Ejaz Maqbool and Akriti Chaubey

India is a secular nation and the Constitution of India is probably the most explicitly secular Constitution in the world, even though the word ‘secular’ was only introduced later by way of the 42nd Amendment in 1976.

However, even prior to the 42nd Amendment, which introduced the word ‘secular’ in the Preamble, the concept of secularism was already deeply embedded in the Constitution of India. Several Articles (Articles 14,15 and 16) of the Constitution prohibited any discrimination whatsoever on grounds of religion and the Constitution also respected each individual’s right to practice their own religion (Article 25).

The Supreme Court of India in SR Bommai’s case has held secularism to be a part of the Basic Structure of the Constitution and has explained that the Indian concept of secularism prohibits the State to patronise any particular religion as State religion and enjoins the State to observe neutrality. In fact, the Supreme Court has also emphasised on the importance of separation of politics and religion and has warned that such separation, if not observed, would result into the State basically adopting the religion of the ruling party.

The Court has observed that introduction of religion into politics is not merely in negation of the constitutional mandates but also a positive violation of the constitutional obligation, duty, responsibility and positive prescription of prohibition specifically enjoined by the Constitution and the Representation of the People Act,1951. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and an anathema to the constitutional culture and basic features.

It is in this background, that we proceed to examine the recent judgment rendered by Justice SR Sen, learned Single Judge of the High Court of Meghalaya on December 10, 2018 in Shri Amon Rana v. State of Meghalaya & Ors.

Before we analyze the observations in the judgment that we find questionable, it is relevant to mention that the judgment was rendered in a dispute wherein the state government had refused to grant a domicile certificate to the petitioner, who was a Hindu. Notably, no issue was raised about the citizenship of the petitioner.

However, despite the case being of that of a domicile dispute, it appears strange that the learned judge found it necessary to make several observations about the plight of the Hindu Community and proceeded to issue directions to the government to consider that the members of the Hindu Community be granted citizenship of India without any cut-off year, question, or production of any document.

In fact, before delving into the discussion concerning the Hindu citizens of the country, the learned judge states that he would be failing in his duty if he were not to indulge in the forthcoming discussion. Needless to say, that none of the compelling reasons which would have justified discussion of such nature and issuing of such bizarre directions have been enumerated in the judgment.

The judge begins his judgment by highlighting the injustice meted out to the Hindu community and states that at the time of partition lakhs and lakhs of Sikhs and Hindus were killed, tortured and raped and forced to leave their property and compelled to enter India to save their lives and dignity. He further resonates that since India was divided on the basis of religion, it should have been declared as a Hindu Nation. Needless to say, that such an observation is not only a statement which is disloyal to our Constitution, but is a statement which completely overlooks secularism, which is a part of the basic structure.

In fact, such a statement appears to display a very flawed understanding of the Constitutional principles, which had been always embedded in our nation. The Supreme Court has time and again emphasized that the essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India.

Further, India’s policy as a secular nation has always been the one of neutrality, i.e., the state is enjoined to accord equal treatment to all religions and religious sects and denominations. Thus, in such circumstances, for a judgment of a constitutional court of the Country to seriously question the concept of secularism and in fact create doubts about it, by virtually calling it a mistake, does nothing but lowers the confidence of an ordinary citizen, particularly non-Hindus, in the judiciary.

After completely marring the concept of secularism and offering condolence to the idea of India as a Hindu nation, the judge devises a unique manner of still achieving that target, by suggesting that all Hindus, and adds that in fact all Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis, Jaintias and Garos, who have come (and who are yet to come) from Pakistan, Bangladesh and Afghanistan be granted Citizenship without any questions being asked.

It is evident that this part of the judgment seeks to single out only one community from being eligible for a very unique open citizenship scheme, however, consolation is provided by the learned judge by emphasising that he is not ‘against’ Muslim brothers and sisters.

By stating that he is not against his Muslim brothers, the learned judge has attempted to balance his previous observations, but, has failed miserably, and it appears that he is treating Muslims as second-class citizens. If the all-encompassing citizenship scheme is considered it is clear that the members of a particular community are being granted first grade citizenship, while members of the other community are being merely tolerated, that too after being reduced to second class citizens.

The learned judge, while making the observation that India should have been a Hindu Nation, seemed to completely disregard those citizens of India, belonging to the minority community, who, at the time of partition chose to stay in India as India was a secular state. The outlandish observations in the judgment completely belittle the presence of the minority population in our country who chose their motherland over their religion and have never considered any other nation as their motherland but India.

Proceeding further with the judgment, the learned judge states that the present NRC process in his view is defective as many foreigners become Indians and original Indians are left out, which is very sad. This observation is again a superfluous one, which was not warranted in the present circumstances. At this point, it is relevant to mention that presently the NRC Updation process concerning the state of Assam is being undertaken and is being closely monitored by the Supreme Court itself. In such circumstances, such an observation, that too by a judge of a constitutional court, is not only in teeth of propriety and comity of courts, but would also lead to public distrust in the entire process.

Lastly, the judge states that under no circumstances should anybody try to make India an Islamic Country. One again wonders as to how such a statement became necessary in a domicile dispute concerning a Hindu citizen.

The learned judge goes a step further and reassures that only the present government can prevent that from happening, however, while making the said statement he uses a rather unconventional method of naming the Hon’ble Prime Minister. It is true that a judge is after all a man with all his failings and prejudices, which would include political inclinations, but it is also expected that once a man has taken an oath to uphold the Constitution, his personal inclinations would not weigh in his decision-making process.

However, the judgment in question appears to be nothing but a rant of the learned judge’s personal inclinations. Evidently, the judgment in question caused quite a furore and thus was followed by a clarification which was issued by him on December 14, 2018 wherein he clarifies that he believes that secularism is a part of the Basic Structure of the Country and that he does not belong to any political party. Compared to the multiple wounds caused to the Constitutional principles, reputation of Court and public trust by the main judgment, the clarification appears to be a half-hearted and an unsincere apology incapable of healing any part whatsoever.

Recently, Justice Karnan, who is believed to be India’s most defiant judge till date was sentenced to 6 months imprisonment for committing Contempt of Court. In Justice Karnan’s case, Justice J Chelameswar (while writing for himself and now Chief Justice Ranjan Gogoi) observed as follows:

“The makers of the Constitution were conscious of the fact that ascendance to higher offices need not necessarily always guarantee rectitude and the incumbent of any constitutional office could resort to behaviour inconsistent with the nature of the office and standards of conduct expected…

…When it came to the members of the constitutional courts equally, it was visualized that there can be such occasions. But the standards and procedure for impeachment of judges are much more rigorous for reasons obvious. There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. Maybe it is time for the nation to debate this issue.”

The authors are Advocates of the Supreme Court of India.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.