The Hon’ble Justice SR Sen, judge of the Meghalaya High Court, rang the forewarning bell that the higher judiciary can overtake the Executive and politicians in the race of exhibiting disregard to the Constitution and trampling basic constitutional ethics and values. The issue was refusal of granting domicile certificate which is the right of any person residing in a particular district or state. No one can be without a domicile and no one can have two domiciles. It looks like the learned judge grabbed this opportunity to expound on personal views reflecting the biases, prejudices and cobwebs of the mind of SR Sen and not Justice Sen as a judge is not expected to cross the domain of the matter under consideration and wander into a territory beyond the compass of the issue under adjudication.
The judgment in Amon Rana v/s State of Meghalaya (WP(c)No. 448 of 2018) is a sterling example either of ‘illiteracy’ to India’s history, and the story of Partition or a deliberate onslaught on judicial accountability to the Constitutional values of liberty, equality, secularism and scientific temper. Such orders coming from the higher judiciary are sounds to caution that judicial independence and accountability is under threat not just from the legislature and executive but from the errant judges themselves. A few black sheep could outnumber the good if we remain silent.
There is nothing wrong in the direction to grant certificate of domicile to any applicant producing the required documents. However, the learned judge has committed three Constitutional sins. First and foremost, the temptation to examine the issue since inception of India is unwarranted. The judge for unknown reasons brings on the judicial table a picture of original India as Bharat Barsh and clothes it by saying that India was one country commanded by Hindu Kingdom. The judgment elaborates on Moghuls, East India Company and the Partition without basis of any reasoned treatises and scientific history. There is a veiled attempt to communicate that Muslims were villains in the independence struggle, though the world knows that all men and women from all communities fought together, suffered imprisonment together and many sacrificed their lives. What the judgment puts on paper is distorted history of independence struggle and Partition.
The second sin in the judgment is denigrating Indian constitutional history through a declaration that Pakistan declared themselves as an Islamic country and India should have been declared as a Hindu country but it remained a secular one. As students of law, we know that there can be critical appraisal of the judgment without attributing motives to the judge to save trial under Contempt of Court as well as to maintain the standing and decorum of the judiciary. A judge who is under oath to defend the law and the Constitution and be the final repository cum guardian of Constitutional values attempts to open the door for a Hindu State should not be left unquestioned on motives and affiliations. Sir, we know Pakistan is getting reduced to a desert. It is difficult to convert it into a fertile land. Why your Lordship wants to convert India, a fertile land in all respects, into a desert? Sir, it is easy to convert a fertile land into a desert. It can happen soon. But the reverse takes lot of time, effort, pains and energy.
The third is the sin which no men in judicial robes should even dream about. No doubt, judges are human beings and like all will have imperfections. Judges are known to look at post-retirement positions and perks. But, there are some boundaries and limits which most judges and the judiciary as a whole have maintained. However, in this Meghalaya High Court judgment, the judge roars “I make it clear that nobody should try to make India as another Islamic country”. Further, the Hon’ble Justice Sen says “I am confident that only this government under Narendra Modiji will understand the gravity and will do the needful”. The Chief Justice of the Supreme Court and other brother judges cannot afford to ignore such statements forming part of judicial record. People need to be told about the appointment and elevation of Justice Sen and further appraisal of such a disgusting judgment.
Justice Sen speaking through the Meghalaya High Court has made a request to Prime Minister, Home Minister, Chief Minister and Hon. MPs to bring a law to allow the Hindus, Sikhs, Jains, Buddhists, Parsis, Christians, Khasis, Jaintians and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in this country peacefully without making any cut off year and be given citizenship without any question or production of any documents. The judge further states that those who live in the above countries should be allowed to come to settle in India at any point of time and the government should declare them as citizens of India. The highest point of delinquency is in the recommendation that all Hindus and Sikhs who are of Indian origin and presently residing abroad, in any part of the world be allowed to come to India at any point of time as they like and they may be automatically considered as Indian citizens. The errant judge has kept all other communities out from his largesse when it comes to persons of Indian origin in any part of the world.
Recently, Khap Panchayats were in the news. They have their rules, summons, verdicts, and fines. They even kill the victims and make them to commit suicide. Many people support these Khaps. After a perusal of this Meghalaya High Court judgment penned by the Hon’ble Justice SR Sen, the Khap verdicts splashed through the mind. A few politicians and ‘Hindutva’ activists have welcomed and relished this unconstitutional order. Though an isolated instance, the Chief Justice and the Supreme Court collegium of judges needs to take strong administrative and judicial cognizance.
(The writer is an educationist and political commentator)