By Jaasir Ashraf Mir
Amid controversies, the Jammu and Kashmir High Court finally disposed of all petitions pertaining to the beef ban. The court in this case held “J&K shall have to consider reviewing existing laws and take policy decisions within the framework of the constitution, and ensure that no inter-religious conflict takes place amongst the people of the state”. Perhaps it is not the judicial verdict, but rather judicial observations which the court had made in the instant case.
The court under its constitutional obligations had to test the constitutional validity of the penal provisions under RPC and check whether they violate any fundamental right of religion provided under article 25. The inaction of the legislative and executive wings prompted citizens to knock the doors of the judiciary for protection of their fundamental rights. When legislative and executive miserably fail to protect the fundamental rights it is the judiciary whose role is prominent in upholding the rule of law. The sanctity of fundamental right is so supreme that the constitution has kept writ jurisdiction of Supreme Court under article 32, itself a fundamental right under Part III, of the constitution for directly approaching the SC in case of the violation of the fundamental right beside the jurisdiction of High Court under article 226 of the constitution.
The judiciary itself realising many a times the importance of upholding the sanctity of the constitution and protecting the basic constitutional morality and fundamental principles has rightly evolved the innovative terms like judicial activism, judicial review and basic structure doctrine for upholding the rule of constitution in essence. Under the constitution judiciary has been vested with immense power to check whether the law of the land is in consonance with the spirit of the constitution. Accordingly it has been given power to take affirmative actions for ensuring its citizens duly cherish the value of fundamental rights guaranteed under the constitution. High Court has neither shown any activism nor exercised power of judicial review. The court has also not upheld the validity of the present law effecting secular character of the constitution which has been declared as basic structure of the constitution in SR Bommai case.
Ironically, the High Court had not exercised any of its constitutional power in the instant case for the protection of fundamental rights of the people and for upholding or giving true meaning to the secular character of the constitution. The court merely reverted constitutional duty back upon the executive for rectification or repealing of the present penal law. In the past a plethora of cases have been decided by the SC relating to the freedom of religion for e.g., M Hanif Quershi vs state of Bihar, Dr M Ismail Frauqui vs Union of India, SP Mittal vs Union of India, Bijoe Emmanual vs state of Kerala, AS Narayana vs state of Andhra Pradesh, Shah Banu case and recently the case of Viswa Lochan Madan vs Union of India regarding the validity of fatwa and so many other cases.
The courts under its constitutional obligation have rendered the decisions in the past and performed their moral and constitutional duty of protecting the constitution. In many cases appreciable judgment full of wisdom also came into fore wherein fine interpretations were drawn while creating balance between fundamental right and freedom of religion under the constitution. In many cases some contending religious communities were annoyed by the decisions not favouring them but judiciary duly rendered its constitutional duty and protected the basic tenants of the constitution. Judgments rendered by the apex court has come under fair criticism also on the notion based upon the varied interpretations of the secular concept of India and also for going further into the question of essential and non-essential practice of religion. Apart from critically examining the judicial pronouncement or liking and disliking involved with them while upholding the secular character of the constitution the main point of contention here is that court has delivered the judgment without any fear and duly served its constitutional obligation.
The JK High Court was under the constitutional obligation to serve its constitutional duty, whether in favour of the petitioners or not, rather abstaining itself to serve any political interest, though it may be of the greatest good it served to the present political consideration. This approach is not in accordance with the spirit of the constitution and it subjugates the judicial institution and affects the very basic ethos of the constitution in democratic setup. Court being the guardian of constitution has mandate to render the judgments in these cases and assist in democratic setup for making its citizens to understand the true secular character of the constitution which they are under an obligation to respect. Constitutional makers have envisaged great responsibility to judiciary for safeguarding and protecting the constitution. I am here reminded of the famous case of Mithu vs state of Punjab AIR 1973 SC 473 in which section 303 of the Indian Penal Code was struck down by the SC as it violates the fundamental right of equality guaranteed under the constitution. Still this provision can be found in the IPC but it is dormant and unconstitutional having null and void effect. The court did not refrain in the aforesaid case to perform its constitutional obligation by recommending other organ to perform this function who has failed to properly look into the constitutional validity of the law. The court has performed its constitutional duty in the aforesaid case and explained the importance of the fundamental rights under the constitution.
The point that I am emphasising here is that the court was under the constitutional obligation to address the issue and pronounce the verdict on the issue and render true meaning to the secular character of the constitution. But the court in the instant case rather followed the unconventional method which is not in consonance with the spirit of the constitution. There is no constitutional obligation on the judiciary to look into any political problem that may arise out of the verdict. The duty of judiciary is to take immediate action in case of infringement of fundamental right whereby the people cherish values of the fundamental rights and its implementation, thus keeping the sanctity of the constitution intact in a democratic setup. It is for the other organ to look into the political problems in a democratic setup and rectify it accordingly. Basic structure has been declared sacrosanct in constitution and need concrete efforts to keep them always at a pedestal of sanctity.
It is the timely inaction by the other organs of the democratic setup that judiciary plugs in with powers to take action and protect the rights of the people. But High Court has bounced back the ball to the other organs of the state who, in fact, have miserably failed to perform its own function which they were constitutionally bound to perform. It can be said that judiciary also failed to perform its constitutional obligation when it was time to perform in accordance with the governing structure of democratic setup. Now when the judiciary has left the issue to be decided by the other organs of the state, we can only hope that the government will not serve the political interest on this issue but will serve the constitutional interest that will soon establish the true secular character of the Jammu and Kashmir constitution. How much time they will stretch to review the law, we don’t know on this point. I understand High Court has laid down a bad precedent by keeping the status of penal law in abeyance that too when question pertains to encroachment upon the fundamental right of the citizens.
I can say in accordance to my understanding that the High Court though may have sensibly delivered the judgment on political considerations but in doing this they have undermined the sacrosanctity of judicial institution and its power vested to them for upholding the true sanctity of the constitution in a democratic setup. The court lost the golden opportunity to perform its own constitutional obligation and make its original contribution in upholding the sanctity of fundamental rights and in laying down the true secular character of the constitution as envisaged by the constitutional makers in letters and spirit.
—The author is an advocate at the Supreme Court of India. Feedback: [email protected]