The places of Worship Act 1991, decoloniality and indigenous rights - The Daily Guardian
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The places of Worship Act 1991, decoloniality and indigenous rights

In all the years that the issue has been hotly debated in independent Bharat, it has been typically approached through the lens of ‘communal politics’, especially by those who have believed and continue to believe that the reconstruction of the Ram temple would cause fissures in the secular fabric of Bharat, or in their words ‘the idea of India’.

J. Sai Deepak

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The Bhoomi Pujan for the proposed Shri Ram Temple in Ayodhya is scheduled to take place in five days, marking the culmination of a five-century old indigenous movement to reclaim a site which is of both religious and civilizational importance. In all the years that the issue has been hotly debated in independent Bharat, it has been typically approached through the lens of “communal politics”, especially by those who have believed and continue to believe that the reconstruction of the Shri Ram Temple would cause fissures in the secular fabric of Bharat, or in their words “the idea of India”. Unfortunately, the issue has either never been adequately understood or perhaps clearly articulated from the perspective of indigeneity and through the framework of decoloniality in most circles which have an opinion on the issue and its history.

In fact, those who cite considerations of secularism and social harmony to countenance their opposition to the construction of the Temple at the hitherto disputed site, have rarely attempted to understand the issue from the perspective of decoloniality. Interestingly, such opposition has mostly come from colonialized elites and those who hold them in high regard, which pits them against the native who continues to believe in and practice her tradition despite lacking in suave and politically correct representation of her cause. Seldom has one come across a layered perspective from the opponents of the Temple which strikes a balance between the rights of adherents of faiths which are indigenous to the civilization and the legitimate interest in preserving communal harmony. Instead, invariably the approach has been to either question the very legitimacy of the indigenous claimants which is a textbook example of coloniality, or to adopt a patronizing approach towards them which categorically expects them to sacrifice their beliefs and rights at the altar of a false and uneasy peace even if their claims are supported by history. In both instances, it is a case of “talking down” to the native.

The stark irony in the attitude of the colonialized opponents of the Temple is the convenience in their application of moral standards and use of history. While colonial interpretations of indigenous sources of history are typically treated as reliable to address issues relating to caste to further the goal of social justice which is again defined unilaterally by the elites, sources of history which attest to the existence of indigenous religious sites and their occupation, are rejected as unreliable, apocryphal and even fabricated. The expedient reliance on or rejection of indigenous epistemology and voices depending on what fits the worldview and narrative of the colonialized elites has been the story of the better part of independent India, which negates the idea of Bharat. Unfortunately, such an attitude is not limited to thought or expression of thought, but has also translated to legislative action and judicial treatment of indigenous rights and expectations.

The Places of Worship Act 1991, aptly acronymized as PoW, is one such example of a manifestly unjust legislation passed by a colonialized State apparatus against the fundamental rights of adherents of indigenous faith systems. The statute is designed, as its Preamble states, to “prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947…”. This object is further codified in Sections 3 and 4 of the Act subject to certain exceptions identified in Section 4. Broadly speaking, this legislation stands in the way of reclamation of religious sites of one community which, it believes, are occupied by another. While the statute does appear to be neutrally worded on the face if it, the backdrop of its passing and the exception it carves out make it abundantly clear that it forcibly forecloses the fundamental rights of indigenous communities at the altar of “secularism”. The only exception to the application of the statute is expressly identified in Section 5, namely the hitherto pending legal dispute surrounding the ownership of the Shri Ramjanmabhoomi in Ayodhya, which ultimately resulted in a final verdict dated November 9, 2019 of the Supreme Court in favour of the proponents of the Temple after decades of protracted legal battles.

However, in the said verdict, for some reason the Supreme Court deemed it fit to discuss the provisions of the PoW Act despite the non-application of the Act to the Shri Ramjanmabhoomi dispute. In fact, the Court has taken note of this legislative fact in Paragraph 80 of its judgement. Clearly, the legal consequence of the exception under Section 5 was to leave the then pending legal proceedings with respect to the site in Ayodhya untouched and uninfluenced by the express provisions of the PoW Act or its purported “secular” import. In other words, there was no need for the Supreme Court to discuss the Act in the context of the Shri Ramjanmabhoomi case since it was meant to be adjudicated on the basis of established legal principles which apply to property disputes. And yet, the Court discussed the Act in over ten pages with the central thrust being the Constitution’s commitment to “secularism”.

 This author has demonstrated elsewhere that the Court’s discussion of the statute and principles of secularism were superfluous to the Shri Ramjanmbhoomi dispute and therefore lack any precedential value. This naturally takes us to the question of the intent behind the Court’s discussion of the PoW Act and its purpose, because a Court of law is not an academic forum and it is not expected to answer questions which do not arise before it for its adjudication.

Perhaps, it could be argued that the intent behind the Court’s discussion was to dissuade any future constitutional challenge to the PoW Act given the impediment it poses to a just and legal reversion of occupied religious sites which belong to indigenous faiths and their adherents. If so, would it not be fair and reasonable to conclude that coloniality has made its presence felt even in recognition and enforcement of valid legal and fundamental rights? Simply put, the embargo under the PoW Act on one’s exercise of rights to reclaim one’s place of worship is directly at loggerheads with rights guaranteed under Articles 25 and 26. Even if a lone individual asserts the right of reclamation and the rest of the community has either forgiven, or worse, forgotten, no canon of secularism or principle of fairness or justice in any civilized jurisdiction can mandate that an individual or a community must sacrifice her or its right to legally reclaim the nerve centers of civilizational identity.

At the very least, members of the community must have the right to prove their case in a Court of law. To deprive that legal remedy through a legislation which was passed without any consultation with members of affected indigenous communities, is to add insult to injury. Decoloniality demands that no one other than a victim has the right to forgive on behalf of the victim, or presume that the victim has forgiven or forgotten. To do otherwise is to be insensitive to historical injustice. Since the Apex Court did not have the occasion to deal with any of these aspects, nor has it heard the parties directly aggrieved by the PoW Act, none of the observations of the Court on the intent behind the legislation and its significance to the Constitution’s commitment to secularism has any real legal value. Therefore, if the intention behind the Court’s exercise was to grant its imprimatur to the Act’s Constitutional vires, it does not even pass muster applying the first principles of law. Clearly, the PoW Act remains as vulnerable to a constitutional challenge as it was before the Ayodhya verdict, and is waiting to be struck down or better, repealed by the Legislature.

Finally, in the backdrop of the ongoing movement against coloniality in various parts of the world, it must not be forgotten that both the Indian Constitution and decoloniality put a premium on social justice and there can be no social justice at the expense of the truth, nor is lasting peace possible until the truth is demonstrably established, acknowledged and accounted for.

 J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

PUNJAB & HARYANA HC GRANTS BAIL TO MAN BOOKED UNDER POSCO ACT ON CHARGES BY WIFE REGARDING INCIDENT THAT TOOK PLACE WHEN SHE WAS A MINOR

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The Punjab and Haryana High Court in the case Dinesh Versus State of Haryana observed and has recently granted a regular bail to a man booked under the POCSO Act after the complainant, the petitioner wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when the petitioner wife was still a minor.

The bench comprising of Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights, the bench noted that the FIR was registered after much delay.

It was observed that the FIR was registered under Sections 6, 12 and 17 of POCSO Act and Sections 506, 376(2) (N), 323, 328 and 406 of Indian Penal Code, 1860.

The Court noted that no date of incident has been mentioned in the FIR and the said FIR has been registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. Prima facie, it also appears that after much delay, the FIR has been registered.

Further, the Court observed that the affidavit suggests that the complainant married the petitioner without coercion or pressure and also the Aadhaar Card that suggests her to have attained the majority age at the time of her marriage.

The bench after considering the fact that the petitioner is not involved in any other matter and prosecution is to take time and also that the co-accused Yogesh has been granted interim protection. It was stated that this court deemed it fit to extent the relief of regular bail to the petitioner. It observed that since 07.12.2021, the petitioner has been in custody and there are 22 prosecution witnesses and none of them have been examined. Therefore, the trial is likely to take time.

Moreover, the court allowed the instant petition and released the petitioner on regular basis subject to its cancellation if he threatens or influences the witness.

The present petition is allowed by the court, while keeping in view the facts and circumstances and the petitioner is ordered to be released on bail on his furnishing bail or surety bonds to the satisfaction of the concerned trial Court or Duty Magistrate and subject to him not being required in any other case. In the present case, it is made clear, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner by the court.

Accordingly, the petition is disposed off in above terms.

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Allahabad High Court refuses to quash case against government, madrasa teachers allegedly found with cow meat, 16 live cattle stock

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The Allahabad High Court in the case Parvez Ahmad And 3 Others v. State of U.P. and Another observed and refused to quash the criminal case against a government teacher and a madrasa teacher from whose alleged possession cow meat (beef) and 16 live cattle were recovered.

The bench comprising of Justice Rohit Ranjan Agarwal observed that the First Information Report (FIR) that prima facie cognizable offence is made out against the applicants and thus, no case was made out against them, to quash the case.

Facts of the Case:

In the present matter, the court was dealing with the 482 CrPC plea filed by 4 applicants booked under Sections 153- A, Section 420, Section 429, Section 188, Section 269, Section 270, Section 273 of the Indian Penal Code, 1860 and section 3/5/8 of Prevention of Cow Slaughter Act, 1955 and section 11 of Prevention of Cruelty to Animals Act, 1979 and section 7/8 of Environment (Protection) Act, 1986, plea seeking to quash the case.

An Assistant teacher, Applicant no. 1 in the education department of the State. As Assistant Teacher, the applicant no. 2 is also working in the Madrasa Darul Ulum Gausia Kasba Salempur. A medical shop is run by the applicant no. 3 and applicant no. 4 is Hafiz Quran.

It was observed that their submission that a report from the Forensic Investigation Laboratory had received did not disclose that the sample sent for analysis was of the cow. Their case was case that no case under the Prevention of Cow Slaughter Act was made out.

It was argued by the State counsel that the FIR is a detailed report, the FIR which categorically mentioned that out of 16 live cattle stock which included 7 buffaloes, 1 cow, 2 female buffalo’s calf, 5 male buffalo’s calf, and one male cow-calf.

It was further argued by the state that it was wrong to say that the FSL report gave a clean chit to the applicants. Moreover, as 16 cattle were found in the possession of the applicants and other co-accused and they were not having any license to run the slaughterhouse.

Court Analysis:

The argument of the Applicant was discarded by the Court on the ground that no offence was made out from the reading of the First Information Report. It was underscored by the court that even though the FSL report had revealed that the sample which was sent for chemical analysis was not cow meat, but from the custody of the applicants and another co-accused, 16 live cattle were also recovered.

The court observing that defence regarding the FSL report shall be considered by the trial court as such defence set up in the present application cannot be considered at this stage by this Court, at the stage of quashing of the charge sheet

Accordingly, the case was dismissed.

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MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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