Various reports from states like Jharkhand, Bihar and Telangana have emerged in the past one week and it was widely reported in media that some vegetable and fruit sellers are mounting saffron flags on their carts and business establishments with posters highlighting their religious identity. Surprisingly, the overzealous administration of these states interfered to detach these religious symbols and slap criminal charges on sellers as well as people providing the flags. The reason cited by the local administration for its actions is that the shopkeepers are indicating their shops as Hindu due to a communal gesture but a conversation with such sellers highlighted an entirely different story.
A poor dalit vegetable vendor from Begusarai on why he installed a saffron flag on his thela and how we was harassed in the mohalla of a different community.
(Video shared with me by a local activist) pic.twitter.com/RcdywQgjaT
— Swati Goel Sharma (@swati_gs) April 27, 2020
Toona Mahto is a fruit and vegetable vendor in Bihar’s Begusarai district. A video of him narrating the harassment he faced in a locality for a saffron flag installed on his cart, recently went viral on social media. In the video, Toona says that as he entered the locality, residents surrounded him asking what it was that he wanted to prove through the saffron flag. The questioning soon turned into harassment and Toona was forced to turn his cart and leave. In the video, Toona says that he had installed the flag as he was tired of showing his identity card to customers. The consumers prefer to buy from a certain community out of their choice to avoid spreading of infection among their families. There are several reports to suggest that a large number of cases have taken place where members of certain communities have been reported to be spitting at healthcare officials, residents and in public, and at fruits and vegetables they sell. These statements and reports reveal a lot about the on-ground reality due to which mounting of religious flag is being incorrectly highlighted as communal.
In Bihar's Nalanda, an FIR has been filed on complaint by block officer over saffron flags at Hindu shops. I was surprised to see IPC 295A applied, which is for hurting others' religious sentiments.
The SHO cut my call when I asked this
Any legal opinion on this pls? pic.twitter.com/E0yI1P2IIX
— Swati Goel Sharma (@swati_gs) April 26, 2020
A similar account is provided by one Dheeraj Kumar, who was recently booked by the Laheri police for allegedly installing saffron flags at Hindu-owned shops. The police slapped charges of hurting religious sentiments, creating hostility between groups and even rioting on Dheeraj and a few other men. However, he repudiates the accusation and says it was the shop-owners and vendors who had asked him for flags as consumers are choosing to buy from a particular community and they installed the flags on their shops and carts themselves.
Dheeraj who belongs to a Dalit community said so in a 28th April letter to the National Commission for Scheduled Castes, in which he accused the administration and police of caste-based harassment. He had a large number of flags left from the Ramanavami festivities, which he gave to the sellers and they installed them out of choice. Thus, it could be concluded that installing of saffron flag on business establishments is not just to announce religious identity to the customers but in fact it is due to the buyers who prefer to purchase from certain communities. Even though if one announces his religious identity through display of other symbols associated with a religion, it cannot be considered as communal because it does not threaten the social harmony of a region.
A recent report suggests that some 350-600 members of the community who attended Tablighi congregation during mid-march at Nalanda has caused panic among the nearby areas and it is motivating people to avoid any risk when it comes to their safety and well-being. It is being argued by media and commentators that the public sentiment is based on “Islamophobia” which is totally incorrect and ill-informed reading of the reality. It’s people’s stride of survival which is pushing them towards taking such measures, also the practice of installing religious symbols on commercial establishments is neither new nor limited to only one community.
One could go to any highway or any village or any city, green Islamic flags on shops and hoardings of ‘Muslim hotel’ and ‘Muslim dhaba’ are a routine sight. Display of religious symbols are very common place in order to identify type of food which is being served in an establishment, pure vegetarian restaurants have commonly used deity names and symbols to ensure their survival and livelihood. Whether such display of religious identity is communal? Whether the action taken by the police is legally justified? Whether the fundamental Right to religious freedom as enshrined in our Constitution has been violated by the Police?
As a resident of Hyderabad, when ever we pass from old city areas it's difficult to even differentiate the pattern of the flags to be Islamic or 🇵🇰 Pakistani,this doesn't bother so called Ganga Jamuni thezeeb seculars.
But a vendors 🚩 is communal?#hyderabadpolice_hinduphobia pic.twitter.com/sbj5tOdA4e
— Rahul Singh Thakur (@Rahul_thakur8) April 26, 2020
Our Constitution architectures gave birth to a model of political structure that safeguards all religions with equal respect and regard. The approach which is usually adopted by the state as per constitutional provisions is the one that upholds ‘principled distance’ from religion. In case a practice of religion contravenes public order, morality, health, egalitarian social order and goals of the welfare State envisioned for holistic improvement of the individuals and communities, the State could intervene and prohibit such practice. Thus, the intervention or non-intervention of State depends on maintaining religious liberty, egalitarian social order and harmony with human dignity.
The Indian judiciary tells in unambiguous language that the Constitution recognizes the importance of religion in people’s life, and that it holds religious liberty as a fundamental value of the Indian political community. Dr. B.R. Ambedkar in one of the debates during the time of Constitution framing had highlighted that religion thrives in India and it remains an important aspect of Indian ethos, its popular customs and practices are multifarious and often unrestrained.
Display of religious symbols on private businesses and establishment is not prohibited under the law, if police tries to stop such expression then it is violating your fundamental right under Article 19, 21 and 25 of the Constitution. No police or government official is above the rule of law and hence the same shall be condemned. Article 19(1)(g) of the Constitution reads that all citizens shall have the right to practice any profession or carry on any occupation, trade or business, any violation of this tramples upon the fundamental rights.
A reading of Article 21 follows the same conclusion as Right to Life does not mean mere ‘animal existence’ but it also includes right to live with ‘human dignity’ and includes right to ‘livelihood’. In one of the famous Supreme Court cases decided in 1985, Olga Tellis and Ors. Vs. Bombay Municipal Corporation, an equally important facet of right to life was highlighted where it was declared by the apex court that depriving someone of their right to livelihood is equivalent to depriving them of their right to life.
Article 25 of the Constitution states that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health.
In the current instance no community is being deprived of any of their religious rights. Declaration of one’s faith freely and openly constitutes right to profess a religion. The constitutional right to profess religion give the right to showcase one’s religion in such overt actions such as putting on specific garments, taking out religious processions, worship in public places within the domain of profession of religion. It could also be done through teaching, practicing and observing religious precepts and ideals where no aim of its proliferation is involved. Exhibiting one’s religious identity should fall under the ambit of this right, any sort of intervention by the state authorities against professing such right and labelling the expression of religious identity as communal is high-handed and disregards the rights of the individuals.
With respect to the criminal charges pressed against the vegetable vendors – there are no reports to suggest that religious symbols were being forcefully imposed by a community, nor there has been any interference with other’s right to profess religion. Slapping of criminal charges under Section 147, 295A of IPC and 107 of CrPC are out of proportion and they are based on an assumption that social fabric of a region gets disturbed by mere display of religious symbols on a private establishment. The ingredients of Section 147 require some sort of violence which has taken place by an act of the perpetrator, peaceful display of religious symbols is nothing but right to profess religion within the ambit of the Constitution. As it has been explained above that there was no deliberate attempt to outrage the feelings of any particular community through display of religious symbols by choice, attracting Section 295A of IPC is unexplainable. Therefore, the local administration in various states should regard the rights of all communities and remain unbiased in their approach while maintaining public order.
(The article was authored by Akshat Kaushik. He is a final year B.A.LL.B. student at the West Bengal National University of Juridical Sciences. He tweets at @akshatkaushk. Written with inputs from Shubhendu Anand.)