The break, necessitated by
the thread getting entangled with current events, continues…
Recently 4 citizens of
this country have been provided additional security by the government. Three of
them are judges of Karnataka High Court and the last one a film director, Vivek
Ranjan Agnihotri, who brought the genocide of Kashmiri Hindus and their exodus
that followed, on celluloid.
The three judges are the
ones, including the Chief Justice, of the Karnataka High Court who upheld a
Government of Karnataka order on uniforms in educational institutions. Based on
these orders some institutions had banned the wearing of hijab, a head covering
generally used by Muslim girls and women, in class rooms. This had led to
threats on the life of the judges from some fundamentalist organizations. While
the security of these judges were promptly stepped up, a leader of Thauheed
Jamaat had also been arrested for the threat.
That apart, the question
that bothers one is the day to day hearing conducted over a month, given the
frivolous nature of the petition. The issues decided by the court, as per a
report in India Today, dated 16 March 2022 (https://www.indiatoday.in/india/story/karnataka-hijab-controversy-high-court-1926036-2022-03-16) are:
Whether wearing a hijab is
an essential part of religious practice in Islam? And, is it protected under
Article 25 (Right to Freedom of Religion) of
the Constitution?
Whether prescribing a
uniform by school administration is legal or does it violate the fundamental
rights of the petitioners as guaranteed under Articles 19 (Right to
Freedom) and 21(Right to life and
personal liberty)
Whether the government order
of February 5 that led to ban on wearing hijab on the campus was incompetent,
arbitrary and issued 'without application of mind'? And, would it amount to
violation of the fundamental rights of equality before law (Article 14) and
protection against discrimination on the ground of religion (Article 15)?
Whether the principal,
teachers and the panel members responsible for banning hijab in classrooms
committed a wrong against the students by implementing the school uniform rule?
The court concluded that
hijab was not an essential part of religious practice in Islam, prescribing
uniform was only a reasonable restriction permitted under articles 19 and 21,
there was no case made to invalidate the government order or to initiate
disciplinary action against the authorities who enforced the order.
Are these frivolous
issues? To my mind, yes. Let us look at the issue from an ordinary citizen’s
perspective and logic.
If it was an essential
religious practice shouldn’t we be seeing all Muslim girls and women in hijab
or burkha? Is that how it is around us?
How many Muslim women have
we seen acting in our films? Have they ever been seen, even in real life,
wearing a hijab or a burkha?
How many of us have seen
any photograph of women Prime Ministers of Muslim countries like Pakistan and
Bangladesh in hijab or burkha?
Are all Muslim women in
our police and among judges and advocates seen in hijab or burkha always?
In fact there are enough
photographs of muslim women, even in Saudi Arabia and elsewhere, without hijab
or burkha, appearing in the print and visual media to nail the claim that it is
an essential religious practice.
Arif Mohamed Khan,
currently Governor of Kerala, is on record having said that hijab was not an
essential religious mandate in Islam. In fact, he has gone to the extent of
saying ‘I’m opposed to minority
commissions, rather strengthen the human rights panel that can take care of
everybody’ (https://indianexpress.com/article/idea-exchange/idea-exchange-arif-mohammad-khan-governor-of-kerala-7818356/, 14 Mar 2022)
Also Dr Fazal Gafoor, President
of the Muslim Educational Society, that manages 150 educational institutions,
including medical, engineering and other professional colleges, is on record
that burkhas and veils are banned in classes in all their institutions.
Also, Pillars of Islam,
listed at https://www.britannica.com/topic/Pillars-of-Islam, are as follows: shahadah, the Muslim profession of
faith; salat, or prayer, performed in a prescribed manner five times each day;
zakat, the alms tax levied to benefit the poor and the needy; sawm, fasting
during the month of Ramadan; and hajj, the major pilgrimage to Mecca, if
financial and physical conditions permit.
Next, is the issue of personal
liberty. This is a virtual minefield, especially when considered in the context
of uniforms. After all it is not only Muslims girls who can have such liberty.
In any case, once hijab is acknowledged as not being part of any religious
mandate, there was absolutely no need to take up this issue separately.
The other issues-
competence of the government to issue such orders and initiation of
disciplinary proceedings against those who enforced the government’s orders are,
on the face of it, simply a mockery of judicial proceedings.
Anyhow, the verdict has
been challenged in the apex court almost immediately after it was announced. And
the court has reportedly observed that there was no need to consider it
urgently.
Incidentally, ever since
the controversy, if it should be called one, erupted in Udupi, Karnataka, there
have been many reports in the media of similar issues being dealt with by the
courts earlier. Here are some of them.
In Fathema Hussain Sayed v
Bharat Education Society, decided by the Bombay High Court in 2002, in the
context of wearing hijab to a girls’ school, was since it was an all girls’
school this issue was irrelevant;
The Madras high court in Sir
M. Venkata Subba Rao Matriculation Higher Secondary School Staff Association v Sir M. Venkata Subba Rao Matriculation Higher
Secondary School, decided, in 2004, in favor of the school management which had
imposed a dress code for teachers.
The same court in Kamalam v
Dr. M.G.R. Medical University decided in favour of a medical intern, in 2009,
who had questioned the College Management which had prescribed saree as dress
code for interns; and
In Fathima Thasneem v
State of Kerala, decided by the Kerala High Court in 2018, in the context of
wearing hijab to a Christian managed institution, had held that the (minority)
institutional right prevailed over the personal right;
In his book, Landmark
Judgments that Changed India, former judge of the Supreme Court Ashok K Ganguly
has discussed the controversy over the Parliament's right to amend the
Constitution and the Supreme Courts power to review those amendments. In doing
so he writes this controversy emerged
prominently in at least six judgments:
-Sri
Shankari Prasad Singh Deo v Union of India and State of Bihar (AIR 1951, SC
458)
-Sajjan
Singh V State of Rajasthan (AIR 1965 SC 845)
-IC
Golaknath and others v State of Punjab and another (1967 SC 1643)
-Kesavananda
Bharati Sripadagalvaru and others v State of Kerala and another (1973 4 SCC
225)
-Indira
Nehru Gandhi v Sri Raj Narain and another (1975 Supp SCC 1) and
-Minerva
Mills Ltd and others v Union of India and others (AIR 1980 SC 1789)
In Shankari Prasad, it was
unanimously held that in the context of Article 13 'law' would not mean
amendment to the Constitution made in exercise of constituent powers. This
upheld the 1st amendment to the Constitution in 1951 whereby the 9th Schedule
was introduced in the Constitution to keep the laws listed therein beyond
judicial scrutiny.
In Sajjan Singh, Chief
Justice Gajendragadkar had held that the dictionary meaning of amend cannot be
relied on for construing the word amend in Article 368. It was held that the
power to amend in the context of Article 368 was a very wide power and cannot
be controlled by the literal dictionary meaning. And the author has observed as
follows: while making such sweeping observations the learned chief justice did
not support it with any discernable kind of reasoning except by relying on the
reasons in Shankari Prasad which upheld the 1st Amendment to the Constitution.
This he had claimed was far from being cogent. In this case, which upheld the
17th amendment of the Constitution, judges Hidayathulla and
Mudholkar had reservations on the idea of amending the fundamental rights and
it led to the introduction of the concept of a basic structure of the
Constitution.
Both the above decisions
came under scrutiny in IC Golaknath and others v State of Punjab and another.
Here, in a six to five majority decision it was held that Parliament will not have any power to amend any provision of Part III
of the Constitution or to ‘take away or abridge fundamental rights, enshrined
therein. The author asserts: Thus,
Golaknath started the great war, as opposed to the earlier skirmishes in Sajjan
Singh, between Parliamentary and judicial supremacy.
The Kesavananda Bharati
case was filed in 1970 under Article 32 of the Constitution. Even as it was
pending there were three amendments of the Constitution. The 24th amendment,
in 1971, was explicitly to get over the judgment in Golaknath. This case was
heard by a 13 member bench from November 1972 to April 1973, when the apex
court had only 15 judges. It was decided with 10 of them holding that the
Golaknath case was wrongly decided. Six of the thirteen judges, even while
upholding the amending powers under the 24th amendment, held that
the amending power could not be utilized to emasculate the basic structure of
the Constitution, which, inter alia, included the fundamental rights.
I have always wondered
what is this basic feature of the Constitution, that has been touted by the
judiciary for quite some time now. In the context of Kesavananda Bharati
judgment, Ganguly, quoting judges Shelat and Grover, has listed it as:
The supremacy of the Constitution;
The republican and democratic form of
government and the sovereignty of the country;
The secular (my observation: the term secular was introduced in the Preamble in 1976, by the Constitution
42nd Amendment Act) and
federal character of the Constitution;
The demarcation of power between the
legislature, the executive and the judiciary;
The dignity of the individual secured by
the various freedoms and basic rights in Part III and the mandate to build a
welfare state contained in Part IV; and,
The unity and integrity of the nation
And, there is a rider
too…that the basic features could never be exhaustively indicated.
As per Ganguly, the issue
of basic structure came up again in the Indira Nehru Gandhi v Sri Raj Narain
and another, case. This is the infamous case where Indira Gandhi had appealed
against her conviction by the Allahabad High Court in the election case. V R
Krishna Iyer, a doyen among jurists, was sitting during vacation and had stayed
the high court verdict till the appeal was finally disposed of. But before the
appeal could be heard, Emergency was declared, Election laws were amended and
within a span of five days the 39th Constitutional Amendment Act was
passed which was virtually directed
towards the disposal of the pending appeal by holding that the election of the
appellant is declared valid as per the amendment. Quixotically, the apex
court invalidated the amendment that introduced Article 329A, but nevertheless
set aside the Allahabad High Court judgment too.
The author, while dwelling
a lot on individual judgments and the nuanced stands taken by the judges on the
amending power issue had not dealt with in detail about the reasons setting
aside the high court judgment. But one sentence that got my special attention
is an observation made by one of the judges to the effect that the classification of the Prime Minister or
the Speaker for excluding any challenge to their election under the impugned
amendment did not satisfy the Doctrine of Reasonable Classification and
amounted to favoured treatment and that may outrage the sense of justice of
common men which sustains a democracy. Indeed, it did and continues to do
so, that is outrage the sense of justice of common men.
But, still looking for the
exact reasons I looked for the copy of the judgment at the website of the apex
court and failed. But luckily I got one from https://indiankanoon.org/. And this is what I got to read at paragraph 694 of
the order having 696 paragraphs:
These Acts effectively put an end to the
two appeals before us for they answer the totality of the objections which were
raised by Shri Raj Narian against the election of Smt. Indira Gandhi. The basis of the findings on which the High
Court held against the successful candidate is removed by Act 40 of 1975
retrospectively. Were the law as it is under the amendments introduced
by that Act, the High Court could not have held that the election is
vitiated by the two particular corrupt practices.
And weren’t we under the
impression that the law that applies is as on the date of the commission of the
alleged offence?
The Minerva Mills case is
another one where the apex court held the 42nd amendment of the
Constitution invalid as it overrode the basic structure doctrine but the
nationalization of the Mill was upheld because the Nationalisation Act had been
included in the 9th schedule of the Constitution, which barred
judicial review.
Just for the record, it
was in April 1976 that the apex court gave its now infamous verdict in the ADM
Jabalpur case.
https://en.wikipedia.org/wiki/ADM_Jabalpur_v._Shivkant_Shukla informs us that:
This judgment received a lot of
criticism since it reduced the importance attached to Fundamental Rights under
the Indian Constitution. Going against the previous decision of High Courts,
the bench which included P. N. Bhagwati concluded in favour of the then Indira
Gandhi government while only Justice Hans Raj Khanna was opposed to it.
Bhagwati openly praised Indira Gandhi during the Emergency period, later
criticized her when Janata Party-led government was formed and again backed
Gandhi when she got re-elected to form government in 1980. Bhagwati was
criticized for these change of stands, favouring the ruling government, which
were deemed as to have been taken to better his career prospects. Bhagwati,
later, in 2011, agreed with popular opinion that this judgement was short-sighted and "apologised".
An article ‘The darkest
hour: ADM Jabalpur was a test for SC. Only the dissenter passed it’, dated 29
Auguest 2019, at https://indianexpress.com/article/opinion/columns/supreme-court-adm-jabalpur-the-darkest-hour-5945825/
informs us as follows:
YV Chandrachud was among the four SC
judges who sat on the five-judge Habeas Corpus bench for 37 working days from
December 1975 to February 1976, and ruled that personal liberties in India were
not to be necessarily upheld in the face of the executive after declaring
Emergency.
On Independence Day 2019, his son, D Y
Chandrachud, now judge of the same apex court, after annulling the above
judgment, made a revealing personal statement: “I know he (former Chief Justice
YV Chandrachud) believed through his life that ADM Jabalpur was wrong.”
I remember an advocate
friend telling me that one of the first lessons taught in their law classes is argue the law when facts are against you,
argue the facts when law is against you and yell like hell, if both the law and
facts are against you. Of course, I can imagine what yelling can result in
a real court room though some can be seen on silver screens. But what is
important here is how it applies to bench. Cannot be any different, can it?
We all know that there are
two parties to any case before a judge. Both have some facts, some laws and
some case laws to present and it is left to the judge’s discretion as to which
facts, laws and case laws to accept. And, no prizes for guessing how this
discretion can be exercised.
P M Ravindran/raviforjustice@gmail.com/040422
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