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Right to Conduct a Religious Procession

by Sidhanta Sarkar

Constitutionally, India is a secular country and has no State religion. India’s concept of secularism had been fully established through judicial decisions and state practice – the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word ‘secular‘ along with ‘socialist‘, to declare India to be a ‘Sovereign Socialist Secular Democratic Republic‘. The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons‘ in Article 25(1), Article 27 and Article 28. Thus, the Right to Freedom of religion forms a very important Fundamental right of our country and aims at maintaining the principle of secularism in India.

Indian constitution firmly states that all religions are equal before the law and no religion shall be favored over the other. The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted way. There are limitations within which these rights can be exercised, as also lawful restrictions which can be imposed by the State.

The Jatindra Narain Commission’s Report, published recently, on the Jamshedpur riots which erupted on April 11, 1979, on the occasion of the Ram Navami festival, raises questions about the citizen’s right to go in a procession over a public road. These questions were also raised in Justice D.P. Madon’s Report on the Bhiwandi riots which broke out in May 1970 during the Shiv Jayanti festival. The central issue in both cases was conflict between the two groups. The Constitution – Art 19(1) (b) – protects the citizen’s fundamental right ‘to assemble peaceably and with- out arm‘. The right is subject to ‘reasonable restrictions‘ being imposed by the State ‘in the interests; of the sovereignty and integrity of India or, public order‘. Under S 144 of the Criminal Procedure Code, processions can be banned if the District Magistrate feels that “immediate prevention or speedy remedy is desirable” and it is necessary to impose the ban to prevent “a disturbance of the public tranquility, or a riot, or an affray”.

The Supreme Court upheld the constitutional validity of Section 144 in Babulal Parate vs State of Maharashtra  in 1960 and in Madhu Limaye’s case in 1970. That was a case where two rival trade unions clashed. In Mohammad Siddiqui vs State Of U.P. And Anr, Qazi Mohammad Siddiq had filed an application against the State of Uttar Pradesh and the District Magistrate of Lucknow, under Article 226 of the Constitution that the applicant applied for the taking out of a religious procession, Madhe Saheba. The magistrate dismissed the application because of fear of breach of peace and conflict based on religion. Lord Justice Scarman, who inquired into the Red Lion Square disorders of June 15, 1974, stated the law in the most explicit terms: “There is a conflict of interest between those who seek to use the streets for the purpose of passage and those who seek to use them for the purpose of demonstration. English law recognizes as paramount the right of passage; a demonstration which obstructs passage along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way, is lawful; but it is open to question whether a public meeting held on a highway could be lawful, for it is not in any way incidental to the exercise of the right of passage. India today faces many crucial problems. On the one hand, the executive is not sensitive about the citizen’s rights. On the other, riots have broken out because of certain kinds of processions“. He referred to Article 19(1) (b) and said “The people must have a right to voice their dissatisfaction or publicly demonstrate their grievances, particularly when it appears that at times even reasonable demands have not been granted unless there were public demonstrations”.

LEGALIZATION OF PROSTITUTION IN INDIA IS A DESIDERATUM

by Aditi Narain

Being at par with the world is the ‘new in’, India stands in par with most upcoming or at the least attempts to do so. The final abolishment of triple talaq was done by the Indian Judiciary by the end of the last decade. The need to adapt to the recognition of will, in turn, assist the government in regulating and keep in check of the already running centuries-old brothels.  

Fifteen countries of the world legalize that have legalized prostitution include; New Zealand has legalized prostitution since 2003 which encompasses licensed brothels operating under public health and employment laws, which gives prostitutes social benefits like any other employees; Belgium intends to remove the stigma society at large holds against this profession and has introduced fingerprint access and key cards inside running state of the art brothels; Denmark also has legalized prostitution and the state also gives aid to its disabled citizens for availing these services; France recognizes prostitution legally but does not support running of brothels; Germany legalized prostitution and state-run brothels in 1927, hence they receive all benefits like health insurance and pay taxes and so has Greece. The list has more countries but the gist is that countries embracing this profession rather than treat it with disgust.

The legal recognition of prostitution will effect in, payment rights to their services and will reduce exploitation. They will receive health benefits which include regular checkups and thus keep their bodies healthy and alarm them about the onset of pregnancy. They will pay taxes as any other employee does and get positive recognition in society due to all the above. Lack of legal support also gives rise to crimes like extortion, bodily injuries, rape, forced prostitution, and human trafficking.

Modus operandi in Arthashastra 

In the third century BCE, during the reign of Chandragupta Maurya, Asthashastra was the governing book for all state and law-related matters within their empire. A part of Arthashastra has operatives and laws on courtesans, brothels, and prostitutes. They were important employees of the government who worked in the King’s court and aided the army. 

The platform for sexual entertainment to the public using prostitutes was carried out in a state-owned establishment. The state was responsible for bearing all the expenses for the training and education of prostitutes and courtesans, accomplishments included singing, playing musical instruments (including the vina, the flute, and the mridangam), conversing, reciting, dancing, acting, writing, painting, mind-reading, preparing perfumes and garlands, shampooing and making love. The sons of the prostitutes were trained to become a producer of plays and dances at the expense of the state. Thus, all the prostitutes were paid employees at such establishments, who received a fixed salary and paid one-sixth of their earnings to the state in the form of taxes. The entertainment houses were headed by a capable, beautiful and talented woman, who was titled as madam and was to be paid 1000 panas as her employment wage, a deputy appointed below her would receive 500 panas as her employment wage.  Stiff punishments were given to people who robbed or cheated on a prostitute, abducted her, on confining her against her will or disfiguring her and to those who forced themselves upon virgins or daughters of a prostitute, the man must pay fine and also compensation to the mother of sixteen times the fee for a visit.

The exploitation of rights of prostitutes

The well-being, humane rights, recognition, and health are all at risk for all the women, men and transgender who work as prostitutes. 

A BBC documentation on the horrors of brothels has highlighted the need to legally recognize their work to avoid exploitation of teenagers as sex workers against their will and of women who have firstly, been brought to the brothel by misrepresentation and fraud and secondly by men who are the users of their services, who force them at their whim and also deny to paying them.The All India Network for Sex Workers list the difficulties faced by them in India; 

  • Critique the trafficking paradigm that conflates representations of sex work, migration, and mobility
  • Speak out about violence against sex workers, including violence from police, institutions, clients, and intimate partners, while challenging the myth that sex work is inherently gender-based violence
  • Oppose human rights abuses, including coercive programming, mandatory testing, raids, and forced rehabilitation
  • Challenge stigma and discrimination against sex workers, their families and partners, and others involved in sex work
  • Oppose the criminalization and other legal oppression of sex work and support its recognition as work
  • Advocate for universal access to health services, including primary health care, HIV and sexual and reproductive health services. Advocate for the economic empowerment and social inclusion of sex workers as sex workers

Suggestions can only be made as long as the ones you are orating to understand your opinion, reflect about its consequences and according to act upon them, wherein our government fails to do so. The implementation of authorities to regulate prostitutes will benefit both sides of the ordeal. The crimes at and related to prostitutes will drop as they will be employees like any other citizens who work, they will have established health and social security. They are humans who have been treated like cattle. India needs to brush off its post-Victorian law adaptations and read to learn more from its own rich and unorthodox past, that set stands which is unattainable by the current mindset of officials and society.