Praise God and pass the ammunition

The right wing propaganda machine has been puffing overtime as we approach the 10th anniversary of the attacks on 9/11 telling us that Islam isn't a religion but an ideological cover for warmongering. We hear the constant chatter that it is a religion of hate and that it preaches destruction of anyone who doesn't worship in the same manner.

And then there's Senator John Cornyn (R-Texas) who takes hypocrisy to a new level with his call for the Air Force to bring back the "Christian just war instruction." But just where does this idea come from? Could it be from the days when the Romans were looking for ways in which to whip the populace into a frenzy for a coming war? Could it have been a rationalization for the Crusades in which the armies of the Church invaded the Middle East and slaughtered untold numbers of people because they worshipped in a different manner?

Public Bible-thumpers like Senator Cornyn might want to take a second look at the Ten Commandments. I believe one of them is "Thou shalt not kill." Now, Senator, correct me if I'm wrong, but that commandment isn't modified in any way, shape or form, is it?

Sen. Cornyn, like most like-minded cowards in Washington (on both sides of the aisle), is only too willing to seek justification for sending our nation's young men to their deaths to achieve political goals. Cloaking his delusions of destruction in the words of the Bible only serves to show the moral and intellectual bankruptcy of the hucksters in the pulpits.

The politics of exclusion

"Lord, I know that I always said that I'd never involve you in a baseball game. It always seemed silly. I mean, You got enough to do." -- Billy Chapel, For Love of the Game

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"And more importantly, we're going to have to pray. We're going to have to do this prayerfully so that it's not by might nor by strength but by His power that this country will be turned back to Him. That's what we're going to do."  -- Ralph Reed, founder of the Faith and Freedom Coalition

We all know that the wingnuts think God is a rock-ribbed, card-carrying conservative. I would think that, if such a being exists, that it has more important things to worry about than who wins a freaking election. I also find it quite arrogant (or maybe ignorant) for one group to proclaim that God is their God and no one else's.

Who's to say Ralph's crew of bible-thumping believers is right? Is Mr. Reed implying that anyone who doesn't support his agenda is not a true Christian? Is he implying that anyone who doesn't support his agenda doesn't believe in, or worship, God (in whatever name or form)?

What about Catholics and Jews and Muslims and Buddhists?

What about anyone who believes differently?

And what about Jesus's warning that it isn't our place to judge others?

And where does Mr. Reed place compassion, understanding and tolerance in the great pantheon of virtues?

Or does religion have nothing to do with this at all? Are Mr. Reed and his fellow travelers just using religion as a cover to organize a political movement? Karl Marx referred to religion as the opiate of the masses. Religion has long been used to quell the masses by promising them a brighter tomorrow once this miserable life is over.

This is a nation founded on religious freedom. The dour Pilgrims left England because they didn't want the King and Queen telling them how to worship. This nation was built on the backs of immigrants who brought their religions and their beliefs with them to America. The current nativist movement conveniently forgets that few of us were born here. We all came from somewhere else.

Beaten to death in Bangladesh

Imagine being brought before a religious council because you broke one of the Ten Commandments. You have no right to an attorney because it's not a formal legal proceeding. The only think you can do is plead for mercy. Your knees buckle when the head of the council announces you will be publicly lashed for your sin.

Nevermind if what you're accused of isn't a crime. If it's proscribed in the Bible, the Torah, the Quoran or any other religious tome, it's fair game for the religious council.

"What sort of justice is this? My daughter has been beaten to death in the name of justice. If it had been a proper court then my daughter would not have die." -- Dorbesh Khan, the father of Hena Begum

Hena Begum, 14, was alleged to have had an affair with her cousin, a married man, in Bangladesh. Village clerics issued the fatwa, or religious ruling, that Ms. Begum was to receive 80 lashes for violating Sharia law. After the lashing, Ms. Begum was admitted to a hospital for treatment of her injuries where she died six days later.

Last year another woman, Sufia Begum, was sentenced to 40 lashes for committing adultery. The 40-year-old woman died almost a month later after she was admitted to a hospital a week after the beating.

"Her body was swollen and I couldn't even recognise her." -- Taimur Rahman, Ms Begum's brother

Both of these incidents have taken place since the government of Bangladesh outlawed the practice of fatwas in early 2010. It is likely these incidents would never have made news outside of Bangladesh but for the deaths of the women. While these women died, how many others were beaten by religious officials for sinning? How many other religious councils openly flaunt the law in Bangladesh by issuing illegal fatwas?

Police have arrested six people in connection with the two deaths. No word on whether the men involved in the affairs were punished.

Naz Foundation v. Union of India

The Delhi High Court has read down s. 377 to exclude consensual sex between adults in private in its judgment in Naz Foundation v. Union of India (2009). Aspects of the case will surely be discussed in detail. Here, I just want to highlight one aspect with far-reaching constitutional implications.

The Court has given a new lease of life to Article 15: it read sexual orientation as an analogous ground in Article 15(1), insisted that Article 15 pohibits horizontal discimination between citizens as well, and applied strict scrutiny! (paras 105-115) On the latter, it harmoniously read Anuj Garg and Ashoka Thakur to suggest that strict scrutiny will be applied to Article 15 violations, except for affimative action provisions (paras 109-111). This is exactly what I had argued in my article 'Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement' in JILI in 2008.

On horizontality, para 104 says:

Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.

This is groundbreaking. Pesumably, the horizontal protection extends not just to sexual orientation but also to other grounds like sex, religion and caste. Prohibiting discrimination in the private sector is now a constitutional imperative. Para 93 of the judgment cites nuanced concepts such as 'direct discrimination', 'indirect discimination' and 'harassment': concepts that this Open Letter to the Minority Affairs Minister on the Equal Oppotunity Bill insisted upon. For all their opposition to the judgment, religious groups should not miss this crucial constitutional interpretation which will probably benefit them the most.

On the question of justification of a restriction of Article 21, the Court draws this crucial distinction between popular morality and constitutional morality in para 79:

Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly.

See also: Nivedita Menon's moving post on the verdict on Kafila.

Noorani on Freedom of Speech and Religion: A Comment

I read A.G.Noorani’s article titled ‘Free Speech and Religion’ in the June 6^th issue of EPW with interest wherein he argues that the March 26^th resolution 7/19 of the Human Rights Council of Geneva on ‘Combating Defamation of Religions’ was entirely appropriate and criticizes Western opposition and Indian skepticism. As for the resolution itself which was previously discussed on this blog and elsewhere, it is generally consistent with Indian laws and India could therefore have justified virtually any position it took. Noorani however makes some additional points: (1) that defamation of religion is well recognized and ‘the distinction [between defamation and criticism] is well settled in law, politics and civic discourse’ (2) Citing the Danish cartoon controversy, he appears to suggest that blasphemous libel is no different from ordinary defamation (3) Western free speech arguments against blasphemy are false. All of these claims are debatable.

He cites Lord Scarman’s views expressed in his opinion in R v. Lemon (1979) to support these arguments. That judgment is however only a part of the record. The question in R v. Lemon (1979) was whether, in order to secure a conviction of blasphemous libel, it is necessary or not for the prosecution to prove the intent of the defendant to blaspheme (in addition to his intent to publish the allegedly blasphemous material). The Lords held, by a 3-2 decision that it is not required. Lord Scarman summarized his view as follows:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as bylaw established. It is not blasphemous to speak or publish opinions hostile to the Christian religion. or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.

Following this, the Law Commission, in a working paper in 1981 followed by a full report in 1985 recommended abolition of the offense. Here, it discussed in detail each of the points that he mentions. On the question of whether matter and manner may be distinguished for the purpose of the offense as Lord Scarman suggests, it said:

Frequently matter and manner cannot easily be disentangled and upon analysis it is often the message which repels as much as the language in which it is couched. That may well have been so in regard to much if not all of the material found to be blasphemous in reported cases. Matter which consists only of vulgar abuse or insults may thus on examination prove to be so insignificant in quantity and so insignificant as a social problem as scarcely to merit notice by the criminal law; and it seems to us that any wider categorization may indeed have adverse consequences for freedom of speech and communication.

Such restrictions would in particular have adverse consequences for what many would consider to be proper criticism of matters pertaining to religion and religious belief. Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue…

On the question of extending a similar protection to other religions in a plural society (English common law only extended this protection to the Church of England) as Lord Scarman suggested and Noorani endorses, it noted:

The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society. Here one person’s incisive comment (or indeed seemingly innocent comment) may be another’s “blasphemy”, and to forbid use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable. But such would be the consequence if, as many of our commentators urged, a crime of blasphemy were to be extended to religions other than Christianity. Of course, such abuse or insults directed at the beliefs or practices of a particular religion may in substance amount to an attack upon adherents of that religion because of the views they hold. The line may be a fine one; but as we have emphasized above, if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence penalizing the publication of matter likely to arouse hatred towards persons on account of their race so that it would penalize publication of matter likely to arouse hostility to others on account of their religious beliefs.

This is very similar to the Canadian delegate Terry Cornier’s view that ‘it is individuals who have rights and not religions’. Indeed, the Racial and Religious Hatred Act passed in 2006 incorporates this view. While making the publishing or distribution of offensive material with the intent to stir up religious hatred an offense, it explicitly declares that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system’ (section 29J). Clearly, there is nothing preposterous about it as Noorani suggests.

Quoting an article from The Economist regarding the Danish cartoon controversy, Noorani argues that ‘A living per­son caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libeled.’ Firstly, it was reported that the lower courts in Denmark had dismissed libel charges against Jyllands-Posten and the matter had been appealed in the Supreme Court. Secondly, unlike ordinary libel, neither the artistic nor other merits of the material nor a public good defense was available for blasphemous libel under English common law (Media Law by Sallie Spilsbury, 2000). Also, as the working paper noted, it was doubtful that dissemination could be prevented by application of criminal law as ‘special protection for the religious believer could lead to widespread flouting of legal sanctions by those wishing to focus attention upon its discriminatory character or to be seen as martyrs in the cause of freedom of expression’ and it ‘might well stimulate activities designed to display its unacceptable character and the impossibility of securing its proper enforcement’. Several previous episodes attested to this reality. William Foote, a journalist determined to bring down English blasphemy laws in the 19^th century published irreverent pieces on biblical characters in his paper Freethinker including pictures depicting the ‘Comic Life of Christ’ and an image of the Almighty’s posterior. His prosecution however resulted in the widespread dissemination of the material turning him into a cause célèbre (Blasphemy in the Christian World by David Nash, 2007). Again, few people had heard of the gay newspaper or of James Kirkup before the Lemon case was brought to court. Clandestine distribution of the material afterwards helped it reach a much wider audience than it would otherwise have. If the idea is to protect society by preventing dissemination, it appears unlikely to have a salutary effect.

Finally, based on this recommendation and others (including a report by a select committee of the House of Lords delineating the various options in 2002), the offenses of blasphemy and blasphemous libel under the common law of England and Wales were abolished by the Criminal Justice and Immigration Act, 2008. Lord Scarman’s view is therefore no longer good law.

Noorani also refers on several occasions to ‘some US talk on free speech’. I have no idea what that means but it suffices to note that he cites no American case to buttress his claim that religions require special protection. The US Supreme Court has never ruled on blasphemy but it did hold the New York state law on sacrilege which was defined in very similar terms to be unconstitutional in Joseph Burstyn Inc. v. Wilson 343 US 495 (1952) ((Blasphemy: Verbal offense against the sacred from Moses to Salman Rushdie by Leonard W. Levy, 1995). The majority opinion in that case held: "In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor..." Justice Frankfurter, in an eloquent concurrence was even more explicit. Though several states continue to retain blasphemy laws on their statutes, prosecution attempts ended in the early 1970s. It is virtually certain that any such censorship today would be struck down on First Amendment grounds (In the more recent National Endowment for the Arts v. Finley (1998), even Justices Scalia and Thomas did not dispute an artist's right to create indecent and disrespectful art).

Whatever one thinks of the resolution, some things are clear. Blasphemy in the West is headed to oblivion if not extinction – several countries have abolished it while others that retain the offence on their statute no longer enforce it. He says that ‘the issue is not freedom; it is self-indulgence with an eye on publicity’. With respect, this is a distinction without a difference. He further adds 'Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe'. I do not believe this either. Blasphemy laws in Europe have been shaped by centuries of struggle both within Christianity usually spearheaded by marginal sects such as Unitarians and Socinians against its dominant form as well as against Christianity led by the deists and others. From that standpoint, it is not difficult to see why preserving these hard earned freedoms is very much a matter of principle in these countries.

Minority Rights and Religious Identity

The judgment delivered by Punjab and Haryana High Court in the case of Gurleen Kaur vs. State of Punjab is of profound significance.(Readers can access the judgment on the High Court's site (CWP14859/2008.Date:30/05/2009)Although the Court has taken a strictly legal and Constitutional view on the issues before them, it will certainly leave us all dissatisfied. The Court has upheld the action of the minority institution in denying admission on the ground that the students claiming admission under the minority quota did not follow the tenets of that minority religion. There can be no dispute over the Court's finding, arrived after an elaborate research on Sikhism, that maintaining hair unshorn is an essential tenet of Sikh religion. But does Article 30 give licence to the minority institutions to enforce it on unwilling students, claiming admission under the minority quota? The Court has held that it does. The Court also cites the view that majority of students do not follow this tenet at all, but the court justifies its stand because, it has to consider the views as expressed by the spokespersons of the said religion. The implications of this judgment for secularism are indeed serious. If a section of the community is considered as not belonging to the minority religion under Article 30 because of the failure to follow its basic tenets, will the same section be considered as outside that religion for other purposes? Will it not be a worrying inconsistency? The Court has held that religion is a package of beliefs and doctrines which all those who adopt that particular religion are expected to follow, and that the issue is not of logic, but of faith. Therefore, forward-looking or non-fundamentalist actions cannot be bestowed with legitimacy, if the tenet concerned is of fundamental importance, the Court has held.

Increasing religiosity, materialism and elections

Meera Nanda, in her forthcoming book, God Market: How Globalization is Making India More Hindu, is developing an interesting thesis. It is that the BJP is creating a huge Hindu vote bank. In itself, it is nothing new. But what makes her forthcoming book interesting is how she goes about proving her thesis: she uses data with which we are all familiar, but have not taken due notice.

Meera Nanda is a John Templeton Foundation Research Fellow. Her major works include Wrongs of the Religious Right: Reflections on secularism, science and Hindutva (New Delhi, Three Essays Collective, July 2005), Prophets Facing Backward: Postmodern Critiques of Science and Hindu Nationalism in India (New Brunswick: Rutgers University Press, 2004, Indian edition by Permanent Black, 2005), Breaking the Spell of Dharma and Other Essays,( New Delhi, Three Essays Collective, 2002).

She is in the course of completing two more books: The Vedas as Science: The Strategies and Dangers of Hindu Scientism (to be published by Penguin) and The God Market: How Globalisation Is Making India More Hindu (Random House). Beginning her career as a Science Correspondent with Indian Express in New Delhi in mid-1980s, she later pursued an academic career in the philosophy of science. For her latest book in the pipeline, The God Market, she began to closely observe how increasing religiosity in India is making not-easily recognisable impact on its polity and society. She claims to have data to show that the deeper Hinduisation of the public sphere got a fillip during the NDA regime at the Centre, and later under the UPA Government. Through her book, she challenges the Western thesis that growing materialism makes people become less religious, at least in the case of India. She is also extremely critical of the deemed universities, which began during the NDA rule, and got a fillip under the UPA, for having paved the way for unregulated growth of religious universities. The PEW data shows that religiosity is pretty high in India, and what we are witnessing is a heady mix of State support with such religiosity. In this article in Telegraph, she explores the BJP's first major attempt to create a Hindu vote bank in this election, even while the party pretended that development, not Hindutva, is its plank in this election. Another article which she wrote recently for the New Humanist is here.

Free Speech News

1. Regulation of the Media: Interesting, and dare I say, worrying developments on the broadcasting media regulation front, but first the background: Some time ago, the government proposed a regulatory mechanism in the Broadcasting Services Regulation Bill, which was strongly opposed by all media bodies. This blog debated the issue here, here, here and here. As a response to the proposals, it was decided that a self-regulatory body called the News Broadcasters' Association will be set up to address the genuine grievances against the media, without having the fear of an overbearing state. The body was chaired by former Supreme Court judge and former Chairperson of the National Human Rights Commission Justice JS Verma. The NBA, in its first major order, fined India TV for “deceptively dubbing” an interview in Hindi, a language the interviewee does not know or speak. But before one could even celebrate the success of the self-regulatory mechanism, India TV has alleged bias and pulled out of the Association. I don't know the facts of the case in any detail, but if the NBA is to fail, the government will get a (possibly legitimate) excuse to intervene.

2. Combating Defamation of Religion: The UN Human Rights Committee has recently passed a resolution titled Combating Defamation of Religion, calling for steps to combat defamation of religion as a human rights issue. This is a worrying development on free speech, on which one may have a nuanced position on hate speech against groups, but it was clear that criticising any beliefs (including religious beliefs) was protected (except for non-content based law and order reasons).

India, which normally votes along with the Council's majority of developing nations, abstained in protest. India's Ambassador Gopinathan Achamkulangare said the resolution "inappropriately" linked religious criticism to racism. While one understands India's stand, why did it choose to abstain when it could have voted against the resolution? The reason is apparent when one looks at the voting figures:

The Resolution was adopted by a vote of 23 to 11, with 13 abstentions. The voting was as follows:
In favour: Angola, Azerbaijan, Bahrain, Bangladesh, Bolivia, Cameroon, China, Cuba, Djibouti, Egypt, Gabon, Indonesia, Jordan, Malaysia, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa;
Against: Canada, Chile, France, Germany, Italy, Netherlands, Slovakia, Slovenia, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland;
Abstaining: Argentina, Brazil, Bosnia and Herzegovina, Burkina Faso, Ghana, India, Japan, Madagascar, Mauritius, Mexico, Republic of Korea, Uruguay, Zambia.

Almost all the countries which voted against are first world countries, while those who abstained appear to be mostly developing countries who were uncomfortable with the Resolution but did not want to vote against their third-world allies. The resolution would have been defeated if most of the abstaining countries had voted against it. While one can see the arguments for realpolitik in international affairs, if my analysis is correct, it is rather sad that voting block loyalties decide the outcomes of human rights issues.

It is rare for Foreign Ministers in India to be accountable for how the country votes in international fora (except in high profile spaces like the WTO). India's record in joining international human rights enforcement mechanisms (various Protocols, the Rome Statute for the International Criminal Court etc.) is abysmal. Indian media largely fails to even report on international law issues, let alone ask uncomfortable questions about our decisions in these fora.