New Delhi: A division bench of the Meghalaya High Court Friday set aside a judgment by a former judge of the court that said India should have been declared a Hindu country after Partition.
The bench comprising Chief Justice Mohammed Yakub Mir and Justice H.S. Thangkhiew ruled that the verdict in December by Justice S.R. Sen (who has since retired) was “legally flawed”, and had gone beyond the scope of the original petition.
“After bestowing our thoughtful consideration to the entire gamut of the matter we have reached to a firm conclusion that the judgment impugned dated 10.12.2018 is legally flawed and is inconsistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety, as such shall be non est,” the bench said.
Justice Sen’s ruling was on a petition filed by one Amon Rana, who had applied for recruitment in the Armed forces and needed a domicile certificate, which was denied to him.
‘Beyond the scope of application’
On 10 December, Justice Sen — who retired in March this year — said India should’ve been declared a Hindu country after Partition, and that if anyone tried to make it an Islamic nation, it would be “doomsday for India and the world”.
“I feel the difficulties faced by the residents to get the domicile certificate and the permanent residence certificate have become a great issue today that will have to be examined since the inception of India (Bharat Barsh),” Justice Sen had noted.
After his verdict created a furore, with the CPI(M) even threatening to bring in a motion to impeach him, Justice Sen issued a clarification, saying his judgment had been misinterpreted. “Secularism is one of the basic structures of our Indian Constitution,” Sen said in a statement released on 14 December 2018. “It should not further be divided on the basis of religion, caste, creed, community or language.”
This clarification was noted by the division bench in its verdict Friday.
The bench also observed that “there was no requirement to look into the issues that were not projected by either party” with regard to Justice Sen’s call to the prime minister and the home minister among others, to enact a law to safeguard the interests of Hindus, Sikhs, Jains, Buddhist, Christians, Parsis, Khasis, Jaintias and Garos who have already come to India and who are yet to come from Pakistan, Bangladesh and Afghanistan.
“So far as the observations and appeal for legislation are concerned, judgment impugned has travelled beyond the pleadings,” the division bench ruled.
Also read: Can India be a Hindu Rashtra—and Hindus a minority—at the same time?
‘Observations offend the colour of the Constitution’
The bench then said that while tracing the history as was within knowledge (of Justice Sen), certain observations were made, which according to the Meghalaya Advocate General “are offending the preamble of the Constitution.”
“True it is that there was no requirement to go into superfluous questions,” the bench said. “Secondly, any observation that directly or indirectly offends the preamble of the Constitution cannot be sustained.”
The division bench agreed with the submissions made by the Advocate General that the direction for any policy framing is impermissible.
“While referring to the different faiths, observations have been made to bring a law so as to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos who have already come to India and who are yet to come from Pakistan, Bangladesh and Afghanistan as well as persons of Indian origin who are residing abroad. These were not the issues at all and have a colour of offending the secular colour of the country and the provisions of the Constitution of India,” the bench led by the chief justice said.
“Applying the law as has been laid down, setting aside of the two notifications by learned Single Judge in absence of any challenge in the memo of the writ petition was totally impermissible, therefore, findings regarding same are not sustainable.”