The Supreme Court bench comprising of T. Sathashivam and B.S. Chauhan ordered the deletion of a para in the Graham Staines Case. Previously, the apex court while not finding the case to fall under the category of 'rarest of rare' observed that " the intention [of the accused] was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity." This para now stands deleted from the decision due to much criticism elicited by it from the civil society as well as Christian organizations. Before we embark upon to discuss the newly inserted para the original one needs elaboration.
The judgment nowhere tenders evidence as to what Graham Staines was doing in the tribal areas of Orissa that can be styled as illegal. Further, the court never ventures to ask whether the said conversion of the 'poor tribals' a forceful or voluntary one? Or should we understand that even voluntary conversion should be sufficient to elicit the taint of the Supreme Court? In that case, how are we to understand the semantics of the expression 'propagate' under Article 25 of the Indian Constitution? Are we to understand that one may be tainted for exercising his/her Constitutionally protected right to 'propagate religion'? The sweeping comment of the court, which becomes the basis for not awarding the maximum penalty under the Indian Penal Code,, 1860 does not bother to answer these preliminary questions. Are we then constrained to say that the expression 'fools' should be justifiably replaced with the 'Indian Supreme Court bench' in the proverb: Fools rush in where angels fear to tread.
Here it may be noted that there was a lively debate in the Constituent Assembly as to the inclusion of the expression 'propagate' under what is now Article 25 of the Indian Constitution. After initial reluctance the expression was finally included within Article 25 and the inclusion was welcomed by the Christian members of the Assembly such as Jerome D'Souza. He remarked that the inclusion of the expression 'propagate' is "so reassuring and encouraging to the minorities, that we have no reason at all to quarrel or to ask for stronger assurances'. [See. Ronojoy Sen, Articles of Faith 108-127 (2010)]. In spite of such a clear mandate of the founding fathers as well as mothers of the paramount parchment the apex court in one of it old and ill-reasoned decisions held that 'propagate' does not include the right to 'convert'! (Rev. Stanislaus v. State of M.P. AIR 1977 SC 908). The court in Stanislaus case also failed to make a distinction between forceful and completely voluntary form of conversion. It is unfortunate that the perverse decision still stands as the law of the land. Perhaps, it needs to be overruled soon.
Be that as it may but, coming back to the Graham Staines case, one wonders how to read the new dexterity of the court in replacing the controversial para from its judgment. Is it an apologia tendered by the court for their incapacity to understand their own reasoning in the original pronouncement? Or, more optimistic reading is possible seeing the court as responsive to the social/ civil society criticism? Howsoever one may choose to read it the fact remains that it raises further questions which do not have an easy answer. For instance, is the judgment of the court comparable to a newspaper article or report wherein corrections can be made in the later edition! Is there any power or procedure which exists for such change of previous mistakes, in this weird fashion, on later self-realization? Further, how far the new logic of the court that the fact that Dara Singh has been incarcerated for 12 years already is a reason sufficient enough not to give him death penalty? Perhaps, the judgment should have been revised following a due procedure. If no such due procedure for revision exist then is not this executive power/ privilege arbitrary and foul Article 14? [At least in Administrative functions the apex court is 'State' within Article 12 and thereby amenable to Part III mandates].
Such questions need serious reflection. Justice A.K. Ganguly, when questioned about this ill-logic of the bench of the court by my Constitutional Law students described this as a un-desired surgery done by his brethren! (Seminar on Constitutional Litigation, 9th February 2011 at Jindal Global Law School). There hardly seems to be any justification for not categorizing the case as 'rarest of rare' when the dance of death was perpetrated in killing two young lives and that too unceremoniously in the name of God (Jai Bajrang Bali!). Do we still we need to debate the status of accused as terrorist? By all counts it seems hard to understand the new dimensions of the court's perverse logic, if any, in the case of Graham Staines. Its disheartening to see that such acrobatics can happen in a case which deserves severest condemnation to make the minorities feel that they too can witness the living reality, if any, of the rhetorical expression 'Rule of Law'.
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ReplyDeleteThis case should be re opened. Dara Singh is a terrorist and he should be hanged till death.
The judges have simply done injustice with Graham Staines and his innocent kids who lost their lives!!
Prof. Puneeth insight-fully noted para 43 where the Court observed: "THOUGH Graham Staines and his two minor sons were burnt to death while they were sleeping...the intention was to teach a lesson to Graham Staines for his religious activities...".
ReplyDeleteNote the "Though" which signifies the mind of the judges. The burning of little children and the dance of death becomes merely an incidental fact. If this is incidental then what can be more terror and horror evoking? But not so for the Judges. Sometimes the words speak of the persons themselves. The Judges have attained an unprecedented level of insensitivity in referring to the most atrocious and horrendous act of burning small children alive as an incidental fact!