Christians, leaving both Pastor
Raju and his wife bleeding profusely.

SUPREME COURT EXPLAINS RULING – DENIES MISCARRIAGE OF JUSTICE

The Times of India reports: "The [Supreme] court explained that
absence of prior sanction, a mandatory pre-requisite for a court to
take cognizance of such offence, would not prevent a magistrate from
remanding to police or judicial custody of an accused arrested by
the police for the offence of proselytisation.

"There is no bar against registration of a criminal case or
investigation by the police agency or submission of a chargesheet
against the accused in such cases, Justice Mathur, writing for the
Bench, said.

"Mere production of the arrested accused before the magistrate and
the latter remanding him to custodial detention does not amount to
taking cognizance of the offence, for which alone prior sanction is
required, the Bench said."

IndLaw.com reports: "The apex court further ruled \'The specified
authority empowered to grant sanction does so after applying its
mind to the material collected during the course of investigation.
There is no occasion for grant of sanction soon after FIR is lodged
nor such a power can be exercised before completion of the
investigation and collection of the evidence. Therefore the whole
premises on the basis of which the proceedings have been quashed by
the high court is wholly erroneous in law and is liable to be set
aside." (Link 2)

IndLaw continues: "The Supreme Court in its concluding remarks
observed, \'Power can be exercised to quash the criminal proceedings
pending in any court but the power cannot be exercised to interfere
with the statutory power of the police to conduct investigation in a
cognizable offence. This being the settled legal position, the high
court ought not to have interfered with and quashed the entire
proceedings in exercise of power conferred by section 482 Cr P C
when the matter was still at the investigation stage.\'

"The apex court also described as wholly unjustified the sweeping
remarks made by the High Court that initiation of criminal
proceedings was an abuse of the courts process court and miscarriage
of justice."

That a person can be arrested and detained without warrant is indeed
a gross miscarriage of justice and abuse of human rights. It will
certainly advance the Hindutva agenda and the persecution of
Christians in India.

Elizabeth Kendal
rl-research@crossnet.org.au

Links

1) SUPREME COURT\'S NEW RULING ON PROSELYTISATION
Proselytisation FIR needs no sanction
by Dhananjay Mahapatra. 7 August 2006
http://timesofindia.indiatimes.com/articleshow/1863281.cms

2) Don\'t Quash Criminal Proceedings Till Probe Complete: SC To HC
6 August 2006
http://www.indlawnews.com/D9D8A6563E6C58013B1D68E8EA1D2E38

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