Wednesday, November 11, 2009

Subject: constitution law

RIGHT TO FREEEDOM OF RELIGION

(ARTICLE 25_28)

Introduction

India is a secular state. ----- The concept of secularism is implicit in the preamble of the constitution which declares the resolve of the people to secure to all its citizens “liberty to thought, belief, faith, and worship”. The 42th amendment act, 1976 has inserted the word “Secular” in the preamble. This amendment is intended merely to spell out clearly the concept of “secularism” in the constitution.

There is no mysticism in the secular character of the state. It only means that in matters of religion it is neutral. In India, a secular state was never considered as an irreligious or atheistic state. It only means that in matters of religion it is neutral. It is the ancient doctrine in India that the state protects all religions but interferes with none. Explaining the secular character of the Indian Constitution the Supreme Court said, there is no mysticism in the secular character of the state. Secularism is neither anti God nor pro God, it treat alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion. The state can have no religion of its own; it should treat all religions equally. The state must extend similar treatment to the church, the Mosque and the Temple. In a secular state, the state is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It is left to the individual\’s conscience. Every man should be allowed to go to Heaven in his own way. Worshipping God should be according to the dictates of one’s own conscience. Man is not answerable to the state for the variety of his religious views. The right of worship was granted by God for man to worship as he pleased. There can be no compulsion in law of any creed or practice of any form of worship.

In S. R. Bommai V. Union of India[i][1] the Supreme Court has held that “secularism is a basic feature of the constitution” the states treat equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by enacting a law. Justice Ramaswami observed that secularism is not anti-God. In the Indian context secularism has a positive content. The Indian Constitution embodies the positive secularism and has not accepted the American doctrine of secularism i.e., the concept of erecting “a wall of separation between Religion and state”. The concept of positive secularism separates spiritualism with individual faith. The state is neither anti-religion nor pro-religion. In the matter of religion, the state is neutral and treats every religion equally.

Sanskrit language not anti-secular

In a landmark judgment in Santosh Kumar v. Secy. Ministry of Human Resources Development[ii] the Supreme Court has held that introduction of Sanskrit language as a subject in the central Board of secondary Education (CBSE) is not against secularism as it is the mother of all Aryan languages. The court directed the CBSE to make necessary amendments in the syllabus within 3 months to make Sanskrit an elective subject for nurturing our cultural heritage.

The two judge bench of the court comprising Kuldip Singh and B. L. Hansaria, Jj, rejected the government’s contention that “by conceding to Sanskrit alone as an elective subject it would act against secularism. It also rejected the argument that if Sanskrit was introduced then Arabic and Persian would also have to be given similar status. The court said that without learning Sanskrit language it is not possible to “decipher” Indian philosophy, culture and heritage. All teaching of Shankaracharya, Ramanuja, Madhawacharya, etc would not have been possible without this language. This is the Historical relevance of the ancient language.

Secularism means developing, understanding and respect for different religions

In Aruna Roy V. Union of India,[iii] the validity of the new national Education policy, 2002 which provided for value based education to school children based on basis that study of religions in school education is not against the secular philosophy of the constitution. Justice Dharmadhikari said that form the experience of the working of constitution for more than 50 years it is clear that the complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of state have no helped in removing mutual misunderstanding and intolerance inter se between sections of the people of different religions, faith and beliefs. Secularism therefore is susceptible to positive meaning that is developing, understanding and respect towards different religions.

The essence of secularism in non-discrimination of people by the state on the basis of religious differences. Secularism can be practiced by adopting a complete neutral approach towards religions or by positive approach by making one section of religious people to understand and respect religion and faith of another section of people. Based on such mutual understanding and respect for each other’s religious faith, mutual distrust and intolerance can gradually be eliminated. His lordship quoted Gandhiji who said “the real meaning of secularism is Srva Sharma Sambhav meaning equal treatment and respect for all religions.

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 lot of thought regarding the process of person choosing his / her own religion. This fundamental right is described in the constitution as:

The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India. Article 25 reads as follows:-

Article 25. (1). Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 25. (2). nothing in this article shall affect the operation of any existing law or prevent the State from making any law: -

(a) Regulating or restricting any economic financial political or other secular activity which may be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

This Article guarantees that every person in India shall have the freedom of conscience and shall have the right to profess, practice and propagate religion, subject to the restrictions that may be imposed by the State on the following grounds, namely:-

(1) Public order, morality and health;
(2) Other provisions of the Constitution;
(3) Regulation of non-religious activity associated with religious practice;
(4) Social welfare and reform;
(5) Throwing open of Hindu religious institutions of a public character to all classes of Hindus.

What is religion? The term religion is not defined in the constitution and indeed it is a term which is hardly susceptible to any rigid definition. The Supreme Court has defined it broadly. Religion is a matter of faith with individuals or communities and it is not necessarily theistic. Religion has its basis in a system of belief’s or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being. But it will not be correct to say that religion is nothing else but a doctrine of belief. A religion may only lay down a code of ethical rules for its followers to accept. It might prescribe rituals and observances, ceremonies and modes of worship which are matters of food and dress. Religion is thus essentially a matter of personal faith and belief. Every person has right not only to entertain such religious belief and ideas as may be approved by his judgment or conscience but also ezhibit his belief and ideas by such overt acts which are sanctioned by his religion. Thus under article 25 (1) a person has a two hold freedom

(a) Freedom of conscience;

(b) Freedom to profess, practice and propagate religion.

The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes when this freedom becomes articulate and expressed in outward form it is to profess and practice religion. To profess a religion means to declare freely and openly one’s faith and belief. He has right to practice his belief by practical expression in any manner he likes. To practice religion is to perform the prescribed religious duties, rites and rituals, and to exhibit his religious beliefs and ideas by such acts as prescribed religious order in which he believes. To propagate means to spread and publicize his religious view for the edification others. But the word propagation only[iv]u indicates persuasion and exposition without any element of coercion. The right to propagate one’s religion does not give a right to convert any person to one’s own religion. There is no fundamental right to convert any person to one’s own religion. What Art. 25 (1) guarantees is not right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. Article 25 guarantees “freedom of conscience” to every citizen, and not merely to the follower of one particular religion. It, therefore, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion that would impinge on the “freedom of Conscience” guaranteed to all the citizens of the country alike.

The protection of Articles 25 and 26 is thus not limited to matters of doctrine of belief. It extends also to acts done in pursuance of religion and therefore contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral part of religion. What constitutes an essential part of religions or religious practice has to be decided by the court with reference to a doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.

In judgment of far reaching importance in the National Anthem Case[v] the Supreme Court has held that no person can be compelled to sing the National Anthem “if he has genuine, conscientious religious objection”. In the instant case, three children belonging to the “ Jehova’s witnesses of the Christian community were expelled from the school for refusing to sing the National Anthem. They challenged the validity of their expulsion on the ground that it was violative of their fundamental right under Article 25 (1) a circular issued but the Director of public instructions had made it compulsory for all children in schools to sing the National Anthem. They had stood up respectfully when the National Anthem was being sung every morning at their school but they did not join in the singing of it. They refused to sing the National Anthem as according to them it was against the tenets of their religious faith which did not permit them to join in any rituals except if it be in their prayer to Jehovah, their God, The Kerala High Court held that was their fundamental duty under constitution to sing the National Anthem. It held that if the pupil belonging to the religious group refused to participate in the singing of the National Anthem it would have a very bad influence on the other pupils and the head mistress was therefore within her right not to permit them to attend the class until they gave in writing that they will participate in the singing of the National Anthem in the school, the high court said, would endanger the security of the nation in that the same will develop among the citizens a tendency to ignore the mandates of the constitution thereby defeating the object (discernible from the preamble and other provisions) to accomplish which the people gave the constitution themselves. If religious practices run counter to public order, morality, health or a policy of the Government to uphold the sovereignty and integrity and unity of the nation then they said religious practices must give way for the benefit of the people and the nation as a whole.

On appeal, however, the Supreme Court reversed the High Court decision and held that there is no obligation in India for a citizen to sing the National Anthem. The right under Article 25 (1) cannot be regulated by executive instructions which had no force of law. The court said that by standing up while the National Anthem was being sung the children had shown proper respect to the national Anthem and had thus not violated the fundamental duties laid down in Article 51-A of the constitution. Their conduct did not amount to an offence under the prevention of insults of National Honor Act, 1971 as they did not prevent the singing of the National Anthem. Accordingly, the court directed the authorities to re-admit the children in the school and to allow them to pursue their study.

Non Brahmins can be appointed as Pujari in temple

In a judgment,[vi] of far reaching consequence the Supreme Court has held that Brahmins do not have monopoly over performing Puja in a temple and said that a non-Brahmins can be appointed as a Pujari if he is properly trained and well versed with rituals, this ruling was given by a bench comprising justice S. Rajendra Babu and Justice Doraiswami Raju while upholding the appointment of a non-Brahmin as Pujari in Kongoopilly neerikoda Siva Temple at Alangad village in Erankulam, Kerala, Justice Raju said “ it therefore goes without saying that what is required and expected of one to perform the ritual and conduct poojas is to know the rituals to be performed and mantras, as necessary to be recited for the particular deity.

The court said if traditionally or conventionally in any temple, all along a Brahmin alone was conducting puja or performing the job o Santikaran (pujari) it might not be because a person other than the Brahmin was prohibited from doing so because he was not a Brahmin. It might be because others were not in a position and, as a matter of fact, were prohibited from learning rituals or mastering Vedic literature, rites or performance of rituals and wearing screed thread by getting initialed into the order. So there no justification in insisting that a Brahmin or malayali Brahmin in this case, alone can perform the rites and rituals in the temple as part of the rights and freedom guaranteed under Article 25 of the constitution and further claim that any deviation would be tantamount to violation of any such guarantee under the constitution.

In Ismail Farqui V. Union of India the Supreme court by a majority has held that the state can in exercise of its sovereign power acquire places of worship like mosques, churches, temples.etc. which is independent of Article 300 –A of the constitution if it is necessary for maintenance of law and order. Such acquisition per se does not violate Article 25 and 26 of the constitution. What is protected under Article 25 and 26 is a religious practice which forms an essential and integral part of religion. A practice may be a religious practice but no an essential part of religious practice. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential religious practice.

In two landmark judgments on freedom of religion under Article 25 and 26 of the constitution in A. S Narayana V. State of Andhra Pradesh[vii], and Vaishno Devi Shrine, cases the Supreme court has clearly defined the role of the state in the matter of religion.

In Gulam Kadar Ahmadbai Menon V. Surat Municipal Corporation, the Gujarat high court has held that the right to religion guaranteed to citizens under Acts. 25 and 26 of the constitution does not prohibit state to acuire any place of worship for public purpose. In this case the petitioners had challenged the validity of section 12 of the Bombay Provincial Municipal Corporation Act 1949. Under the Act the Municipal Corporation had ordered the demolition of some parts of the two mosques situated in main road of Sort district in the state of Gujarat. The court held that the acquisition of a religious place or a part thereof is not prohibited by the Constitution and therefore can be order for the demolition of certain portions of the two mosques for widening the road was valid.

Noise Pollution in the name of Religion not allowed

In a significant judgment in church of God (full gospel) in India V. K.K.R.M.C welfare Association, the Supreme Court has held that in the exercise of the right to religious freedom under Article 25 and 26, no person can be allowed to create noise pollution or disturb the peace of others. The custom of religious prayer through the use of loudspeakers is not an essential element of any religion. In that the applellant is the church of God located at K.K.R Nagar, Madhavaram, High Road, Chennai. It has a prayer hall for the Pentecostal Christians and provided with musical instruments such as drums set, triple bango, guitar etc. the K.K.R Majestic Colony welfare Associations made a complaint to the Tamilnadu Pollution Control Board stating therein that prayers in the church were recited by using loudspeakers, drums and other sound producing instruments causing noise pollution and nuisance to the normal life of the residents of the said colony. The Madras High Court directed the police authorities to take action to stop noise pollution. On behalf of the church it was contended that its religious activities and the court cannot prevent the church from practicing religious beliefs. It was also said that noise pollution was die to plying of vehicles and not due to use of loudspeakers etc. the Supreme Court held that a person’s religious freedom is subject to “public order, morality and health”. Even if there is any such court said that “no rights in an organized society can be absolute” in view of this the order of the authorities under the Madras Town Nuisance Act, 1989 and the Noise pollution (Regulation and Control) Rules, 2000 is valid and constitutional.

Restrictions on Freedom of Religion:

(1) Religious liberty subject to public order, morality and health.--- in the name of religion no act can be done against public order, morality and healthy of the public. Thus section 34 of the police Act prohibits the slaughter of cattle or indecent exposure one’s person in public place. These acts cannot be justified on plea of practice of religious rites. Likewise, in the name of religion untouchability or traffic in human beings e.g. system of Devadasis (as prevalent in south India) cannot be tolerated. This freedom is also subject to the “other provisions of this part”, e.g. Right to freedom of speech and expression, freedom of assembly and association, freedom to carry on a profession, trade and business. The freedom to practice religion cannot affect the exercise of these freedoms by others. These rights are subject to the reasonable restrictions under clause (2) of Article. 19.

Right to propagate one’s religion does not give right to anyone to “forcibly” convert any person to one’s own religion. Forcible conversion of any person to one’s own religion might disturb the public order hence could be prohibited by law.

Forced conversion not allowed

In Rev Stainislaus Vs. State of M.P the validity of the two act –the Madhya Pradesh Dharma Swatanrya Adhinyam. 1968 and Orissa freedom of Religion Act 1967 passed by state legislatures of Madhya Pradesh and Orissa respectively was challenged on the ground that they were violative of the fundamental right of the appellant guaranteed under Article 25 (1) of the constitution. These Acts were passed to prohibit forcible conversion of any person to one’s won religion. The appelland was prosecuted for the commission of offences under the Madhya Pradesh Act. He contended that right to “propagate” one’s religion meant the right to convert person to one’s own religion and was a fundamental right under Article 25 (1) of the constitution. Secondly, he argued that the state Legislature had no competence to enact such a law as it did not fall within the purview of Entry I so parliament alone had the power to make the law and not the state Legislature.

Rejecting the contentions of the appellant the supreme court held that impugned Act fell within the purview of Entry I of list II as they were meant to avoid disturbances to the public order by prohibiting conversion from one’s religion to another in a manner reprehensible to the conscience of the community. These two Act do not provide for the regulation of religion and therefore do not fall under Entry 7 of list I. Dealing with the meaning of the words “public order” the court held that if a thing which disturbs the current of the life of the community. And does not merely affect an individual it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g., on the ground that someone has been “forcibly” converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. Therefore, legislation prohibiting forcible conversion of one’s own religion in the interest of public order can be passed and is valid.

(2) Regulation of economic, financial, political and secular activities associated with religious practices—Clause (2) (a) – the freedom to practice extends only to those activities which are the essence of religion. It does not cover secular activities which do not form the essence of religion. It is not always easy to say which activities fall under religious practice or which are of secular, commercial or political nature associated with religious practice. Each case must be judged by its own facts and circumstance. In Mohd. Hanif Quareshi Vs. State of Bihar,[viii] the petitioner claimed that the sacrifice of cows on the occasion of Bakrid was an essential part of his religion and therefore the state law forbidding the slaughter of cows was the sacrifice of cow on the Bakrid day was not an essential part of Mohammaden religion and hence could be prohibited by state under clause (2) (a) of Article 25. In Adelaid Co Vs. Commonwealth,[ix] it was held that a person could not be allowed in exercise of his freedom of religious practice and profession to carry on an anti-war propaganda in the guise of religion belief by a particular organist ion were held not to be protected by the constitution.

(3) Social welfare and social reforms—Clause (2) (b)—under clause (2) (b) of Article 25 the state is empowered to make laws for social welfare and social reform. Thus under this clause the state can eradicate social practices and dogmas which stand in the path of the countries onwards progress. Such laws do not affect the essence of any religion. This clause declares that where there is conflict between the need of social welfare and reform and religious practice, religion must yield. Social evils cannot be practiced in the name of the religion. In state of Bombay vs. Varasu Bapamli,[x] an act which prohibited bigamy was held valid under clause (2) (b), Polygamy is not an essential part of the Hindu religion, therefore it can be regulated by law. In an American case of Rynolds Vs. United states, [xi] a state law made it a criminal offence to marry with another while having a living spouse. The appellant was punished for attempting to take a second wife under the sanction and command of his religion. The Supreme Court held that his punishment was valid under the statute which prohibited bigamy. The court said “Congress was deprived of all legislative power over mere opinion but was left free to reach actions which were in violation of social duties or subversive of good order”. Prohibition of civil practices such as Sati or system of Davadasi has been held to be justified under clause.

Freedom to manage religious affairs (Article 26) _Article 26 says that subject to public order, morality and health every religious denomination of any section it shall have following rights,

1. To establish and maintain institution for religious and charitable proposes

2. To manage its own affairs in the matter of religious

3. To own an acquire moveable and immoveable property

4. Do administer such a property in according to law

The right guaranteed by article 25 is an individual right while right guaranteed by article 26 is the right of an organize body and religious denomination or any section thereof. In Webster dictionary, the word “denomination” has been defined as “collection of individual, classed together under the same name” generally a religious sect or body having a common faith and organization and designated by a distinctive value, the words “religious denomination” in Article 26 must take their colour from the word “religion” and therefore it must also satisfy three conditions: (1) it must be a collection of individual who have a system of beliefs which they regard as conducive to their spiritual well being, that is, a common faith; (2) it must have a common organization; and (3) it must be designated by a distinctive name, thus in the large sense, the “Hinduism” is a denomination in contradistinction to Christians and Muslims. In limited “sense” the various philosophies governing the Hindu society, such as Advaitas, Dwaitas Vishistadwairts and Saivites can also be termed as denomination, likewise, it has been held that “Ananda Marga” is a religious denomination within the Hindu religion.

Right to establish and maintain---institution for religious and charitable purpose__ under clause (a) of Article 26 every religious denomination has right to establish and maintain institutions for religious and charitable purposes. The words establish and maintain in Article 26 (a) must be read together and therefore it is only those institution which a religious denomination establishes which it can claim to maintain it. Thus in Azeez Bashu V. Union of India the Supreme Court held that the Aligarl, University was not established by the Muslim minority and therefore it could not claim the right to maintain it. It was established under the statue passed by parliament.

Right to manage matters of Religion: --- under Article 26 (b) a religious denomination or organization is free to manage its own affairs in matters of religion. The state cannot interfere in the exercise of this unless they run counters to public order, health or morality, accordingly every religious denomination or organization enjoys complete freedom in the matters of deciding what rites and ceremonies are essential according to the tenets of the religion they hold. The court, has the right to determine whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion.

The right is, it is noted, confined to matters of religion. The term matters of religion includes religious practices, rites and ceremonies considered essential for practice of religion. The right is, however, subject to the regulatory power of the state under clause (2) (b) of Article 25. This means that secular activities connected with religious institutions can be regulated by state law. The places of worship like temples mosques, gurudwaras cannot be used for hiding criminal or carrying on anti-national activities. They cannot be used for political purpose. The state has power under Article 25 (1) and clause (2) to prohibit these activities in the places of worship; the state cannot be a passive spectator when exercise of right of religion threatens the public order, morality and health of the community.

It must play a positive role and ensure maintains of public order, health and morality in the society. The constitution requires not only that the state will be away from religion but also imposes a positive duty on the state to free may aspects of our life from the control of religion. The provisions of the constitution are very clear in this respect. This state is not expected to remain a mere passive spectator when the freedom of religion is being used against the interest of society and the nation as whole.

Freedom from taxes for promotion of any particular religion__ Article 27

Article 27 provides that no person shall be compelled to pay any tax for the promotion or maintenance of any particular religion or religious denomination. This Article emphasizes the secular character of the state. The public money collected by way of tax cannot be spent by the state for the promotion of any particular religion.

The reason underlying this provision is that India being a secular state and there being freedom of religion guaranteed by the constitution both to individual and groups it is against the policy of the constitution to pay out of public funds any money for the promotion or maintenance of the particular religion or religious denomination. It is to be noted here that what this Article prohibits is the levying of tax and not of fee. In Rati Lal Vs. State of Bombay,[xii] the Supreme court has held that a tax is in the nature of a compulsory exaction of money by a public authority for public purposes. The imposition is made for public purpose to meet the general expenses of the state without reference to any special advantage to be conferred upon the tax payer. Tax is a common burden and the only return which the tax payer gets is a participation in the common benefits of the state. Fees are, on the other hand, payments primarily in public interest but for some special series rendered or some special work done for the benefit of those from whom the payments are demanded. In determining whether a lavvy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area benefited by it. The traditional view that there must be actual quid pro quo for a fee has undergone a great change. The element of quid pro quo in the strict sense is not always a expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be reasonable relationship between the levy of the fee and the services rendered.

On the basis of distinction between tax and fee the Supreme Court in Sri Jagannath Vs. State o fOrissa,[xiii] held that the levy under the Orissa Hindu religious Endowments Act, 1939, was in the nature of a fee and not tax. The payment was demanded only for the purpose of meeting the expenses of the commissioner and his office which was the machinery set up for due administration of the affairs of the religious institution. The object of the contribution was not the fostering or preservation of Hindu religion or of the denomination within it, but to see that religious institution were properly administered.

The prohibition is against giving aid to any particular religion. This means that if state aid is extended to all religious institution along with secular ones alike without any discrimination, Article 27 will not be applicable.

Prohibition of religious instruction in state –aided institution—Article 28

According to Article 28 (1) no religious instruction shall be imparted in any educational institution wholly maintained out of state funds. But this clause shall not apply to an educational institution which is administered by the state but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. Under clause 1 (3) no person attending any educational institution recognized by the state or receiving aid out of state funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or to any premises attached thereto unless such person or if such person is a minor his guardian has given his consent thereto, thus Article 28 mentions four types of educational institution:

(a) Institution wholly maintained by the State

(b) Institution recognized by the State.

(c) Institution that are receiving aid out of the State funds.

(d) Institution that are administered by the state but are established under any trust or endowment.

In the institution of (a) type no religious instruction can be imparted. In (b) and (c) type institutions religious instruction may be imparted only with the consent of the individual. In the (d) type institutions, there is no restriction on religious instructions.

In D. A. College, Jullundhar Vs. State of Punjab,[xiv] the validity of section 4 of the Guru Nanak University Act which directed the state to make provision for the study and research on the life and teaching of Guru Nanak was challenged on the ground that it was violative of Article 28 which prohibited religious instruction in state aided educational institutions. The court rejected the contention and held that section 4 which enjoined the university to encourage an academic study of the life and teaching of Guru Nanak does not amount to religious instructions or promotion of any particular religion and therefore is constitutionally valid.

Footnote



[1] - AIR 1994 Sc 1918



1.

[ii] - AIR 1995 SC 293

[iii] - AIR 2002 SC 3176.

[iv]- Rev Stainislaus V. state of MP AIR 1977 Sc 908

[v] - Bojoe Emmanual V. State of Kerala (1984) JSCC

[vi] - N Aditya V. Travamcore Dewasom Board

[vii] - AIR1996 SC 1765

[viii] - AIR 1958 SC 731

[ix] - (1943) 67 CLR 116

[x] - AIR 1953 Bom. 84

[xi][xi] - 98 US 145 L.Ed 544 (1987)

[xii] - AIR 1954 SC 388

[xiii] - AIR 1954 SC400

[xiv] - AIR 1971 SC 1737


Bibliography

1. Dr. PANDEY, J.N., THE CONSTITUTION OF LAW OF INDIA, 2009, 46TH Edition, Central law Agency, Allahabad, Delhi.

2. Dr. PRANJAPE, N.V., INDIAN LEGAL & CONSTITUTIONAL HISTORY, Central law Agency, Allahabad, Delhi.

Tuesday, November 10, 2009

Topic: ASYLUM

Table of content

Introduction.............................................................................................................. (1)

Meaning and Definition............................................................................... (3)

Right to Asylum ………….......................... (4)

Asylum may be classified into two categories................................................ (5)

a. Territorial …………………………………………………… …..(5)

b. Extra-territorial ……………………………………………… (10)

The international protection of Refugees......................................................... (7)

Example of Dalai Lama and his Tibetan followers ………................... (9)

Example of the influx of Refugees from Bangladesh................................... (9)

Extra-territorial or Diplomatic Asylum ……………………............................. (10)

Conclusion........................................................................................................ (13)


Introduction

Right of asylum or political asylum, Greek is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or Church sanctuaries (as in medieval times). Political asylum should not be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis. However, the two may somehow overlap, since each refugee may demand to be accorded on an individual basis political asylum. This right has its roots in a longstanding Western tradition—although it was already recognized by the Egyptians, the Greeks and the HebrewsDescartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc; each state offered protection to foreign persecuted persons. Many ancient peoples, including the Egyptians, the Greeks, and the Hebrews, recognized a religious "right of asylum," protecting criminals (or those accused of crime) from legal action to some extent. This principle was later adopted by the established Christian church, and various rules developed to qualify for protection and just how much protection it was.

According to the Council of Orleans in 511, in the presence of Clovis I, asylum was granted to anyone who took refuge in a church, in its dependences or in the house of a bishop. This protection was given to murderers, thieves or people accused of adultery. It also concerned the fugitive slave, who would however be handed back to his owner if this one swore on the Bible not to be cruel. This Christian right of asylum was confirmed by all following councils.

In England, King Ethelbert made the first laws regulating sanctuary in about 600 A.D. By the Norman era after 1066, there had evolved two kinds of sanctuary: all churches had the lower-level kind (sanctuary within the church proper), but only churches licensed by the king had a broader version (sanctuary in a zone surrounding the church). There were at least twenty-two churches with charters for a broader kind of sanctuary, including Battle Abbey, Beverley (see image, right), Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester Cathedral, Westminster Abbey, and York Minster.

Sometimes the criminal had to get to the church itself to be protected, and might have to ring a certain bell there, or hold a certain ring or door-knocker, or sit on a certain chair ("firth-stool"), and some of these items survive at various churches. In other places, there was an area around the church or abbey, sometimes extending as much as a mile and a half, and there would be stone "sanctuary crosses" marking the boundary of the area; some of those still exist as well. Thus it could become a race between the felon and medieval law officers to the nearest sanctuary boundary, and could make the serving of justice upon the fleet of foot a difficult proposition.

Church sanctuaries were regulated by common law. An asylum seeker was to confess sins, surrender weapons, and be placed under the supervision of the head of the church or abbey where they had fled. They then had forty days to make one of two choices: surrender to secular authorities and stand trial for the alleged crimes, or confess their guilt and be sent into exile (abjure the realm), by the shortest route and never return without the king's permission. Anyone who did come back could be executed by the law and/or excommunicated by the Church.

If the suspect chose to confess their guilt and abjure, they would do so in a public ceremony, usually at the gate of the church grounds. They would surrender their possessions to the church, and any landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of protection under the church. Theoretically they would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitive never reached their intended port of call, becoming a victim of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape." Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made. Henry VIII changed the rules of asylum, reducing to a short list the types of crimes which were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James I in 1623. During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England: In 1470, when the Lancastrians briefly restored Henry VI to the throne, Queen Elizabeth was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward IV was restored to the throne in 1471 and giving birth to their first son Edward V during that time. When King Edward IV died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.

Meaning and Definition: By asylum we mean shelter and active protection extended to a political refugee from another state by a state which admits him on his request.

Asylum involves following two elements

(1) A shelter which is more that a temporary refuge and

(2) A degree of active protection on the part of the authorities which have control over the territory of asylum[1].

The institute of international law has defined asylum as “the protection which a state grants on its territory or in some of her place under the control of certain it s organs to a person who comes to seek it”.

An institution for the protection or relief of some class of destitute, unfortunate, or afflicted persons; as, an asylum for the aged, for the blind, or for the insane; a lunatic asylum; an orphan asylum

Right to Asylum: According to Article 14 of the Universal Declaration of Human Rights: "everyone has a right to seek and enjoy in other countries asylum from prosecution ". It may however, be noted that the declaration simply recognizes the right of asylum, it does not grant right to receive asylum. “The so-called right of asylum is probably nothing but the competence of every state to allow a prosecuted alien to enter and to remain on, its territory under its protection. Such fugitive alien enjoys the hospitality of the state which grants him asylum; but it might be necessary to place him under surveillance, or even to intern him at some place to make his entry subject to condition. For it is the duty of every state to prevent individuals living on its territory from endangering the safety of another state by organizing hostile expeditions or by preparing common crimes against its head, members of its Government or its property.[2]

In 1967, united national declaration on territorial Asylum was unanimously adopted by the General Assembly, among its most important provisions, it called on Governments to refrain from measures such as rejection at the frontier of persons seeking asylum. Being a s declaration, it lacked binding force, and it was considered necessary to strengthen the legal basis for granting asylum by means of a convention. With this aim in view the United Nations conference of plenipotentiaries on Territorial Asylum was held in Geneva from 10th January to 4th February, 1977. It recommended in its report that the General Assembly in 1977 consider reconvening a further session of the conference at the appropriate time. The draft text, which was before the conference prepared by the legal experts also intended to reinforce to some extend Article 14 of the 1948 Universal Declaration of Human Rights but makes no mention of any obligation by states to grant asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of states to grant asylum. “The only international legal right involved is that of the state of refuge itself to grant asylum”.

Types of Asylum and distinction between Territorial and Extra-territorial Asylum-

Asylum may be classified into two categories

(1) Territorial

(2) Extra-territorial

In the asylum case (Colombia V. Perus)[3] the international court of justice explained the distinction between territorial asylum and diplomatic asylum in the following words: “in the case of Extradition (territorial asylum), the refugee is within the territory of the state of refuge. Secession with regard to extradition implies only the normal exercise of territorial sovereignty. The refugee is outside the territory of the state where the offence was committed, and a decision to grant him asylum in no way derogated from the sovereignty of that states. In the case of diplomatic asylum the refugee is within the territory of the state where the offence was committed. A decision to grant diplomatic asylum involves a derogation form the sovereignty of that states. It withdraws the offender from the jurisdiction of the territorial state and constitutes and intervention in matters which are exclusively within the competence of that state. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in such particular case. The differences between the principles applying to the two kinds of asylum flow from the fact that the power to grant territorial asylum is an incident of territorial sovereignty itself, whereas the granting of extra-territorial asylum is rather a derogation from the sovereignty of the territorial asylum unless it has accepted some particular restriction in this regard, while the right to grant extra-territorial asylum is exceptional and must be established in each case.

Territorial Asylum---territorial asylum is granted by a state in its own territory and is considered as an attribute of the territorial sovereignty of the state. On 28th march, 1945, a convention on Territorial asylum was adopted at Caracas. Article 1 of the said convention provided, “every state has right in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable without, through the exercise of the right, giving rise to complaint by any other state. “besides this, Article 1 of the Draft Declaration of Asylum as adopted by the united nations human right commission, provided: “Asylum granted by a state in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the said Draft Declaration of Human rights, shall be respected by all other states. “Article 3 of the said Draft Declaration further provided, “No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights, should except for overriding reason of the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is well founded fear of prosecution endangering his life, physical integrity or liberty in that territory…” Article 31, 32 and 33 of the refugee convention of 1951 have incorporated the above principle.

In its resolution of 14th December, 1967 the General Assembly of the United nations recommended that in practice the states should do the following

(A) When a person request for asylum, his request should not be rejected or if he enters the territory of such state, he should not be expelled but when a large number of people request for asylum, it may be rejected on the basis of the national security of its own people.

(B) If any state feels difficulty in granting asylum, it should consider the appropriate measures with the feeling of international unity through the medium of individual states or the united Nations

(C) When a state granting asylum to the fugitives, other states should respect it

A state is free to grant asylum to the people of other states but this freedom can be restricted or regulated through treaties.

Reference to be made here to the United Nations conference of plenipotentiaries on territorial Asylum which was held at Geneva from 10th January to 4th February, 1977. The conference, which was attended by 92 countries, held its session in accordance with General Assembly resolution 3456 of 9th December, 1975 for the purpose of considering and adopting a convention on territorial Asylum. However, it did not reach a consensus on the matter. The conference recommended for holding one more session at the appropriate time. The conference was the culmination of more than five years of preparatory work. In April 1971, a group of independent legal experts meeting in Belligio, Italy, under the auspices of the Carnegie endowment for international peace, in consultation with the United Nations High Commissioner for Refugees, began draft convention on Territorial Asylum and concluded its work in Geneva in January of 1972.

The international protection of Refugees--- the instruments for the international protection of refugees are the 1951 U. N Convention Relating to the status of refugees and its 1967 protocol. The convention on the status of refugees, 1951 entered into force on April 22, 1954. So far the convention has been signed by 147 countries. It may be noted that India is not a party to this convention. Protocol relating to the status of refugees entered into force on October 4, 1967. So far 138 states have ratified this protocol. Besides these, there is U.N, High commissioner for Refugees and to provide them material assistance. The convention is based on two principles

(A) Non discrimination, as far as possible between national and refugees;

(B) No discrimination based on race, religion, or country or origin amongst refugees. It may be noted here that Article 31 of the 1951 U.N refugee convention exempts refugees directly from a country of prosecution from punishment on account of their illegal entry or presence provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. Further the contracting states parties shall not apply to the movement of such refugees’ restrictions other than those which are necessary and that nay restriction shall only be applied until their status is regularized or they obtain admission into another country. According to Article 2 of the convention refugees should respect the laws and regulations of their host country and refrain from to the principle of non-refoulement incorporated in the convention. This principle is fundamental to the entire structure of international action in favor of refugees. The observance of this principle is closely related to the determination of refugee status. The corollary to the principle of non-refoulement is that the repatriation of refugees must be voluntary.

It may be noted that until 1967, the convention applied to persons who had become refugees before January 1, 1951. Under its protocol adopted in 1967 which came into force on October 4, 1967, new groups of refugees are afforded the same protection. The 1967 Protocol which has widened the scope defines a refugee as someone who is outside his or her former house owing to a well-founded fear of persecution “because of reasons of race, religion, and nationality, membership in a particular social group or political opinion” so far the protocol has been signed by 147 countries.

In it’s noted on international protection of Refugees, the U.N High Commission on Refugees highlighted the problems faced by refugees. There are problems in regard to admission of refugees and to the standards of treatment accorded to them. States have a tendency to view asylum and the refugee concept in a restrictive manner and to resort to jarsj conditions, in addition, there is intractable problem of violations of the physical safety of refugees through armed attacks on refugee camps and settlements, forced conscription, piracy attacks on the failure of passing ships to rescue asylum-seekers in distress on high seas.

A UNHCR Panel in Geneva on, 11 April, 1984 expressed concern about xenophobic attitudes towards refugees and appealed to the public the media and governments to combat xenophobic trends and to treat refugees according to recognized humanitarian standards. Last but not least, since 1985, UNHCR has launched the U.N Campaign to break down mounting barriers erected against the tide of refugees worldwide and to treat refugees as assets.

The U.N high commissioner for refugees (UNHCR) protects and supports refugees at the request of a government or U.N and assists in their return or resettlement. The UNHCR was awarded the Nobel peace for 1954 and 1981. This agency is mandated to coordinate international action to protect refugees and resolve their problem worldwide, it strives to ensure that everyone can exercise the right to seek asylum and find refuge in a another state with the option to return home voluntarily, integrate locally or to resettle in a third country their lives. UNHCR has a staff about 5000 people in more than 120 countries to help 20 million people.

Rudd Lubbere became High Commissioner on January 1, 2001 replacing Sadako Oqata (1999-2000). But Rudd Lubbere was accused of sexual harassment. He had to resign from his office which was trying to shore up its image, following series of scandals. He has to resign two days after he had assured that he would complete his full term.

Example of Dalai Lama and his Tibetan followers---being oppressed from the repressive political of china, Dalai Lama and some of his followers fled away from Tibet and sought political refuge in India. India granted asylum to Dalai Lama and his followers. It was an indication of territorial sovereignty of India. China made a great hue and cry over it and alleged that India was interfering in the internal affairs of China. But as a matter of fact and in accordance with the principles of territorial asylum, India as a sovereign state, was within her right to grant asylum to Dalai Lama and his followers. “ a state being at liberty to do whatever it chooses within its own territorial, without reference to the wishes of other states, so long as its acts are not directly injurious to them, it has the right of receiving and giving hospitality of asylum to emigrants or refugees, whether or not the former have violated the laws of their country in leaving it and whether the latter are accused of political or of ordinary crimes.

Example of the influx of Refugees from Bangladesh---the repressive policies followed by the military regime of General Yahiya khan and the deliberate and calculated genocide committed by the military personnel o Pakistan forced millions of refugees to seek political refuge in India. India not only liberty granted political refuge to these oppressed people but also fed them and set the example of providing hospitality which is unprecedented in the annals of the world. It was in keeping with Article 1 and 3 of the Draft Declaration on Asylum adopted by human rights commission as referred earlier. Moreover, it was in accordance with Articles 31, 32 and 33 of the refugee convention of 1951. If India had not granted refuge to the said refugees, their return or expulsion would have resulted in compelling them. “To return to or remain in a territory where there was well founded fear of prosecution endangering their lives or physical integrity”. Thus the action of India in granting political refuge to millions of Bangalee refugees from erstwhile East Pakistan (now Bangladesh) was not only commendable on moral grounds bit also in keeping with the norms and principles of international law. India’s action was also in accordance with universal declaration of human rights, 1948. Article 14 (1) of the declaration provides that everyone has the right to seek and enjoy in other countries asylum from persecution genuinely arising from prosecutions, Article 14 (2) further provides that this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the united nations. Obviously in case influx of refugees from Bangladesh, Article 14 (2) does not apply. The influx of refugees from Bangladesh was due to political crimes and the refugees concerned were not guilty of violating the purpose and principles of the United Nations. Rather, the military regime of Pakistan was guilty of violating the purpose and principles of United Nations.

Extra-territorial or Diplomatic Asylum------extra-territorial asylum is granted by the state outside its territory, e.g., its embassy or public vessels. Extra-territorial asylum may be classified and discussed under the following heads:-

(A) Asylum in foreign Embassies___ international law does not recognize a general right of a head of mission to grant asylum in the premises of the legation for the obvious reason that such a step would prevent territorial law taking its own course and would involve a derogation from the sovereignty of the state where the legislation or mission is situated. In the Asylum case the international court of justice observed, “A decision to grant diplomatic asylum involves derogation from the sovereignty of that state. It withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively with in the competence of that state. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case. The facts of the asylum (Colombia V. Peru) care are as followers:

A political leader named victor Raul Haya Della torre was accused of having instigated a military rebellion. He was a Peruvian national and was granted asylum in the Colombian Embassy at Lima on 3 January 1949. The granting of the said asylum was subject of a dispute between Peru and Colombia. Both the parties agreed to refer the case to the international court of justice. According to pan American Havana convention on Asylum (1928), subject to certain conditions, asylum could be granted in a foreign embassy to a political offender who was a national of the territorial state. The question in dispute was whether Colomia, as the state granting the asylum, was entitled unilaterally to “qualify” the offence committed by the refugee in a manner binding on the territorial state that is to decide whether it was a political offence or a common crime. The court was also asked to decide whether the territorial state was bound to afford the necessary guarantee to enable the refugee to leave the country in safety. In its judgment of 20 November 1950, the court answered both these questions in the negative, but at the same time specified that Peru had not proved that Haya de la torre was a common criminal. Lastly, the court found in favor of a counter claim submitted by Peru that Haya de la torre had been granted asylum in violation of the Havana convention. On the day on which the court delivered this judgment, Colombia filled a request for interpretation, seeking a reply to the question whether the judgment implied an obligation to surrender the refugee to the Peruvian authorities. In a judgment delivered on 27 November, 1950, the court declared the request inadmissible.

Illustration

A national of country X on a visit to India was given asylum in his embassy by the ambassador of country Y in India. He was secretly sent away by plane to country Y.

As noted above, international law does not recognize a general right of states to grant asylum in foreign legations. Asylum may, however, be given under exceptional circumstances. In the present, none of the exceptions mentioned above applies, therefore the conduct of ambassador of country Y in secretly sending the national of country X to country Y is not proper because it involved derogation of the sovereignty of India. India can make a diplomatic protest. But no other remedy is available to India. Y is under no obligation to return the national of country X to India.

(B) Asylums in consular premises----the general principles relating to legation premises are also applicable to the grant of asylum in consular premises.

(C) Asylum in the premises of international institute ----international law does not recognize any rule regarding the grant of asylum in the premises of international institutions. Temporary asylum may, however, be granted in case of danger of imminent violence. There are no general right to international institutions “to grant asylum or even refuse asylum in their premises to offenders as against the territorial state, and simple not even a right of protection on humanitarian grounds. It is difficult to conceive, however, that a right to grant temporary refuge in an extreme case of danger from mob rule would not be asserted or conceded.

(D) Asylum in war ships--- some writers are of the view that the individuals, to being the members of the crew, who board the vessel to take refuge after committing a crime on shore, cannot be arrested by the local authorities and removed from the vessel in case the commander of the ship refuses to hand over the fugitive. On the other hand some other writers have expressed the view that such fugitive. On other hand some local police, even such writers, however, concede that asylum may be granted only on humanitarian grounds in case where there is extreme danger to the life of the individuals seeking asylum. Asylum may also be granted to political offenders. In this connection, Fenwick has pertinently remarked: “while asylum is no longer granted to ordinary criminals, it is still granted quite frequently to political refugees. Reference may also be made here of a convention adopted at the sixth international conference of American states held at Havana in 1928 which forbids the grant of asylum on war ships to persons accused of or condemned for crime. The convention, however, lays down certain conditions under which asylum may be granted to political offenders.

(E) Asylum in Merchant Vessels—Merchant vessels do not enjoy immunity from the local jurisdiction and consequently asylum cannot be granted to local offenders in merchant vessels.

Asylum and Extradition are mutually exclusive or asylum stops, as it were, where Extradition begins—as noted earlier, asylum is the protection which a state grants in its territory or in some of her place under control of certain of its organs to a person who comes to seek it. On the other hand, extradition is the surrender or delivery of the fugitive criminal to the state on whose territory he is alleged to have committed crime, by the state on whose territory of the territorial state and hence under its jurisdiction. By granting asylum, it grants protection to the person concerned in it s territory. In case of diplomatic asylum protection is granted to the person concerned and he is brought under the jurisdiction of the granting state. It, therefore, involves derogation from the sovereignty of the territorial state or through the institution of asylum the person concerned is withdrawn from the jurisdiction of the territorial states.

In both types of asylum, however, the ultimate purpose is to accord protection to the refugee or person concerned and to bring him under the jurisdiction of the granting state. The institution of extradition does just the reverse. In case of extradition the fugitive criminal is in the territory and under the jurisdiction of the territorial state and either under and extradition treaty (or arrangement) or otherwise, it surrenders or returns the fugitive criminal to the state where he is alleged to have committed crime. Thus the fugitive criminal which is under the jurisdiction of the territorial state is transferred to the extradition are mutually exclusive. Once the territorial state decided to extradite the fugitive criminal, the question of asylum does not at all arise, that is to say, asylum stops where extradition begins. On the other hand once the state concerned decides to grant asylum to a person the question of his extradition at least for the time being does not at all arise. But after a state has granted asylum to a refugee or fugitive criminal it may subsequently decide to extradite him at the request of the state where he is alleged to have committed the crime or to which state he belongs.

Conclusion

To conclude in the words of Starke, “The liberty of state to accord asylum to a person overlaps to certain extent which is its liberty to refuse extradition or rendition of him at the request of some other state, an overlapping best seen in the grant, commonly, of asylum to political offenders, who correspondingly are not as a rule extraditable. Asylum stops, as it were, where extradition or rendition begins and this interdependence makes it convenient to consider the tow subject together”.



Bibliography

1. International law and Human Rights, By Dr. S.K. Kapoor, 17th Edition, central Law Agency , ALLAHABAD,2009

2. International law: a treatise, Volume 2, International Law: A Treatise, Lassa Oppenheim , Lassa Oppenheim, Ronald Francis Roxburgh , Editor Ronald Francis Roxburgh , Edition 3, Publisher Longmans, Green and co., 1921

3. The elements of international law: with an account of its origin, sources and historical development , George Breckenridge Davis ,Publisher Harper & Brothers, 1900, International law study’s Author Naval War College (U.S.) , Publisher U.S. G.P.O., 1905

INTERNET

1. www.wikipedia.com/ASYLUM

2. www.teacherlaw.com

3. www.google.com/ASYLUM




[1] - J.G. Starke, introduction to international law, Tenth Edition (199) p. 358

[2] - Oppenheims international law, Vol, 1.

[3] - starke’s international law, Eleventh Edition 1994