The Leaflet

| @theleaflet_in | May 24,2019

[dropcap]A [/dropcap] division bench of the Meghalaya High Court has set aside the controversial decision of Justice S R Sen in which he had stated that India should have been declared a Hindu nation at the time of partition.

“Since Partition of the subcontinent … was done on the basis of religion, Pakistan declared that it was an Islamic country… India should also have been declared a Hindu country…,” Justice Sudip Ranjan Sen had said in his judgment dated December 10, 2018. He was hearing a petition by an Army recruit who was refused a domicile certificate by the Meghalaya government.

On an appeal filed by the State of Meghalaya, the Advocate General submitted before the division bench that the direction by Justice Sen for taking necessary steps to bring a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos, contained observations there were not consistent with the preamble and other provisions of the Constitution.

The division bench, comprising Chief Justice Mohammad Yaqoob Mir and H.S. Thangkhiew of Meghalaya High Court while setting aside Justice Sen’s judgment said: “the case set up by the petitioner had been sidetracked.” The issue for determination had “travelled in a different sphere, addressing matters which were not issues in the writ petition,” the judges observed.

“In the judgment impugned while tracing the history … certain observations have been made which according to learned Advocate General are offending the preamble of the Constitution. … there was no requirement to go into superfluous questions. Secondly, any observation directly or indirectly which offends the preamble of the Constitution cannot be sustained”, the division bench said.

The judges said the observations and directions were not in conformity with the law, inconsistent with constitutional principles and superfluous in the context of the memo of writ petition and provisions of the Constitution and should, therefore, be treated as non est.

On February 25, 2019, the Supreme Court had issued a notice to the Registrar General of Meghalaya High Court on a Public Interest Litigation filed by Sona Khan, K.P. Fabian, Prof  Atul Sharma and others seeking the expunction of Justice Sen’s observations on a Hindu nation.

Besides the expunction of the controversial observations, the PIL has also sought a note of caution to Justice Sen to refrain from passing such controversial remarks in the future and displaying his personal affiliation to any political party in his judgments. The PIL is still pending before the apex court.


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