Ignorance of law is no defence!


Religion, Equality and Gender Rights are serious issues. Yet, claiming ignorance after breaking any law to obtain justice is no defence, says Gajanan Khergamker.

The Sabarimala imbroglio had been a populist bone of contention for political parties that have, surprisingly, aligned despite legendary differences for fear of upsetting a sizeable religious faction. The issues here are primarily dual in nature. The Right to Equality of women being compromised by an arguably ‘patriarchal’ custom barring those of menstrual age entry is in direct opposition to the religious freedom of the Sabarimala Temple Authorities in conducting their internal affairs. The September 2018 Supreme Court verdict upholding the rights of women of all ages to enter Sabarimala Temple has stirred a hornet’s nest.

Despite the inclusion of the term ‘Secularism’ in the Preamble of the Constitution, the State has, even within the Indian Constitution itself, permitted intervention and legislated on issues that could, if applied in the strictest of senses, be in violation of the ‘secular’ term. If followed strictly, the State would not be permitted to intervene in any religious situation that would include the reservation system, protection of the Muslim Personal Law and the directive principle to protect cows, all of which the Constitution ultimately went ahead with.

Laying down policy destroys democracy

For the State to follow the spirit of secularism while avoiding its inclusion in the Preamble, the Chairman of Drafting Committee of the Constitution B. R Ambedkar had, during the Constituent Assembly discussions, said, “what should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself because that is destroying democracy altogether.”

When the preamble to the Constitution was discussed in the Constituent Assembly, there were huge debates over the incorporation of secularism on which all the members agreed yet through extensive debates in the Constituent Assembly revealed the ambiguity inherent in the terminology predominantly Western, when applied in the Indian context. Questions were raised regarding the nature of its application and to what extent it was even possible.

In the debate on 6 December 1948, Lokanath Misra had said, “Do we really believe that religion can be divorced from life, or is it our belief that in the midst of many religions we cannot decide which one to accept? If religion is beyond the ken of our State, let us clearly say so and delete all reference to rights relating to religion.” Even Vice President of the Drafting committee H C Mookherjee had stated “are we really honest when we say that we are seeking to establish a secular state? If your idea is to have a secular state it follows inevitably that we cannot afford to recognise minorities based upon religion.”

Secularism cannot be applied blindly

Secularism, in the truest meaning of the term, as was meant to be understood at its place of origin, could not be applied blindly to the Indian context. The term ‘secularism’ is known to have originated in late medieval Europe coined first by English secularist, co-operator and newspaper editor George Jacob Holyoake was modelled on the theory that governments ought to have no religious connection, nor indeed anything to do with matters of religious belief or ritual.

It was manifestly a Western intervention, specifically a product of the Protestant Reformation and the Enlightenment. It went on to be treated as the ideal theoretical basis of nation-states utilised in lands outside the European continent, such as the United States, even Turkey. It was only inevitable for the creators of free, modern India, shaped by European thoughts and practices, to be ardent supporters of secularism.

Consequently, the Constituent Assembly adopted Articles 25, 26 and 27 of the Indian Constitution in order to further secularism that, despite not being formally inserted in the document, was definitely embedded in the constitutional philosophy.

Secularism, as a concept, was introduced through the 42nd amendment which gave unprecedented powers to the Parliament. Almost all parts of the Constitution, including the Preamble, was changed with this amendment. Thereafter the description of India in the Preamble was changed from “sovereign, democratic republic’ to a ‘sovereign, socialist, secular, democratic republic.”
The State’s intervention on the Instant Triple Talaq issue and its swift concurrence with the Supreme Court view followed by an ordinance, despite loud opposition in Parliament, wasn’t perceived as being violative of Secularism or ‘interference with religious affairs,’ but instead positioned and lauded as a win for Women`s Rights.

Interestingly, it may be noted here that Congress MP Shashi Tharoor, in a written question in Parliament, had asked the government to clarify its position on Female Genital Mutilation – a practice among the Bohra Muslims in India. The government had replied that it wasn’t introducing any legislation to ban it and that, in case of any objections raised, the IPC and POCSO had provisions to tackle issues arising. An attempt in the future to legislate on the issue could be seen as an affront to the secular fabric of India and an interference in religious affairs.

Lobbies on women rights seem motivated

A host of issues pertaining to women have been thrown open for debate and have led to strong posturing by lobbies that are mostly motivated and politically driven rather than spurred by good intent. The Sabarimala issue being a case in point. That apart, issues of women being prevented from entering temples during their menstrual cycles and others find themselves in the news for all the wrong reasons. Now, whether the subject actually affects women and their rights or not isn’t important. What is important is that the issue has managed to gather eyeballs and, concurrently, snowball into a controversy, courtesy educational institutions, political parties, civil society and other motivated lobbies.

The Freedom of Religion as guaranteed by the Constitution of India isn’t absolute, just as the Freedom of Equality. Also, one needs to realise that all Freedoms are made available and guaranteed to citizens only by public authority or the State. An individual cannot hold the State responsible for a freedom deprived from him or her by a private entity. For that s/he must have to move court in personal capacity and not avail the benefit of a Fundamental Right as provided by the Constitution of India.

Fad to blame State, Government and PM

Now, with the surge in new-found Rights and their convoluted interpretations, this basic difference is not understood easily. Today, just about every second Woke person feels that any personal resistance or behavioural anomaly in private capacity is an opportunity to avail the law and book the State, the government in power if not the Prime Minister himself for a Constitutional violation. And, it is armed with this faux authority and (mis)understanding that private individuals spew venom on public platforms and across Social Media, thereby placing their own selves at risk legally.

The knowledge of whether an act is legal or not rests entirely upon oneself and ignorance of the law is no defence. In that situation, a member of a community, upset with the rest or another cannot break the law by spewing venom in social media in an exercise of one’s Right to Religion. The law does not permit it and an act of this nature is likely to receive not just censure, even imprisonment. Concurrently, under the Right to Equality, a woman’s view – if likely to trigger riots or upset one’s religious sentiments – if made across social media is likely to be perceived as a violation of the law, defamatory or pulled up for incitement to an offence. The onus lies on the perpetrator and ignorance is no defence.

Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.