Kerala High Court
Remya Raju And Ors. vs Govt. Of Kerala And Ors. on 14 March, 2008
Equivalent citations: 2008(2)KLJ216, AIR 2008 KERALA 192, (2008) 2 KER LJ 216 (2008) 2 KER LT 322, (2008) 2 KER LT 322
Author: Thottathil B. Radhakrishnan
Bench: Thottathil B. Radhakrishnan
JUDGMENT Thottathil B. Radhakrishnan, J.
1. Petitioners 1 & 2 are two students of SDA School, Sadanandapuram, Kottarakkara and are appearing for the SSLC examination of March 2008, conducted by Government of Kerala, which commenced on 12-03-2008. According to them, they belong to the Seventh Day Adventist denomination, a world wide Protestant Christian denomination and are therefore entitled to fundamental right under Article 25(1) of the Constitution to freely profess, practise and propagate that religion. According to them, in terms of the core faith of the members of that denomination, they have to abstain from any activity from 6 a.m. to 6 p.m. on Saturdays and therefore it will be impermissible for them, in the context of their religion, to appear for the examination scheduled tomorrow, i.e., 15-03-2008/fliey filed this Writ Petition on 12-03-2008, relying on Ext.P2 Government Order dt. 21-12-1961 by which the Government had decided that if there are any candidates belonging to Jews or Seventh Day Adventist denomination to appear for the examination, special arrangements will be made for them, for conducting the examination after 6 p.m.
2. When this matter came up for admission on the afternoon of 12-03-08, in the wake of Ext.P2, the learned Government Pleader was requested to obtain instructions. He states today that Ext.P2 has since been withdrawn and the time table was set sufficiently early in terms of Rule 11(2) in Chapter VIII of the Kerala Education Rules. He accordingly stated that the petitioners can have no claim as is projected by them.
3. Learned Counsel appearing for the petitioners relying on the decisions of the Apex Court in Bijoe Emmanuel v. State of Kerala and Bramchari Sidheswar Shai v. State of West Bengal , dilating in detail on the scope of the term in Article 21(1) of the Constitution, contended that the abstinence of the. members of the denomination in question from any activity during the day time on Saturdays, being intricately connected and deep rooted in the faith and belief of the members of that denomination, no law made by the State can impinge on the freedom guaranteed by Article 25(1) except to the extent of the power to legislate on the ground of public order, morality and health.
4. He accordingly argued that the students belonging to the denomination of the petitioners are entitled to have the examination scheduled in such a manner by which they would not be compelled to write the examination between 6 a.m. and 6 p.m. on Saturdays since such participation in examination would result in the petitioners injuring their religious beliefs. Ultimately he pointed out that Ext.P2 was held in the field from 1961 and the benefit should be permitted to run during the present academic year also, though the Government may be at liberty to withdraw a Government Order.
5. The learned Government Pleader argued that no distinction on the basis of caste, creed, colour or religion has been made at any point of time and any concept referable to Ext.P2 Government Order is no more adhered to by the State Government which conducts different examinations. He also pointed out that as a matter of fact, the plus two examinations for the current year also were held on Saturdays. As stated by him, even the Central Board of Secondary Education commenced its board examinations this year on Saturday.
6. Article 25(1) has to be read and appreciated in the context of the various limbs of Article 25. An examination of that Article would show that Article 25(1) and Clause (a) of Article 25(2) are interconnected. Article 25(1), as already noticed, guarantees to all persons equality in the matter of entitlement to freedom of consideration and the right to profess, practise and propagation of religion. Article 25(2)(a) provides that nothing in Article 25 shall affect the operation of any existing law or prevent State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. The provision in Article 25 is essentially aprotective constitutional instrument by which the freedom of conscience and right to freely profess, practice and propagate religion are enjoined, subject to public order, morality and health and other provisions of Part III of the Constitution. The State, if it makes any provision affecting the freedom of conscience and the right to freely profess, practise and propagate religion, has to justify such legislation on the touchstone of public order, morality, health and the other provisions of Part III, if challenged. This is how Article 25 works.
7. An examination of Part III of the Constitution, held in the backdrop of the Directive Principles of State Policy, as enshrined in Part IV and fundamental duties as enshrined in Article 51A, the sole provision in Part IVA, would advise that, having regard to the secular component of the Indian Republic, no right guaranteed by Article 25 of the Constitution to any citizen can, in any manner, erode the secular rights referable to the other provisions of the Constitution. This is how the protective right under Article 25 sustains along with the principles of Article 14, which enjoins equality be fore law and equal protection of the laws.
8. In that view of the matter, the Kerala Education Act and the Kerala Education Rules are nothing but secular laws which have to be enforced without any classification of citizens on the basis of caste, creed, colour, religion, sex or other differentia, except to the extent provisions are made in tune with the constitutional goals and provisions. Therefore, the manner of conducting examinations is a subject of a secular nature and hence, no provision available under Article 25 could be put to take the stand against conduct of examination on any particular day simply on the ground that it would militate against the provisions of Article 25. At any rate, scheduling of an examination on a day which may not be acceptable to a class of citizens professing a particular religion does not infract the fundamental rights guaranteed by Article 25(1) is regulated only by the terms thereof. In this view of the matter, Article 25(1) is no answer to any opposition to the scheduling of public examinations on any date. Therefore, the contention of the petitioners based on Article 25(1), is repelled.
9. The executive Government, in its wisdom, is entitled to modulate the time table which is one of the functions of the executive in terms of law governing education. To ensure harmony and various aspects, as are relevant in social life, the Government may take decisions which are, in its view, required in public interest. It is not within the domain of judicial review to interfere with such decisions, except in cases of violations to the constitutional or statutory provisions. So much so, the learned Government Pleader is justified in stating that, as of now, Ext.P2 having been withdrawn, the petitioners have been advised that they can take an examination under the "Save An Year Scheme", if they are unable to take the examination on Saturdays.
10. Ext.P2 Government Order shows that the fact situation right from 1961 was that the students belonging to the denomination of the petitioners were permitted to write examinations after 6 p.m. in the event of the examination being scheduled on Saturdays. That Government Order held the field, at least, until the institution of this writ petition since the statement on behalf of the Government is that Ext.P2 was withdrawn only now. Therefore even when the time table was set for this year's examination, it was obvious that Ext.P2 was in force. Setting a time table in terms of Rule 8(2) of Chapter VIII, KER is an executive exercise. Ext.P2 is an executive order of the Government. Though to would not have an over riding effect on the provisions of Rule 8(2) of Chapter VIII of KER, its gaze continues to fall, as one containing the policy of the Government, at least as on the date when the current time table for the examination was set.
11. Therefore, this is not a case where the petitioners 1 and 2 who are in the threshold of their life and appearing for, probably, the first public examination in their life, should be deferred to go for the SAY examination. Justice on the facts and circumstances is abundantly clear that wisdom of Government withdrawing Ext.P2 should operate only from the next year. It is, hence, so ordered and it is directed that the respondents shall take necessary steps to ensure that Ext.P2 is given effect to in the matter of conducting examinations as far as the petitioners are concerned.
12. The writ petition is ordered accordingly.