Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal directed against the decision of the Single Judge Bench in Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433; the Division Bench of Pankaj Mithal, CJ., and Javed Iqbal Wani, J., directed the appellants to allow Mohd. Lateif Magery and his family to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased Mohd. Amir Magrey at the Wadder Payeen graveyard, subject to taking into account the required security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 Lakhs awarded to the respondents in the afore-stated case.

Facts of the case: The respondent’s son named Mohd Amir Magrey, was amongst four persons who were killed in an encounter between the Police and Militants that took place on 15-11-2021 at Hyderpora area of Budgam, Kashmir. Next day, the respondent received a call from Gool Police Station that his son got killed in an encounter. The respondent upon reaching Saddar, Police Station, Srinagar, was told that his son, was in fact a militant and had got killed along with his two other associates and had been buried by appellants at the Wadder Payeen graveyard. The respondent even met the Lieutenant Governor on 07-12-2021 seeking return of the body of his son, but the meeting yielded no results.

Legal Trajectory: In Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, dated 27-05-2022, the Single Judge Bench of this Court directed the Union Territory to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of Mohd. Lateif. The State was also directed to pay to the father compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith.

The decision was appealed in UT of J&K v. Mohd. Latief Magrey, LPA No. 99/2022 thereby which the operation of impugned judgement was stayed by way of an interim relief by the Division Bench. Next date of hearing was set for 28-06-2022.

The stay was challenged by Mohd. Latief in the Supreme Court. Lateif submitted before the Court that he wants to perform the last rites of his deceased son, as per their family’s religious practices at the Wadder Payeen Graveyard. He also sought the alternative relief of payment of compensation of Rs. 5 lakhs as granted by the Single Judge in his decision dated 27-05-2022. The Division Bench of Surya Kant and J.B. Pardiwala, JJ., in Mohd. Lateif Margey v. UT of J&K, Special Leave to Appeal (C) no. 10760/2022, observed that the matter is already slated for hearing in the High Court. The Bench directed the High Court to consider the alternative reliefs sought by Mohd. Lateif within 1 week.

Contentions

  • The respondent stated that the dead body of his deceased son was not handed over to him by appellants for burial as per religious rites and practices, thus, resulting in infringement of rights guaranteed under Art. 21 of the Constitution, as it extends to the right to have a decent burial as per religious ceremonies. The respondent submitted that that right to live with human dignity extends even beyond death and the said dignity has to be given to the dead by providing a proper funeral/burial.
  • The respondent submitted before the Court that his request to hand over the dead body of his son to provide a decent burial was rejected by the appellants citing the reason that the deceased was a militant. The respondent however stated that dead bodies of two other persons, killed in the encounter returned back to their families following relentless protests.
  • The respondent also contended that he has been instrumental in fighting and curbing the militancy in his native place Gool Sangaldan, Ramban, along with Indian Army and in this regard, cited an incident, which took place on 06-08-2005, when he and his wife caught hold of a LeT militant, who had barged into their house and opened indiscriminate firing. It was also submitted that the respondent had been conferred with the State Award for Bravery for the afore-stated incident by the then Government of Jammu and Kashmir in the year 2012. The respondent was also well appreciated by the Indian Army and for the services rendered by him in eradicating the militancy in Gool Sangaldan area.

Per-contra, the appellants argued that-

  • The respondent’s demand to return the body of his deceased son is not fair, because it is not the dead body of an ordinary citizen but of a terrorist having got killed in an encounter with security forces. Return of the dead body would lead to law, order and security problems.
  • The deceased was found to be a terrorist indulging in militant activities by the authorised investigating agency. In terms of previous practice and procedure to avoid larger ramifications and adverse impact upon law-and-order situation, the dead body of deceased was shifted and was buried in accordance with all religious obligations at Wadder Payeen Graveyard, performed in presence of Executive Magistrate, Zachaldara. A proper procedure was followed by appellants while dealing with the dead body of deceased in the matter of his burial.
  • It was submitted that after taking adequate security measures, the dead bodies of other two persons killed in the encounter, were returned to their families, as they were not found to be terrorists.
  • It was submitted that, Mohd. Latief and his family can be allowed to perform Fatiha Khawani (prayers after burial) at the grave of the deceased subject to security measures as may be required to be put in place.

Observations: Perusing the ‘peculiar’ facts of the case and contentions of the parties, the Court observed that, Mohd. Lateif has given up the first relief granted by the Single Judge vis-a-vis exhumation of the remains of his son. The Court rejected the insistence by the counsels of Mohd. Latief regarding exhumation of the remains stating that the last rites of deceased have already been performed while burying him at the Wadder Payeen Graveyard.

The Court also rejected the prayer of the respondent’s counsel that the family members be allowed to see the face of the deceased by opening the grave, on the ground of the advanced stage of decay the body will be in; and also taking into account that the respondent has given up the prayer of exhumation of the dead body.

The Court pointed out that the respondents have been subjected to ‘emotional and sentimental melancholy’ as the authorities deprived them of the right to perform last rites and rituals of deceased admittedly without there being any policy/guideline, which cannot be endorsed by law. The Court also stated that there was no way that the appellants could have overlooked the contribution made by the respondents’ family in fighting terrorism; therefore, the decision to award compensation by the Single Judge was correct.

Decision: Allowing the respondents to perform Fatiha Khawani, the Court directed the appellants to fix a date for the same in consultation with the respondents.

Regarding the direction to pay compensation of Rs. 5 Lakhs, the Court clarified that said compensation shall not form a precedence for future in view of the fact that the same was awarded in relation to the peculiar facts and circumstances of the instant case.

[Union Territory of J&K v. Mohd. 2022 SCC OnLine J&K 516, decided on 01-07-2022]


Advocates who appeared in this case :

D. C. Raina, Advocate General with Asifa Padroo, AAG and Sajad Ashraf GA, Advocates, for the Appellants;

Deepika Singh Rajawat, Advocate with Zarin Ali and Yasmeen Wani, Advocates and T. M. Shamsi, ASGI, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deliberating upon the instant matter, wherein the petitioner lost his job as a high school football coach in the Bremerton School District, after he knelt at midfield after games to offer a quiet personal prayer; the Court held that, the Free Exercise and Free Speech Clauses of the First Amendment protects an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression. The petitioner’s observances fall within the perimeters of the First Amendment, and therefore protected.

Background of the case: Joseph Kennedy [petitioner] began working as a football coach at Bremerton High School in 2008 and had established a personal tradition to offer a prayer of thanks at the conclusion of each game. Initially, Kennedy prayed on his own, but later some of the players started to join him. Eventually, Kennedy began incorporating short motivational speeches with religious references.

In 2015, Bremerton School District’s superintendent identified “two problematic practices” in which Kennedy had engaged- firstly, Kennedy had provided “inspirational talks” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of games”; and secondly, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated his involvement with the program”. Kennedy was directed to keep his practice as “non-demonstrative” as possible, which led to Kennedy ending his locker-room prayer with the players and his practice of incorporating religious references into his post-game motivational talks. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field post-game prayer; however, feeling upset that he had “broken his commitment to God” by not offering his own prayer, he turned his car around and returned to the field and walked to the 50-yard line and knelt to say a brief prayer of thanks.

It was stated that Kennedy offered his prayers during a period when school employees were free to attend to their personal matters – like checking mail or booking reservations at a restaurant etc. The school authorities disciplined him because it thought that Kennedy’s retention could lead a reasonable observer to conclude (mistakenly) that the school endorsed Kennedy’s religious beliefs.

Legal Trajectory: Kennedy sued in federal court, alleging that the Bremerton School District’s [hereinafter the District] actions violated the First Amendment’s Free Speech and Free Exercise Clauses. He also moved for a preliminary injunction requiring Bremerton to reinstate him. The District Court denied that motion, and the Ninth Circuit affirmed.

After the parties engaged in discovery, they filed cross-motions for summary judgment. The District Court found that the sole reason for the District’s decision to suspend Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his religious conduct after three games in October 2015. The District Court granted summary judgment to the District and the Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges.

Contentions: Joseph Kennedy contended that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. As per his submissions, The First Amendment Clauses work in tandem- where the Free Exercise Clause protects religious exercises (communicative or not), the Free Speech Clause provides overlapping protection for expressive religious activities.

Per contra, the District argued that Kennedy’s suspension was essential to avoid a violation of the Establishment Clause. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. To resolve that clash, the District reasoned that Kennedy’s rights had to yield.

Observations: The opinion of the Court was delivered by Justice Neil Gorsuch in which John Roberts, CJ., Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, JJ., joined. The majority pointed out that SCOTUS precedents permit a plaintiff to demonstrate a free exercise violation in multiple ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable”. Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny, under which the government must demonstrate its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

  • It was observed that Bremerton disciplined Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Kennedy’s brief prayer, Bremerton’s challenged policies were neither neutral nor generally applicable. By its own admission, the Bremerton sought to restrict Kennedy’s actions in part because of their religious character. Prohibiting religious practice was thus Bremerton School District’s unquestioned “object”. The majority also pointed out that Bremerton School District conceded that its policies were neither neutral nor generally applicable.

  • Noting the complexity associated with the interplay between free speech rights and government employment, the Court observed that when an employee ‘speaks as a citizen addressing a matter of public concern’, the First Amendment may be implicated and courts should proceed to a second step. At this step, courts should engage in ‘a delicate balancing of the competing interests surrounding the speech and its consequences’. “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?”. The Court noted that when Kennedy engaged in his prayers, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. “Mr. Kennedy’s prayers did not owe their existence to Mr. Kennedy’s responsibilities as a public employee”.

  • The majority pointed out that a natural reading of the First Amendment suggests that the Clauses have “complementary” purposes and not warring ones where one Clause is always sure to prevail over the others. It was also observed that the Establishment Clause in the First Amendment, must be interpreted by ‘reference to historical practices and understandings”.

“A government entity’s concerns about phantom constitutional violations do not justify actual violations of an individual’s First Amendment rights”. The majority observed that Respect for religious expressions is indispensable to life in a free and diverse Republic. However, in the instant case, the District sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. “The Constitution neither mandates nor tolerates that kind of discrimination”.

The Dissent: The dissenting opinion was filed by Justice Sonia Sotomayor and she was joined by Justices Elena Kagan and Stephen Breyer. The dissenting Judges noted that the Constitution does not authorize, let alone require, public schools to embrace conduct like the instance in the present case. “This Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment”.

  • The Judges pointed out that the petitioner had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. The majority also ignored the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the District stated that it was suspending Kennedy to avoid it being viewed as endorsing religion.

  • “The Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new ‘history and tradition’ test”. It was observed that while the majority reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise; but they also fail to acknowledge the unique pressures faced by students when participating in school-sponsored activities.

  • The dissenting Judges also noted the District Court’s observations regarding Kennedy generating media coverage by publicizing his dispute with the School in his social media posting and in his media appearances. The Judges noted the instances of commotion during Kennedy’s post-game prayer circle when members of the public rushed the field to join him, jumping fences to access the field and knocking over student band members. The District received calls from Satanists who ‘intended to conduct ceremonies on the field after football games if others were allowed to.’ The Judges also perused the series of directions passed by the District to the petitioner which revealed that they were happy to accommodate Kennedy’s desire to pray on the job, but in a way that did not interfere with his duties or risk perceptions of endorsement.

  • The dissenting Judges noted that if the instant matter is properly understood then this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.

  • It was pointed out that government neutrality toward religion is particularly important in the public-school context given the role public schools play in our society. “The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny”. Accordingly, the Establishment Clause “proscribes public schools from ‘conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred’” or otherwise endorsing religious beliefs.

  • Students look up to their teachers and coaches as role models and seek their approval”- The Judges noted that players recognize that gaining the coach’s approval may pay dividends small and large. In addition to these pressures to please their coaches, players face “immense social pressure” from their peers especially when it comes to American high school football. The Judges pointed out the evidence which revealed that some students reportedly joined Kennedy’s prayer because they felt social pressure to follow their coach and teammates.

  • It was noted that Kennedy’s free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts. His right to pray at any time and in any manner, he wishes while exercising his professional duties is not absolute.

  • In their final observation, the dissenting Judges stated that Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in society. However, the majority’s decision elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.

Terming the majority decision to be “misguided”, the Judges stated that the decision creates a perilous path to force the States to entangle themselves with religion, with all the rights hanging in the balance. “As much as the Court protests otherwise, today’s decision is no victory for religious liberty

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state”.

[Kennedy v. Bremerton 2022 SCC OnLine US SC 10, decided on 27-06-2022]


*Sucheta Sarkar, Editorial Assistant has reported this brief

Case BriefsHigh Courts

Madras High Court: Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

A petition was filed questioning the validity of the notice issued by the 3rd respondent/Assistant Commissioner/Executive Trustee proceedings.

The dispute relates to the chanting of Srisaila Dayapathram (initial recital) by the Thengalai Sect and the chanting of Sri Ramanuja Dayapathram (initial recital) by the Vadagalai Sect. Due to the dispute between Thengalai Sect and Vadagalai Sect, the ordinary devotees were unable to have a peaceful Darshan in the subject Temple namely Sri Varadaraja Perumal Temple.

In order to regulate the Temple activities including observance of poojas and rituals, the third respondent issued a Circular.

Petitioner contended that the said Circular impugned violated the fundamental right of worship by Vadagalai Sect and performance of their recitals in the temple.

Analysis and Decision

It was not disputed that the Thengalai Sect enjoyed primacy over chanting of their initial recitals namely Srisaila Dayapathram and Prabandhams. The right of the Vadagalai equally to worship their Guru and God alone is to be considered.

“The religious rite guaranteed under the Constitution must be provided to all concerned and discrimination or denial of religious practices, at no circumstances, be allowed by the Courts.”

High Court expressed that, a religion may not only lay down a code of ethical rules for its followers to accept, but may also prescribe rituals and observations, ceremonies and modes of worship, which were regarded as an integral part of the religion.

Therefore, the constitutional guarantee of freedom of religion enshrined in Article 25(1) extends even to rites and ceremonies associated with a religion.

In the instant case, prohibition of Thengalai Sect from chanting their initial recital namely Srisaila Dayapathram and Prabandham is in dispute.

Bench added that the third respondent was empowered to regulate the affairs of the temple and to maintain decorum in all respects and at all ties including while performing the rituals, poojas, etc., equally the protection given under Articles 25 and 26 extends to a guarantee for rituals and observances, ceremonies and modes of worship, which are integral part of religion or religious practice and it has to be decided by the Court with reference to the doctrine of a particular religion or practices regarded as parts of religion.

Hence, the sentiments of both Vadagali and Thengalai Sects are to be respected and mutual respect between them is also of paramount importance.

“Tolerance is the hall mark principle in Hinduism.”

The Court elaborated that the mutual understanding and respect and glorify the Lord alone will preserve the sanctity of the temple activities and therefore, both the sects were expected to do services to Lord Sri Varadaraja Perumal instead of fighting on trivial issues, as the rights and duties are corresponding, and every fundamental right is subject to restrictions so as to maintain public order in Temple administration and its activities.

“Every religious right is subject to public order. Persons violating the provisions of the Act and Rules are liable to be prosecuted.”

Adding to the above observations, Court stated that third respondent is empowered to regulate the Temple activities and the due observance of religious rites and ceremonies performed in the temple.

In Court’s opinion, the impugned order was in consonance with the provisions of the Statutes.

“…religious rights of devotees, worshipers, are to be protected. The guarantee under Articles 25 and 26 for the rituals and observance, ceremonies and modes of worship, which all are integral part of religious practices, are also to be taken into consideration by the Courts.”

The Court observed that, the right of primacy to chant initial recital and Prabandham by the Thengalai sect was not disputed by the Vadagalai sect. The Vadagalai sect were ready and willing to co-operate for peaceful observance of rituals without affecting the rights of Thengalai Sect.

Following interim order was passed:

(1) The Thengalai sect shall be permitted to sit in first two or three rows inside the Temple and behind them, the Vadagalai sect and ordinary devotees shall be permitted to sit in the remaining available space inside the Temple. The seating arrangements shall be regulated by the 3rd respondent/ Assistant Commissioner / Executive Trustee in such a manner without affecting discipline and decorum of the rituals and pooja activities.

(2) The Thengalai sect shall be permitted to commence their initial recital namely Srisaila Dayapathram and thereafter, Vadagalai sect shall be permitted to chant initial recital namely Sri Ramanuja Dayapathram within 10 to 12 seconds each and thereafter, both the Thengalai sect, Vadagalai sect and ordinary devotees shall be permitted to jointly chant Naalayira Divya Prabandham in a uniformed manner without disrupting the rituals and poojas and without causing any inconvenience or nuisance to the other devotees and worshippers, who all are present in the Temple.

(3) On completion of chanting of Naalayira Divya Prabandham by Vadagalai sect, Thengalai sect and ordinary devotees, jointly the final ritual namely Vazhithirunamam may be firstly chanted by Thengalai sect i.e., “Manavalamamunigal Vaazhithirunamam” and thereafter, the Vadagalai sect shall be allowed to recite their concluding Mantra i.e., “Desikan Vazhi Thirunamam” and accordingly, the entire process of rituals shall be concluded.

(4) The third respondent / the Assistant Commissioner / Executive Trustee is directed to Monitor the observance of rituals both by the Thengalai sect and Vadagalai sect and in the event of any violations of discipline and decorum, initiate all appropriate action in the manner known to law including penal actions.

(5) The third respondent / the Assistant Commissioner/ Executive Trustee is directed to make the above arrangements with immediate effect and videograph the events and produce the same before this Court during the next hearing, on 25.05.2022.

(6) The third respondent / the Assistant Commissioner/ Executive Trustee is directed to file a Compliance Report on 25.05.2022.

In view of the above, the registry was directed to list the matter for reporting compliance on 25-5-2022. [S. Narayanan v. State of T.N., 2022 SCC OnLine Mad 2395, decided on 17-5-2022]


Advocates before the Court:

For Petitioner: Mr G.Rajagopalan, Senior Advocate

 For Mr Abhinav Parthasarathy

Mr Satish Parasaran, Senior Advocate

Mr S.Parthasarathy  Senior Advocate

Mr V. Raghavachari

For: Respondents

For R1 & R2: Mr.R.Shanmuga Sundaram, Advocate General Assisted by M/s.V.Yamuna Devi

Special Government Pleader

For R3: Mr R.Bharanidharan

For R4: Mr P.Wilson, Senior Advocate

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deciding the instant issue related to the First Amendment, the SCOTUS Justices had to decide that whether the City of Boston violated the Free Speech Clause in refusing to allow a local organisation fly their “Christian flag”. In an unanimous decision, the Court held that the flag-raising program did not express government speech; therefore, Boston’s refusal to let petitioners fly their flag, violated the Free Speech Clause of the First Amendment, as third- party flag raisings form private speech and not government speech.

Background and Legal Trajectory: There are three flagpoles outside the entrance to Boston City Hall, on City Hall Plaza. The first and the second flag pole carries the American flag and the flag of the Commonwealth of Massachusetts respectively. The third flag pole usually flies Boston’s own flag, but the City had allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag- like other countries’ flags, or flags associated with groups or causes, like the Pride Flag, a banner honoring emergency medical service workers etc.

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. As part of that event, he wished to raise what he described as the “Christian flag”. Concerned that flying a religious flag at City Hall could violate the Establishment Clause and finding no past instance of the city’s having raised such a flag, the Commissioner of Boston’s Property Management Department told Shurtleff that the group could hold an event on the plaza but could not raise their flag during the celebrations.

Shurtleff and Camp Constitution took the legal route claiming that Boston’s refusal to let them raise their flag violated, among the First Amendment’s Free Speech Clause.

The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The same was affirmed by the First Circuit.

*The First Amendment provides that Congress makes no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redressal of grievances[1].

Observations: The Full Bench of the Court comprising of John Roberts, C.J., Stephen Breyer (who delivered the opinion of the Court), Clarence Thomas, Samuel Alito, Elena Kagan, Sonia Sotomayor, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barret, JJ., upon perusing the facts of the case, framed the issue that whether the flags Boston allows others to fly, express government speech, and whether Boston could deny petitioners’ flag-raising request.

Vis-a-vis government speech, the Court noted that The Free Speech Clause does not prevent the government from declining to express a view.  The government must be able to decide what to say and what not to say when it states an opinion – “The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression”.

It was observed that at the time of refusal, Boston had no written policy limiting use of the flagpole based on the content of a flag – “The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent…But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own”.

Referring to the precedents of Walker v. Texas Division, Sons of Confederate Veterans, Inc., et al., 2015 SCC OnLine US SC 67 , Matal, Interim Director, United States Patent and Trademark Office v. Tam, 2017 SCC OnLine US SC 84 and Pleasant Grove City v. Summum, 2009 SCC OnLine US SC 22;  the Justices stated that the city’s practice was to approve flag raisings without exception. Since at the time, Boston had no clear written policies or internal guidance about what flags groups could fly and what those flags would communicate; thus Boston’s control is not comparable to the degree of government involvement like in the selection of park monuments (Summum) or license plate designs (Walker).

Conclusion: With Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages, the Court went on to classify the third-party flag raisings as private and not government speech

Further noting that Boston denied the petitioner’s request on the sole concern of the religious nature of the flag, the Court held that since the flag-raising program did not express government speech, and Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment – “When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination””.

[Harold Shurtleff v. City of Boston, No. 20–1800, decided on 02-05-2022]


[1] The Constitution, The White House


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

The S.I. had furnished an information to A.T.S. that some anti-national/anti-social elements and religious organizations, on the dictate of ISI and foreign organizations, have indulged in getting the peoples converted in Islam by getting funds from foreign countries for this purpose. Such anti-national/anti-social elements have targeted the people by creating and promoting rumor about other religion by giving hatred speech, by insulting the religion and religious feelings of a class of citizens with deliberate and malicious intention. It also alleged that such anti-social and anti national have targeted the peoples of weaker sections of the society, children, women and people belonging to Scheduled Caste and Scheduled Tribes etc. During interrogation it came out that accused, who is a converted Muslim, was involved in getting the citizen of another religion converted to Muslim religion on large scale and about 1000 non-muslims have been converted and married with muslims, it also came out that accused and his associates are running an organization, namely, Islamic Dawa Centre for the said purpose of conversion and huge fund is being provided to Islamic Dawa Centre from different sources including foreign countries. It also came out that students of deaf and dumb school, namely, NOIDA Deaf Society have been converted in illegal manner by practicing misrepresentation, allurement and fraudulent means.

Counsel for appellant argued that appellant is not the member of any association nor involved in any crime and he had been falsely been roped in the crime in question without any evidence.

The Court after considering the facts and circumstances of the case, particularly the fact that the Investigating Officer, after due investigation, has found cogent and clinching evidence against the appellant that with the connivance of co-accused, appellant was involved in anti-national activities of conversation by misusing his official position while working in Sign Language Training and Research Centre, New Delhi as Interpreter found that there were no good grounds to grant bail to the appellant.

The criminal appeal was dismissed.[Irfan Shaikh v. State Of U.P., 2022 SCC OnLine All 195, decided on 25-03-2022]


Counsel for Appellant :- Furkan Pathan, Aarif Ali, O.P. Tiwari

Counsel for Respondent :- Mr S.N. Tilhari, G.A


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsForeign Courts

As the proceedings in #hijabrow continue in Karnataka High Court, we bring you another interesting decision from Foreign Court, wherein the Federal Court of Malaysia laid down some very pertinent observations.


In the year 2006, the Federal Court of Putrajaya deciphered whether the wearing of Serban/turban was essential practice for Muslim boys.

The School Regulations 1997 stipulated that the uniform for male pupils comprised of blue-black long pants, a white short sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provided that black or blue songkok was allowed to be worn. However, in Regulation 3(i)(i) all pupils were prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah.’

In this case from Malaysia, the minors were advised not to wear the turban so as to comply with the School Regulations 1997.

Since the minors continued to refuse to comply with the regulations, they were expelled from the school. On Challenging the said decision, the High Court found that the School Regulations 1997 were unconstitutional but the same was reversed by the Court of Appeal.

Federal Court considered the question, whether the School Regulations 1997, in so far as it prohibited the wearing of turban by the students of the school as part of the school uniform during school hours was constitutional or not?

The Court of Appeal decided whether the right to wear a “Serban” was an integral part of the religion of Islam. To answer this Court said that “there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is, therefore, an integral part of Islam.”

In applying “the integral part of the religion” test Court of Appeal referred to certain decisions from the Indian Supreme Court i.e. Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, Javed v. State of Haryana, (2003) 8 SCC 369 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta [2004] 2 LRI 39.

Proceeding further, the Court added that, the Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?

Federal Court asserted that it was only concerned with the word “practice his religion”.

“…in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos.”

The approach that the Court adopted to was that:

First, there must be a religion.

Secondly, there must be a practice.

Thirdly, the practice is a practice of that religion.

Once the above-said is proved, the Court should then consider the importance of the practice in relation to religion. To add to this, Court elaborated stating that if the practice is of a compulsory nature or “an integral part” of the religion, the Court should give more weight to it. If it is not, the court, depending on the degree of its importance, may give lesser weight to it.

The Court also stated that A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition.”

“Islam is not about turban and beard.”

The Court expressed that, according to Shari’ah the obligation to perform even a mandatory practice like the five daily prayers is only mandatory on Muslims who have attained the age of majority, usually taken to be 15 years of age for boys. It could be seen that with regard to practices that are mandatory, the Shari’ah treats adults and children differently, like any law, for that matter.

In this case, the Court noted that the Al-Quran makes no mention about the wearing of turban and also there had been no “fatwa” in Malaysia on the wearing of the turban.

Bench expressed that,

“I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?” 

Talking about prohibition, the Court asserted that the students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, ie, during school hours. They are not prevented from wearing the turban at other times.

Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T- shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah?

Court even suggested changing the school in case there was an issue with the dress code, for e.g., to a “pondok” school that would allow them to wear the turban.

Interestingly, moving forward the Court detailed out by stating that the appellants were in their formative years and when they should be attending school, studying and playing, obeying the school discipline, etc. but they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities.

After placing down all the above observations, the Court held that the School Regulations 1997 in so far as it prohibited the students from wearing a turban as part of the school uniform during school hours did not contravene the provision of Article 11(1) of the Federal Constitution and it was not unconstitutional.


Read other decisions that were on similar lines


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

https://www.scconline.com/blog/post/2022/02/18/what-bombay-high-court-held-when-a-muslim-girl-raised-the-issue-that-asking-her-not-to-wear-a-headscarf-in-school-violates-her-fundamental-right-under-article-25-of-the-constitution/

Case BriefsHigh Courts

Karnataka High Court: While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

Court also remarked that, “Whether wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees, needs a deeper examination.”

Petitions were filed challenging the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.

Some of the petitions raised challenges to the Government Order dated 5-2-2022 which directed the college Development Committees all over the State to prescribe ‘Student Uniform’, presumably in terms of Rule 11 of Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc.) Rules, 1995.

Vide an order dated 9-2-2022, Single Judge, Krishna S. Dixit, J., referred the cases to Chief Justice to consider if the said matters could be heard by a Larger Bench ‘regard being had to enormous public importance of the questions involved’. Accordingly, the Special Bench was constituted.

Analysis and Decision

High Court was pained by the ongoing agitations and closure of educational institutions since the past few days, especially when this Court is seized off this matter and important issues of constitutional significance and of personal law are being seriously debated.

“…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true.”

 Further, the Court added that the above stated right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India.

“Ours being a civilized society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace and tranquility.”

Concerned with the timelines of admission to higher studies/courses, Bench stated that the elongation of academic terms would be detrimental to the educational career of students.

Hoping and trusting all stakeholders and the public at large to maintain peace and tranquility, Court expressed that the interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions.

Therefore, the High Court requested the State Government and other stakeholders to reopen the educational institutions and allow the students to return to the classes at the earliest.

Lastly, the Court clarified that the present order/direction shall be confined to such institutions wherein the College Development Committees have prescribed the student dress code/uniform.

For further consideration, the matters were listed on 14-2-2022. [Resham v. State of Karnataka, WP No. 2347 of 2022, decided on 10-2-2022]

Note: Proceedings are still going on in the present case.


Advocates before the Court:

For the petitioners:

Senior Advocates, Sanjay Hegde and Devadatt Kamat

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of P.V. Kunhikrishnan, J., stayed the release of Malyalam film “Aquarium “apprehending it to be defamatory to the Roman Catholic Christians. The Bench opined that, this is a matter to be heard in detail.

The petition was filed to seek  stay on the operation of the certificate granted as per the certificate No. DIL/3/1/2020-THI pending disposal of the writ petition. According to the senior counsel the script of a cinema which is to be telecasted in OTT platform based on the above certificate is highly defamatory to the Roman Catholic Christians. It was alleged that there are defamatory statements about nuns.

The Bench, while refusing to make any observation about the contents of the script, opined, “there is a pandemic situation. The entire State is under lock down. The apprehension of the petitioners is that if the cinema by name ‘Aquarium’ is released in the online platform, it will damage the sentiments of the petitioners and their community. This is a matter to be heard in detail. The jurisdiction of this Court is also to be decided in detail.

Hence, the Bench passed an interim order to stay all further proceedings with regard to certification granted to the said film for a period of two weeks.

[Josia S.D v. Union of India, 2021 SCC OnLine Ker 2144, order dated 11-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Counsels for the Petitioner: George Poonthottam and John Varghese

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of S.C. Gupte and Abhay Ahuja, JJ., permitted the distribution of Ayambil food to be served to the Jain devotees during their 9 days of fasting.

Petition sought a mandamus requiring Respondent-State and local authority to allow petitioners and other 58 Jain Trusts to open their temples for Jain devotees in keeping with Standard Operating Procedure (SOP) declared by the State.

The grievance of the petitioners concerned was that a special food called “Ayambil” to be served to their devotees during a period of 9 days fast commencing on 19th April 2021 for a religious penance called “Ayambil Oli Tap”.

Since, as per the State SOP order dated 13-04-2021, it was not permissible to open temples for worship by devotees, counsel for petitioners restricted the petition for catering to community devotees Ayambil food during the period of 9 days penance.

SOP of the State does not permit any dining hall to operate so as to allow in-room dining for any number of people. Hence, direction has been sought that respondents shall allow devotees to take away free of charge pious Ayambil cooked food from Jain Religious Trusts’ premises.

Bench opined that in view of the number of devotees to whom each religious trust may have to cater to, such delivery system may well be operated through volunteers not exceeding 7 in number by each concerned religious trust or through organized delivery chains who are permitted to deliver food under the State SOP.

High Court disposed of the petition in following terms:

  • Respondent-State shall allow the Petitioner trust together with 58 others to make use of the kitchens in their temples for preparation of special cooked pious food, Ayambil, and distribute the same to Jain devotees in accordance with the following manner during the penance days of ‘Ayambil Oli Tap’ commencing from 19 April 2021 and ending on 27 April 2021;
  • Each of the Petitioners and the trusts shall organize delivery of such cooked food through teams of volunteers not exceeding 7 persons for each trust or through professional distribution service agencies.
  • In preparing the food and executing its delivery, the trusts and their agents shall abide by the guidelines issued by the State
  • Name and particulars of the volunteers/delivery agents to be communicated to the jurisdictional police stations/authorities concerned
  • Under no circumstances, devotees shall be allowed to enter the temple premises for taking away pious Ayambil food allowed by this order

[Shree Trustees Atma Kamal v. State of Maharashtra, WP (L) No. 10154 of 2021, decided on 16-04-2021]


Advocates before the Court:

Mr. P.B. Shah a/w Ms. Gunjan Shah i/b Kayval P. Shah for the Petitioners.

Ms. Jyoti Chavan, AGP for Respondent Nos.1 and 2-State.

Ms. Rupali Adhate for Respondent No.3-MCGM.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., observed that an adult woman is free to marry the person of her choice covert.

In the instant matter, it was traced out that the girl’s age was 19 years old and she married a person of her choice and doesn’t want to return to her parental home.

Upon the petitioning father complaining that his daughter’s statement under Section 164 of the CrPC may not have been recorded in an atmosphere where she felt comfortable, the 19-year-old girl was required to meet the senior-most Additional District Judge and for sufficient care to be taken so that she was not under any coercion or undue influence.

Despite a clear and clean report, father harboured some suspicion.

Bench held that,

If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.

Matter has been listed on 24-12-2020.[Palash Sarkar v. State of W.B., WPA No. 9732 of 2020, decided on 21-12-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., directed for no coercive action to be taken against a person booked under Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and highlighted the significance of the right to privacy.

Petitioner sought the issuance of a writ of certiorari quashing the impugned FIR under Sections 504, 506 and 120-B IPC and Section 3/5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020.

The victim is the informant’s wife and mother of two children. Allegation against the petitioner was that he used to visit informant’s house and taking due advantage of acquaintance with the informant’s wife, he attempted to persuade her to change her religion so that he may marry her.

Senior Counsel on behalf of the petitioner submitted that as far as the validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 was concerned, same is the subject matter of challenge in Writ (PIL) Nos. 1756 of 2020 and 1757 of 2020, but the present case, is in regard to upholding the right of privacy as a basic fundamental right covered by Part-III of the Constitution.

Further, it was added to the submissions that no material to substantiate the above contentions were raised and were based on mere suspicion.

Decision

Article 25 provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part-III of the Constitution.

Bench observed that no material was placed before the Court which would show that any force or coercive process was being adopted by the petitioner to convert informant’s wife.

Adding to its observation, the Court also expressed that the victim being an adult understands her well being.

She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship.

Referring to the Supreme Court’s decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, the Bench stated that Right to Privacy was upheld in the said decision.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, issue of the right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

Present is a case where all the allegations are prima facie based on suspicion.

In view of the above discussion, the Court stated that the matter requires consideration.

The matter has been listed for consideration on 07-01-2021 and till the next date, no coercive measure shall be taken against the petitioner.[Nadeem v. State of U.P.,  2020 SCC OnLine All 1496, decided on 18-12-2020]


Advocates who appeared before the Court: 

Counsel for Petitioner: Syed Ahmed Faizan, Syed Farman Ahmad Naqvi (Senior Adv.), Zaheer Asghar

Counsel for Respondent: G.A.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha and Sachin Shankar Magadam JJ., disposed off the petition due to the limitation of its scope regarding the production of the individual only before the Court.

The instant writ petition in the nature of habeas corpus was filed by the petitioner seeking direction to respondents to produce Kum. Ramya G. before Court and set her at liberty.

The daughter of the petitioner Kum Ramya G was presented before the Court by the jurisdictional police and submitted that she is staying at Mahila Sakshatha Samithi, Vidyaranyapura and pursuant to the complaint lodged by her alleging infringement of her right to liberty caused by her parents relating to her marriage with the petitioner. She further submitted that she is in love with one of her colleague working at IQVIA as a software engineer but her parents are not giving permission.

The Court thus observed that a right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India and the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion.

In light of the aforesaid observations, Court held that the petition being limited to production of the person before the Court only, no interference to be made in other reliefs.

In view of the above, petition was disposed off.[Wajeed Khan v. Commr. of Police, W.P.H.C No. 92 of 2020, decided on 21-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Legislation UpdatesStatutes/Bills/Ordinances

Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020

This Ordinance has been promulgated by the Governor of Uttar Pradesh, for the purpose of providing prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith.

Prohibition of conversion from one religion to another by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage [SECTION 3]

The ordinance states that no person shall convert or attempt to convert any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage.

If any person reconverts to his/her immediate previous religion, the same would not come under the ambit of this Ordinance.

Persons competent to lodge FIR [SECTION 4]

Aggrieved, his/her sister/brother, parents or any other person who is related to him/her by blood, marriage or adoption can file an FIR and report of such conversion that contravene the provisions of Section 3.

The ordinance lays down the punishment for contravention of provisions of Section 3 under Section 5.

Marriage done for the sole purpose of Unlawful Conversion or vice-versa to be declared void [SECTION 6]

If marriage is conducted for the sole purpose of unlawful conversion or vice-versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage or converting the woman either before or after the marriage shall be declared void.

Non-bailable and Cognizable [Section 7]

All the offences under this Ordinance shall be cognizable and non-bailable and triable by the Sessions Court.

Declaration before Conversion of religion and pre-report about conversion [SECTION 8]

Person who desires to convert to some other religion needs to provide a declaration in the form prescribed in Schedule-I at least sixty days in advance either to the District Magistrate or Additional District Magistrate and states that the same is being done with his/her free consent and without any force, coercion, undue influence or allurement.

Religious convertor who shall perform the above-stated act of conversion will also have to give one month’s advance notice in the form prescribed in Schedule -II TO District Magistrate or Additional District Magistrate regarding where the said ceremony would take place.

Declaration post-conversion of religion [SECTION 9]

The converted person shall send a declaration in the form prescribed in Schedule-III within 60 days of the date of conversion, to the District Magistrate in which the converted person resides ordinarily.

Punishment for violation of provisions of Ordinance by an institution or organization [SECTION 10]

If any institution or organization violates the provisions of the ordinance, they shall be subjected to punishment as provided under Section 5 and the registration of the said institution or organization shall stand cancelled.

Burden of Proof [SECTION 12]

The burden of proof of whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage would lie on the person who caused the conversion and where such conversion was facilitated by any person on such other person.

The above Ordinance will extend to the whole of Uttar Pradesh.


Details of the Ordinance can be read here: UP_Prohibition_of_Unlawful_Conversion_of_Religion_Ordinance,_2020

Case Briefs

Supreme Court: While stating that the Jharkhand High Court has rightly ordered that Shravani Puja cannot be held holding big congregation fair not even the Kanwar yatra could be permitted due to COVID 19, the bench of Arun Mishra, BR Gavai and Krishna Murari, JJ noticed that total restrictions imposed by the High Court for entire months of Shravan and Bhado was not proper and that it should have been left at the discretion of the State Government, if Government can make an arrangement to permit restricted entry of general public in the temple maintaining social distancing.

“The High Court ought not to have directed that no entry should be permitted in the months of Shravan and Bhado. It is basically for the State Government to take a call on this.”

The High Court had, on July 3, 2020, passed an order that online darshan should be allowed during the entire course of Shravani Puja. Accordingly, directions have been issued for online darshan. At the same time, the High Court had also ordered that Puja of Jyotirlinga would continue during the month of Shravan and Bhado, but the same will be done by the temple trust without allowing any public participation.

The Court was also alarmed by the fact that thousands of pandas are gaining entry into the temple premises every day whereas entry of general public is not being allowed at all even in premises to have darshan from distance. On this, it said,

“we are not happy with the situation that thousands of pandas are being permitted entry in the temple every day. This cannot be said to be very conducive situation so as to prevent the spread of virus Covid 19. Entry of such large number of pandas, as alleged, should not be permitted.”

The Court said that the State and Trust should have made an arrangement for regulated entries of pandas while maintaining social distancing.

“… the State Government ought to have permitted systematically at least few hundred numbers of general public on the basis of online booking, giving them different timings of darshan, so that large congregation does not take place and maintaining social distancing for darshans at important festivals of the year but State has not done it so far and only two days are left from the final day of the Shravan month.”

It, hence, asked the State Government and the Temple Trust make an arrangement that no large congregation takes place even of pandas in the temple premises and Garbh Grih. It is The State Government must ensure that only limited number of persons, maintaining social distancing, be that they are pandas and priests of the temple, enter the premises at the same time in the temple premises.

The Court, however, refrained from issuing directions to the State Government to provide the entry. And requested it to find out a possibility for darshan, which ought to have been done for general public as is being done in Ujjain, an another Jyotirligam. In Ujjain, 300 persons are being allowed on the basis of prior online booking, giving them different timings. The Court requested the State Government to, if possible, permit darshan on the day of Purnima and in the month of Bhado also.

It, further, requested the State to find out a possibility of limited entry of general public in temples, churches and mosques in the State. If not outside State, at least the person from within the State as is being done at some other places.

“We direct consideration not only for the temple but in all such religious places whether it be Churches or Mosques, entry of limited number of persons/devotees should have been allowed as is being done throughout India. The State cannot shirk from its responsibility to enforce the social distancing norms, particularly when there is opening up of such places throughout the world.”

[Nishikant Dubey v. Union of India, 2020 SCC OnLine SC 616 , order dated 31.07.2020]

Supreme Court of The United States
Case BriefsCOVID 19Foreign Courts

Supreme Court of The United States (SCOTUS): In a 5:4 decision, the majority  comprising of John G. Roberts Jr., Chief Justice, and Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elana Kagan, JJ., denied permission to Calvary Chappel, a Nevada church, to hold services on the same terms which were allowed by the State Directive to casinos and certain other facilities. However, strong dissent was registered by the remaining Judges on the Bench – Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch, JJ.
The application by the Church for injunction was denied by the Court in a single sentence:
“The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”
Alito, J. ( joined by Thomas and Kavanaugh, JJ. in his dissent) observed:

“Constitution guarantees the free exercise of religion.”

Constitution says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance.

The dissenting Judges were of the view that:
The State of Nevada in view of the directive has discriminated in favor of the powerful gaming industry.

Attendance at Religious Services (the State Directive)

Governor of Nevada issued a directive that severely limits attendance at religious services. 

According to the directive, it has been stated that a church, synagogue or mosque regardless of its size may not admit more than 50 persons but casinos and certain other favored facilities may admit 50% of their maximum occupancy.


Calvary Chapel Dayton

The said church wished to host worship services for about 90 congregants with all the precautions being adhered to. But hosting the said worship service would violate the Directive 21 issued by Nevada Governor.

Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.

Citing the heterogenous treatment, Calvary Chapel sought injunction allowing it to conduct services in accordance with its plan stating the adherence of all the measures required in view of COVID-19 Pandemic.

Disparate Treatment

Though the relief was denied, the dissenting Judges were of the view that at the outset of an emergency, it may be appropriate for Courts to tolerate very blunt rules that imposed unprecedented restrictions on personal liberty, including the free exercise of religion. That is what has happened thus far. But State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.

Carte Blanche

A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.

The dissenting Judges noted that the problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship.

“…while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.”

The directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

Observations of dissenting Judges:
Alito, J., who was joined by Thomas and Kavanaugh, JJ., placing a dissenting opinion, stated that preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.

He suggested, the idea that “allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow”: For casinos, operating at 50% is likely to mean thousands of people, standing close together and drinking alcohol, which requires them to take off their masks.

Gorsuch, J.,  dissenting from denial of application for injunctive relief, stated that,

“In Nevada, it seems, it is better to be in entertainment than religion.”

But the 1st Amendment prohibits such obvious discrimination against the exercise of religion.

“…there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Kavanaugh, J., adding to Alito, J.’s dissent, stated that Nevada’s discrimination against religious services violates the Constitution.

Risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.[Calvary Chapel Dayton Valey v. Steve Sisolak, Governor of Nevada, 591 US __ (2020), decided on 24-7-2020]

Hot Off The PressNews

Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.D. Rajan, J. declared the election of one K.M. Shaji as void, for having used corrupt practices and unduly influencing voters by creating a religious divide.

Petitioner filed the instant petition to challenge the election of respondent to the Azheekode Assembly Constituency. His case was that: (i) respondent, being a Muslim candidate, had appealed to voters belonging to Muslim community to vote for him on the ground of religion, and (ii) he had distributed pamphlets accusing petitioner of having an extra-marital relationship with Ms. Saritha (an accused in the solar scam case – a major issue in 2016 Kerala General Assembly Election).

The Court noted that the respondent had appealed to Muslim voters to refrain from voting for petitioner on the ground that he was a non-Muslim. Pamphlets as to petitioner’s personal life were false and published with the intention to defame him. It was observed that publication of such pamphlets had created misunderstanding among the voters and affected petitioner’s election prospects.

The Court noted Apex Court’s opinion in Krishnamoorthy v. Sivakumar, 2015 (3) SCC 467 where it was held that any direct or indirect interference/attempt to interfere on part of a candidate amounts to undue influence.

It was opined that the basic principle underlying Section 123(3) of the Representation of People Act, 1951 (RP Act) is elimination of divisive factors such as religion, caste etc. from the electoral process. Candidates cannot tell the electors that their rivals are unfit to act as representatives of people on the ground of their religion as such an appeal would be on the ground of religion.

In view of the above, the petition was allowed and respondent’s election was set aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act for having committed corrupt practice under Sections 123(3) and 123(4) of the RP Act. He was also disqualified from contesting in any election for a period of six years and subjected to payment of Rs. 50,000 as cost to the petitioner.

Lastly, the Court directed its finding in relation to respondent’s corrupt practice to be forwarded to the President of India for appropriate action under Section 8A of the RP Act; and also directed the High Court to intimate substance of its decision to the Election Commission and the Speaker of the Kerala Legislative Assembly.[M.V. Nikesh Kumar v. K.M. Shaji,2018 SCC OnLine Ker 4953, decided on 09-11-2018]

Case BriefsSupreme Court

Supreme Court: In the petition highlighting the erosion of the Mahakaleshwar Jyotirlingam, Ujjain due to the religious offerings, the bench of Arun Mishra and UU Lalit, J held that the Court cannot dictate or prescribe or restrain the religious practices and Pujas to be performed in temple as they are required to be performed in accordance with the ancient rituals and practices, however, at the same time, it has to be ensured that no damage is caused to the lingam.

The Court, hence, directed that in order to prevent further erosion of Lingam, a should be prepared Plan by the Temple Committee and other stakeholders within reasonable time, regarding the entire offering materials on the lingam to be manufactured and provided by temple itself as is done in several famous temples in the Southern part of India and other places. The Court said:

“By pouring the adulterated Milk, Ghee, Kumkum, Gulal, Abir containing chemicals due to adulteration is improper and cannot be permitted to be part of the ritual. Lingam cannot be permitted to be destroyed by chemical reactions of impure materials or by pouring of the dirty water such acts of offerings cannot be allowed and as are done innocently by the people unaware of ill effect on lingam.”

Regarding the practice of offering of Bhang (Cannabis), the Court said that it is for the Temple Committee to decide on these rituals and which material to be used by it and in which quantity for purpose of Puja by Temple and for how much time, in what manner Bhang should be applied and in what rituals.  The Court also asked the Temple Committee to invite and consider various views for further improvement of the temple.

Noticing that the Mritunjaya Mahadev temple is most ancient Jyotirlingam in one of the ancient cities of India, Ujjain & ‘Simhast’ is also organised 6 years and 12 years which has international importance visited by several millions of people on which thousands of crores of rupees is spent by the Government,  the Court said:

“Puja   is   to be   performed   in   such   a   manner   which   should   be befitting to the deity and not to cause erosion itself of lingam for which so   much   infrastructure   exists.   Lingam   is   known   as ‘Mrityunjaya Mahadev’, who prevents from destruction, it cannot be permitted to be destructed.”

[Sarika v. Administrator, Shri Mahakaleshwar Mandir Committee, 2018 SCC OnLine SC 490, decided on 02.05.2018]

Case BriefsSupreme Court

Supreme Court: After conducting a 6-day hearing during summer vacations, the historic verdict on the validity of Triple Talaq is out and this is what the 5-judge Constitution Bench has held:

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”

The 395-pages long judgment begins with the dissenting opinion of JS Khehar, CJ and SA Nazeer, J where the judges asked the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and requested the different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. CJI, writing the judgment for himself and Nazeer, J said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Stating that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist, the 2 judges said,

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be.”

CJI and Nazeer, J also took note of the fact that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’.

Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It was held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Court, hence, held that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

It was, hence, held that Triple Talaq was not a part of Article 25(1) of the Constitution and hence, the Muslim Personal Board that the ball must be bounced back to the legislature does not hold good as Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

Joseph, J, writing down a separate judgment but agreeing with the majority opinion, said,

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He said that the purpose of the Muslim Personal Law (Shariat) Application Act, 1937 was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq and therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible and hence, there cannot be any Constitutional protection to such a practice. [Shayara Bano v. Union of India, 2017 SCC OnLine SC 963, decided on 22.08.2017]

 

Case BriefsSupreme Court

Supreme Court: Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the Court said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Gopal Subramanium, appearing for the Trust, had submitted that the Trust has not only decided to restore the status-quo ante and permit women to enter the sanctum sanctorum at par with men but passed a specific resolution to that effect on 11th October, 2016. It was also submitted that the Trust has also decided to relay the flooring on both sides of the sanctum sanctorum inside the Dargah meant for men and women pilgrims. The 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ, agreed to the submissions and hence, held that the Trust will be free to relay the flooring and complete the entire process within a period of four months.

The Bombay High Court, had earlier on 26.08.2016, held that the ban imposed by the Trust preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah was violative of Articles 14, 15 and 25 of the Constitution. It was held that under the guise of providing security and ensuring safety of women from sexual harassment, the Trust cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women. [Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, 2016 SCC OnLine SC 1199, decided on 24.10.2016]