Megh HC | Justice S.R. Sen’s “Hindu Rashtra” judgment set aside for being offensive to secular fabric of country, legally flawed

Meghalaya High Court: A Division Bench of Mohammad Yaqoob Mir, CJ and H.S. Thangkhiew, J. set aside the controversial judgment passed last year by Justice S.R. Sen in Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274 wherein, now retired, Justice Sen had observed that India ought to have been declared a “Hindu Rashtra”.[1]

Respondent herein had applied for issuance of domicile certificate for recruitment in armed forces but was denied the same by Meghalaya Government. In a petition assailing the denial order of Government, Justice Sen had set aside two notifications issued by the Meghalaya Government relating to the issuance of permanent residence certificate and domicile certificates. He stated that the ongoing National Register of Citizens (NRC) process was defective, and also had observed that anyone opposing Indian laws and the Constitution should not be considered a citizen of India. He had remarked that India should have declared itself a Hindu country like Pakistan declared itself an Islamic nation. When he drew flak from various quarters for his observations, Justice Sen issued a clarification stating that his judgment was not politically motivated or influenced by any party.

In the present appeal, the learned Advocate General, A. Kumar, contended that the said notifications quashed by Justice Sen were not even challenged in the petition filed by the respondent. Hence, a case for adjudication could not be made out for a subject which was not even part of the pleadings. The learned Advocate General, further contended that the direction for taking necessary steps to bring a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos and certain other observations made in the judgment were not consistent with the Preamble and other provisions of the Constitution.

At the outset, the Court noted that while an SLP seeking an expunction of Justice Sen’s remarks and observations was pending before the Supreme Court, the same would not be a bar for deciding the instant appeal.

It was held that the setting aside of the two notifications by learned Single Judge in absence of any challenge in the writ petition was totally impermissible, and therefore, findings regarding the same were unsustainable. The Court observed that the petition filed by the respondent herein before Single Judge was for seeking issuance of domicile certificate. There was no requirement to go into the superfluous issues not brought up by either party. Direction of policy framing in the exercise of writ jurisdiction was impermissible. Reliance in this regard was placed on Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364 where it was held that “The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.”

Further, any direct or indirect observation which offends the Preamble of the Constitution could not be sustained. It was noted that directions of the Single Judge Bench offended the “secular colour of the country and the provisions of the Constitution of India”.

The impugned judgment was set aside observing that, “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.”

However, it was opined that writ petition for issue of the requisite certificate be allowed and provisional certificate as issued in pursuance to the interim direction in favour of the respondent herein based on which he had joined the armed forces be treated as final.[State of Meghalaya v. Amon Rana, 2019 SCC OnLine Megh 95, decided on 24-05-2019]

[1] https://blog.scconline.com/post/2018/12/13/first-we-are-indians-then-good-human-beings-then-comes-the-community-india-should-have-become-hindu-country-but-it-remained-secular-meghalaya-hc/

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