- After observing that a law which threatens peace may not be valid, judges ask the executive to ‘apply its mind, frame a policy and cull out a solution which satisfies the soul of the Constitution’
Srinagar: In a judgment summed up as “unconventionally skillful and higher than the legalese” by a legal expert, the J&K high court on Friday said that laws which create a wedge between different sections of society and have the potential to disturb peace may not be just and valid.
A full bench of the high court comprising Justices Muzaffar Hussain Attar, Ali Mohammad Magrey and Tashi Rabstan also vacated its division bench’s September 8 order, which had called for a strict implementation of the Dogra-era law criminalising the slaughter of bovines and sale of beef in the state.
“After independence and framing of the Constitution, all laws are being made in accordance with provisions of the Constitution. Certain laws are framed to tackle a particular situation and cease to be operational when the purpose is achieved. Some laws in existence have with the passage of time lost their efficacy and utility and cease to be operational,” the bench observed.
“Similarly, certain laws created to achieve a definite purpose or to serve the ends of an autocratic monarch or a section of people have, after Constitution came into force, become obsolete, redundant, or an offence to it. Existence of such laws in 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,” said the bench.
The bench was constituted by the chief justice in compliance with Supreme Court’s direction to take a decision on two petitions, one seeking strict enforcement of the Dogra-era law and the other calling for its abrogation.
In the 25-page judgment rendered in the very first hearing of the case, the bench underlined the importance of respecting religious sentiments of various communities and the need for executive and legislative wing of the state to take a fresh look into some laws when they “violate the guaranteed constitutional right of a large section of society, or have become dead laws, or have not been consciously enforced by the executive for a considerable period of time.”
“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,” the court observed, adding, a religion is a prescription which guarantees peace and order in the society.
“Religion delineates the path of peace, truth, piousness and righteousness. (It) guarantees and protects the rights of citizens, persons and individuals. It is the basic human duty of each community to respect the sentiments of another community,” the court said, emphasizing that the respect shown to the religious sentiments of each other in a pluralistic 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 bedrock of the intellectual, spiritual and economic development of people,” the bench said, adding that when the religion is “exploited for serving individual or a particular group’s interests, it corrupts pure minds of innocents and has the potential of creating disorder and anarchy in the society.”
The people of India, the bench said, were and are Hindus, Muslims, Sikhs, Christians, Budhist etc.
“All the rights of these people, more particularly religious rights, are protected by Constitution,” the bench said and referred to Articles 14, 21 and 25, which provides for equality before law, guarantees protection and right to practice, follow and preach ones religion to all citizens.
“Article 14, 21 and 25 stand guarantees to the rights of persons and citizens like the Himalayan Mountains,” the bench said and also referred to “Indianism” in constitution to bring home the point that state has to protect all religions and religious activities.
Referring to the role of executive, legislature and judiciary, the bench observed that 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 has to decide which existing laws require to be repealed, amended or modified and it is duty bound to enforce the laws of land and frame draft laws and place them before the Legislative Wing of the State,” the bench said, adding 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,” the bench said, adding that laws which create wedge between different sections of society and has the potential of disturbing the peace, may not be a just and valid law.
“Such a statute or provision of the statute, even if in existence, cannot be effected for securing the larger interests of the society,” the bench said and underlined the need for providing an acceptable legal and constitutional solutions by legislation “when forces of destruction and divisiveness are at work”.
In the backdrop of these observations, the court directed the executive to “apply its mind, frame a policy and cull out a solution which satisfies the soul of the Constitution.”
“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,” the bench said and directed the government through Chief Secretary to consider the issues raised in both the petitions in the light of observations made by it and take appropriate steps in accordance with law. However, no time frame has been set by the court.
The bench also disposed of both petitions—PIL filed by a lawyer Parimoksh Seth before Jammu wing in 2014 for strict implementation of the archaic law on bovines and the petition by retired Professor SM Afzal Qadri for its abrogation.
It also vacated an order by its division bench dated 8 September 2015 which impressed upon the police to strictly enforce the laws banning slaughter of bovines and sale of their flesh.
The court also disposed of applications by Kashmir High Court Bar Association and another by one Ashoo Mongia, National President Rashtriya Goraksha Sena, for participating in the proceedings of the case, observing that there was no need to consider them.
Advocate general Jahnagir Iqbal Ganie represented state while Fasial Qadri pleaded on behalf of Prof Qadri while senior advocate Z A Shah, advocate Mian Qayoom and Advocate G A Lone were present for the Bar. However, no one appeared for PIL petitioner as well as for Mongia.
“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,” the bench added.
Meanwhile, reacting to the judgment, senior advocate ZA Shah and reputed legal expert termed the judgment as “unconventionally skillful” and said that the standard of the decision “is higher that the legalese (the formal and technical language of legal documents).”
Court Hall-2, where the conflicting pleas were posted for hearing, was jam-packed at 10: 20 a.m. though the proceedings were to start at 10.30 a.m. After hearing advocate general and Faisal Qadri for some time, the bench adjourned the case till 12:15. When it assembled again, the senior of the three judges, Justice M H Attar straightway pronounced the judgment. In fact, the judge read most of the judgment, a deviation from normal procedure when courts announce the purport of the verdict only.
When laws violate constitutional rights, they need a fresh look by the Executive, Legislative
Maharaja was a Monarch and after accession his sovereignty over J&K came to an end
It is the basic human duty of each community to respect the sentiments of another community
Court can neither direct banning bovine slaughter nor permit it
Govt has to ensure that no inter-religious conflict takes place
J&K paints India’s pluralistic colours more vividly. Religions bind people and do not divide them
‘The judgment is unconventionally skillful and the standard of the decision is higher than the legalese
—Zaffar Shah, senior advocate