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Home Critical Analysis/Archives ERROR AT THE APEX
The Error Multiplied
Cantwell Vs Connecticut.
Another case cited by the majority opinion from the American Jurisdiction is Cantwell vs. Connecticut [11]. The majority in Zaheer-ud-Din observed:
“The fundamental right, relevant here, is the ‘freedom to profess religion’ but it has been made ‘subject to law, public order and morality’. The Courts of other countries, which have similar fundamental rights, have held that this right embraces two concepts; freedom to believe and freedom to act. Some of them held the former to be absolute but others said that, that too was subject to law etc. However, all are agreed that the latter in the nature of things, cannot be absolute. According to them, conduct remains subject to regulation for the protection of the society. So the freedom to act must have appropriate definition to preserve the enforcement of that protection. The phrase ‘subject to law’, on the other hand, does neither invest the legislature with unlimited power to unduly restrict or take away the Fundamental Rights guaranteed in the Constitution, nor can they be completely ignored or bypassed as non-existent. A balance has thus to be struck between the two, by resorting to a reasonable interpretation, keeping in view the peculiar circumstances of each case.” [12]
(Emphasis added)
Abdul Qadeer J made no reference to the facts of the case and though he cited Cantwell, he chose not to quote from the decision of Cantwell. He deduced the following principles namely, (1) freedom of belief is absolute (2) freedom to act cannot be absolute (3) a balance must be struck. There is no cavil with the principles stated. The vital question however is, whether these principles could be applied to Zaheer-ud-Din.
Cantwell was a case relating to a statutory prohibition against soliciting money without obtaining a certificate of approval. Cantwells were charged for violation of the statute and for breach of peace and were convicted on five counts. The judgment affirming the convictions was reversed by the US Supreme Court and the case was remanded “for further proceedings not inconsistent with this opinion“* (meaning the opinion of US Supreme Court, in Cantwell). It is worthwhile to examine the opinion in some detail. The Cantwell opinion observed:
“Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand it safeguards the free exercise of the chosen form of religion.” [13]
and that:
“Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. ……” [14]
(Emphasis added)
Thereafter the Court observed:
“it is equally clear that a state may by general and non-discriminatory legislation regulate the time, the places and the manner……” [15]
(Emphasis added)
In Cantwell the court also observed:
“Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and infinite characterization, and leaving to the executive and judicial breaches too wide a discretion in its application.” [16]
The US Supreme Court further observed:
“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.” [17]
and further that:
“The essential characteristic of these liberties is, that under their shield many types of like, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds…….” [18]
The burden of judgment in Cantwell is, protection of freedom and regulation of the acts with regard to time, place and manner. The law under challenge in Zaheer-ud-Din was a case of complete denial of the right and not of mere regulation. Ordinance XX punished profession of religious belief and was not merely regulatory in nature in respect of the religious practices; it completely took away that right and infringed the protected freedom by a statute sweeping in great variety of conduct under a general and indefinite characterization under a vague term “Pose”. The majority opinion in Zaheer-ud-Din sanctioned penalizing allegedly hidden and purported belief wrongly attributed to the Ahmadis. The majority tried to read into the minds of the accused persons sinister meaning into otherwise innocent and laudable words of Kalima Tayyeba. How could Cantwell be applied in the case, passes imagination. Abdul Qadeer J clearly misapplied Cantwell.
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