Analysis

A bit of cancer remains in Supreme Court’s Judgment on Dara Singh

...making a comment on the victims is out of place and against the basic principles of judicial thinking because a victim is not given an opportunity to explain their conduct in a criminal trial. Secondly... applying the yardstick of victims' conduct while judging a criminal act not committed on a sudden provocation, rather in a case of cold blooded murder, is uncalled for. Sadly the feeling of scare and deep hurt were caused by the comments made to the Christian community in India is because it fell from the highest court of the land.

Oncologists, cancer surgeons, take extra care when excising a malignant tumour from the human body. They make sure that not an iota, not one single cell remains of the tumour, lest it should blow up in full bloom some years later and send the patient to his or her death.

The Supreme Court of India, the last bulwark of justice and secularism from the point of view of micro minorities such as the Christians, seems not to have taken such due diligence when in a rare suo motto action this week it modified its remarks in a judgement denying the investigating agency's demand for death penalty for Bajrang Dal activist Dara Singh who led a mob that burnt alive Australian mission and health worker Graham Stuart Staines and his two sons Timothy and Philips in Orissa on the night of 22 January 1999. The court upheld the High court judgement which had given Dara Singh a life term holding that the crime was not the rarest of the rare, and the trial court in Khurda had erred in giving Dara Singh and some of his associates the death penalty in the first place.

The Christian community is still divided on its support or opposition to the death penalty. Most in the Catholic and Protestant churches say capital punishment is an anathema in this age and time. I am myself a staunch opponent of death penalty.

When the Supreme Court delivered its judgement, the community was slow to respond. I was on satellite television to welcome the life term, but to express my strong apprehensions to the implication of the Supreme Court judgment which made it seem that Dara Singh was justified in "punishing" Staines for his Christiana activities including alleged conversions of the tribals in Orissa.

The Supreme Court through most of its judgement text dwelt on the circumstances of the case and held that Dara had been indirectly identified through slogans and identification through photographs. It did hold that the triple murder was horrendous. But in its concluding paragraphs, the court said the following: In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur." The Court had also said, "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, and incitement or upon a flawed premise that one religion is better than the other."

The All India Christian Council issued an immediate press statement, which expressed concern over the implications of Judges' comments about conversion on cases of communal violence. Dr. Joseph D'souza, President of the Council said, "We are satisfied with the Supreme Court's decision upholding the 2005 Orissa High Court's verdict which commuted a death sentence for Dara Singh to life imprisonment for killing Australian missionary Graham Staines and his two sons in Orissa in 1999. In dismissing Dara Singh's petition for dropping of the case against him, the Apex Court clearly denounced the heinous hate crime perpetrated by communal forces."

Dr. John Dayal, AICC Secretary General, said, "Most Indian Christians oppose the death penalty both on moral and theological grounds, as much as we oppose abortion and taking away life at any stage. Of course, as citizens, we want the state and central government to uphold the rule of law." In the conclusion of the ruling on Criminal Appeal No 1366 of 2005, "Rabindra Kumar Pal @ Dara Singh Vs. Republic of India", the judges wrote, "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other." Some media reports insinuated this meant 'conversions' are illegal or the root cause of the violent attack. Dayal said, "Although we are yet to analyse the full judgment of the Supreme Court, we are disturbed by the parts carried by the media, mentioning terms like fraud and forcible conversion. The Court must comment on Hindu conversions, termed Ghar Wapsi. But more than anything, we fear that such remarks may negatively impact trials in Kandhamal, Orissa and future challenges to the so-called 'freedom of religion laws' in various states."

The AICC said inquiries by the National Commission for Minorities, Right To Information (RTI) requests, and other investigations have proven repeatedly there have been no fraudulent or forceful conversions by Christians in India anywhere, anytime. After analyzing the Supreme Court reference to conversions, the AICC might move Supreme Court to revise the reference at an appropriate time. "We do not want any court to pre- judge the matter of conversions and violence. The real root cause of strife in which Staines lost his life with his two kids was a misunderstanding of conversion. We have seen communal violence not only against Christians, but also on Muslims and Sikhs since India's Independence. It is unfortunate that Hindutva forces look for an excuse to attack Christians and others because they believe that India is for Hindus only. This goes against India's spirit of secularism."

A day later, civil society activists, among them Navaid Hamid, Shabnam Hashmi, Seema Mustafa, Harsh Mander, H S Hardenia, and former MP Shahid Siddiqui, and Christian activists John Dayal, Dominic Emmanuel, and Mary Scaria also issued an angry press note, widely covered on the internet and controversially covered by the Hindu on page one - leading to a hilarious editorial development, of which some calling the comments gratuitous. The statement noted  that a bench of Justices P. Sathasivam and B. S. Chauhan went on to add: "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other. It strikes at the very root of the orderly society, which the founding fathers of our Constitution dreamt of."

"This statement patently is unconstitutional as it goes against guarantees of freedom of faith on the one hand and seems to acknowledge vigilante action of criminals like Dara Singh who take upon themselves 'to teach lessons' to persons serving lepers and the poor. Did the SC ever take into consideration the report of the Wadhwa Commission which was set up to probe the murder of Graham Staines and which had observed, "There has been no extraordinary increase in the Christian population in Koenjhar district between 1991 and 1998. The population had increased by 595 during this period and could have been caused by natural growth". The SC ruling may in fact sent the wrong signals to courts trying cases of religious violence in Kandhamal, for instance, and in other places. It also tends to preempt possible challenges to the black laws enacted by many states in the guise of Freedom of Religion Bills.

"The secular India looks at SC and other judicial forums as its last hope to preserve Constitutional guarantees given to religious minorities and other marginalized groups. It therefore become disturbed when judgments such as this one and the Allahabad-Lucknow Bench, ruling on Ayodhya are made and interpreted as supporting the bigoted point of view of right wing fundamentalists such as the Sangh Parivar. The state cannot abrogate its responsibilities to ensure the secular fabric of the country. We expect the government to ask the SC to expunge the unnecessary, uncalled for and unconstitutional remarks.."

The uproar had its impact. The Supreme Court did not wait for us to file an application. In a salutary rare revision of its own order, the two judges expunged most of the offending words.

 The suo moto changes made by the court are:

"In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity" has been replaced with:

"However, more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs," said the bench in its one of such replacement."

 And  We hope Mahatma Gandhi's vision of religion playing a positive development integrating into a prosperous nation will be realized. "It is undisputed that there is no justification for interfering in someone's belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other" has been replaced with:

"There is no justification for interfering in someone's religious belief by any means."

 On  the face of it, it is satisfactory. But senior Supreme Court advocates I have consulted have told me there is enough cause to go back to the Supreme Court to seek clarifications on what it means by the term "interference" in someone else's religion. Is talking about your own religion "interference", or is evangelization interference? This suddenly gains in importance in view of the Somasekharan Commission report on the Karnataka attacks on churches in which it calls for drastic measures to regulate church activity, including registration of churches.

The bench of justices P Sathasivam and BS Chauhan, while dismissing the agency's plea for death penalty, said the punishment can be imposed only in the "rarest of rare" cases depending upon the facts and situation of each case. Dara Singh and Mahendra Hembrom were found guilty of burning to death Staines and his sons, who were sleeping inside a van outside a church, at Manoharpur village in Koenjhar district of Orissa on January 22, 1999. The bench had on December 15 last year reserved its judgement after hearing at length the arguments of CBI's counsel and Additional Solicitor General Vivek Tankha and counsel for the convicts.

Senior counsel KTS Tulsi and Ratnakar Dash, besides counsel Sibo Shankara Mishra, appeared for the 12 convicts. Appearing for CBI, Tankha had told the bench that Dara Singh deserves death sentence as the murders were committed in a most "diabolic and dastardly manner" which warranted exemplary punishment. Dara had filed an appeal challenging his conviction and the life sentence awarded to him. The appeals were admitted by the apex court in October 2005. On May 19, 2005, the Orissa High Court had commuted to life imprisonment the death penalty imposed by the sessions court on Dara Singh for the murder of Staines and his two minor sons, 10 yeear old Philip, 6 year old Timothy. Mahendra Hembram, a tribal, was convicted but the High Court acquitted 11 others who were awarded life terms by the trial court in the case. The trial court in Khurda had in September 2003 convicted all the 13 accused. While Dara Singh was awarded death sentence, others were given life terms.

While the Christian Council has reserved its right to move the Supreme Court again, there seems to be a division in the church on what to do next. High level meetings in the Delhi archdiocese have not arched a unanimous decision on the course of action, but it is clear that senior counsel and even the National Commission of Minorities have to be consulted.

CBCI law panel secretary Sr Mary Scaria said; the freedom of religion is a Constitutional Right under Article 25 of the Constitution of India and it is accepted and respected both in the national and international laws. The right to freedom of religion allows Indian citizens to choose any religion that he / she wants to choose. This fundamental right was chosen after a lot of thought regarding the process of person choosing his / her own religion. The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India. Article 25 reads as follows:-The judgment will give impetus and be used as a precedent to justify the "Freedom or Anti-Conversion" Acts and Bills in many states, besides emboldening religious fundamentalists and moral policing. As the Supreme Court itself have realized that they have made a mistake and expunged those portions which according to them were unconstitutional, the community after having gone through the judgment before and after expunging feel the urgency to go before the Apex Court with another petition perhaps as it is a larger Constitutional issue pray for a proper dealing of the issue. Or referring to a larger bench?

One of the messages to me said ""The modified version of the Supreme Court judgement in the Graham Staines case may be less offensive, but it is in no way less dangerous. In some ways it is even more dangerous to liberty than the earlier offensive wording. While deleting references to "teaching the victim a lesson" etc, and direct use of the word "conversion", the Court still maintains that "There is no justification to interfere in someone's belief by any means", implying thereby, that propagating one's beliefs is tantamount to interference in another's beliefs. This judgement needs to be challenged - not under criminal law, but under Constitutional law.

Advocate P I Jose said: Rules of statutory interpretation are not applicable to reading of a judgment. But there are well accepted judicial norms for this too. Keeping that in mind the basic question that scares every one, particularly Christians in India, is- what is the larger social evil that disturbed and prompted the two judges while dealing with the subject case to pen paragraph 47 as a post script to the judgment? References to Shri K. R. Narayanan and Mahatma Gandhi in the same Para 47, which was retained even after suo-moto 'clarification' make it clear, the evil that disturbed them is "intolerance and disrespect for another's religion The issue is whose intolerance or disrespect- the convict's or the victims'? The replaced sentence answers it without any doubt as the words used are "religious belief" because Dara Singh did not interfere with helpless Stains and two innocent children's "religious belief" but with their "right to life". This takes us to the conclusion that the judges were disturbed by the victims' way of life.

On the first place making a comment on the victims is out of place and against the basic principles of judicial thinking because a victim is not given an opportunity to explain his/her conduct in a criminal trial. Secondly, but more importantly, applying the yardstick of victims' conduct while judging a criminal act not committed on a sudden provocation, rather in a case of cold blooded murder is uncalled for. Sadly the feeling of scare and deep hurt were caused by the comments made to the Christian community in India is because it fell from the highest court of the land. A comment deviating from the ordinary norms of judicial thinking from the Supreme Court has the potential not only to propel the conduct of a billion people but also determines the performance of a policeman's lathi in this country. " This is still a story which is developing. 

This article appeared in The Milli Gazette print issue of 16-28 February 2011 on page no. 9

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