Andhra HC (Pre-Telangana)
Peeran Saheb And Ors. vs Special Officer Cum Collector, Pungan ... on 5 February, 1987
Equivalent citations: AIR1988AP377
Author: Syed Shah Mohaivimad Quadri
Bench: Syed Shah Mohaivimad Quadri
ORDER
1. Elections of the Councilleors to the Municipalities in the State of Andhra Pradesh are governed by Andhra Pradesh Municipalities Act, 1965 (for short 'Act 6 of 1965'). By S. 2(8) of Andhra Pradesh Municipal laws (Amendment) Act (for short Act 33 of 1986) S. 12 is inserted in Act 6 of 1965. Under Act 6 of 1965 rules are framed for supply, of identity cards to voters which are issued in G.'0. Ms. No. 628, M.A.. Housing Municipal Administration. and Urban Development (Elections) Department, dated 12th Nov., 1986 (for short the Rules). Constitutional validity of the provision of Act 33 of 1986 'and the Rules requiring the voters to obtain the photo identity cards to enable the electors of the Municipality to exercise franchise, is questioned in a batch of writ petitions. In these writ petitions W.P.M.Ps. are filed requesting suspension of the impugned provisions of Act 33 of 1986 and the Rules. As all these petitions raise a common question of law, they are beard and are being disposed of by common order.
2. For the purpose of these petitions it 1may not he necessary to slate all the facts, except to mention that the petitioners in all these petitions are Muslim electors and object to be photographed on the ground that taking of photo is prohibited in Islam. It is submitted that. under Shariat taking of photographs or pictures by any process of any person is prohibited and is considered to he a religious offence. It is the basic tenets of Muslim Law, particularly women are not permitted to t4e their photographs and expose their face and other identities to other persons except to their kith and kin. Under the impugned provision one is obliged to produce the identity card to vote. By this process muslim in general and Muslim women in particular are being deprived of their right to vote in the ensuing Municipal elections in the State of Andhra Pradesh while other persons who are not under such a prohibition 'will have their voting right intact. It is further submitted that the requirement of photo identity a card is introduced only in regard to the election of the local bodies of Municipalities and Municipal Corporations and not insisted upon in regard to the elections of other local bodies like Gram Panchayats, Mandal Panchayats and Zilia Parishads. This amounts to discrimination and offends Art. 14 of the Constitution. In the circumstances, the petitioners prayed that. the impugned Act and the Rules be suspended.
3. This court by interim order directed the respondents not to disqualify such of the women voters who on account of custom or otherwise decline to be photographed, for being listed in electoral rolls. "
4. The respondents filed counter-affidavit along with W.V.M.Ps. to vacate the interim directions, inter alia stating that the Legislature has amended the Act and separate electoral rolls have been prepared for the Municipalities and it was also intensively revised with reference to the qualifying date i.e., 1-1-1986. It is stated that in the issuance of identity cards for the electors there is nothing illegal or unconstitutional Such a provision exists in R. 28 of Registration of Electors Rules, 1960 issued under the Representation of the People Act, 1951 and R. 35(3) of the Conduct of Election Rules, 1961. It is admitted that a person who could not obtain identity card cannot exercise the franchise or contest the election. The very purpose of identity card is to prevent impersonation at the elections. Municipalities and Corporations are treated as a class apart from the Mandals and. Gram Panchayats. To start with, this system has been introduced in cases of Municipalities and Municipal Corporations. It is stated that there may not he any scope of impersonation in the cases of Gram Panchayats and Mandal Praja Parishads where the voters can be easily identified unlike the cases of Corporations and the Municipalities where the electorate are large . in number in each ward and spread over resulting in difficulty for. identification. It is denied that the introduction of photo identity card system is arbitrary and violative of Art. 14. It is, however, stated that the petitioners are put to strict proof of the averment that in Quaran and Shariath, photos are prohibited. Photo identity card system is in vogue in Andhra Pradesh State for educational purposes, for obtaining rations, for obtaining driving licences for motor vehicles and for obtaining passports. Right to exercise franchise being purely statutory, can be subjected to regulations. It is also stated that on 10-1-1987 a circular has been issued by the Commissioner and Director of Municipal Administration, Hyderabad, directing the photographers to visit door-to- door and take required photographs.
5. Shri K. Pratap Reddy the learned counsel for the, petitioners in W.P.M.P. No. 950 of 1987 and Shri Mohd. Mohiuddin the learned counsel for the petitioner in W.P.M.P. No. 898/87 confined their submissions with respect to Muslim voters particularly women voters. They submit that as taking of photographs is contrary to the provisions of Shariat, the Muslim women voters cannot at the pain of contravening injunctions of their religion be asked to participate in the election, as it is violative of Art. 25(1) of the Constitution.
6. Mr. Ram Mohan Raj, the learned, ,counsel for the petitioners in W. P. M. P. No. 1146 of 1987 and 1262/87 and Shri K. Venkat Ramaiah, the learned counsel fort he petitioner in W. P. M. F. No, 712 of 1987 adopted the arguments of Shri Pratap Reddy with regard to violation of Art. 25(1) of the Constitution and add that even the rules framed under the Representation of the People Act, i.e., preparation of Electoral, Rolls and Conduct of Election Rules, there is no obligation on any person to produce the identity card for exercising his franchise. So also under Passport Rules in fact he placed passport form issued under R. 124 of the Passport Rules, Wherein below the space provided for photo, -the following is noted Not Necessary In The Case Of A Woman Who Objects To Being Photographed'. He also placed before me G. O. to show, for family pensioner also there is no obligation to take photo. Shri Venkata Ramaiah further submits that the right to vote to the local ,bodies cannot be put on a higher pedestal than the elections of the members of Parliament and the. Legislative assembly.
7. The learned Advocate General on the other hand, submits that the very purpose of Act 33 of 1986 and the Rules, is to eliminate impersonation in elections and to have fair conduct of election. He submits that there is nothing wrong in requiring to produce the identity card for the purpose of casting the vote and that use of photos is very much in vogue for Passport, Hall Tickets for examinations, etc. the first consider the contentions, of Shri Venkata Ramaiah. As stated above, his main contention is that the rules framed under the Representation of the People Act do not contain any provision enjoining the voters to take photos and obtain identity card and that the election to the local bodies cannot, therefore, be put on a higher pedestal than the elections of the members of Parliament and legislative assembly.
8. Sec. I0(8) of the Act give the right to vote.
9. Rule 28 of Registration of Electors Rules, 1960 reads as follows :
"28. Identity cards for electors in notified constituencies.- (1) The Election Commission may, with a view to preventing impersonation of electors and facilitating their identification at the time, of poll, by notification in the Official Gazette of the State, direct that the provision of this rule shall apply to (any such constituency or part thereof) as may he specified in the notification.
(2) The registration officer for such notified constituency shall, as soon as may be, after the issue of the notification under sub-rule ( 1), arrange for the issue of every elector of an identity card prepared in accordance with the provisions of this rule (3) The identity card shall
(a) be prepared in duplicate;
(b) contain the name, age, residence and such other particulars of the elector as may be specified by the Election Commission.
(c) have affixed to it a photograph of the elector which shall he taken at the expense of the Government; and
(d) bear the facsimile signature of the registration officer, Provided that if the elector refuses or evades to have his photograph taken, or cannot be found at his residence by, the official photographer in spite of repeated attempts, no such identity card shall he prepared for the elector and note of such refusal or evasio6orthattheele,ctoreouldnothefound at his residence in spite of repeated attempts shall he made in the copy of the roll maintained by that registration officer.
(4) One copy of the identity card prepared under sub- ,rule (3) shall be retain by the registration officer and the other copy shall be delivered to the elector to he kept by him for production at the time of poll..
10. Rule 35 of the Conduct of Election -Rules. 196'1 is in the following terms:
"35 Identification of electors':- (1) The Presiding Officer may employ at the polling station such persons as he thinks fit to help in the identification of the electors or to assist him otherwise in taking to poll.
(2) As each 'elector enters the polling station, the presiding officer or the polling officer authorised by him in this behalf shall cheek the elector's name and other particulars with the relevant entry in the electoral roll and then call out the serial number, name and other particulars of the elector.
(3) Where the polling station is situated in a constituency, electors of which have been supplied with identity cards under the provisions of the Registration of Electors Rules, 1960, the elector shall produce his identity card before the presiding officer or. the polling officer authorised by him in this behalf.
(4) In deciding the right of a person to obtain a ballot paper the presiding officer or the polling officer, as the case may be. shall overlook merely clerical or-printing errors in an entry in the electoral roll. if he is satisfied that such person is identical with the elector to whom such entry relates".
11. It is true that a reference is madle by the Government in the counter-affidavit that the rules framed under representation of the People Act. but it is also stated that the election to the local bodies are not conducted under those rules. Final, therefore, those rules are not applicable. However, the mere fact that the Rules extracted above do not compel a voter to take out identity cards, aloes not entitle the petitioners to urge that they cannot he asked to take out the identity card under 'the impugned rules as the elections are being conducted under Act 6 of 1965 and the rules and not under the Representation of the People Act. The learned Advocate General contends that in the villages and other places, the voters can he well identified but in towns and Municipalities there being large number of persons, it is difficult to identify the voters. This is countered by the learned counsel for the petitioners that each voter is allowed to vote only when t he representatives of the, rival parties agree on the identity of the voter.
12. There can be many methods to identify a voter. Identification by cards with' the bust of the voter is one such method of identifications. Unless this method is either arbitrary or violative of any of the rights of the petitioners the respondents cannot be restrained from. following it. Merely because there are other methods of identifying voters, viz, with reference of mark of identification or concurrence of representatives of the contestants about the identity of a voter. it does not follow that the method of identification prescribed by the impugned provision of the Act, is arbitrary or illegal unless it violates the rights of the voters. On this ground alone the impugned provisions cannot be suspended.
13. The next question is whether the impugned provisions are prima facie, violative of Art. 25( 1') of the Constitution.
14. Shri Mohd. Azizullah Khan cited before member of verses from Quaran from the translation of Dr. Abdul Latif to show that there are injunctions in Quran which prohibit coming out the ladies in public showing, their faces and a fortiori baking of photograph. In view of the observations of the Privy Council in Baker Ali v. Anjunian Ara (1903) 30 find App 94 and Abdul Fata v. Russomony (1895) 22 Ind App 76and a recent decision of Division Bench of Madras High Court in Veera Kutty v. P. Kutti Umma AIR 1956 Mad 514 and the opinion of Modern authors Fyzee "Under these circumstances it is undesirable for the present day courts to put their own construction on the Koran and Hdith where the opinions of text-writers are clear and definite." it will neither be desirable nor proper for this Court to attempt to interpret the original text of Quran or Hadith.
15. Therefore, I'll confine myself to refer only the authoritative books on the religion cited by the learned counsel.
16. Shri Mohd. Mohiuddin has relied on certain passage from the book 'Purdah and the Status of Woman in Islam by Syed Abdul Ala Maududi. He has also cited Fatwa issued by Madrase Baquiyat us Salchar, Vellore, stating that taking of photographs is Haram.
17. Shri Pratap Reddy, the learned counsel has cited Dure Muktar (Urdu Edition) at page 303 where It is laid down that taking of photo is 'Haram'. He has also cited a book 'The social laws of the Qoran' by Robert Roberts.
Art. 25(1) of the Constitution which is in the following terms:
"25(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion'.
18. It is evident that right freely to profess and practice the religion is one of the fundamental rights. But the question is whether the right to observe 'purdah' and not taking photo are part of religious practice. The learned Advocate General relying on the following observation of the Supreme Court in talkayat Shri Govindhaji Maharaj v. State of Rajasthan, .
"that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not as essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26.
A distinction must always be made between a practice which is religious and a practice in regard to a matter which is purely secular and ha[s no element of religion associated with it'.
contends that observing purdah or taking of photograph cannot be said to be an integral part of the religion.
19. Like Hinduism in Islam, the actions of the followers from cradle to grave are governed by religious injunctions.
20. In introduction of 'Outlines of. Muhammadan Law', the learned author aptly summarised the classification of injunction in Shariat as follows:
"According to the shariat, religious injunctions are of five kinds, al-ahkam al- khamsa. Those strictly enjoined are fard, and those strictly forbidden are haram. Between them we have two middle categories namely, things which you are advised to (mandub), and things which you are advised to refrain from (Makruh), and finally there are things about which religion is indifferent (jaiz) (u) The daily prayers, five in number, are fard; wine is harani, the additional prayers, like those on the id, are inandub; certain kinds of fish are makruh; and there are thousands of as things, such as travelling by air. Thus the shariat is totalitarian; all human activity is embraced in its sovereign domain. This fivefold division must be carefully noted; for, unless this is done, it is impossible to understand the distinction between that which is only morally enjoined and that which is legally enforced."
From the book cited by the learned counsel, it is evident that taking a photograph is haram. Therefore, it forms integral part of the religion and cannot be disassociated from that. That being so, a citizen professing Islam cannot be put to election either to act contrary to the religious injunction to be entitled to exercised, his franchise or to observe the religious practice and forgo the right to vote. The impugned provision requiring them to t photo to vote or to forgo the right to vote in case of not taking the photo, does put him to such an election. This in my view amounts to violation of Art. 25(1) of the Constitution. The impugned provisions cannot be se enforced as to violate Art. 25(1) of the Constitution.
21. The learned Advocate General further contended that in case of violation of fundamental right, the person whose right, is violated should alone come and seek relief .and that general relief cannot be granted by the Court. I am afraid I cannot accede to the contention of the learned Advocate General in view of the judgment of the Supreme Court in Judges transfer case. The petitioners claim the relief on the ground of violation of Art. 25. Having regard to the nature of the relief granted, it is not necessary that every one who objects to be photograph should approach this Court. Those of the citizens who have declined to be photographed but did not approach this court was also he entitled to the benefit of the order provided they fall within the class held entitled to the relief.
W. V. M..P. No. 212187
22. In W. P. M. P. No. 4(-4/87 in W. P. No. 395/87 the prayer is to refrain the first respondent in taking photographs of the voters along with the slates with the details of page number, serial number, door number, by calling the voter as to a particular place.
23. By interim order dated 2-3-1-1987 this Court directed to follow the instructions issued by the State Government directing the Authorities to depute the photographers and the personnel to undertake door to door visits for taking photographs of voters without insisting on the residents of the Municipality to gather at a particular centre for the purpose of taking the photographs. This interim direction is in accordance with the rule. In fact by this direction the Government proceeding is given effect to. In the circumstances, in this case, the interim order is made absolute.
24. From the above discussion it follows :
(1) The method 'of identification with reference to the cards issued by the authority containing the bust of the Voter is not per se illegal except when it violates the fundamental rights of a citizen.
(2) In case of Muslim female voter who decline to be photographed, the authorities cannot disqualify them from exercising their right to franchise. In such cases, the other method of identification should be applied. either with reference to the marks of identification or with reference to identification by the representatives of the contesting parties.
(3) Care should be taken to ensure that no female voter who is Purdahanashin lady is obliged to come in public or before male: persons to establish her identity. In election booths female Electoral Officer should he deputed for the purpose of the identification.
Interim orders in the said petitions are modified accordingly
25. Order accordingly.