[This is a guest post by Karthik Ravichandran.]
Does the Constitution allow military service-persons to refuse participation in their unit’s collective religious activities? This is a question that the Delhi High Court recently failed to consider in a case where it was specifically petitioned to do so. Samuel Kamalesan, a Lieutenant in the Indian Army professing the Christian faith, was the petitioner before the High Court, challenging his dismissal from service without pension and gratuity, and very importantly, without a trial by Court Martial. The dismissal was preceded by a Show Cause Notice which briefly laid out his alleged refusal to “attend the religious functions in the Regiment” despite repeated “explanations”, in contravention of “the ethos of the Indian Army and its secular approach”. This was deemed to be “misconduct” for the purposes of the Army Act, 1950, enough to render him liable for dismissal. The claim about the alleged absolute lack of attendance at the religious functions of the regiment was disputed by Kamalesan who insisted that short of entering the innermost sanctum of the regiment’s Hindu temple (doing which would offend his own faith), he fully participated in the regiment’s religious activities. He also insisted that his refusal to enter the sanctum did not offend his fellow troops, and that his camaraderie with them was not affected in the slightest. Kamalesan’s Writ Petition was dismissed by the High Court for reasons that this essay argues are incorrect, perverse and entirely discordant with both statutory and constitutional law.
The judgement’s unease with constitutional law begins with its declaration, significantly early on in its analysis, that the question before the Court in this case, is in fact not one of religious freedom, but rather one about “following a lawful command of a superior” (paragraph 67). There is no explanation as to why those two questions have to be mutually exclusive. Since the Court does not see this case to be about religious freedom, it never engages with Article 25. What it does engage with, is Article 33, which provides that Parliament can decide the extent to which the fundamental rights of certain classes of persons, including Army personnel, can be “restricted” or “abrogated” for the purposes of “proper discharge of duties” and “maintenance of discipline”.
However, the Court does not engage with the fact that Parliament has in fact not legislated under Article 33 specifically in the context of restrictions on the right to religious freedom in the military. The closest it has come to doing this is mandating a facial hair code through delegated legislation (see Regulation 425, here). It appears that the Article 33 restriction in this case has been read by the Court into section 41 of the Army Act which penalises “disobeying a lawful command” from a superior officer. For our purposes, let us assume that in this case, the superior officers’ insistence on the petitioner’s entering the sanctum is a “command” under this provision (the Court does not enquire into this). In paragraph 68, immediately after reproducing the provision, the Court more or less puts an end to the Constitutional enquiry by declaring:
In the present case, the petitioner has kept his religion above a lawful command from his superior. This clearly is an act of indiscipline.
Here, we see the Court pull off a bizarre exercise in circular logic. In deeming that the provision penalising disobedience of “lawful” commands counts as an Article 33 restriction, and then deeming the insistence on the petitioner’s entering the sanctum to be a “lawful” command that was disobeyed, the Court glazes over the fact that the lawfulness of the superior’s command itself hinges on whether it is compliant with Article 25 read with Article 33. In plain words, while the disobedience of a lawful command could very well be detrimental to regimental discipline, the lawfulness of the command itself cannot be defended on the ground that it was intended to enforce such discipline. What the Court inadvertently ends up saying here, is that every command by a superior officer, insofar as it is attributed to Article 33, is lawful, and that every lawful command is attributable to Article 33. Apart from encircling itself, this is completely at odds with Supreme Court judgements which have held that an Article 33 restriction on the fundamental rights of Army personnel must adhere to an “absolute necessity” standard (here and here) wherein the restriction must be tailored to and not extend beyond what is absolutely necessary for the needs of discipline.
Thus, the correct approach in this case would have been to first determine the extent of the petitioner’s right to refuse participation, as a civilian, under Article 25, and to then determine the extent to which Article 33 allowed the restriction of that right by undertaking a proportionality analysis on how the refusal would interfere with the needs of his regiment. The Court instead chooses to begin by declaring the superior’s command to be lawful in a case where the command’s constitutional compliance is quite literally one of the questions before it.
Next, recall that this case also involves a dispute of facts. This would generally mean that there is a trial by Court Martial where a finding of fact would be arrived at, on which a potential dismissal order would be based. Rule 14(2) of the Rules under the Army Act allows for the bypassing of the Court Martial only in cases where it is “impracticable” or “inexpedient” to hold a trial, in the opinion of the Central Government or the Chief of Army Staff. In this case, the Show Cause Notice preceding the dismissal order deals with the purported impracticability and inexpediency of a Court Martial (the Notice cites both), in only one short sentence, stating that both are owed to “the involvement of religious beliefs”.
Now, by any stretch of imagination, this is not a reasoned decision, which is a requirement under administrative law and the principles of natural justice which the Army is not completely exempt from in service related disputes. Thus, one would think that Rule 14(2) requires the Army to elaborate to a bare minimum extent, on what kind of undesirable circumstance it expects would arise out of a trial, which could reasonably be traced to the dispute’s merely involving religious beliefs. This the Show Cause Notice does not do. And yet, on paragraph 82, the judgement endorses this single-sentence brushing-aside of the need for a Court Martial, as “well thought out”. On what basis, the Court makes this finding is anybody’s guess.
Moreover, recall that the questions of fact in this case are, firstly, whether the petitioner’s refusal to participate was limited to entering the sanctum or did he, like the Army claims, refuse to attend any of the collective religious activities in the regiment and; secondly, whether the petitioner’s refusal to participate affected the camaraderie amongst troops in the regiment. How a trial with witnesses and other evidence would trigger what the Court calls “unnecessary controversies that could be detrimental to the secular fabric of the armed forces”, thereby warranting the dispensing of natural justice, is once again anybody’s guess. The Court refuses to undertake that scrutiny.
But the Court does not stop at simply endorsing the lack of a Court Martial. It absurdly arrogates to itself the responsibility of declaring facts that have been explicitly disputed, without recognising the dispute in its analysis. This it does without any reasoning and without any examination of a witness record or any other evidence (there is none because there was no trial). In paragraph 80, the judgement declares that “the prevailing facts” establish that the petitioner had consistently refused to fully participate in weekly regimental religious parades, and that traditional camaraderie between the troops had been affected as a result. But this is very clearly not what the “prevailing facts” establish! Both these claims were disputed by the petitioner (see paragraph 40) and would have been the subject matter of a trial, the omission of which was being challenged in these very proceedings before the High Court!
In summary, what we have is a refusal to recognise a Constitutional question of religious freedom as such, followed by an exercise in the most perverse circular logic where the Court decides on the lawfulness of what is challenged by citing its “lawfulness”. Then, to top it all, in violation of the most fundamental tenet of what an Appellate Court is supposed to do, the Court (unprompted) makes un-evidenced findings of fact in a proceeding where one of the questions before it is whether the dispute in those very facts (which it ignores much like the Respondent authority) should have been resolved by a trial. One can only hope that this judgement is immediately stayed by the Supreme Court when it comes up for appeal, and reversed in due course, with the petitioner at the very least, being afforded the opportunity to refute these allegations in a trial. In the meantime, the rest of us can only marvel at the fact that infringements of the right to individual religious freedom are now defended by the State on grounds like “maintaining the secular fabric of the nation”, and Courts, instead of applying rigorous legal scrutiny to these claims, tend to moralise on principles that have no grounding in anything resembling the law.