"The spirit of liberty"

The anticipated attack on the new prayer hall that is open to people of all faiths was subdued. Except for a front-page assault in The Parsee Voice that termed the prayer hall "a cheap publicity stunt…a cruel mockery of Zoroas­trian rituals and an abject insult to our Holy Prophet” the criticism has been muted. The World Alliance of Parsi Irani Zarthoshtis (WAPIZ) made a reference to it and dismissed it as not being pertinent to the ethnic community.

WAPIZ also has pledged to refer religious issues to the High Priests and hence publicly refrained from bad mouthing the new hall. Knowing the propensity of the High Priests to issue contradictory statements on contentious issues, WAPIZ probably decided for the moment to let the matter rest. But should any group attempt to construct a consecrated agiary they would have "a fight on their hands,” the orthodox threatened.

But would they succeed in preventing such a move were it set in motion? A recent judgment by Justice K. Balakrishnan Nair, of the Kerala High Court in Suresh Chandran vs District Collector, 2005 sent to us by noted jurist Nadir A. Modi would be of interest to the orthodox hotheads and the others in our community.

The pastor of a Christian religious denomination called Assemblies of God, had approached the Court, alleging that his fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India, had been infringed by prohibiting the holding of prayers of that religious denomination at Panthavila Church. The brief facts of the case are the following:

"The above said congregation purchased eight cents of land... A prayer hall was constructed there, roofed with sheets, in the year 2004. The prayer is held on three days in a week, in the hall... It is submitted that no loud speakers or other instruments for amplifying sound are used. There are no residential buildings in the neighborhood of the hall, it is pointed out. It is also submitted that respondents 4 to 8 are activists of R.S.S., who are not residing anywhere near the prayer hall. They filed representations before the authorities, alleging that the prayer is causing sound pollution and nuisance. They also alleged that the petitioner is also trying to convert persons to Christianity.” The district collector "stayed the functioning of the prayer hall.”

After hearing the "learned counsels on both sides” Nair noted:

"Going by Arts. 25 and 26 of the Constitution of India, the petitioner has got a fundamental right to establish, manage and run places of religious worship, subject to the limitations contained in those two Articles. Art. 26 of the Constitution of India reads as follows:

‘Freedom to manage religious affairs: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right —

* to establish and maintain institutions for religious and charitable purposes;

*to manage its own affairs in matters of religion;

*to own and acquire movable and immovable property; and

*to administer such property in accordance with law.’

"Normally, an application for permission to establish a prayer hall should be allowed. The objection of persons belonging to other religions should not normally be a ground to decline permission. In this context, it is apposite to quote the following oft quoted words of John Stuart Mill: ‘If all mankind minus one were of one opinion and if one person was of contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had that power, would be justified in silencing mankind.’

"Freedom of speech and expression protects the freedom to propagate ideas we detest. Popular faiths need not require any constitutional protection. Heretics and heresies need it. Justice Oliver Wendell Holmes, in his separate opinion in United States v. Schwimmer, 279 US 644, said, ‘If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate.’

"The success of a democracy depends on the degree of protection enjoyed by minorities, especially of unpopular minorities. It is always in the interest of the majority to have a happy and contented minority. If unpopular minorities are driven to the wall and are compelled to fight back, the greatest sufferers will be the majority. The religious rivalry and intolerance will knell the death bell of democracy. Tagore, in his Gitanjali sang:

‘Where the mind is without fear and the head is held high;

Where knowledge is free;

Where the world has not been broken up into fragments by narrow domestic walls; where words come out from the depth of truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit;

Where the mind is led forward by thee into ever-widening thought and action — Into that heaven of freedom, my Father, let my country awake.’

"Tagore’s dream of India will come true, if only we nurture the spirit of liberty. The concept of liberty has been explained by Judge Learned Hand, in a famous speech delivered in 1944. The relevant portion of his speech reads as follows:

‘What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men. When it dies there, no constitution, no law, no court can save it. No constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.