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Samuel Kamalesan joined the Indian Army as a Lieutenant in the 3rd Cavalry regiment in 2017. In 2021, he was dismissed from the Army without a trial by a court-martial for not participating in the religious rituals in his regiment. There is a practice in the Army called ‘religious parade’, in which all the soldiers go to a place of worship, usually referred to as ‘Sarv Dharm Sthal’, and offer their prayers. Kamalesan, a Protestant Christian, was a troop leader in the squadron that comprised Sikh personnel. In his regiment, there is no ‘Sarv Dharm Sthal’, but only a Mandir and a Gurudwara. Kamalesan would accompany his troops to this mandir-gurudwara every week as part of the religious parade, but would not enter the sanctum sanctorum of the place of worship. He would remove his shoes and belt and wear the turban when needed, and observe respect, standing outside without participating in the rituals. He would not enter inside and participate in the rituals, “not only as a sign of respect for his monotheistic Christian faith, but also as a sign of respect towards the sentiments of his troops, so that his non-participation while in the inner shrine would not desecrate and offend their religious sentiments.”
These acts of not entering the inner sanctum and not participating in the rituals were considered gross misconduct that would affect the unity and discipline of the regiment. After several warnings and counselling sessions, he was removed from the service without pension and gratuity. Kamalesan challenged the order of his removal in the Delhi High Court on the grounds that the removal was arbitrary, violative of fundamental rights and that he was not afforded a trial by court martial. Recently, the Delhi High Court dismissed Kamalesan’s petition and upheld the dismissal order, based on the reasoning that his acts amounted to gross misconduct and disturbed the unity and discipline of the regiment.
The constitutional framework
The Constitution of India guarantees every person freedom of conscience and the right to practice their religion. No doubt, Kamalesan’s choice not to enter the inner sanctum and participate in the rituals falls within the freedom of conscience under Article 25 of the Constitution of India. But, it is the case of the government that Article 33 empowers the State (by law) to restrict or abridge the fundamental rights (in this case, freedom of conscience) applicable to the armed forces to ensure the proper discharge of their duties and the maintenance of discipline among them. As mentioned, the fundamental rights of the armed personnel can only be restricted for the purpose of discharging their duties and for the maintenance of discipline among them. There is no way that non-participation in religious rituals would affect the proper discharge of duties, and it would be highly contentious to say that it would affect the discipline among them.
The Delhi High Court judgement
The Delhi High Court, while upholding the dismissal order, held that Kamalesan's case was not about the right to religious freedom, but rather about his failure to comply with a lawful directive from his supervisor. It is true that Kamalesan refused to participate in the prayers despite several reprimands from his commanding officers. The court observed that this conduct falls under Section 41 of the Army Act, 1950, which deals with disobedience to a superior officer and constitutes valid grounds for dismissal. But, if we observe carefully, the section only penalises when a person disobeys or shows wilful defiance to the ‘lawful’ command given by the superior officer. To take action under section 41 of the Act, one has to establish that the act instructed by the superior officer is a lawful act. If the superior officer commands someone to do an unlawful act, then there is no question of disobeying or wilful defiance. We cannot say that forcing someone to take part in religious rituals is a lawful command, especially when it violates the freedom of conscience of that person.
Another reason the court gave in this case was as the commanding officer, Kamalesan has additional responsibilities to prioritise unit cohesion and morale of the troops, implying that his non-participation in rituals somehow affected the unit cohesion and the morale. It is interesting to note that there is no law (neither the Army Act nor the Army regulations) that mandates participation in the religious rituals. Even to attract Article 33 of the Constitution, there should be a law made by the Parliament that restricts or abrogates the fundamental rights. The fundamental rights as applicable to armed forces cannot be restricted or abrogated by mere custom or bylaw or regulation. Even the clauses the court cited, such as numbers 332 and 1385 of Regulations for the Army, 1987, do not explicitly mention that army personnel should participate in religious rituals. These regulations only say that the religious customs and prejudices should be respected and others' religious sentiments should not be hurt. One can see that the acts of Kamalesan do not hurt the religious sentiments of other soldiers. Without a specific law stating that observance of rituals is mandatory, the dismissal of Kamalesan not only violates Articles 33 read with Article 25 of the Constitution of India, but also is highly unethical.
Denial of court martial
Kamalesan was also denied an opportunity to be tried by the court martial. Though the law allows bypassing the court martial if it is inexpedient and impracticable to conduct the same, the present case does not warrant bypassing the court martial. There are many questions of fact, such as whether the behaviour of Kamalesan indeed affected the troop’s unity and discipline, whether his behaviour would amount to ‘misconduct’, whether the place of worship in this case was in fact a Sarv Dharm Sthal or only Mandir-Gurudwara etc. that required unbiased adjudication on facts and circumstances. As Kamalesan was working in the army from 2017 and was not participating in the religious rituals from the beginning, there is no new threat to the unit if he continues till the court martial finishes the trial.
Not everything in the name of discipline and unity
No doubt, the armed forces work in an environment where unity, cohesion, discipline and the spirit of oneness are quintessential. But this cannot be a mantra to deny the soldiers their basic rights. It is no secret that the governments of the day across the world cited discipline and unity as reasons when they denied blacks or transgenders or women their rightful places in the armed forces.
It is wrong to believe that the unity or oneness in the armed forces is so weak that it is disturbed when some choose not to participate in the religious rituals. When someone is removed from the forces for not participating in religious rituals (because it would lead to destroying the unity), is it not an acknowledgement that there cannot be any other bonding agent apart from religion? It is an implied agreement that our forces cannot be boned or united over a mutual feeling of patriotism and nationalism. Politicians across the spectrum, the bureaucrats and the judges proudly declare that the Constitution is ‘the holy book’. Does this holy book take a different shape and colour when the armed forces are involved? Are they immune to its spirit?
We celebrate our armed forces, and we salute their bravery. They are revered for the sacrifices they make. But suddenly they are termed as indisciplined, breakers of unity or ‘black sheep’ because they did not participate in the religious practices in the regiment and chose to follow their conscience. It raises the question of whether a similar course of action would be taken if a Hindu soldier were to refuse entry into a Muslim place of worship and decline participation in its rituals.
The case of Kamalesan endorses mindless uniformity over respecting an individual’s conscience and autonomy. It also reflects a narrow-minded approach that people who do not pray or who pray differently are somehow inferior or pose a threat to our way of life. Soldiers, while entering the army, take a solemn oath that they will bear true faith and allegiance to the Constitution of India. It is disappointing that the same Constitution did not come to the rescue of Kamalesan.
Sri Harsha Kandukuri is a PhD Research Scholar at the National Law School of India University (NLSIU), Bengaluru, and an Assistant Professor at Christ (Deemed to be University), Bengaluru. Views expressed are personal.