Jammu & Kashmir High Court - Srinagar Bench
Parimoksh Seth vs State Of Jammu And Kashmir & Ors on 16 October, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR WPPIL No. 24 of 2014 OWP No. 1648 of 2015 MP No. 01 of 2015 and MP No. 02 of 2015 Parimoksh Seth Prof. S.M.Afzal Qadri Petitioners State of Jammu and Kashmir & Ors Respondents !Mr. Faisal Qadiri, Advocate Mr. Shah Faisal, Advocate Mr. Altaf Mehraj, Advocate Ms. Tabinda, Advocate ^Mr. J. I. Ganie, learned Advocate General Mr. Zaffar A. Shah, Sr. Advocate Mr. Mian Abdul Qayoom,Advocate Mr. G. A. Lone, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Honble Mr. Justice Ali Mohammad Magrey, Judge Honble Mr. Justice Tashi Rabstan, Judge Date: 16/10/2015 : J U D G M E N T :
Muzaffar HussainAttar
1. Two Division Benches of this Court, in seisn of two petitions, were called upon to decide one issue, by making diametrically opposite prayers.
2. In PIL No.24/2014 prayer is made to implement the provisions of Section 298-A, 298-B and 298-C of Ranbir Penal Code, Svt. 1989 (1932 AD) (for short RPC).
3. In OWP No.1648/2015 prayer is made to scrap these provisions and declare them illegal and unconstitutional.
4. This bench is constituted in sequel to order of Supreme Court dated 05.10.2015, passed in petition for Special Leave to appeal (c) Nos. 28451-28452/2015, to hear and decide the aforesaid two petitions.
5. In WPPIL No.24/2014, the petitioner has prayed for issuance of appropriate writ, order or direction in the nature of mandamus commanding the respondents to put in place the strong mechanism for prevention of cow slaughtering in the State of Jammu & Kashmir by directing all the concerned authorities to initiate serious punitive actions against all those persons who are involved in such criminal activities. It is further prayed that by issuance of appropriate writ , order or direction, respondents be directed to disclose to the Court the action initiated against the persons who are involved in commission of offence of slaughtering or killing of cow or like animals or any bovine animal and ensure that such persons do not escape punishments and to file appropriate proceedings against all those offenders before the competent criminal courts.
6. Learned Advocate General submitted that the PIL is not maintainable in view of the PIL Rules as also in view of law laid down by Honble Supreme Court in this behalf and prayed for dismissal of the same.
7. In this petition, which has been filed in the public interest by a learned Advocate, at para 3, it is pleaded that in the month of July, 2014 the newspapers of the State have reported two incidents of cow slaughtering. It is further pleaded that this alleged act has been done with deliberate and malicious intention of outraging religious feeling of a particular class of society. The two paper cuttings have been annexed with the writ petition.
8. It is these two alleged incidents of cow slaughtering which has prompted the petitioner to file this petition in public interest.
9. At para 9 of the writ petition, it is pleaded by the petitioner that it has come to his knowledge that meat of cow and other bovine animals is sold in open markets of the State and the State Administration is watching the same as a mute spectator, thereby, encouraging such sacrilegious acts in the State.
10. The petitioner has nowhere pleaded in the writ petition that he has verified the allegations reported in the press or that he has verified the same from the editors of the concerned newspapers. The petitioner has not complied with para (VI) of Sub Rule 4 of Rule 24 (PIL Rules) which fall under part III of Jammu and Kashmir writ proceedings rules of 1997.
11. The petitioner has yet again failed to comply with the aforesaid rule. The petitioner in terms of the said rules was required to specifically state as to which of the facts are within his knowledge. The petitioner, having failed to give the details in the writ petition, excepting for the two press reports, the petition is not filed in public interest.
12. Further averment made at para 9 is vague and bald. No specific incident with date(s) and place(s) of occurrence has been pleaded in the writ petition, but a general and vague statement has been made.
13. This writ petition cannot be said to have been filed in public interest, in as much as, the petitioner has failed to comply with part III of writ proceeding rules of 1997 having not disclosed any incident which has come to his knowledge. The petitioner has referred only to two incidents which were reported in the press and he has not even verified the facts by personally visiting the place or talking to the concerned people. By referring to two incidents reported in the newspaper, this petition in law cannot be said to be in public interest.
14. The Court on 04.08.2014, while issuing notice in the PIL, directed the Divisional Commissioner, Jammu & Kashmir respectively, to submit report about the steps being taken to prevent slaughtering or sale of bovine animals in various areas falling under their jurisdiction.
15. The comprehensive report has been submitted by the Divisional Commissioner, Jammu on 13th February, 2015. The report, which is based on the communications of the Dy.Commissioners/SPs, reveals as under:-
The SSP Poonch in his report dated 26.09.2014 has stated that there is no slaughtering or sale of bovine animals in the District.
The Dy.Commissioner Kathua in his communication dated 14.09.2014 send to the Divisional Commissioner Jammu has informed him that there is no slaughter house in District Kathua, accordingly to his information no such incident has taken in the District.
The Dy.Commissioner Samba in his communication dated 2.9.2014 send to the Divisional Commissioner Jammu has stated that in Samba areas orders under Section 144 Cr.P.C have been issued prohibiting transportation of bovine animals within the District and from District to outside District and vice versa. The Divisional Commissioner has been also informed that hard core offenders who violated the orders were apprehended and booked for transportation of bovine animals and have also been detained under Public Safety Act.
Dy.Commissioner, Reasi in his communication dated 24.10.2014 has stated that in the year 2009 one case under Section 298-A RPC vide FIR No.14 of 2009 was registered in Police Station Reasi and the accused are facing trial.
Similarly, in the year 2010 yet another case, FIR No.109 of 2010 under Section 298-A RPC was registered and accused are facing trial. In another case FIR No.117 offence under Section 298-A RPC was registered and the accused are facing trial. In the year 2012 no such case was registered. In the year 2013 FIR No.63 of 2013 under section 298-A/188 RPC, 3/PCA was registered at Police Station Arnas and the accused are facing trial.
Cases were also registered for illegal transportation of bovine animals.
Additional Dy.Commissioner Doda in his communication dated 13.09.2014 addressed to Divisional Commissioner Jammu has stated that only one incident of slaughtering of she baffaloo surfaced and case FIR 209 of 2013 was registered under Section 277, 278, 188 RPC. It is also revealed in the said communication that no other incident of slaughtering/killing of bovine animals or killing of such animals for commercial purposes has come forth in the District Doda for last two years. It is further provided in the said communication that in order to curb the menace of illegal transportation and killing of bovine animals prohibiting orders under Section 144 Cr.P.C are issued by the Dy. Commissioner Doda after every two months, imposing restrictions on transportation of bovine animals from and within the District. The violators of these orders have been booked for commission of offence under Section 188 RPC.
Similarly, the Inspector General of Police Jammu zone vide its communication dated 24th October, 2014 addressed to the Divisional Commissioner Jammu has given the details in respect of alleged commission of offence in Jammu Division and action taken thereof.
Few cases, after investigation have been closed as not admitted, to be legally precise, not proved.
16. After filing of this report the petitioner was given time to file his response. Despite many opportunities he did not file any response, which means that he has nothing further to plead, and is satisfied with the functioning of State authorities.
17. The status report would show that State Authorities are taking action in accordance with law wherever cases of commission of cognizable offence are brought to their notice.
18. Reference of two alleged incidents, that too on the newspaper report, which otherwise have not been verified in terms of III of writ proceeding Rules of 1997, and in view of aforesaid circumstances, this petition does not disclose cause for being treated as petition filed in public interest. This petition is yet not maintainable in view of mandate contained in Section 154(1) and (3) and Section 156 Cr.P.C. These provisions of statute provide comprehensive procedure for filing of complaints. No instance is cited in writ petition about violation of these provisions.
19. Even otherwise, in view of the status report filed by the Divisional Commissioner, the authorities are complying with statutory provisions requiring to drop these proceedings.
20. In OWP No.1648/2015, the petitioner has challenged the vires of Section 298-A, 298-B, 298-C and 298-D of RPC. It is prayed that these provisions of RPC be declared to be ultravires to the Constitution of India as well as of the Constitution of Jammu & Kashmir and be accordingly struck down.
21. The petitioner has in detail referred to the history of coming into existence of these provisions of law. He has raised specific grounds of challenge in the writ petition. Petitioner has based his writ petition on the violation of constitutional guarantees contained in Article 14, 21, 25 and 29 of Constitution of India.
22. Despite aforesaid observations the issues raised are considered and dealt with as under:-
23. Section 298-A, 298-B and 298-C appearing in Chapter XV of RPC, having opening expression of offences relating to religion are taken note of:
298-A. Volutarily slaughterin or killing cow or the like animals-who ever voluntarily slaughters or kills any bovine animal, [whether domesticated or wild], such as an ox, bull, cow or calf, shall be punished with imprisonment of either description which may extend to ten years, and shall also be liable to fine.
[Explanation.-The expression bovine animal does not include a Gond] 298-B.Keeping in possession flesh of killed or slaughtered animals as mentioned in S.298-A Whoever keeps in his possession flesh of any slaughtered animal mentioned in section 298-A above, knowing it or having reasons to believe that the flesh is of such an animal, shall be punished either imprisonment of either description for a terms which may extend to one year and shall also be liable to fine which may extend to five hundred rupees.
298-C. Killing or slaughtering he or she buffalo Whoever voluntarily slaughters or kills any he or she buffalo shall be punished with fine which may extend to five times the price of the animal killed or slaughtered as determined by the Court.
24. The RPC was sanctioned by his Highness the Maharaja Bhadur vide Law Department notification No.23-L /1989 dated 6th August, 1932 (23rd Sawan, 1989) and was published in Government Gazette dated 8th Poh, 1989.
25. Chapter I in the introduction has preamble which provides; whereas it is expedient to provide a general penal code for Jammu and Kashmir State.
26. Chapter XV of RPC comprises of nine Sections. Section 295 to 298 provides punishment for the commission of offences committed in respect of all the persons belonging to and following different religions and faiths. In contradistinction thereto Section 298-A declares voluntarily slaughtering or killing any bovine animal (whether domesticated or wild), such as an ox, bull, cow or calf an offence and prescribes punishment which may extend to ten years, and the offender shall also be liable to pay fine.
27. In terms of explanation the expression bovine animal does not include a Gond. Similarly in terms of Section 298-B keeping in possession flesh of killed or slaughtered animals mentioned in Section 298-A is a punishable offence.
28. From the advent of human life, its conduct has been regulated. The creator has provided norms and rules for leading a dignified life. Human life has been created with a definite purpose. A human being is inhabiting planet-earth from thousands of years. Different groups of human beings, inhabiting different or same areas of earth, are governed by same or different set of principles, norms and rules.
29. The Hindus follow a set of principles, norms and rules. Similarly Jews, Christians, Budhists etc follow some set of principles, norms and rules. Likewise a Muslim follows the Quaranic injunctions and Hadith.
30. A religion is a prescription which guarantees peace and order in the society. Religion delineates path of peace, truth, piousness and righteousness. Religion guarantees and protects the rights of citizen, persons and individuals.
31. It is basic human duty of each community to respect the sentiments of other community. Respect shown to the religious sentiments of each other in a pluristic society like ours is hallmark of our ancient history. This onerous practice when honestly followed will stand guarantee to peace in the society, which forms bed-rock to the intellectual, spiritual and economic development of people.
32. India is an ancient land. India in its history has been host of and has imbibed many religions, faiths, philosophies, cultures and languages. Kashmir equally with history of thousands of years represents the fascinating colours of a resonating rainbow of different religions and cultures. After the deposition of last sovereign monarch, Bhadur Shah Zafar, India lost its sovereign and independent existence. As history knows it, Kashmir came under Maharaja Gulab Singhs dominion.
33. Maharaja was a Monarch. Sovereignty vested in him. He and his successors were having absolute sovereign power in executive, legislature and judicial fields.
34. In the wake of successful peoples uprising the India gained independence and similarly with signing of instrument of accession and consequent convening of constituent assembly and framing of constitution, sovereignty of last Maharaja over Jammu and Kashmir came to end.
35. People through constituent assembly framed constitution. Constitution created India. For conducting the affairs of India, constitution further created Executive, Legislature and Judicial Wings of State.
36. At the time of declaration of independence, India was, and is, inhabited by people belonging to different religions, faiths having their own cultures and languages. The people of India were and are Hindus, Muslims, Sikhs, Christians, Budhist etc. All the rights of these people, more particularly religious rights, are protected by constitution.
37. Article 14 provides for equality before law and equal protection of laws to all its citizen. Similarly, other articles contained in part III of Constitution of India guarantee equal rights and protection to all its citizens. Article 25 guarantees right to practice, follow and preach ones religion.
38. Article 14, 21 and 25 stand guarantee to the rights of persons and citizens like the Himalayan Mountains. The Articles are taken note of:
14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.
25. Freedom of conscience and free profession, practice and propagation of religion.- (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, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
39. Constitution, the sovereign law, itself protects and stands guarantee, besides to other rights, to the religious freedom of its citizens. All the authorities, who occupy the seat of power, are creature of Constitution and are thus duty bound to uphold the constitutional values. No constitutional authority can use constitutional office to promote one religion and protect the rights of people belonging to one particular religion. Any breach of constitutional obligation has to result in ouster of such authority from the office/position, he/she may be holding.
40. The provisions of Part III of Constitution of India have been extended to and are applicable to the State of Jammu and Kashmir, in accordance with Constitutional mechanism.
41. The three governing wings viz., Executive, Legislature and Judiciary have been created by Constitution of Jammu and Kashmir. All the three wings of State have to perform their function within their delineated fields. Executive in our constitutional scheme is the principal wing of State. It has to frame the policies, chalk out programmes for carrying out the mandate given to them by people. The Executive Wing of the State has to decide which existing laws require to be repealed, amended or modified. The Executive Wing of State is duty bound to enforce the laws of land. It is further constitutional obligation of executive wing of State to frame draft laws and place them before the Legislative Wing of the State.
42. The Legislature, to which Government is accountable, debates the draft laws and adopt them in their original form or with amendments, or disallows them. These draft bills, after complying with legal requirements take shape of law. It is to be re-stated that laws are made and institutions created for the benefit of people, and for maintaining peace and order in the society.
43. The Judiciarys principal function is to interpret the laws. Its further duty is to test the constitutional and legal validity of laws when same are brought to its notice in appropriate proceeding. Laws are of different kinds and types. Constitutional laws are primary laws. They become source for making other laws. Some laws are of permanent nature and some have temporary character.
44. Laws have different origins as well. Some laws owe their existence to will of an autocratic King.
45. After dawn of independence and coming into force of Constitution, all the laws are being made in accordance with provisions of Constitution. Certain laws are framed to tackle a particular situation, and cease to be operational when the purpose is achieved. Some laws though in existence with the passage of time have lost their efficacy and utility and have ceased to be operational. Similarly certain laws or some provisions thereof, created to achieve a definite purpose, or to serve the ends of an autocratic monarch, or a section of people, have after coming into force of constitution become obsolete, redundant, or, are an offence to it. Remaining of such laws or provision thereof on the statute book would be inconsequential and are incapable of enforcement, having assumed the character of fossils. Some laws or provisions of laws, with the passage of time, lose their sheen and are dead laws rendered incapable of enforcement.
46. Certain existing laws affect the guaranteed constitutional rights of a large section of society. Some laws protect only rights of one section of society, whereas, they offend the constitutional and legal rights of other section of society.
47. The Majesty of rule of law is mesmerizing and magical. The Institution of Judiciarys dignity is further heightened when it grapples with and tackles the huge problems and provides the just solutions. Like problems/situations bring the other institution, at times, at the cross-roads of history and they are caught on horns of dilemma. However, they have also to come out with appropriate solutions in the interest of society.
48. When some laws violate the guaranteed constitutional right of large section of society, or have become dead laws, or have not been consciously enforced by executive wing of State for a considerable period of time, they would call for fresh look and consideration by the Executive and Legislative Wing of State.
49. The purpose of framing laws, besides protecting the just rights of the people, is to create the atmosphere of peace and tranquility in the society.
50. The legislation laws which create wedge between different sections of society and has the potential of disturbing the peace in the society, may not be a just and valid law. Such a statute or provision of the statute, even if in existence, cannot be given effect to, for securing the larger interests of the society.
51. Courts enforce statutes to resolve the disputes between the parties. A statute or a provision of a statute which has the potential of causing disorder in the society has to be referred to executive wing of State for taking a fresh look on it.
52. The Executive Wing of State has to apply its mind, frame a policy and cull out a solution which satisfies the soul of the Constitution.
53. The issues raised in PIL No.24/2014, in view of pleadings of OWP No.1648/2015, shall have to be referred to the Executing Wing of the State for taking a decision in accordance with Constitution and observations made in this order. The PIL for this reason also cannot proceed further.
OWP No.1648/201554. This petition appears to be reaction to the order dated-8th September, 2015 passed in PIL No. 24/2014, whereunder, State authorities have been directed to stop sale of beef in the State, as for all these years petitioner did not deem it necessary to file like petition earlier on.
55. In view of observations made in respect of PIL No.24/2014, this petition at this stage would not require to be considered and issues raised therein shall have to be considered by executive wing of the State in the first instance.
56. When forces of destruction and divisiveness are at work, then forces of legislation and cohesiveness have to take charge and provide acceptable legal and constitutional solutions.
57. Article 25, as already stated, guarantees a persons right to profess, practice and preach his religion. Article 21 refers to life. Every Person has right to live his life according to his religious tenets. Article 14 provides protection to all citizens/persons legal rights. These provisions of constitution act as sentinels and provide an impregnable fort to the rights of people. Every citizen/person and individual who inhabit this country, which includes State of Jammu & Kashmir, has right to profess and follow his/her religious tenets.
58. India is a pluristic State, and the State of Jammu & Kashmir paints pluristic colours more vividly. It has to be thus ensured that sentiments of citizens belonging to all the religions and faiths are respected. Religions and faiths preach and teach accommodating and respecting the rights of each other. Religion acts as cohesive and not as divisive force. Religions bind people and do not divide them. The religion when followed honestly, creates a heavenly atmosphere. The religion, when exploited for serving individual or a particular groups interests, corrupts pure minds of innocent people and has the potential of creating disorder and anarchy in the society.
59. The State of Jammu and Kashmir in view of observation made in this order shall have to consider reviewing of existing laws and take policy decision within the framework of Constitution, and ensure that no inter-religious conflict takes place amongst the people of the State.
60. The OWP No.1648/2015 at this stage in view of above discussion would also require to be disposed of to enable the State Government to consider the issues raised.
61. MP No.01/2015 is an application filed by J&&K High Court Bar Association Srinagar through its Secretary wherein they have prayed that leave be granted for participating in proceedings of OWP No.1648/2015. Similarly MP No.02/2015 is filed by one Mr. Ashoo Mongia National President Rashtriya Goraksha Sena praying therein that the applicant be impleaded as party respondent in OWP No.1648/2015 and PIL No.24/2015.
62. In view of aforesaid discussion, these applications need no consideration and are accordingly disposed of.
63. Since the Court has not decided any issue adversely affecting the legal rights and interests of any of the parties, in this order, the hearing of the case at Jammu Wing of the Court is not required being of no consequence.
64. The Courts in view of its delineated area of functioning have no power to legislate laws. It is function of the State legislature. Refer to 1992 supp.(1) SCC 548 and AIR 1982 SC
710.
65. The Courts cannot further direct to state Government to legislate a particular law or to enact a law in a particular manner. This Court can neither direct for legislating a law for banning slaughter of bovine animals nor can it direct the State Government to make the law to permit slaughter of any kind of animal. This is always a policy matter of the State and the State has to always take a call on such issues. It is only after a law is made and its validity is challenged then it becomes jurisdiction of the Courts to test the legality of such law. Refer to (2007) 6 SCC 805.
66. A Single Bench of this Court in case titled Sanjay Tickoo and Ors v. State and ors passed in OWP No.610/2007 decided on 09.10.2013 reported in 2013(4) JKJ 137 has observed at para 16,17 and 18 as under:-
16/ The very scheme of the constitutional provisions would show that We the people constituted India as a country, which guarantees equality before law and equal protection of laws and prohibit discrimination on the grounds of religion, race, caste, sex or place of birth and also provide equality of opportunity in the matters of public employment for all the citizens and it is provided that no citizen shall, on the ground only of religion, race, caste or sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against, in respect of any employment or office under the State. The protection is accorded to all the citizens to the right to freedom of speech and expression ; to assemble peacefully and without arms ; to form associations or unions ; to move freely through out the territory of India ; to reside and settle in any part of India ; to practice or to carry on any profession, trade or business. These are the promises, which constitute some of the fundamental rights contained in Part III of the Constitution of India in terms of its articles 14, 15, 16, 17, 18 and 19. Article 20 thereof also refers to the expression no person and not to a Hindu, Muslim, Sikh , Christian etc. and article 21 also provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Similarly, other provisions of the Constitution, more particularly, appearing in Part III thereof, refer to the person and/or citizen. Article 25 guarantees freedom of conscience and free profession, practice and propogation of religion to all persons. The said provision of the Constitution provides that all person are equally entitled to the aforementioned guarantees. Article 26 of the Constitution guarantees to all its citizens freedom to manage religious affairs. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for payment of expenses for promotion or maintenance of any particular religion or religious denomination. Article 28(1) provides no religious instruction shall be provided in any educational Institution wholly maintained out of State funds. Article 28(3) provides no person attending any educational Institution, recognized by the State or receiving aid out of State funds, shall be required to take part in any religious instruction that may be imparted in such Institution or to attend any religious worship that may be conducted in such Institution or in any premises attached thereto unless such person or if such person is a minor, his guardian has given his consent thereto. Article 29 provides protection of interests of minorities. Article 29(1) provides any section of citizens residing in the territory of India or in any part thereof, having a distinct language, script or culture of its own, shall have a right to conserve the same. Article 29(2) provides no citizen shall be denied admission to any educational Institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 guarantees the rights of minorities, whether based on religion or language, to establish or administer educational Institutions. The Constitution makers, by their great efforts, vision and wisdom, have chiseled a constitutional person called Indian, irrespective of his/her belonging to any religion, faith, caste, colour or creed.
17/ The aforesaid constitutional provisions, with the preamble in its original form, viz. when it was originally declared, We the people of India having solemnly resolved to constitute India into a sovereign democratic republic provide complete evidence that India was constituted into a country having no State religion. The constitutional provisions, reference whereof is made hereinabove, treat all persons/citizens as one single unit. We the people who gave Constitution to themselves, conferred themselves only status of being citizens of India, in other words, called as INDIANS. The Indians in view of the aforementioned provisions, have to be given uniform treatment and cannot be subjected to discrimination on the ground of religion, race, place of birth or descent. An inbuilt mechanism is made to guarantee Indians right to profess their religion and faith. They have been given freedom to establish their Institutions. India, as already stated, was inhabited by people who came from distant and different areas and belonged to different races, cultures, religions and faiths and settled in the land, now called India. In order to hold together this heterogeneous conglomerate of people, the Constitution was conceived to protect the interests of cross sections of society and was delivered in a manner so as to sustain it for all times to come. 18/ India owes its existence to the Constitution, which We the people have given to ourselves. We the people have catapulted ourselves to glorious heights by providing a road map in the shape of the Constitution to reach to the pinnacle of moral, material and physical development. The Constitution of India, which We the people have given to ourselves, has guaranteed to the Indians belonging to the different religious denominations, faiths, castes, linguistic and cultural groups to follow the ideals of their lives. The Constitution of India, on the day it was adopted by We the people, thus, declared the people and citizens of this country as one entity, called Indians. 42nd amendment of the Constitution, by which the preamble of the Constitution was substituted and expressions secularism and socialism added thereto, it appears has been done only to further clarify the already existing constitutional position, in as much as, the provisions of Constitution do not discriminate between the citizens, who belong to different religions, castes, creeds as also on their places of birth.
67. Further the Single Bench of this Court in Contempt Pewt.No.572/2014 (OWP No.610/2007) decided on 12.05.2015 has observed at para 10, 11, 12, 13 and 14 as under:-
10/ The expression Indianism appearing in paragraph 19 of the judgement of Sanjay Tickoos case is clearly and sufficiently explained in the preceding and succeeding paragraphs thereof, more particularly, paragraphs, 14 to 18 and 20. The Court in Sanjay Tickoos case has interpreted the Constitution of India. It has been sufficiently clarified in the said judgement that India is pluralistic State. Its citizens are hindus, muslims, sikhs, christians etc. All the rights, which include religious rights of all these citizens belonging to different religious denominations, are protected and guaranteed by Constitution of India. The expression Indianism in the context of Constitution of India and as clearly explained in Sanjay Tickoos case, would mean and is defined as follows :
a/ India is a pluralistic State ;
b/ All the citizens of India, viz. hindus, muslims, sikhs, christians, etc. have guaranteed right, in terms of Article 25 of the Constitution of India, to freedom of conscience and the right to freely profess, practize and propagate religion;
c/ Article 26 of the Constitution of India guarantees every religious denomination or any section thereof right to establish and maintain Institutions for religious and charitable purposes ; to maintain its own affairs in matters of religion ; to own and acquire moveable and immoveable property ; and to administer such property in accordance with law ;
d/ Article 27 of the Constitution of India provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for payment of expenses for the promotion and maintenance of any particular religion or religious denomination.
e/ Article 28 to 30 of the Constitution of India, besides protecting the cultural and educational rights of the minorities also give them right to establish and administer educational Institutions. 11/ The expression Indianism also provides that the State shall not deny any person, which means a hindu, muslim, sikh, budhist, christian etc., equality before law or equal protection of laws within the territory of India (Article 14). Article 15 of the Constitution of India provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them and that these reasons shall not subject the citizens to any disability, liability, restriction or conditions with regard to ;
a/ Access to shops, public restaurants, hotels and places of public entertainment ;
b/ Use of wells, tanks, bathing ghats, roads and places of public resorts maintained wholly or partly out of State funds.
12/ Similarly, Article 16 of the Constitution of India guarantees equality of opportunity to all citizens in the matters relating to employment or appointment to any office under the State. It further provides that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State. Similarly other rights, viz., right to life and property are guaranteed to every person. The preamble of the Constitution of India specifically declare the solemn resolve of the people to secure to all its citizens liberty of thought, expression, belief, faith and worship.
13/ It is the aforementioned peculiar characteristic of the Indian Constitution, which constitute Indianism. The Indianism does not and would not mean that citizens/persons do not have right to practice and propagate their religion. The Indianism in the context of the Constitution not only protects but guarantees right to every citizen, which includes muslims of this country to practice and propagate their religion. No law can be made to prevent the muslims or any other community to practice and propagate their religion. All the people, belonging to different religious denominations including muslims, have freedom to effectively follow their religion.
14/ Indianism in the context of Indian Constitution protects all religions and all religious activities and does not create any new cult. The concept Indianism is evolved in the backdrop of the Constitution of India to ensure that there is no inter- religious conflict and people, though have right to practice, preach and propagate their religion, do not cause harm to other citizens belonging to other religions and live in harmony. Indianism would otherwise mean living in harmony by people belonging to different religions, castes, cultures and linguistic groups. India as a nation country belongs to hindus, muslims, sikhs, christians etc. India is a nation whose heart beats reverberate with its multireligious, multilingual and multicultural ethos. The concept of Indianism is evolved to highlight rights of all the citizens, be it a hindu, a muslim, a christian, a sikh etc, with express right to practice, preach and propagate the respective religions by all of them. Indianism protects such rights which are, otherwise, guaranteed by the Constitution.
68. In view of the aforesaid discussion, both the petitions are disposed of alongwith connected MPs and orders passed from time to time in these petitions, including order dated 08.09.2015, are vacated. The petitions are disposed of in the following manner:
The State of Jammu and Kashmir through Chief Secretary to consider the issues raised in these petitions in the light of observations made in this order and take appropriate steps in accordance with law.
(Tashi Rabstan) (Ali Mohammad Magrey) (Muzaffar Hussain Attar) Judge Judge Judge Srinagar 16.10.2015 Sarveeda