Shafeeq R. Mahajir

Maneka Gandhi “…It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression ‘personal liberty’ as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. …‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have….” The Court said the GO is in exercise of the executive powers of the State. The reasons for enactment of a …statutory order are not required to be part of it… only when the issue of constitutionality is raised, the executive is required to satisfy the Court about the legality of the action taken. It did not find favour with the argument that as the GO stated reasons which were not applicable, it must be shot down. But then, Mohinder Singh Gill v. Chief Election Commissioner had held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by reasons so mentioned and it cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. Otherwise, an order bad in the beginning, may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. In Re the Kerala Education Bill, 1957 Reference the Court said “conditions imposed by the said Bill on aided institutions established and administered by minority communities, like the Christians, including the Anglo-Indian community, will lead to the closing down of all these aided schools unless they are agreeable to surrender their fundamental right of the management. No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1). The legislative powers conferred on the legislature of the States by Articles 245 and 246 are subject to the other provisions of the Constitution and certainly to the provisions of Part III which confers fundamental rights which are, therefore, binding on the State Legislature. The State Legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the legislature cannot do indirectly what it certainly cannot do directly…” K.S. Puttaswamy was cited, and had held “…Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. …pattern woven out of a thread of diversity into the fabric of a plural culture.” Another judge in the same case held “…the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty… The choice of appearance and apparel are also aspects of the right to privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right to privacy but as a part of their religious belief. Such freedom need not necessarily be based on religious beliefs falling under Article 25…” There is an unnecessary reference to slavery and Hedaya V & XII about Ittak (Manumission of Slaves) allegedly abrogated by the Abolition of Slavery Act of 1843… It is important for readers to have context: in those days, captives from war could not just be freed, since they were hostile combatants and their affiliates; the State had no detention centres, no budgetary allocation, so they were given into the charge of hosts, subject to absolute obedience, hence slaves; then, abolition of slavery was promoted by the Prophet by brilliantly simple means: when a captive in war became a slave the Muslim host owner had to feed, clothe and house him the same way as himself and members of his immediate family: an extremely expensive proposition. Contrary to the crude canard, you could not “have relations” with a slave, unless you married her, which immediately made her a free woman. Slaves could earn their freedom by imparting their knowledge and teaching skills they knew. When this Act (1843) was passed, were there any slaves in any Islamic jurisdiction? So, correction: in 1843 slavery was non-existent in Islamic states, and hence was not “abolished by Act of 1843”. I do not wish to digress, but linking that Act while discussing Islam is misleading and wrong and a lot more thought must go into analysis. Of necessity, I will quote what his Lordship Justice V.R.Krishna Iyer in AIR 1971 Kerala 261, said: “The interpretation of legislation obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and within its grammatical flexibility must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background, which inspired the enactment of the law, before locating the precise connotation of the words used in the statute. Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic Law …has not exactly been just to the Holy Prophet (PBUH) or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammed (PBUH) of India and Arabia.” And then “Law is largely the formalised and enforceable expression of a community’s cultural norms and cannot be fully understood by alien minds.” Oh, crumbs… I am being carried away again. Our judges are hardly “alien minds”. Nor are there any slaves now… unless we think of people of a political (or religious) belief as slaves to ideology. A.S. Narayana Deekshitulu held religion has its basis in a system of beliefs and doctrine regarded by those who profess that religion to be conducive to their spiritual well-being. …Every religion must believe in conscience and ethical and moral precepts. … Adi Visheshwara held religious freedoms guaranteed are intended to guide community life and ordain every religion to act according to its cultural and social demands …strike a balance between rigidity of religious belief and faith and intrinsic restrictions in matters of religious beliefs and guaranteed freedom of conscience to commune with his Cosmos/Creator and realize his spiritual self. … scope of protection under Article 25 goes beyond religious beliefs. This provision affords to all people’s freedom to beliefs that may not necessarily be religious but which may spring from one’s conscience. Yet, claiming to examine the right to freedom of conscience and religion in light of the restrictions provided under Article 25(1), the judgement reads it is not just subject to public order, morality and health but also ‘other provisions of Part III’… also include Article 14 which provides for equality before the law. And here I thought Art. 14 guaranteed me the same rights as others under the law, not that instead it destroys my rights that do not qualify on parameters of homogeneity to eliminate every facet of my appearance others don’t like. Maybe in law school, I was a la Charlie Brown’s thought-cloud in Peanuts, “My body may be in school but my mind is on vacation.” I now stand corrected. Take another bit. Ismail Faruqui v. Union of India held an offering of prayer is a religious practice: “… prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. … … A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open…” (Unexpected things can, however, happen when it is offered in the open.) Illustratively, read the above in the letter, ignoring the spirit and see how logic can yet result in absurdity: “prayer is religious practice: it can be offered anywhere: a mosque is not an essential part of the practice of religion: prayer need not, therefore, be offered in a mosque: choosing to go to a mosque is secular activity, a matter of choice: State can regulate secular activity…” imagination, of course. Just imagination. Can a judgement potentially be used as a precedent for something presently not intended? Prevention is better than cure, a less than carefully thought out judgement, used as precedent, can lead just about anywhere. Campaigning is an indication of intent to form a government. Mobilisation of armies suggests a war ahead. Could the judges have concluded someone was, say, testing the waters? It has been said people are not happy with the collegium system, the appointment of judges is the government’s job. Only, the government would then be designating those adjudicating matters where it has a stake. But…Perkins Eastman Architects DPC (re arbitrator appointment) held “ …. Person who has an interest in the outcome or decision of a dispute must not have the power to appoint a sole arbitrator…recognized by the decision of this court in TRF Ltd”. Since many cases involve the State, it alone perhaps ought not to appoint judges. Sec. 61 Indian Trusts Act says the beneficiary has a right that his trustee shall be …restrained from committing any contemplated or probable breach of trust. Governance is held to be a sacred trust, citizens the beneficiaries, elected representatives the trustees. The legislature, the Courts said, understands the needs of the people. Is it then possible, as the law evolves, that one day we shall see provisions leveraged to prevent harmful legislative steps, as contemplated or probable breaches of trust? I don’t know. I am not a judge.

Shafeeq R. Mahajir

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