SHILLONG: The High Court of Meghalaya has set aside the order of former Judge S R Sen which indicated India should have been declared a ‘Hindu Rashtra’ after partition.
In the order on Friday, the division bench comprising Chief Justice Mohammed Yakub Mir and Justice H.S. Thangkhiew said, “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 in-consistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety”.
The order of December 10, 2008 by the single bench then headed by Justice Sen was after hearing a petition filed by Amon Rana for issuing domicile certificate for a job in the Army.
In the order, the single bench referred to granting citizenship to several religious minorities.
He had observed that anybody opposing the Indian laws and Constitution should not be considered as citizens of India. The order had indications that based on religion, India should have been declared a Hindu Rashtra.
Following this, there was criticism from various quarters.
Later, he issued a clarification on December 14 last year that he has not said anything about secularism. Nor his judgment was politically motivated or influenced by any party and that he is not a religious fanatic rather respect all religions because God is one.
Following this, a special leave petition was filed in the Supreme Court and the state government also moved an appeal before the Meghalaya High Court.
The High Court said the plea of the petitioner was for issuing requisite certificate for joining armed forces as there was a delay from the additional deputy commissioner, East Khasi Hills.
The petitioner later received the certificate and the court allowed the provisional certificate based on which he has joined the armed force to be treated as final.
Earlier, the judgment by Justice Sen had observed the difficulties faced by the residents to get domicile certificate and permanent certificate which according to him needed examination since inception of India.
The single bench had also set aside two state government notifications related to issuing permanent residence certificate/domicile certificate.
According to the division bench, applying the law as has been laid down, setting aside of the two notifications by the single judge in absence of any challenge in the writ petition was totally impermissible and not sustainable.
While parting with the judgment, Justice Sen had made an appeal to the Centre for taking necessary steps to bring a law 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 after taking historical background.
During the hearing, Advocate General observed 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 are not consistent with the preamble and other provisions of the Constitution.
“True it is that there was no requirement to go into superfluous questions. Secondly, any observation directly or in directly which offends the preamble of the Constitution cannot be sustained”, the division bench said.
The court observed that the Advocate General was right in contending that in exercise of writ jurisdiction even otherwise direction for any policy framing is impermissible.
According to the court, in effect, 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 secular colour of the country and the provisions of the Constitution of India”, the order said.