Delhi High Court: A Division Bench of Satish Chandra Sharma*, CJ. and Subramonium Prasad, J. dismissed a Public Interest Litigation (PIL) challenging the Government notification by which the Sikh travellers were allowed to carry Kirpans on the flights. The Court held that the notification was issued after due deliberations and the issue involved in the present PIL was entirely a matter of policy decision.
Background
In the present case, the petitioner (an advocate) filed a PIL and challenged the government notification, which allowed Sikhs to carry kirpans in flight, given the length of the blade did not exceed six inches and its total length was not more than nine inches. The petitioner contended that the notification was unconstitutional and violative of Articles 14, 15 and 21 of the Constitution of India besides posing pernicious and palpable security risks to civil aviation safety in India.
The petitioner prayed for constitution of an Empowered Working Committee (EWC) to ensure that the sanctity of religious expression of the carriage of Kirpans on person in public places was suitably protected by carriage of an appropriately designed and crafted Kirpans which should not exceed beyond 4 cm blade length and could not be misused while being carried on person in any civilian flight without hurting the sentiments or religious beliefs of the Sikh Community. The petitioner stated that the Ministry of Civil Aviation, Bureau of Civil Aviation Security, Government of India had released this notification in exercise of powers conferred by Sub-section IA of Section 5-A of the Aircraft Act, 1934, read with Rule 3(b) of the Aircraft (Security) Rules, 2011, for the purpose of the safety of passengers, crew, aircraft, ground personnel and the public in all matters related to safeguarding against acts of unlawful interference.
Submissions on behalf of the Petitioner
The following submissions were made on behalf of the petitioner:
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The exemption granted to Sikh Community passengers to carry Kirpan in the aircraft was a complete disregard to the safety of passengers and other laws in the country as carrying Kirpan by the Sikh Community travellers could be proved to be dangerous to the safety of passengers and it was also against the International Conventions like Tokyo Convention Act, 1975, International Civil Aviation Organization, Convention for the Suppression of Unlawful Seizure of Aircraft that India acceded to by enacting the Anti Hijacking Act, 1982.
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The State could not discriminate on grounds of religion or religious communities in favour of one form of religious faith and no religion could expect State patronage and could not be endowed with any concessions to the exclusion or in preference to all others, and no citizen could claim any entitlement or any preferential treatment.
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Allowing the Sikh Community to carry Kirpans on their person, while on board civilian flights in India, did not form any reasonable classification that made them distinct and separate from others.
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Any unscrupulous person masquerading himself to be a Sikh could misuse the Kirpan and an attempt could be made to hijack the planes.
Analysis, Law, and Decision
The Court noted that “Article 25 of the Constitution of India gave every person the right to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality, and health. Explanation I to Article 25 of the Constitution of India specifically clarified that wearing and carrying of Kirpans should be deemed to be included in the profession of the Sikh religion”.
The Court opined that the Courts while exercising jurisdiction under Article 226 of the Constitution of India, did not sit as an appellate authority over the policy decisions and the scope of interference in the matter of policy decisions was extremely limited and that Courts should restrain from interfering in the matter of policy decisions unless there was a categorical infringement of fundamental rights.
The Court relied on State of U.P. v. Chaudhari Ran Beer Singh, (2008) 5 SCC 550, wherein the Supreme Court held that “in matters of policy decisions, the scope of interference was extremely limited. The policy decision must be left to the Government as it alone could decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right was not shown, the courts would have no occasion to interfere, and the courts would not and should not substitute its own judgment for the judgment of the executive in such matters”.
The Court also relied on Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, wherein the Supreme Court held that “courts cannot interfere with policy either on the ground that it was erroneous or on the ground that a better, fairer, or wiser alternative was available. Legality of the policy, and not the wisdom or soundness of the policy, was the subject of judicial review”. In BALCO Employees’ Union (Regd.) v. Union of India, (2002) 2 SCC 333, the Supreme Court held that “Judicial interference by way of Public Interest Litigation (PIL) was only available if there was injury to public because of dereliction of constitutional or statutory obligations on the part of the Government. Every matter of public interest or curiosity could not be the subject-matter of PIL, and the Courts were not intended to and nor should they conduct the administration of the country”.
Therefore, this Court noted that the Supreme Court had repeatedly warned that the Courts should resist the temptation to usurp the power of the executive by entering arenas which were exclusively within the domain of the executive and that Courts, while exercising jurisdiction under Article 226 of the Constitution of India, should not interfere in matters of policy or in the day-to-day functioning of any departments of Government or statutory bodies.
The Court opined that the decision of giving exemption for carrying Kirpan by Sikh passengers had been arrived by Government after due deliberations. Therefore, the Court held that the issue involved in the present PIL was entirely a matter of policy decision and the counter affidavit filed by the Director General, Bureau of Civil Aviation Security, Government of India showed that adequate precautionary and security measures were being taken by the Government to ensure safety of passengers, crew, aircraft, ground personnel and the public.
Therefore, the Court dismissed the PIL.
[Harsh Vibhore Singhal v. Cabinet Secretary, Govt. of India, 2022 SCC OnLine Del 4556, decided on 22-12-2022]
*Judgment authored by: Chief Justice Satish Chandra Sharma.
Advocates who appeared in this case:
For the Petitioner: Petitioner-in-person;
For the Respondents: Advocate Anjana Gosain;
Advocate Dipika Sharma;
Advocate Ritika Khanagwal;
Advocate Satinder S. Gulati.
