New Study Suggests Veteran Advocates Sway United States Supreme Court
By Tony Mauro
Legal Times
10-22-2007
For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild.
The Court's docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.
The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the "inner circle" of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.
But this is not just a "rich get richer" tale about lawyers. Lazarus, founder of the university's Supreme Court Institute, goes a step further to make the claim that the increasing dominance of the veteran Supreme Court Bar is beginning to have an impact on the Court's doctrine.
The study, set for publication soon in the Georgetown University Law Journal, draws a direct and controversial connection between the growth of the Supreme Court Bar and the Court's widely noted new pro-business tilt.
Clients willing to plunk down $100,000 or more for a veteran advocate to petition the Court are elbowing aside the civil rights, civil liberties and labor groups that once helped set the Court's agenda, the study suggests. Recent breakthrough victories for business in tort, antitrust and other areas of the law can't be explained totally by the Court's overall conservative majority, Lazarus says. The elite Supreme Court Bar has played a pivotal role, he asserts.
"The re-emergence of a Supreme Court Bar of elite attorneys ... is quietly transforming the Court and the nation's laws," says Lazarus, recalling the early 1800s, when Daniel Webster, Francis Scott Key and a handful of other lawyers dominated arguments at the Court in landmark cases. Increasingly, Lazarus says, the modern-day Court is ruling in favor of "monied interests more able to pay for such expertise."
Lazarus calls on the Supreme Court Bar -- and the Court itself -- to take steps to reduce the imbalance in advocacy between the well-paid pro-business veterans and those representing other parties, such as criminal defendants and employment discrimination, tort and environmental plaintiffs. "The advocacy gap in the Court between those who can pay and those who cannot," says Lazarus, is "bad for the legal profession, the Court, and its rulings."
LEVELING THE FIELD
But some of the very lawyers Lazarus pinpoints say the problem, if there is one, is already being addressed by increased pro bono work by the veterans and by the recent proliferation of law school Supreme Court clinics that spread their expertise more broadly among parties that need help. Increased competition for fewer cases also means that virtually every private party has multiple offers of help from Supreme Court specialists.
Success Rate for Expert Counsel in Obtaining Supreme Court Review October Term Number of
Petitions Granted Successful Petitions Filed by Expert Counsel Percentage of Successful Petitions Filed by Expert Counsel
1980 102 6 6%
2000 68 17 25%
2005 67 24 36%
2006 64 28 44%
Source: Richard Lazarus, Georgetown University Law Center
Note: Expert counsel is defined as a lawyer who has argued five or more Supreme Court cases, or is affiliated with a firm or organization with at least 10 prior arguments before the Court.
The veterans also dispute the notion that the bar is steering the Court in any direction, pro-business or otherwise. "Effective advocacy can impact the Court, but the heightened success of business has been in the works for 25 years," says Latham & Watkins' Maureen Mahoney, who argued four cases last term. "And you've got seven Republican appointees on this Court who have a high interest in these cases."
Akin Gump Strauss Hauer & Feld's Thomas Goldstein makes a similar point. "We advocates tend to think it's all about the lawyering. But the most important trend by far is the increasing conservatism and pro-business orientation of the justices themselves."
All the highly polished pro-business petitions in the world, he adds, "wouldn't get anywhere on a Court with nine Bill Brennans," a reference to the late liberal lion, Justice William Brennan Jr.
Adds O'Melveny & Myers' Walter Dellinger, "The Supreme Court has such capacity to do its own work. It's increasingly sensitive to the economic consequences of litigation and regulation. I don't think I'd attribute that to the bar."
Robert Long of Covington & Burling also points out, "We all file a lot of cases that are denied." But he agrees with Lazarus that these are salad days for the Supreme Court Bar, in part because of "the reflected luster" of having one of its own, Roberts, occupying the Court's center chair.
In response, Lazarus acknowledges that "the bar alone does not determine the docket." But he asserts the modern Supreme Court Bar is having dramatically more impact than in the past. "If we had essentially the same Court but not this kind of bar, we would not have the same number of business cases."
As for leveling the playing field, Dellinger's own portfolio of cases this term indicates that the high priests of the high court bar can mix business with pro bono clients. Dellinger represents ExxonMobil in its challenge to the multibillion-dollar damage verdict in the Exxon Valdez oil spill case. But his name is also on a petition filed for Humberto Cuellar, a drug smuggler who is challenging the federal money-laundering statute. The Court granted review in the case Oct. 15. Dellinger won't argue the case himself, deferring to a federal defender in Texas, but he says it represents an effort by his firm -- and the Harvard Law School clinic he helps run -- to assist first-time advocates even before the Court grants review.
Lazarus acknowledges the role of the clinics and law firms such as O'Melveny, Sidley Austin, WilmerHale, Jenner & Block, and Mayer Brown, among others, which have worked for years -- mostly unheralded -- to improve advocacy before the high court for criminal defendants and death row inmates. But more needs to be done, he says, including the Court itself granting argument time to established groups such as the National Association of Criminal Defense Lawyers when a defendant's advocate is a first-timer or needs help.
Lazarus' concern has been growing in recent years. Last term, his institute ran moot courts for more than 90 percent of the cases argued before the high court. And in his own field of environmental law, Lazarus has researched the record of near-total defeat for environmental plaintiffs challenging government action or inaction.
From both experiences, Lazarus concludes, "Good advocacy really matters." To a degree that surprised him, Lazarus found that the quality of the briefing and of the oral advocacy -- the way that cases are framed, the arguments that are stressed, and the ones that are omitted -- have a powerful impact on the justices, as independent as they may be.
As an example, Lazarus charts the history of the business community's efforts to convince the Supreme Court that there is a constitutional limit to punitive damages in tort cases. By placing seven of the eight cases in the hands of veterans such as Mayer Brown's Andrew Frey, Theodore Olson of Gibson, Dunn & Crutcher, and Sidley Austin's Carter Phillips, business groups were able to make slow but steady progress -- culminating in last term's Philip Morris v. Williams. In some ways, Lazarus says, the long march toward a favorable outcome on punitive damages mirrored the late Thurgood Marshall's strategic litigation campaign before he became a justice, leading to a civil rights victory in Brown v. Board of Education.
Percentage of Expert Advocates Arguing Before Supreme Court
October Term Percentage of first-time advocates arguing before Court Percentage of advocates with 10 or more prior arguments
1980 76% 3%
2000 62% 9%
2006 52% 26%
Source: Richard Lazarus, Georgetown University Law Center
Note: Chart excludes lawyers from Solicitor General's Office.
The Court's renewed interest in antitrust issues also illustrates the elite bar's power to achieve success, says Lazarus, "not simply by discerning the priorities and interests of the justices but by changing them." The Court heard only two antitrust cases between 1992 and 2002, but since then it has decided 10. All 10 were brought by antitrust defendants appealing unfavorable decisions below, and all 10 were represented by seasoned veterans.
But the dominance of the Supreme Court Bar begins at the petition stage. The Court accepts fewer than 100 of the nearly 10,000 petitions it receives yearly. Yet the veterans, who know how to make a petition attractive to the justices and their clerks, sometimes achieve a 20 percent success rate or higher, Lazarus says -- something that would have been unheard of 20 years ago. In its first year of existence, for example, Goldstein's Stanford Law School clinic worked on four petitions -- and all four were granted.
Given the Court's shrunken docket, the veteran advocates are also busy writing amicus briefs, which, Lazarus documents, have grown in importance at both the petition stage and the merits stage. The number of amicus briefs supporting a petition for review have increased 40 percent in the last 25 years, and petitions that are accompanied by these briefs have a significantly higher chance of being accepted. Once the case is granted, Lazarus calculates, an average of nine amicus briefs are filed in advance of oral argument, triple the number 20 years earlier.
TAKING NO PRISONERS
The apex of amicus brief influence came in the arguments in Grutter v. Bollinger, the landmark 2003 affirmative action case. Justices posed 19 questions about the brief filed by retired military officials supporting affirmative action. Several referred to it as the "Carter Phillips brief," even though the counsel of record was his Sidley Austin partner Virginia Seitz, herself a veteran of the Supreme Court Bar.
The dominance of the specialists is especially visible at oral argument, Lazarus' study indicates. Last term, 26 percent of the advocates who argued before the Court were veterans -- defined as having argued five cases themselves or coming from an organization that has argued 10 cases.
But it is also at oral argument where the veterans say they earn their fees. The intense barrage of high-level questions from justices is not for the faint of heart, Dellinger says. "You can't evade answering their questions," he says. "If you do, they will hunt you down. They take no prisoners."
David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel says, "The specialization has arisen at least in part in response to the Court's uniquely vigorous questioning style, which makes a Supreme Court argument quite unlike an argument in any other court."
Lazarus' article recalls oral arguments on April 25, when Frederick and five other advocates stood before the Court to argue in three cases. Two of the lawyers had argued more than 45 cases each before the justices, and all but one had argued more than 20. The "rookie" had five under his belt. Frederick, arguing his 21st case, had also appeared the week before. Lazarus writes of that day, "The modern Supreme Court Bar had arrived."
Monday, October 22, 2007
Wednesday, October 17, 2007
Nibbling away Freedom of Faith in India
Religious freedom in India 'shrinking' says Christian author
Feature ENI-07-0800
By Anto Akkara
Bangalore, India, 17 October (ENI)--Despite India remaining the world's most populous and vibrant democracy, freedom of religion is steadily on the decline, says John Dayal, a journalist-turned-Christian activist, who is now national president of the 1919-founded All India Catholic Union and secretary general of the All India Christian Council .
"Many of the rights have been systematically diluted over the years by governments, courts and fundamentalist forces," Dayal told Ecumenical News International in an interview on 13 October about his soon-to-be-released book on religious freedom in India.
"A Matter of Equity: Freedom of Faith in Secular India" is a critique of religious freedom in the country. Dayal says that this freedom, or lack of it, ranges from the steady dilution of constitutional guarantees to harsh treatment meted out to Christians and minorities in every corner of the country.
The book is a collection of articles Dayal wrote both as a journalist, and after he became outspoken on issues concerning India's Christian community.
In his writings, Dayal describes a steady upsurge in anti-Christian violence from the late 1990s, when the Hindu nationalist BJP (Bharatiya Janata Party) emerged as a strong political force.
"Even before the BJP came up, religious freedom had been facing curbs both by the government and the judiciary," says Dayal, who lists several documents in his book to support his claim.
He points out that the first anti-conversion bill, which restricts people converting to Christianity was introduced by the avowedly secular Congress party in the 1960s. The BJP, This, Dayal asserts, now emulates this legislation.
He adds that Christians enjoyed "better religious freedom three decades ago
than now," and notes that often lower courts in several areas have been "hostile to Christian grievances where they get little relief".
While India stopped allowing missionaries to enter the country decades ago, Dayal notes that, "Christian missionaries who have done exemplary service to the nation have been unceremoniously packed off by the government denying them visa extensions on one pretext or other."
Apart from that, the author says that the State machinery has been used to harass Christians and their institutions, even by secular governments.
"In this context, one will wonder what is the meaning of the religious freedom spelt out under fundamental freedom in our constitution," Dayal adds.
"But, what we (Christians) have faced from 1990s has capped it all," argues Dayal, who has visited almost every troubled spot in the country following attacks on Christians.
"A Matter of Equity" cites systematic and orchestrated attacks on Christian targets by Hindu fundamentalist forces that the author laments as being rooted in a "belief in violence".
Dayal says that during recent times India has recorded hundreds of incidents of deliberate violence against Christians, including the murders of priests, rapes of nuns, and brutal assaults on missionaries, besides attacks on Christian gatherings and buildings.
On the other hand, following the steady rise in atrocities, Dayal says, churches have also begun to speak up and come out on to the streets.
However, Dayal says that church leaders have failed to provide strong leadership for the 26 million Christians in India, or "to demand from the government what has been taken away over the decades".
:: A Matter of Equity: Freedom of Faith in Secular India, by John Dayal, is published by New Delhi-based Anamika Publishers and Distributors Pvt Ltd,500 pages, 800 Indian rupees. [565 words]
The book is available from catholicunion@gmail.com, postage free
Ecumenical News International
PO Box 2100 CH - 1211 Geneva 2 Switzerland
Feature ENI-07-0800
By Anto Akkara
Bangalore, India, 17 October (ENI)--Despite India remaining the world's most populous and vibrant democracy, freedom of religion is steadily on the decline, says John Dayal, a journalist-turned-Christian activist, who is now national president of the 1919-founded All India Catholic Union and secretary general of the All India Christian Council .
"Many of the rights have been systematically diluted over the years by governments, courts and fundamentalist forces," Dayal told Ecumenical News International in an interview on 13 October about his soon-to-be-released book on religious freedom in India.
"A Matter of Equity: Freedom of Faith in Secular India" is a critique of religious freedom in the country. Dayal says that this freedom, or lack of it, ranges from the steady dilution of constitutional guarantees to harsh treatment meted out to Christians and minorities in every corner of the country.
The book is a collection of articles Dayal wrote both as a journalist, and after he became outspoken on issues concerning India's Christian community.
In his writings, Dayal describes a steady upsurge in anti-Christian violence from the late 1990s, when the Hindu nationalist BJP (Bharatiya Janata Party) emerged as a strong political force.
"Even before the BJP came up, religious freedom had been facing curbs both by the government and the judiciary," says Dayal, who lists several documents in his book to support his claim.
He points out that the first anti-conversion bill, which restricts people converting to Christianity was introduced by the avowedly secular Congress party in the 1960s. The BJP, This, Dayal asserts, now emulates this legislation.
He adds that Christians enjoyed "better religious freedom three decades ago
than now," and notes that often lower courts in several areas have been "hostile to Christian grievances where they get little relief".
While India stopped allowing missionaries to enter the country decades ago, Dayal notes that, "Christian missionaries who have done exemplary service to the nation have been unceremoniously packed off by the government denying them visa extensions on one pretext or other."
Apart from that, the author says that the State machinery has been used to harass Christians and their institutions, even by secular governments.
"In this context, one will wonder what is the meaning of the religious freedom spelt out under fundamental freedom in our constitution," Dayal adds.
"But, what we (Christians) have faced from 1990s has capped it all," argues Dayal, who has visited almost every troubled spot in the country following attacks on Christians.
"A Matter of Equity" cites systematic and orchestrated attacks on Christian targets by Hindu fundamentalist forces that the author laments as being rooted in a "belief in violence".
Dayal says that during recent times India has recorded hundreds of incidents of deliberate violence against Christians, including the murders of priests, rapes of nuns, and brutal assaults on missionaries, besides attacks on Christian gatherings and buildings.
On the other hand, following the steady rise in atrocities, Dayal says, churches have also begun to speak up and come out on to the streets.
However, Dayal says that church leaders have failed to provide strong leadership for the 26 million Christians in India, or "to demand from the government what has been taken away over the decades".
:: A Matter of Equity: Freedom of Faith in Secular India, by John Dayal, is published by New Delhi-based Anamika Publishers and Distributors Pvt Ltd,500 pages, 800 Indian rupees. [565 words]
The book is available from catholicunion@gmail.com, postage free
Ecumenical News International
PO Box 2100 CH - 1211 Geneva 2 Switzerland
Saturday, October 6, 2007
It is time to challenge Himachal Government in High court
Chhattisgarh Governor holds back anti conversion bill and seeks top legal advice, but Himachal makes it law
Christians decide it is time to challenge Himachal Government in High court
[JOHN DAYAL’S NOTE: NEW DELHI 6TH October 2007: This has been a momentous, if negative, week in the history of Freedom of Faith in India. In the dock are both the Bharatiya Janata party, ideologically aggressively opposed the presence of Christianity and Islam on the soil of India, and the Congress party, sworn to a secular political thesis but easy prey to competitive Hindu fundamentalist arguments as it seeks to retain its century-old political supremacy in India. The Congress government in Himachal Pradesh, the Himalayan State, has at last formulated the bureaucratic rules which will allow Police and Civil officers to monitor conversions to Christianity, and other faiths, in the province, and punish pastors with prison terms and massive fines. I have been waiting for these rules to be formulated ever since the laws were passed by the legislature and then affirmed by the State Governor many months ago, Though the Governor had given his assent, we could not move the Himachal High court as it would have been premature. In Gujarat in similar circumstances, we failed to get a response from the High Court which reminded us Legislative Acts could be challenged only after appropriate rules were put on the Statutes. Our first step now is to move under the Right ton Information to ask the State government the number of actual cases of fraudulent and forcible conversion to Christianity it has recorded in past years to justify its claim that such harsh laws had become necessary in a State where minority communities are barely visible in census figures. In Chhattisgarh, carved out of Madhya Pradesh [both are currently ruled by the Bharatiya Janata Party], the Congress-appointed Governor however has resisted the administration’s efforts to sharpen an existing similar law. The Governor has sought the opinion of Union law officers in New Delhi on the constitutionality of the law. The present Vice President of India, Mr Hamid Ansari, had in his earlier appointment as Chairman of the National Minorities Commission pilloried such laws as injuring Freedom of Faith and going against the national Constitution. The current President of India, Mrs Pratibha Patil, too had refused to sign a similar Bill when she was Governor of Rajasthan, another state ruled by the Bharatiya Janata Party. Ironically, she will now have to give her decision on the same Bill. Union law officers, including the Solicitor General of India, have made it clear that in their opinion such laws are an anathema to the secular credentials of the Constitution of India. It remains to be seen how the Himachal High Court will rule. We are seeking the assistance of the best legal brains in this cause. I give below reportage and texts of the latest move in Himachal Pradesh and the advice of the Solicitor General of India. Goolam E Vahanvati to the Madhya Pradesh government’s so called Freedom of Religion Bill which adds to the original Act passed some decades ago.]
In Raipur, Chhattisgarh governor E S L Narasimhan has referred the BJP state government's anti-conversion Bill to attorney-general of India Milon Banerjee for legal opinion. Official sources said the governor has sought clarifications from Banerjee on certain provisions of the Bill. Legislative affairs minister Ajay Chandrakar confirmed that the Chhattisgarh Religious Freedom (Amendment) Bill, which was passed by the state Assembly in mid-2006, is yet to receive the governor's assent. "However, I won't be able to specify the nature of clarification sought by the governor," he said. When contacted for an explanation about the governor's action, secretary to the governor PC Dalai neither confirmed nor denied the development. The Bill has a provision of "penalising those who change their faith without informing concerned authorities".
The clarification sought by the governor relates to the provision that would make reconversion simple. According to the draft Bill, a person born to parents who had changed their faith could convert to their original faith or that of his or her forefathers without any hindrance. It would not be considered conversion. The governor's decision assumes significance as Chhattisgarh is preparing for polls in 2008. "The delay in getting gubernatorial assent has put the BJP government in a spot," a source said. The Bill has been pending for more than a year as even Narasimhan's predecessor K M Seth had denied assent.
According to the Bill, people wishing to change religion must inform the district magistrate a month in advance. The penalty for those violating the law, including those who convert people forcibly, could be between Rs 50,000 and a Rs 1 lakh with imprisonment of up to five years.
Former Rajasthan governor Pratibha Patil, too, had referred the Bill to then president APJ Abdul Kalam.
In the Case of Madhya Pradesh, the Solicitor General of India faulted the state’s Freedom of Religion Bill.
The following is the text of the Solicitor General’s note:
OFFICE OF SHRI G E VAHANVATI SOLICITOR GENERAL OF INDIA, SUPREME COURT, NEW DELHI 110 001
Dy. No. 1166/07 dated 3/5/07, Deptt. of Legal Affairs
I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1) shall be punishable with fine which may extend to one thousand rupees.
Whoever fails to comply with the provision of sub-section (2) shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”
The following changes may be highlighted:
Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “regarding the objections, if any, to the proposed conversion.”
No provision is made for the consequences of an adverse report.
Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1)&(2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?
The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
I do not agree with the view that a Superintendent of Police may report that the conversion is “forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
Looked at from another point of view, the assumption is that if a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.
I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report (merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “public order.”
In my opinion, lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion which can have the effect of curtailing the right under article 25 in an unreasonable manner.
In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the unamended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
The Hon’ble Court in the Stanislaus case was not concerned with an “adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.
In the premises, I will answer the queries as under.
Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.
Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&
Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.
Ans. In my opinion, it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.
Q.(iv) There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving an intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.
Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “ objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections ( and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.
Goolam E Vahanvati, Solicitor General of India
III. Vice President Hamid Ansari while he was chairman of the National Minorities Commission had also Congress party chief minister Virbhadra Singh's anti-conversion law in Himachal Pradesh.
The freedom of Religion Act, 2006 enacted by the Legislative Assembly of Himachal Pradesh, received the assent of the Governor on February 18, 2007.
The National Commission for Minorities has examined the provisions of the Act and the Statement of Objects and Reasons. The latter refers to "rise in conversions based on allurement generally" and to " a persistent demand from across the different strata of the society, urging the State Government to curb it" as, otherwise, it may "erode the confidence and mutual trust between the different religious and ethnic groups in the State".
According to the 2001 Census, religious minorities constitute 4.53 percent of the total population of Himachal Pradesh. Of these, Muslims account for 1.97%, Sikhs 1.19%, Buddhists 1.25% , and Christians 0.13%. Media reports relating to the adoption of the Act suggest conversions by "force" to Christianity as the prime motivation for the new law. No specific data on such conversions, however, has been cited officially or in media reports.
The commission has noted with concern the terminology used in the Act and the methodology prescribed for implementing it. The definition of "force" includes "threat of divine displeasure" and " Social excommunication"; neither of these is considered an offence in the Indian legal system.
The Act prescribes that a person intending to convert from one religion to another must give a notice of at least thirty days to the District Magistrate who then "shall get the matter enquired into by such agency as he may deem fit". No time limit is prescribed for the conduct of such an enquiry nor have its modalities been defined. The failure to give such a notice, on the part of the person intending to convert, would be punishable by a fine. No such notice however is required if a person reverts back to his "original religion".
Since provisions of existing law already cover cases in which fraud or force are involved, the specific rationale cited for the enactment is not understood. On the contrary, the provision of notice and enquiry, and that too selectively, is tantamount to a gross interference with the individual liberties of citizens and would allow state functionaries to interfere in matter of personal life and religious beliefs. More seriously, it would impinge on the freedom of conscience, and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution.
In view of these considerations, the National Commission for Minorities expresses its profound concern over the attempt in this Act, and reportedly by similar pieces of legislation contemplated in some others States, to interfere with the basic right of freedom of religion that is the birth right of every Indian. It appeals to the Central and State Governments, civil society groups and individual citizens to recognize the existence of such trends and take timely steps to reverse them.
Christians decide it is time to challenge Himachal Government in High court
[JOHN DAYAL’S NOTE: NEW DELHI 6TH October 2007: This has been a momentous, if negative, week in the history of Freedom of Faith in India. In the dock are both the Bharatiya Janata party, ideologically aggressively opposed the presence of Christianity and Islam on the soil of India, and the Congress party, sworn to a secular political thesis but easy prey to competitive Hindu fundamentalist arguments as it seeks to retain its century-old political supremacy in India. The Congress government in Himachal Pradesh, the Himalayan State, has at last formulated the bureaucratic rules which will allow Police and Civil officers to monitor conversions to Christianity, and other faiths, in the province, and punish pastors with prison terms and massive fines. I have been waiting for these rules to be formulated ever since the laws were passed by the legislature and then affirmed by the State Governor many months ago, Though the Governor had given his assent, we could not move the Himachal High court as it would have been premature. In Gujarat in similar circumstances, we failed to get a response from the High Court which reminded us Legislative Acts could be challenged only after appropriate rules were put on the Statutes. Our first step now is to move under the Right ton Information to ask the State government the number of actual cases of fraudulent and forcible conversion to Christianity it has recorded in past years to justify its claim that such harsh laws had become necessary in a State where minority communities are barely visible in census figures. In Chhattisgarh, carved out of Madhya Pradesh [both are currently ruled by the Bharatiya Janata Party], the Congress-appointed Governor however has resisted the administration’s efforts to sharpen an existing similar law. The Governor has sought the opinion of Union law officers in New Delhi on the constitutionality of the law. The present Vice President of India, Mr Hamid Ansari, had in his earlier appointment as Chairman of the National Minorities Commission pilloried such laws as injuring Freedom of Faith and going against the national Constitution. The current President of India, Mrs Pratibha Patil, too had refused to sign a similar Bill when she was Governor of Rajasthan, another state ruled by the Bharatiya Janata Party. Ironically, she will now have to give her decision on the same Bill. Union law officers, including the Solicitor General of India, have made it clear that in their opinion such laws are an anathema to the secular credentials of the Constitution of India. It remains to be seen how the Himachal High Court will rule. We are seeking the assistance of the best legal brains in this cause. I give below reportage and texts of the latest move in Himachal Pradesh and the advice of the Solicitor General of India. Goolam E Vahanvati to the Madhya Pradesh government’s so called Freedom of Religion Bill which adds to the original Act passed some decades ago.]
In Raipur, Chhattisgarh governor E S L Narasimhan has referred the BJP state government's anti-conversion Bill to attorney-general of India Milon Banerjee for legal opinion. Official sources said the governor has sought clarifications from Banerjee on certain provisions of the Bill. Legislative affairs minister Ajay Chandrakar confirmed that the Chhattisgarh Religious Freedom (Amendment) Bill, which was passed by the state Assembly in mid-2006, is yet to receive the governor's assent. "However, I won't be able to specify the nature of clarification sought by the governor," he said. When contacted for an explanation about the governor's action, secretary to the governor PC Dalai neither confirmed nor denied the development. The Bill has a provision of "penalising those who change their faith without informing concerned authorities".
The clarification sought by the governor relates to the provision that would make reconversion simple. According to the draft Bill, a person born to parents who had changed their faith could convert to their original faith or that of his or her forefathers without any hindrance. It would not be considered conversion. The governor's decision assumes significance as Chhattisgarh is preparing for polls in 2008. "The delay in getting gubernatorial assent has put the BJP government in a spot," a source said. The Bill has been pending for more than a year as even Narasimhan's predecessor K M Seth had denied assent.
According to the Bill, people wishing to change religion must inform the district magistrate a month in advance. The penalty for those violating the law, including those who convert people forcibly, could be between Rs 50,000 and a Rs 1 lakh with imprisonment of up to five years.
Former Rajasthan governor Pratibha Patil, too, had referred the Bill to then president APJ Abdul Kalam.
In the Case of Madhya Pradesh, the Solicitor General of India faulted the state’s Freedom of Religion Bill.
The following is the text of the Solicitor General’s note:
OFFICE OF SHRI G E VAHANVATI SOLICITOR GENERAL OF INDIA, SUPREME COURT, NEW DELHI 110 001
Dy. No. 1166/07 dated 3/5/07, Deptt. of Legal Affairs
I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1) shall be punishable with fine which may extend to one thousand rupees.
Whoever fails to comply with the provision of sub-section (2) shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”
The following changes may be highlighted:
Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “regarding the objections, if any, to the proposed conversion.”
No provision is made for the consequences of an adverse report.
Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1)&(2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?
The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
I do not agree with the view that a Superintendent of Police may report that the conversion is “forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
Looked at from another point of view, the assumption is that if a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.
I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report (merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “public order.”
In my opinion, lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion which can have the effect of curtailing the right under article 25 in an unreasonable manner.
In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the unamended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
The Hon’ble Court in the Stanislaus case was not concerned with an “adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.
In the premises, I will answer the queries as under.
Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.
Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&
Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.
Ans. In my opinion, it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.
Q.(iv) There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving an intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.
Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “ objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections ( and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.
Goolam E Vahanvati, Solicitor General of India
III. Vice President Hamid Ansari while he was chairman of the National Minorities Commission had also Congress party chief minister Virbhadra Singh's anti-conversion law in Himachal Pradesh.
The freedom of Religion Act, 2006 enacted by the Legislative Assembly of Himachal Pradesh, received the assent of the Governor on February 18, 2007.
The National Commission for Minorities has examined the provisions of the Act and the Statement of Objects and Reasons. The latter refers to "rise in conversions based on allurement generally" and to " a persistent demand from across the different strata of the society, urging the State Government to curb it" as, otherwise, it may "erode the confidence and mutual trust between the different religious and ethnic groups in the State".
According to the 2001 Census, religious minorities constitute 4.53 percent of the total population of Himachal Pradesh. Of these, Muslims account for 1.97%, Sikhs 1.19%, Buddhists 1.25% , and Christians 0.13%. Media reports relating to the adoption of the Act suggest conversions by "force" to Christianity as the prime motivation for the new law. No specific data on such conversions, however, has been cited officially or in media reports.
The commission has noted with concern the terminology used in the Act and the methodology prescribed for implementing it. The definition of "force" includes "threat of divine displeasure" and " Social excommunication"; neither of these is considered an offence in the Indian legal system.
The Act prescribes that a person intending to convert from one religion to another must give a notice of at least thirty days to the District Magistrate who then "shall get the matter enquired into by such agency as he may deem fit". No time limit is prescribed for the conduct of such an enquiry nor have its modalities been defined. The failure to give such a notice, on the part of the person intending to convert, would be punishable by a fine. No such notice however is required if a person reverts back to his "original religion".
Since provisions of existing law already cover cases in which fraud or force are involved, the specific rationale cited for the enactment is not understood. On the contrary, the provision of notice and enquiry, and that too selectively, is tantamount to a gross interference with the individual liberties of citizens and would allow state functionaries to interfere in matter of personal life and religious beliefs. More seriously, it would impinge on the freedom of conscience, and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution.
In view of these considerations, the National Commission for Minorities expresses its profound concern over the attempt in this Act, and reportedly by similar pieces of legislation contemplated in some others States, to interfere with the basic right of freedom of religion that is the birth right of every Indian. It appeals to the Central and State Governments, civil society groups and individual citizens to recognize the existence of such trends and take timely steps to reverse them.
Monday, October 1, 2007
Indian Government's subsidy to Religion
[This is published in The bHimal newsmagazine, Kathmandu, this week.Financing faith ]
While there is a lot of talk about the Indian government dismissing the Constitution in order to support some Muslim institutions and rituals, little is said of state support for Hinduism.
By : John Dayal
bilash rai
Do not expect graphs or charts in this article: it covers the Indian government’s spending on religion and related infrastructure, a topic that has long been a closely guarded secret, even within the halls of Parliament. Pertinent information only leaks out when some smart member of the national or state legislature strikes it lucky. One such incident took place last year in the Rajya Sabha, when Minister of State for Human Resource Development D Purandeswari, in a written reply to Andhra Pradesh representative C Ramachandraiah, stated: “The state government of Andhra Pradesh has submitted a proposal for financial assistance of Rs 243.27 lakhs for modernization of madarsas.” This was meant without any irony, even though newspapers were simultaneously reporting a Lok Sabha answer that the union government was seriously considering the enactment of new legislation to check the receipt and utilisation of foreign funds by madrassas and other organisations.
Religion is a touchy subject in India, and the interface of government and religion even more so. Most political parties, including the Congress and the Bharatiya Janata Party (BJP), often come dangerously close to being disqualified from parliamentary politics by the vigilant Election Commission for dabbling in the spiritual with an eye on the electorate and the next elections. To be fair, the Constitution does force on the government an entirely Western concept of the secular state, with religion completely divorced from governance and the instruments of state. Yet tradition and culture nonetheless compel the state players to devise radically new definitions of secularism – from the Nehruvian ‘Equal distance from every religion’, to the BJP’s ‘Equal respect for every religion’. But in this, Hinduism still remains the native, the ‘default’, form. The ‘non-Indic’ – a new term evolved by academics loyal to the Rashtriya Swayamsevak Sangh (RSS) – faiths are ultimately tolerated only as minority panths, or denominations, rather than as separate religions.
The New Delhi government has been challenged repeatedly to state its attitude towards religion – or worse, to take sides in religious wars in the name of communal violence. The controversy surrounding the Babri Masjid is just one such dispute. The latest is the Ram Sethu controversy, where the government’s maritime dream to have a sea channel linking the Bombay and Cochin ports with Madras through Adam’s Bridge, thereby cutting 30 hours out of the shipping time, has long been stymied by Hindu devotees. Top scientists have been dragged into the fray, and by mid-September, the government found itself in the unenviable position of having to tell the Supreme Court that there has been no evidence of Ram, the bridge or Ravan. But roadblocks in various cities, and accusations levelled at Sonia Gandhi’s United Progressive Alliance (UPA) government for “insulting Hindu sentiment”, had the UPA do a quick about-face, and state that “the existence of Ram cannot be doubted”.
Not that other religions have not similarly charged the government with bias. Christians are angry that New Delhi has given Hindu Dalits privileges denied to Christians converted from the same caste. Sikhs, meanwhile, are still nursing wounds from their last encounter with the Indian state, in 1984. Buddhists are fighting for an identity, and Jains are struggling just to establish that they exist separate from Hinduism. Such is life, but it is made more complicated by various maverick judges. For instance, Justice K Srivastava of the Allahabad High Court, on 10 September, just days before his retirement, ruled that Muslims were not to be treated as a minority with special rights, and that the Bhagwad Gita should be regarded as the national holy book.
Muslim monies
If the relationship between religion and state is a shrouded issue in India today, the formal financing of all things religious from the national coffers remains even more out of reach for information seekers. The one time that a bit of light can be shed on the matter is when the issue is raised regarding government subsidies for two items: Haj and madrassas. Indeed, the Indian spotlight remains on Islam, and that light is focused mainly by members of the Hindutva Parivar – in Parliament, in the courts, in academia and in the public discourse.
As D Purandeswari indicated in the Rajya Sabha questioning, the central government does pay for the upkeep of madrassas in most states, and Islamic teachers are paid out of public funds. In addition, there is a sizable subsidy (though the amount is not publicly known) for the propagation of the Urdu language. Most states have also made provisions for financing madrassas, particularly in Uttar Pradesh, Bihar, Bengal, Madhya Pradesh, Maharashtra, Andhra Pradesh and Kerala.
Again, these figures are kept well shrouded, and exact amounts are almost impossible to come by. Data given in provisional budget speeches is in round figures, and most is said to remain unspent. As such, it is all but impossible to estimate exactly how much is spent each year by the central and state governments on madrassas and related scholarship, teachers’ salaries, books and Urdu-language promotion. Even if this figure runs into the billions of rupees, as charged by the Sangh Parivar, it could easily be explained as legitimate expenses for ‘human-resource development’.
The subsidy for Haj is a more complicated matter entirely. There is no equivalent of Haj in any other religion: the Hindu teeraths do not come close, and Christianity has nothing remotely similar. Even in Islam, Haj is obligatory only for those who are in sound health and can afford it. They cannot perform the pilgrimage on borrowed money, nor on the charity of others. There is likewise no mention of help from the state, other than facilitation.
Last year, one B N Shukla went to court against the Haj subsidy, demanding it be withdrawn. His plaint pointed out that the Constitution provides equal status to all Indians, while also restricting the government from giving benefits to one faith at the cost of others. Shukla did not site any official record, but alleged that every year the government spends more than INR 3 billion on more than 100,000 Hajjis. Special flights are run on the national carrier, Air India; air-conditioned Haj houses have been built across the country; and pilgrims are provided free food and lodging during the course of their trip. Even Islamic countries do not give subsidies for Haj, Shukla’s application noted. A notice was subsequently sent to the government, the official response to which was reiterated in its response to a question in Parliament.
The Haj subsidy was formally raised in the Parliamentary Standing Committee on External Affairs during P V Narasimha Rao’s government, following the demolition of the Babri Masjid in December 1992. All parties were represented in the Committee, and the recommendation to reduce and eventually abolish the subsidy was unanimous. Fourteen years later, in 2006, the government reported that 83,000 pilgrims performed the Haj during the previous year, out of which the government subsidised around INR 1.8 billion. For good measure, Parliament was told that 529 Hindu pilgrims performed the Kailash Mansarovar Yatra that same year, at a public cost of INR 17.2 million. Minister of State for External Affairs Anand Sharma, who reported these figures, also said that 8179 people visited Sikh gurudwaras and Hindu temples in Pakistan the previous year. Both groups were given free medical assistance, security and various escorts.
For the RSS, the Haj-related data came at an opportune time. It reported a 500 percent increase in just seven years, which the RSS described as an “alarming, non-secular appeasement of one religious community when one considers that the Indian government is so desperate to reduce food grains and fertiliser subsidy to the large and poor farming community.”
Muslims and secular scholars alike point out that the Haj subsidy began during the early 1970s, after the oil crisis had caused Haj-related transportation prices to skyrocket. It was introduced as something of a stopgap measure – and the charge of official ‘appeasement’ of minorities has lingered ever since. The Haj charter fare was first fixed at INR 6000, before being eventually doubled. Of the 120,000 Indian Muslims who undertook the Mecca pilgrimage this year, some 70,000 went by air, and were able to avail themselves of a subsidy of more than INR 20,000 per person. (There is no subsidy for the 50,000 others who went by ship.) But former Member of Parliament Syed Shahabuddin points out that many Indian Muslim pilgrims come from rural areas, and are not even aware of the government subsidy. As such, much of this money is simply going to an elite group of Muslims, who would, one would assume, least need the taxpayer’s subsidy.
Islam in India further benefits from the public exchequer in the larger mosques, which receive government doles for salaries, annual upkeep and additional expenses. As elsewhere, however, very little information on these headings is public.
Mela monies
The situation with regards to Hinduism is even murkier. Despite the significant attention paid to the interface between the government and Islam, rarely are questions raised regarding government subsidies to Hindu and Sikh pilgrimages, in temple upkeep, in paying for the salaries of Hindu priests, and in maintaining public spaces during such events as the Maha and Ardha kumbhs. (Christians, meanwhile, claim that there is next to no money spent on them, other than by the Archaeological Survey of India on heritage buildings in Goa, or by the British government on graves for soldiers.)
As noted, Hindus do receive government subsidies for pilgrimages to Mount Kailash, and from a variety of sources. First, the Ministry of External Affairs routes INR 3250 to each Kailash yatri. The Uttar Pradesh state government then adds INR 5000 per pilgrim. The Delhi state government adds another INR 5000 for any pilgrim from Delhi. Likewise, the Gujarat government gives a kit worth INR 2500 to every yatri from that state. This kind of subsidy may well be given by other states as well, although such information is not publicly available.
Gujarat presents a particularly interesting case of state money being funnelled towards Hindu causes. The BJP government in 2001 announced that it would begin paying monthly salaries to Hindu priests in the state. During the first phase, each priest of the 354 government-controlled devasthans, or temples, would be entitled to a monthly salary of about INR 1200. The late Haren Pandya, at that time Minister of State for Home Affairs with the additional charge of “pilgrimage development and cow protection”, told the media that priests of other religions were paid from either the Waqf Board or trusts managing the place of worship. The new payments were “to give justice to the feelings of the Hindu society that salaries are being paid to them”, Pandya explained.
There is some information available on the tab for massive Hindu fairs, although much of this spending is merely labelled as ‘infrastructure development’. The grounds of the gargantuan 12-yearly Allahabad Maha Kumbh, for instance, are spread over 1500 hectares. During the last Kumbh Mela, in 2001, the site boasted 12,000 taps, capable of supplying 50.4 million litres of water; 450 kilometres of electric lines and 15,000 streetlights in place; 70,000 toilets; and 7100 sweepers to clean up the mess generated by an estimated five million devotees. There were also 11 post offices and 3000 temporary phone connections, while 4000 buses and five trains were also requisitioned for the mela period. At its peak, the mela administration had more than 80 officials working full time. The budget for all of this was INR 1.2 billion – INR 800 million from the state government, and INR 400 million from the Centre. This did not include the costs of deploying around 11,000 policemen, as well as 40 companies of the Provincial Armed Constabulary and other paramilitary forces.
The case of the Ujjain Ardha Kumbh, in Madhya Pradesh in April 2004, was no different. At that time, Chief Minister Uma Bharati promised that she would do all she could for the festival, which at the time was expecting millions of pilgrims. Bharati ultimately received additional funds from the Centre to the tune of INR 10 billion.
Melas and pilgrimages aside, the government does not reveal how much it costs to broadcast the gurubani from the Golden Temple in Amritsar, nor explain why some temples and church groups receive tax exemptions on commercial activities such as medical colleges, charging hundreds of thousands of rupees in capitation or admission charges.
Faithful monies
Hopefully, right-to-information exercises will soon help the public assess the full extent of direct, indirect and tertiary financing of the faith in India. Or will it?
The courts are themselves not insulated from dabbling or intervening in matters of faith. This is not merely to do with the photographs of Hindu deities in the reception rooms of the Supreme Court in New Delhi. Nor is it only to do with judges like Justice Srivastava and their obviously religious biases. Rather, this is a problem of systemic lack of separation between religion and the judiciary, as well as the other arms of the state, which only public vigilance can expose.
Yet keeping track of government and private funding of religion in India requires apparatus that even the Right to Information Bill seems incapable of offering – at least in its current avatar, in which government reasoning and official notes remain out of the public domain.
It was during the Emergency, in 1976, that Indira Gandhi brought forward the Foreign Contributions Regulation Act (FCRA). This was to keep an eye on – and, if possible, to prevent – the flow of alleged West European funds to the Gandhi Peace Foundation, as well as other organisations that supported the popular agitation led by Jayprakash Narayan. The FCRA has been used largely to scrutinise Christians priests and nuns, a few Muslim groups and secular NGOs who receive funding through official channels. Meanwhile, hawala dealers are able to evade FCRA checks with the same felicity that they avoid Home Ministry surveillance. Recent unofficial research has found that the foreign money coming to large Hindutva and Islamic groups by way of personal donations and hawala transactions runs into the tens of billions of dollars.
The indication of monies received comes only through the visible evidence of where the money has gone. There is a rash of temple-school complexes in about around 100,000 villages in central India and Gujarat that have not been financed through documented means. Meanwhile, the growth of mosques in the Tarai belt along the Nepali border is a visible red rag to Hindu activists. Exactly who pays for the massive rallies sponsored in pursuit of politico-religious agendas remains a question no one wants to answer. The lack of transparency contributes to the increase in fundamentalist activities of all hues, funded by money that enters the country through dubious means.
The question of whether a secular state should be allowed to finance religious activities at all is a part of the extensive debate as to how exactly to define ‘secularism’ in the Indian context. But that politicians in power are potentially able to utilise state funds to further the religious agendas espoused by their parties should surely be a matter of concern for democratic-rights activists and secular citizens alike.
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While there is a lot of talk about the Indian government dismissing the Constitution in order to support some Muslim institutions and rituals, little is said of state support for Hinduism.
By : John Dayal
bilash rai
Do not expect graphs or charts in this article: it covers the Indian government’s spending on religion and related infrastructure, a topic that has long been a closely guarded secret, even within the halls of Parliament. Pertinent information only leaks out when some smart member of the national or state legislature strikes it lucky. One such incident took place last year in the Rajya Sabha, when Minister of State for Human Resource Development D Purandeswari, in a written reply to Andhra Pradesh representative C Ramachandraiah, stated: “The state government of Andhra Pradesh has submitted a proposal for financial assistance of Rs 243.27 lakhs for modernization of madarsas.” This was meant without any irony, even though newspapers were simultaneously reporting a Lok Sabha answer that the union government was seriously considering the enactment of new legislation to check the receipt and utilisation of foreign funds by madrassas and other organisations.
Religion is a touchy subject in India, and the interface of government and religion even more so. Most political parties, including the Congress and the Bharatiya Janata Party (BJP), often come dangerously close to being disqualified from parliamentary politics by the vigilant Election Commission for dabbling in the spiritual with an eye on the electorate and the next elections. To be fair, the Constitution does force on the government an entirely Western concept of the secular state, with religion completely divorced from governance and the instruments of state. Yet tradition and culture nonetheless compel the state players to devise radically new definitions of secularism – from the Nehruvian ‘Equal distance from every religion’, to the BJP’s ‘Equal respect for every religion’. But in this, Hinduism still remains the native, the ‘default’, form. The ‘non-Indic’ – a new term evolved by academics loyal to the Rashtriya Swayamsevak Sangh (RSS) – faiths are ultimately tolerated only as minority panths, or denominations, rather than as separate religions.
The New Delhi government has been challenged repeatedly to state its attitude towards religion – or worse, to take sides in religious wars in the name of communal violence. The controversy surrounding the Babri Masjid is just one such dispute. The latest is the Ram Sethu controversy, where the government’s maritime dream to have a sea channel linking the Bombay and Cochin ports with Madras through Adam’s Bridge, thereby cutting 30 hours out of the shipping time, has long been stymied by Hindu devotees. Top scientists have been dragged into the fray, and by mid-September, the government found itself in the unenviable position of having to tell the Supreme Court that there has been no evidence of Ram, the bridge or Ravan. But roadblocks in various cities, and accusations levelled at Sonia Gandhi’s United Progressive Alliance (UPA) government for “insulting Hindu sentiment”, had the UPA do a quick about-face, and state that “the existence of Ram cannot be doubted”.
Not that other religions have not similarly charged the government with bias. Christians are angry that New Delhi has given Hindu Dalits privileges denied to Christians converted from the same caste. Sikhs, meanwhile, are still nursing wounds from their last encounter with the Indian state, in 1984. Buddhists are fighting for an identity, and Jains are struggling just to establish that they exist separate from Hinduism. Such is life, but it is made more complicated by various maverick judges. For instance, Justice K Srivastava of the Allahabad High Court, on 10 September, just days before his retirement, ruled that Muslims were not to be treated as a minority with special rights, and that the Bhagwad Gita should be regarded as the national holy book.
Muslim monies
If the relationship between religion and state is a shrouded issue in India today, the formal financing of all things religious from the national coffers remains even more out of reach for information seekers. The one time that a bit of light can be shed on the matter is when the issue is raised regarding government subsidies for two items: Haj and madrassas. Indeed, the Indian spotlight remains on Islam, and that light is focused mainly by members of the Hindutva Parivar – in Parliament, in the courts, in academia and in the public discourse.
As D Purandeswari indicated in the Rajya Sabha questioning, the central government does pay for the upkeep of madrassas in most states, and Islamic teachers are paid out of public funds. In addition, there is a sizable subsidy (though the amount is not publicly known) for the propagation of the Urdu language. Most states have also made provisions for financing madrassas, particularly in Uttar Pradesh, Bihar, Bengal, Madhya Pradesh, Maharashtra, Andhra Pradesh and Kerala.
Again, these figures are kept well shrouded, and exact amounts are almost impossible to come by. Data given in provisional budget speeches is in round figures, and most is said to remain unspent. As such, it is all but impossible to estimate exactly how much is spent each year by the central and state governments on madrassas and related scholarship, teachers’ salaries, books and Urdu-language promotion. Even if this figure runs into the billions of rupees, as charged by the Sangh Parivar, it could easily be explained as legitimate expenses for ‘human-resource development’.
The subsidy for Haj is a more complicated matter entirely. There is no equivalent of Haj in any other religion: the Hindu teeraths do not come close, and Christianity has nothing remotely similar. Even in Islam, Haj is obligatory only for those who are in sound health and can afford it. They cannot perform the pilgrimage on borrowed money, nor on the charity of others. There is likewise no mention of help from the state, other than facilitation.
Last year, one B N Shukla went to court against the Haj subsidy, demanding it be withdrawn. His plaint pointed out that the Constitution provides equal status to all Indians, while also restricting the government from giving benefits to one faith at the cost of others. Shukla did not site any official record, but alleged that every year the government spends more than INR 3 billion on more than 100,000 Hajjis. Special flights are run on the national carrier, Air India; air-conditioned Haj houses have been built across the country; and pilgrims are provided free food and lodging during the course of their trip. Even Islamic countries do not give subsidies for Haj, Shukla’s application noted. A notice was subsequently sent to the government, the official response to which was reiterated in its response to a question in Parliament.
The Haj subsidy was formally raised in the Parliamentary Standing Committee on External Affairs during P V Narasimha Rao’s government, following the demolition of the Babri Masjid in December 1992. All parties were represented in the Committee, and the recommendation to reduce and eventually abolish the subsidy was unanimous. Fourteen years later, in 2006, the government reported that 83,000 pilgrims performed the Haj during the previous year, out of which the government subsidised around INR 1.8 billion. For good measure, Parliament was told that 529 Hindu pilgrims performed the Kailash Mansarovar Yatra that same year, at a public cost of INR 17.2 million. Minister of State for External Affairs Anand Sharma, who reported these figures, also said that 8179 people visited Sikh gurudwaras and Hindu temples in Pakistan the previous year. Both groups were given free medical assistance, security and various escorts.
For the RSS, the Haj-related data came at an opportune time. It reported a 500 percent increase in just seven years, which the RSS described as an “alarming, non-secular appeasement of one religious community when one considers that the Indian government is so desperate to reduce food grains and fertiliser subsidy to the large and poor farming community.”
Muslims and secular scholars alike point out that the Haj subsidy began during the early 1970s, after the oil crisis had caused Haj-related transportation prices to skyrocket. It was introduced as something of a stopgap measure – and the charge of official ‘appeasement’ of minorities has lingered ever since. The Haj charter fare was first fixed at INR 6000, before being eventually doubled. Of the 120,000 Indian Muslims who undertook the Mecca pilgrimage this year, some 70,000 went by air, and were able to avail themselves of a subsidy of more than INR 20,000 per person. (There is no subsidy for the 50,000 others who went by ship.) But former Member of Parliament Syed Shahabuddin points out that many Indian Muslim pilgrims come from rural areas, and are not even aware of the government subsidy. As such, much of this money is simply going to an elite group of Muslims, who would, one would assume, least need the taxpayer’s subsidy.
Islam in India further benefits from the public exchequer in the larger mosques, which receive government doles for salaries, annual upkeep and additional expenses. As elsewhere, however, very little information on these headings is public.
Mela monies
The situation with regards to Hinduism is even murkier. Despite the significant attention paid to the interface between the government and Islam, rarely are questions raised regarding government subsidies to Hindu and Sikh pilgrimages, in temple upkeep, in paying for the salaries of Hindu priests, and in maintaining public spaces during such events as the Maha and Ardha kumbhs. (Christians, meanwhile, claim that there is next to no money spent on them, other than by the Archaeological Survey of India on heritage buildings in Goa, or by the British government on graves for soldiers.)
As noted, Hindus do receive government subsidies for pilgrimages to Mount Kailash, and from a variety of sources. First, the Ministry of External Affairs routes INR 3250 to each Kailash yatri. The Uttar Pradesh state government then adds INR 5000 per pilgrim. The Delhi state government adds another INR 5000 for any pilgrim from Delhi. Likewise, the Gujarat government gives a kit worth INR 2500 to every yatri from that state. This kind of subsidy may well be given by other states as well, although such information is not publicly available.
Gujarat presents a particularly interesting case of state money being funnelled towards Hindu causes. The BJP government in 2001 announced that it would begin paying monthly salaries to Hindu priests in the state. During the first phase, each priest of the 354 government-controlled devasthans, or temples, would be entitled to a monthly salary of about INR 1200. The late Haren Pandya, at that time Minister of State for Home Affairs with the additional charge of “pilgrimage development and cow protection”, told the media that priests of other religions were paid from either the Waqf Board or trusts managing the place of worship. The new payments were “to give justice to the feelings of the Hindu society that salaries are being paid to them”, Pandya explained.
There is some information available on the tab for massive Hindu fairs, although much of this spending is merely labelled as ‘infrastructure development’. The grounds of the gargantuan 12-yearly Allahabad Maha Kumbh, for instance, are spread over 1500 hectares. During the last Kumbh Mela, in 2001, the site boasted 12,000 taps, capable of supplying 50.4 million litres of water; 450 kilometres of electric lines and 15,000 streetlights in place; 70,000 toilets; and 7100 sweepers to clean up the mess generated by an estimated five million devotees. There were also 11 post offices and 3000 temporary phone connections, while 4000 buses and five trains were also requisitioned for the mela period. At its peak, the mela administration had more than 80 officials working full time. The budget for all of this was INR 1.2 billion – INR 800 million from the state government, and INR 400 million from the Centre. This did not include the costs of deploying around 11,000 policemen, as well as 40 companies of the Provincial Armed Constabulary and other paramilitary forces.
The case of the Ujjain Ardha Kumbh, in Madhya Pradesh in April 2004, was no different. At that time, Chief Minister Uma Bharati promised that she would do all she could for the festival, which at the time was expecting millions of pilgrims. Bharati ultimately received additional funds from the Centre to the tune of INR 10 billion.
Melas and pilgrimages aside, the government does not reveal how much it costs to broadcast the gurubani from the Golden Temple in Amritsar, nor explain why some temples and church groups receive tax exemptions on commercial activities such as medical colleges, charging hundreds of thousands of rupees in capitation or admission charges.
Faithful monies
Hopefully, right-to-information exercises will soon help the public assess the full extent of direct, indirect and tertiary financing of the faith in India. Or will it?
The courts are themselves not insulated from dabbling or intervening in matters of faith. This is not merely to do with the photographs of Hindu deities in the reception rooms of the Supreme Court in New Delhi. Nor is it only to do with judges like Justice Srivastava and their obviously religious biases. Rather, this is a problem of systemic lack of separation between religion and the judiciary, as well as the other arms of the state, which only public vigilance can expose.
Yet keeping track of government and private funding of religion in India requires apparatus that even the Right to Information Bill seems incapable of offering – at least in its current avatar, in which government reasoning and official notes remain out of the public domain.
It was during the Emergency, in 1976, that Indira Gandhi brought forward the Foreign Contributions Regulation Act (FCRA). This was to keep an eye on – and, if possible, to prevent – the flow of alleged West European funds to the Gandhi Peace Foundation, as well as other organisations that supported the popular agitation led by Jayprakash Narayan. The FCRA has been used largely to scrutinise Christians priests and nuns, a few Muslim groups and secular NGOs who receive funding through official channels. Meanwhile, hawala dealers are able to evade FCRA checks with the same felicity that they avoid Home Ministry surveillance. Recent unofficial research has found that the foreign money coming to large Hindutva and Islamic groups by way of personal donations and hawala transactions runs into the tens of billions of dollars.
The indication of monies received comes only through the visible evidence of where the money has gone. There is a rash of temple-school complexes in about around 100,000 villages in central India and Gujarat that have not been financed through documented means. Meanwhile, the growth of mosques in the Tarai belt along the Nepali border is a visible red rag to Hindu activists. Exactly who pays for the massive rallies sponsored in pursuit of politico-religious agendas remains a question no one wants to answer. The lack of transparency contributes to the increase in fundamentalist activities of all hues, funded by money that enters the country through dubious means.
The question of whether a secular state should be allowed to finance religious activities at all is a part of the extensive debate as to how exactly to define ‘secularism’ in the Indian context. But that politicians in power are potentially able to utilise state funds to further the religious agendas espoused by their parties should surely be a matter of concern for democratic-rights activists and secular citizens alike.
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