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India: Laws Leave Church Vulnerable to Hindu Intolerance

August 24, 2006
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INDIA: LAWS LEAVE CHURCH VULNERABLE TO HINDU INTOLERANCE
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Some further clarification can be offered concerning the recent Supreme
Court ruling in India whereby the Supreme Court, in one ruling,
clarified two issues: that police do not require a warrant to arrest
those accused of proselytisation; and that while courts may not take
cognizance of an offence without a warrant, a magistrate\'s remanding an
accused to judicial custody does not amount to taking cognizance of an
offence. (For background, see earlier WEA RLC posting: "India: Supreme
Court ruling will greatly advance persecution." Link 1)

Some Indian dailies reported quite erroneously that no sanction was
required to try a conversion case. Some advocates claim that the ruling
cannot be used a precedent as it only applies to the Karnataka case of
Pastor Raju, while others note that in case law any ruling may be used
as a precedent. Some analysts believe that because the law has not
actually been changed, only clarified, it can be assumed that nothing
else will change and Christians will not be adversely affected. Many
observers wonder why the issue of conversions is even relevant in
Karnataka when there is no anti-conversion legislation in that state.

There have been many question and varied opinions and I will endeavour
here to expand and clarify my analysis – that the ruling will serve to
advance persecution – on the basis of the further information and
opinion received. Two submissions have been added as an appendix to the
posting.

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INDIAN PENAL CODE

Pastor Raju was not charged under State anti-conversion legislation as
none exists in Karnataka. He was charged under Article 153B of the
Indian Penal Code which is applicable across all India. (Link 2)

Under Article IPC 153B it is a criminal, jailable offence to make or
publish any assertion concerning religion (or race or caste etc) that
causes or is likely to cause disharmony or feelings of enmity or hatred
or ill-will between such members and other persons.

These kinds of religious laws can be easily exploited and abused to make
the victim indictable for the hatred and disharmonious, unsettling, even
violent acts of an intolerant aggressor. In the present hostile climate,
those who engage in peaceful religious expression will need to be
pro-actively protected from the schemes of the intolerant.

CRIMINAL PROCEDURE CODE

The Supreme Court ruling simply clarified two elements of Section
196(1-A) of the Criminal Procedure Code (CrPC): 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.

FIRSTLY: the Supreme Court ruling clarified that Section 196 (1-A)
clearly refers to court procedure and not to police procedure. Courts
require warrants before they can take cognizance of an offence, but
police do not.

As noted in the previous WEA RLC posting on this issue, the police have
until now followed the procedure laid down for courts and sought
warrants. The Supreme Court has simply clarified that the police are not
required to do that. The police may legally arrest an accused, and,
according to the CrPC, have 24 hours to present the accused before a
magistrate who will rule as to whether the accused should be release on
bail or remand to judicial custody.

SECONDLY: the Supreme Court ruling clarified what it means to "take
cognizance" of an offence. The Supreme Court has declared that a
magistrate\'s remanding of an accused to judicial custody is not the same
as taking cognizance of an offence. Therefore the magistrate does not
require a warrant in order to remand the accused to judicial custody.

Normally it has been assumed that a magistrate makes the decision to
release on bail or remand to prison on the basis of their consideration
of several factors, such as the degree of threat the accused poses to
the community and the risk that they might flee or hinder the
investigation. This decision is presumably made on the grounds of
evidence. One would assume that such a decision, made on evidence, would
require some degree of taking cognizance of the offence.

So the situation is: police do not require a warrant to arrest anyone
accused of hurting religious feelings or creating religious disharmony.
The police may then hold the accused for 24 hours before they have to
present them before a magistrate who may then, without a warrant and
without (allegedly) giving cognizance to the offence, remand the accused
to judicial custody.

In essence the law has not been changed. However, misconceptions that
had served to restrain police, slow down procedures and prevent abuses,
have been removed. So in reality, while the law has not changed, the
heat on the ground surely will, especially in the present climate of
resurgent Hindutva and anti-proselytising hysteria – a hysteria driven
by the fear-inducing, anger-inciting disinformation and propaganda
campaigns of Hindutva forces that equate Christian gospel witness and
service with an alleged American conspiracy to subvert and control
India. (See "The Hindu Nation and its enemies", in the current edition
of the Hindutva journal, The Organiser, Link 3)

Now that India\'s laws concerning religion have been clarified, it is
difficult to imagine that those with malicious intent to hamstring and
silence Christians will not rush to exploit and abuse these laws to
further escalate the persecution of the Church in India and reap the
political gain that comes from fear mongering.

Elizabeth Kendal
rl-research@crossnet.org.au

Links

1) India: Supreme Court ruling will greatly advance persecution.
WEA RLC News & Analysis. 10 August 2006.
http://www.worldevangelicalalliance.com/news/view.htm?id=659

2) Indian Penal Code: http://www.indialawinfo.com/bareacts/ipc.html
Article 153B is one of several sections in the IPC that refer to
promoting enmity between religious groups and hurting religious
sentiments. See also 153A, and Chapter XV : Of Offences Relating to
Religion

3) The Hindu Nation and its enemies
By Sandhya Jain. 27 August 2006
http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=145&page=33

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APPENDIX

To assist those following, and trying to make sense of this situation, I
have copied here two submissions

The first submission comes from the Global Council of Indian Christians,
who, motivated by the numerous enquiries they received after the news of
the Supreme Court ruling broke, obtained a copy of the Supreme Court
ruling and elicited a legal opinion upon it from a senior counsel of the
High Court. Here, copied in full, is the legal opinion of that senior
counsel.

"Opinion regarding Judgment of the Hon. Supreme Court of India

Dated: 4-8-2006, Case # 814 of 2006.
(Pastor Raju, Channapatna, Karnataka (Respondent) Petitioner- State of
Karnataka)

"The following points arise for the purpose of rendering an opinion
regarding the judgment.

"At the outset it may be noted that the said judgment has considered the
effect of Section 196(1-A) CR.PC. The court has not gone into the merits
of the case and has proceeded to give a finding on two aspects; firstly,
whether sanction of the central government, state government or district
magistrate is required to prosecute a person under section 153-B IPC and
secondly, the court has proceeded to give a finding whether an order
remanding an accused to judicial custody amounts to taking cognizance of
an offence.

"It is noticed that the said judgment pertains only to this particular
case and since the settled position of law has been referred to in the
body of the judgment. This order may not act as a precedent. Moreover
the Honorable Supreme Court has made a categorical statement that the
observations made in the said order are only for a limited purpose to
decide the appeal. Since the matter was decided in a narrow compass and
the trial being still open, the said judgments may not have any
repercussions on the merits of the case."

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The second submission is from the Christian Legal Association of India
which explains, without analysis or comment, the legal meaning of the
ruling.

Legal opinion on Pastor Raju vs. State of Karnataka

Many national dailies, referring to a recent judgment the Supreme Court
of India claimed that "No sanction was needed for trying conversion
cases", leading to wide scale speculation on the implications in the
event of arrest of person under sections 153 B of the Indian Penal Code.
Most papers have, however, reported the judgment erroneously.

Contrary to newspaper reports, the Supreme Court has not negated the
need for sanction as required under section 196 but has decided a very
narrow point of law. First, that an order of remand does not amount to
taking of cognizance of the offence and second that 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.

Section 196 (1) of the Criminal Procedure Code contemplates sanction
from the central or state government or of the district magistrate
concerned for prosecution of offences under Section 153-B of the Indian
Penal Code. Section 482 Cr.P.C. gives inherent powers of the High Court
to prevent abuse of the process of any Court or otherwise to secure the
ends of justice. This power can be exercised to quash the criminal
proceedings pending in any Court.

In the present case, the Supreme Court was merely making a distinction
between taking cognizance of an offence by the court and registration of
a criminal case or investigation by the police agency or submission of a
report by the police on completion of investigation.

The judgment states that "a plain reading of Section 196 Cr.P.C. will
show that no Court can take cognizance of an offence punishable under
Section 153-B or sub-section (2) or sub-section (3) of Section 505 of
Indian Penal Code or 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 opening words of the
Section are \'No Court shall take cognizance\' and consequently the bar
created by the provision is against taking of cognizance by the Court.
There is no bar against registration of a criminal case or investigation
by the police agency or submission of a report by the police on
completion of investigation, as contemplated by Section 173 Cr.P.C. If a
criminal case is registered, investigation of the offence is done and
the police submits a report as a result of such investigation before a
Magistrate without the previous sanction of the Central Government or of
the State Government or of the District Magistrate, there will be no
violation of Section 196(1-A) Cr.P.C. and no illegality of any kind
would be committed."

Drawing on various previous judgments the Supreme Court observed that
"taking cognizance does not involve any formal action or indeed action
of any kind but occurs as soon as a Magistrate as such applies his mind
to the suspected commission of an offence. Cognizance, therefore, takes
place at a point when a magistrate first takes judicial notice of an
offence. The Court further observed that it is entirely a different
thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or the
Judge. Cognizance is taken of cases and not of persons."

Court has stated that taking cognizance of an offence is not the same
thing as issuance of process. Cognizance is taken at the initial stage
when the Magistrate applies his judicial mind to the facts mentioned in
a complaint or to police report or upon information received from any
other person that an offence has been committed. The issuance of process
is at a subsequent stage when after considering the material placed
before it the Court decides to proceed against the offenders against
whom a prima facie case is made out.

In the present case neither any complaint had been filed nor any police
report had been submitted nor had any information been given by any
person other than the police officer before the Magistrate competent to
take cognizance of the offence. After the FIR had been lodged and a case
had been registered under Section 153-B IPC, the respondent was arrested
by the police and thereafter he had been produced before the Magistrate.
The Magistrate had merely passed an order remanding him to judicial
custody.

Further the court observed that in this present case the High Court had
acted in haste to quash the FIR even though the investigation had only
just commenced. The petition was allowed by the High Court while the
investigation was still under progress. No report as contemplated by
Section 173 Cr.P.C. had been submitted by the in charge of the police
station concerned to the Magistrate empowered to take cognizance of the
offence.

Christian Legal Association of India
c/o Evangelical Fellowship of India
805/92, Deepali Building,
Nehru Place, New Delhi
Pin: 110019
India
Tel: +91-11-26431133
Fax: +91-11-26285350
Email: cla@airtelbroadband.in
Email2: christian.lawyers@gmail.com

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