No Acts & Articles mentioned in this case
2024:MHC:1163WP.Nos.29203, 29204 & 29205 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 21.12.2023
Pronounced on: 06.03.2024
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
WP.Nos.29203, 29204 & 29205 of 2023
& WMP.Nos.29853, 31023 31025 & 31026 of 2023
WP.No.29203 of 2023
Kishore Kumar ... Petitioner
Vs.
1.P.K.Sekar Babu,
S/o.P.Krishnasamy,
Hon’ble Minister for Hindu Religious &
Charitable Endowments,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai-600 009
2.The Secretary,
Tamil Nadu Legislative Assembly,
Secretariat, Fort St. George,
Chennai-600 009
(R2 amended vide this order) ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Quo Warranto calling upon the 1
st
respondent herein
to show cause under what authority of law he is holding the post of the Minister
of the Tamil Nadu State and also as an M.L.A.
WP.No.29204 of 2023
V.P.Jayakumar ... Petitioner
Vs.
1.A.Raja,
S/o.S.K.Andimuthu,
1
https://www.mhc.tn.gov.in/judis
WP.Nos.29203, 29204 & 29205 of 2023
Member of Parliament,
No.3/125, Mariamman Koil Street,
Vellur Village & Post,
Perambalur-621 104.
2.The Secretary,
Lok-Sabha,
18, Parliament House,
103, Parliament House Annexe,
New Delhi-110 003 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Quo Warrantocalling upon the 1
st
respondent herein
to show cause under what authority of law he is holding the post of the Member
of Parliament.
WP.No.29205 of 2023
T.Manohar ... Petitioner
Vs.
1.Udhayanidhi Stalin,
S/o.M.K.Stalin,
Hon’ble Minister for Youth Welfare &
Sports Development,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai-600 009
2.The Secretary,
Tamil Nadu Legislative Assembly,
Secretariat, Fort St. George,
Chennai-600 009
(R2 amended vide this order) ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Quo Warranto calling upon the 1
st
respondent herein
to show cause under what authority of law he is holding the post of the Minister
of the Tamil Nadu State and also as an M.L.A.
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WP.Nos.29203, 29204 & 29205 of 2023
Case Nos. For Petitioners For Respondents
WP.No.29203 of
2023
Mr.G.Karthikeyan
for Ms.A.Jagadeswari
Mr.N.Jothi, Senior Counsel
for Mr.K.Chandru
(for R1)
Mr.R.Shunmugasundaram,
Advocate General
Assisted by
Mr.K.M.D.Muhilan (for R2)
WP.No.29204 of
2023
Mr.G.Rajagopalan,
Senior Counsel
for Ms.A.Jagadeswari
Mr.Viduthalai, Senior
Counsel (for R1)
for M/s.P.Wilson Associates
(for R1)
Mr.K.Ramanamurthy,
Central Government
Standing Counsel (for R2)
WP.No.29205 of
2023
Mr.T.V.Ramanujan,
Senior Counsel
for Ms.A.Jagadeswari
Mr.P.Wilson, Senior
Counsel
for M/s.P.Wilson Associates
(for R1)
Mr.R.Shunmugasundaram,
Advocate General
Assisted by
Mr.K.M.D.Muhilan (for R2)
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COMMON ORDER
S.No.Table of Contents Page
Number
I Introduction and brief description of parties5
II Background including relevant extract of the
speeches/statements (referred to in common
as ‘statements’/’offending statements’)
6
III (i) Maintainability on the anvil of non-
joinder and mis-joinder of necessary parties
- Rival contentions and conclusion
12
(ii) Locus of Petitioners to have filed these
writ petitions- Rival contentions and
conclusion
17
(iii) Maintainability to be tested only on the
aspect of eligibility qua qualification - Rival
contentions and conclusion
19
(iv) Is the evidence filed in line with the
provisions of Section 65B of the Evidence
Act - Rival contentions and conclusion
22
IV Rival contentions and conclusion on (a)
whether the offending speeches are in tune
with the Constitutional scheme, or do they
amount to mis/disinformation and hate
speech (b) whether a Writ of quo warranto
will lie in view of the prevailing
Constitutional scheme
23
(i)Petitioner’s Submissions 24
(ii)Reply of the Respondents 37
Conclusions on the question of whether the
offending statements amount to
dis/misinformation and hate speech
52
Conclusions on the question of law 75
On the judgment in Re.Kaushal Kishor 94
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I. Introduction and brief description of parties
These Writ Petitions are filed by three individuals seeking Writ of Quo
Warranto calling upon the first respondent in the Writ Petitions to show cause
under what authority of law they are holding Constitutional posts in the
Government of the State of Tamil Nadu.
2. The first respondent in W.P.No.29203 of 2023 is a Member of
Legislative Assembly (in short ‘MLA’) holding the post of Minister for Hindu
Religious and Charitable Endowments (in short ‘HR & CE’), the first
respondent in W.P.No.29204 of 2023 is a Member of Parliament (in short
‘MP’) and the first respondent in W.P.No.29205 of 2023 is an MLA holding
the post of Minister for Youth Welfare and Sports Development. The first
respondents in the three writ petitions are collectively referred to as ‘individual
respondents’, and separately by name.
3. Heard the detailed submissions of Mr.T.V.Ramanujan,
Mr.G.Rajagopalan and Mr.G.Karthikeyan, learned Senior Counsels appearing
on behalf of Ms.A.Jagadeeswari, learned counsel on record for the petitioners
in the Writ Petitions, Mr.N.Jothi, learned counsel for Mr.P.K.Sekar Babu/R1 in
W.P.No.29203 of 2023, Mr.Viduthulai, learned Senior Counsel appearing for
M/s.Wilson Associates for Mr.A.Raja/R1 in W.P.No. 29204 of 2023, P.Wilson,
learned Senior Counsel appearing for M/s.Wilson Associates for
Mr.Udhayanidhi Stalin /R1 in W.P.No.29205 of 2023,
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Mr.R.Shunmugasundaram, learned Advocate General, assisted by
Mr.K.M.D.Muhilan, learned Additional Government Pleader for the Special
Secretary, Tamil Nadu Legislative Assembly/R2 in W.P.Nos.29203 and 29205
of 2023 and Mr.K.Ramanamurthy, learned Central Government Standing
Counsel for the Secretary, Lok Sabha/R2 in W.P.No. 29204 of 2023.
II. Background including relevant extract of the speeches
4. The Petitioners are aggrieved by the participation of two of the
individual respondents in a Convention entitled ‘Sanatana Ozhippu Manadu’,
meaning, ‘Convention for the destruction of Sanatana Dharma’ conducted by
the Tamil Nadu Progressive Writers and Artists Association, a wing of the
Communist Party of India, in Chennai on 02.09.2023 (in short ‘Convention’)
and their statements making reference to, and comparing Sanatana Dharma to
virulent diseases.
5. A copy of the invitation has been supplied in the course of the hearing
revealing that the purport of the Convention was to deride Sanatana Dharma
and discuss the continuous deleterious impact that, according to the individual
respondents, it has had, and continues to have on society.
6. The purpose of the Convention was to deliberate on strategy for the
destruction (‘Ozhippu’) of Sanatana Dharma. Mr.P.K.Sekar Babu was present
in the Convention but did not deliver a speech there. His very participation in
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the Convention was questioned and he chosen explicitly to support the cause
espoused in the Convention in a press conference conducted on 06.09.2023.
7. Mr.Udhayanidhi Stalin delivered a speech in the Convention on
02.09.2023. Mr.A.Raja was a speaker in a meeting conducted on 02.09.2023
under the ageis of Tamil Nadu Murpokku Ezhuthalar Kalaignargal Sangam
entitled Sanatana Ozhippu Manadu.
8. Since the offending statements are fundamental to the lis, the text of
the speeches to the extent to which they are relevant to decide these Writ
Petitions, are extracted below.
Speech of Mr.Udayanidhi Stalin
I would like to express my salutations and gratitude to the
organizing committee of the Tamil Nadu Progressive Writers and
Artists Association for giving me the opportunity to deliver the
felicitation speech at this Sanatana Abolition Conference. The title of
this conference is very apt. My congratulations to you for calling it
Sanatana Abolition Conference instead of Anti-Sanatana Conference.
Some we must abolish and cannot resist. We should not resist
mosquitoes, dengue, fever, malaria, corona and so should we
eradicate them That is how this sanatana is. The first thing we need
to do is to eradicate Sanatana rather than oppose it.
Therefore, you have put the most suitable topic for this
conference, so my best wishes for it. What is sanatana? The name
Sanadhanam is derived from Sanskrit. Sanatanam is against equality
and social justice. Sanatana means fixed and unchangeable. It means
that no one can question it.
Communist movement and Dravida Munnetra Kazhagam have the
principle that everything must be changed, nothing is fixed, we must
question everything
……
The Dravidian model of government is implementing schemes that
uplift the people. But the bjp government is trying to push our people
backwards. Manipur is ruled by BJP. It has divided people into two
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groups in their own state and fueled riots This is Sanatana. Riots
have been going on there for the past five months. More than two
hundred people have been killed in the riots. Then our Chief Minister
invited the athletes there to train in Tamil Nadu saying that I will
take care of you. Eighteen swordsmen came here and trained for
twenty days Our Chief Minister provided food and accommodation
for them here. Then they congratulated our Chief Minister that even
in our state they do not treat us like this. This is Dravidianism.
Sanatana is spreading false news and inciting riots. A few months
ago, the media spread false news that the North State workers were
being killed here. But our Chief Minister handled it very well. Our
officers went to Bihar and the officials there came here and
inspected. Our Chief Minister shattered the fake news of fascism by
ensuring that no untoward incident took place anywhere.
………….
We come up with the necessary programs for our children to study
but fascists come up with many schemes to make sure that children
are not allowed to study. Sanatanas plan is that we should not study.
……………
In the context of this war between Sanatana and Dravidianism,
the Tamil Nadu Progressive Writers and Artists Association is
organizing the Sanatana Abolition Conference very well. This is a
very necessary conference, you are holding this conference once a
year, but that is not enough, you should hold it as often as possible
throughout the year, I request. Some of the Sanatanists will surely get
upset while watching this conference. Let them burn, you must hold
this conference continuously. The conference will start at 8.30 a.m.
today and will be held for the entire day today. Many people here are
going to speak on the topic against Sanatana. I convey my
congratulations and best wishes to all those who attended here. We
shouldn’t talk here and go away like that. We have to take our ideas
to the people.
……….
Here our Doctor Ezhilan said, On behalf of the youth wing of the
Dravida Munnetra Kazhagam, we have conducted a training camp
meeting on behalf of the DMK, the history of the Dravidian
movement, the history of the language war, constituency-wise on
behalf of our youth wing. The chief minister has given us an order
and next we are going to conduct it union-wise area-wise. We will be
conducting training camp 2.0 soon. I appeal to our Communist
comrades to participate in it and exchange your views.
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……………
I convey my best wishes for the success of this Sanatana Abolition
Conference. Let Sanatanam fall and let the Dravidians win and I am
saying goodbye by thanking you for the opportunity thank you.
Speech of Mr.A.Raja:
A huge gathering was held in Puducherry yesterday to
inaugurate the statue of kalaignar. I have posted all my
condemnation there, but they are coming on social media, but I will
address you briefly then leave. All those who spoke to me before me
said that the speech made by Tamil Nadu Minister brother
Udhayanidhi has become a topic of discussion across India today.
This program is also a program that answers the topic of discussion.
Because Sanatana and Vishwakarma are not different. But I find it
strange that Udhayanidhi Stalin said it very gently. That it should be
eradicated like malaria and dengue. Malaria and dengue don’t have
a social stigma that society doesn’t look at as disgusting.
To compare sanatana with abomination, there was once leprosy and
HIV. Therefore, sanatana should be seen as a miserable disease.
Prime Minister says to follow Sanatana Dharma. If he had followed
it, he would not have travelled abroad so much. Because a good
Hindu should not cross the ocean. Your job is to roam around. What
a scoundrel it is to say that a person who goes around in defiance of
Sanatan should save Sanatan. For this scoundrel, call the cabinet
today and talk well about Sanatan and spread it. I have challenged
the Prime Minister and Amit Shah yesterday. If you want to know
about the four varnas and sanatana or if you want to have a
discussion, I will say on behalf of the Dravida Munnetra Kazhagam
with the permission of our Chief Minister. Mr. Modi, Mr. Amit Shah,
gather ten lakh people or one crore people in Delhi. Make your
Shankaracharya sit above everyone else. Bring all your weapons,
bow, arrow, knife, dagger and keep everything close at hand. I come
with only Periyar and Ambedkar books.
The debate is in Delhi because the Prime Minister and all of you are
Maha Vishwaguru, Jagat Guru in your view I am just a Panchama
Shudra. I am coming to debate but I don’t know Hindi. I only speak
in English. I can’t do anything if you don’t know English. So I am
saying on this stage that Udhayanidhi’s speech is very soft and if
you ask me, I will speak even more harshly. So if there is anyone
among you to discuss Sanatana, I challenge you in front of Tamil
Nadu leaders, mark the date anywhere in Delhi, I am ready for Raja
to come. Subbiah said beautifully, Their job is to take this and add it
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to the caste. If we take it a step further, Ambedkar has said that in
every country there is a carpenter and in every country there is a
scavenger and in every country there is a barber. If you go to
London, you have a barber shop and a goldsmith shop. They are not
caste. A society needs separation of occupations. I had even spoken
yesterday that if I had to put cotton on my shirt and weave myself on
my shirt and sew it myself, we would all have to go around naked.
Can’t do that. Social Harmony requires another to work to fulfil our
needs Dr. Ambedkar meticulously studied that the religion here had
done the strange thing that this division of labour was to be done in
foreign countries and that this was what his son should do by tying it
to a caste and clan occupation, in which he said that the ascending
order of reference, defending order of contempt. When the caste is
divided like that, the upper caste is a good job and the lower one is a
socially disgraced job He said that this religion is the only religion
in the world that inculcates this technique. So its not just their job
here to save casteism. Their job is not just to save the industry, their
aim is to keep it as a Hindu Rashtra. It won’t be if everyone does all
the business. So even Hitler did not do this delicate work, they are
doing it. We have a compelling duty to overcome this and only we
can. In another way, I want to thank the teacher K. Veeramani who
has started here and all our struggle has ended here in South India.
First of all I said that Sanatana Hindu is different from ordinary
Hindu. They have translated it into twelve languages. That A. Raja
divided Hinduism. Now he has started in Tamil Nadu, Karnataka,
Kerala, you were saying Shudra. Now the whole of North India is on
fire. They are going to call it Bharat. I see this platform as the
starting point for a whole socialist secular country over the next ten
years, not only in the sense of the Constitution, but also as a starting
point for something that will consciously create it. I salute all of you
and say that this struggle should continue. They have said that the
government will also stand by you. I am saying good-bye to you only
by conveying this message to you. Thank you.
Statements of Mr.P.K.Sekar Babu
9. Though Mr.P.K.Sekar Babu had not spoken at the convention, he has
expressed solidarity with the sentiments expressed by Mr.Udhayanidhi Stalin
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and with the theme of the Convention in a press meet and the questions posed
and his answers as widely reported in the media are as follows:
As far as we are concerned, Hindu religion and Sanatana
Dharma can be equated to a banana. If Hindu religion is the fruit, the
Sanatana Dharma can be said to be the skin of the fruit. The fruit can
be eaten only after discarding the skin. Our policy is to protest
against the unnecessary portions of Sanatana Dharma. It is not our
policy to either militate against or destroy those who refer to
Sanatana. Our Hon’ble Minister Udayanidhi Stalin has explained this
clearly. He has settled this dispute once and for all. As far as we are
concerned, it is the principles of Sanatana we object to, it is the
principles of Sanatana that we say should be destroyed and we have
never said that Sanatana itself must be destroyed.
Q – What are your thoughts on the matter pending in the High
Court?
A - The matter was subjudice and I am being represented by
the counsel in the High Court. Any action that is required to be taken
would be contemplated at a later stage.
Q- Do you regret having participated in the Sanata Dharma
conference?
A – As far as the Dravida Munnetra Kazhagam is concerned,
once a move is taken, they will not retract or take a step back. Since
the matter is subjudice, I do not wish to elaborate further. Further
actions will be taken once the matter was decided.
10. Paragraphs III (i) to (v) deal with the objection to maintainability of
the writ petitions as raised in W.M.P.No.29853 of 2024 filed by
Mr.Udhayanidhi Stalin.
III (i) Maintainability on the anvil of non-joinder and mis-joinder of
necessary parties
11. Preliminary objections to maintainability are raised by Mr.Wilson
who argues that the Writ Petitions are not maintainable for mis-joinder and
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non-joinder of necessary parties. R2 in W.P.Nos. 29203 and 29205 of 2023 is
‘The Special Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St.
George, Chennai-600 009’, whereas, the appropriate authority to have been
arrayed should have been ‘Secretary of the Legislative Assembly’.
12. Reliance is placed on a judgment of the Hon’ble Supreme Court in
the case of Chief Conservator of Forests Government of Andhra Pradesh V.
Collectors and others
1
. Learned Advocate General supports the argument
stating that the proper authority to have been arrayed would have been the
Secretary, as Head of the Legislative Assembly. According to the respondents,
this is not a curable or a formal defect but amounts to mis-joinder and non-
joinder of necessary parties that goes to the root of the matter.
13. The petitioners for their part, state that that the array is liable to be
amended and have filed an application in W.M.P.No.21023 of 2023 seeking
amendment of the array of the second respondent in W.P.No.29205 of 2023
from ‘Special Secretary’ to ‘Secretary’.
Conclusion
14. It is true that the array of R2 in W.P.Nos.29203 and 29205 of 2023
is Special Secretary. Learned Advocate General circulates S.O.(Ms.) No.23
dated 02.03.2018 which is a Special Order issued by the Legislative Assembly
Secretariat. That Order notifies a Rule to the effect that the Rules applicable to
1
AIR 2003 SC 1805
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the holders of permanent post of Secretary, Legislative Assembly, Secretariat
(Category I Class I) of the Tamil Nadu Legislative Assembly Secretariat
services shall apply to the holder of the post of Special Secretary in the Tamil
Nadu Legislative Assembly Secretariat service, subject to modifications set out
therein. The Rule is in force since 14.12.2017.
15. The Special Order clarifies that the post of Special Secretary is a
temporary post unlike that of the Secretary, a permanent post. Learned
Advocate General also clarifies that the roles and responsibilities of the Special
Secretary are different and distinct when compared with those of the Secretary.
Hence, undoubtedly, the proper party to be arrayed ought to have been
Secretary, Tamil Nadu Legislative Assembly, Secretariat.
16. In the case of CCF, Government of Andhra Pradesh (supra), the
Hon’ble Supreme Court considered a challenge to maintainability by the
respondents on the ground of misjoinder/non-joinder of necessary parties. That
was a case where an appeal had been filed from a judgment of the Andhra
Pradesh High Court. The plea of the petitioners was for a declaration of title
with other reliefs including rendition of accounts.
17. Appeals had been filed by the Land Acquisition Officer that had
resulted in adverse orders as against which further appeals have been filed
before the Hon’ble Supreme Court. The pattadars/respondents in appeals raised
a preliminary objection on the ground that the Government or the State shall
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sue or be sued only in the name of the State. Thus, it was not the Chief
Conservator of Forests who ought to have been pursued the appeal. They relied
on Article 300 of the Constitution, Section 79 as well as Order 27 Rule 1 of the
Code of Civil Procedure in this regard.
18. The defence put forth was that the Chief Conservator of Forests had
obtained specific orders in regard to the filing of the appeals and thus the
appeals should be deemed to have been filed by the Government
notwithstanding that it was the Chief Conservator of Forests that was the
appellant. After considering the matter, the Division Bench accepted the
argument on maintainability holding that it was the State that ought to have
filed the appeals in its own name.
19. Abdicating the responsibility to the Chief Conservator of Forests
was a fatal error, as the proper array of parties is not merely a procedural
formality but essentially a matter of substance and considerable significance.
They made a distinct between mis-description or misnomer of the party on the
one hand and mis-joinder or non-joinder of party on the other. If it is a case of
mis-description, the Court may permit correction of the cause title, such that
there is proper description of the parties before the Court.
20. In that case, the specific question was whether the array of Chief
Conservator of Forests was a mis-description for the State of Andhra Pradesh
or whether it would amount to a case of non-joinder of the State of Andhra
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Pradesh, which is a necessary party. Order 1 Rule 9 of the CPC was referred to
which mandated that no suit should be defeated by the mere reason of mis-
joinder or non-joinder of parties. However, the proviso thereto clarifies that
nothing in that Rule would apply to non-joinder of a necessary party.
21. The Court held that it was the State that was a necessary party to
that Writ Petition and ought to have been impleaded under the relevant
provisions of the Constitution as well as CPC. In that view of the matter, they
concluded that it was not merely inappropriate but illegal for the Chief
Conservator of Forests to have questioned the order of the Commissioner of
Survey, Settlement and Land Record before the High Court at the first instance.
This is for the reason that there is a complete distinction between the Chief
Conservator of Forests and the State of Andhra Pradesh and thus the issue
cannot be wished away as a mere mis-description.
22. In the present case, the Special Order that has been circulated by
the learned Advocate General makes it clear that the relief that has been sought
by the petitioners, even if granted by the Court, could have been practically
enforceable only if the proper official respondent had been arrayed. The Special
Order also makes apparent the fact that the posts of Secretary and Special
Secretary are not interchangeable and their roles and responsibilities are
different.
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23. The petitioners have filed amendment petitions seeking correction
in the array of parties. In the decision in the case of CCF, Government of
Andhra Pradesh (supra), the Supreme Court has, while accepting the
preliminary contest, observed that the High Court Could have, ‘had it deemed
fit so to do,……’ added the State of Andhra Pradesh as a party’. However, the
High Court had proceeded as though the State of Andhra Pradesh had been the
petitioner which the Supreme Court held was erroneous.
24. Thus and being the initial stage of litigation, it is very much for this
Court to take a view regarding whether the proper party should be arrayed to
regularize the litigation. Having considered the rival contentions, I am of the
view that while the proper authority, the Secretary, must be arrayed as a party,
the error committed in arraying the Special Secretary is not fatal to the cause of
the petitioners, and can be corrected.
25. That apart, Rule 3 of the Madras High Court Writ Rules, 2021 sets
out the form of Writ Petitions requiring, at paragraph 2 (c) that the Writ Petition
shall contain the name, description and the address of the petitioner and the
respondent. The Miscellaneous Petitions seeking amendment of cause title are
thus ordered and the Registry is directed to amend the cause title to the Writ
Petitions, such that R2 in W.P.Nos.29203 and 29205 of 2023 shall read
Secretary, Tamil Nadu Legislative Assembly, Secretariat, Fort St. George,
Chennai – 600009.
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III (ii) Maintainability in the context of locus
26. Respondents argue that the Writ Petitions are filed by officials of the
Hindu Munnani, are politically motivated and thus not maintainable. The
Petitioners, while acceding to the position that they are members/office bearers
of the aforesaid political party, retort that there is no bar in law against
members of political parties engaging in litigation of the present nature.
Conclusion
27. A Writ Petition with the prayer for Quo Warranto assumes the nature
of Public Interest Litigation. The respondents argue that the petitioners being
members of a political party, these writ petitions are nothing but a political
ploy. This very submission was raised in the case of Hardwari Lal, Ex-M.P.
(Lok Sabha) V. Ch.Bhajan Lal, Chief Minister, Haryana, Chandigarh
2
and
decided as follows:
3. The question, whether the petitioner has the locus standi to
approach this Court, for the relief claimed need not detain us
much although Shri Sibal, the learned Advocate-General,
Haryana, appearing for the respondents, severely criticised the
motive and purport behind this writ petition as political and only
aimed at wreaking personal grievances by a political rival of the
Chief Minister, yet we do not find that the locus standi of the
petitioner to approach the court was seriously questioned. The
substance of the respondent’s contention in this regard is that the
Court shall not exercise any discretion in favour of a person who
has approached this Court only with oblique motives has his own
axe to grind against the respondent and, therefore, could not be
permitted to have access to the Court under the garb of public
2
1993 (1) SCC 184
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interest litigation. We think that the antecedents or status of
persons lose all significance if the information conveyed to the
Court even by such a person is such as may justly require the
Court to exercise its jurisdiction to pass orders and directions to
protect the rights and liberties of the citizens. A Full Bench of the
Andhra Pradesh High Court in D. Satyanarayana v. N. T. Rama
Rao, AIR 1988 Andhra Pradesh 144, observed that being politician
by itself is no sin. In our democratic set up, Government is run by
political parties voted to power by people. It is totally unrealistic
to characterise any espousal of cause in a Court of law by a
politician on behalf of the general public complaining of
Constitutional and statutory violations by the political executive as
a politically motivated adventure. If, however, the interests are not
personal and the litigation appears to be for no personal gains, the
person approaching the Court is not a busy body nor an
interloper, the relief may not be denied and the petition may not be
thrown out simply because it is by a politician, We, however, leave
the matter at that without commenting any further upon the
petitioner’s interest in approaching this Court and bringing to the
Courts notice the acts of the Chief Minister which according to
him do not deserve the continuance of respondent No. 1 in the
office of the Chief Minister any further. We, however, express that
spiteful allegations of personal nature and being politically
mischievous may not be permitted to be made in the garb of public
interest litigation and the Court must caution itself that it should
protect its jurisdiction, authority and time from abuse of the
process.
Thus, whatever may be their political affiliations, the Petitioners cannot
be estopped from pursuing the Writ Petitions for Quo Warranto as any citizen
can question the authority under which a public post is held.
28. There have been vitriolic exchanges between the parties in regard to
the political sentiments of the day. The Court has made it clear at the time of
hearing, reiterated now, that its interest lies only in resolution of legal issues
and not in the politicization of issues. I have thus eschewed all reference to
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political sentiments despite some grandstanding by the parties in the course of
the hearing.
III (iii) Maintainability on the ground of apparent satisfaction of the
provisions relating to qualification
29. Respondents submit that the prayer for quo warranto may be
maintained only if the individual respondents do not hold the requisite
qualifications as prescribed under Article 173 of the Constitution in the case of
the MLAs or Article 84 of the Constitution in the case of the MP, or under the
relevant provisions of the Representation of Peoples Act, 1951 (in short ‘RP
Act’). In the present case, the individual respondents hold the requisite
qualifications under Articles 173 and 84 and do not attract any disqualification
as provided for under Articles 191 and 102 respectively.
30. Moreover there is an in built scheme in the Constitution that vests in
the Governor (or the President in the case of an MP) the authority to decide on
the question of disqualification. Hence, the present writ petitions are not
maintainable as apparently, the individual respondents are qualified to hold
their respective posts and for availability of an efficacious remedy as well.
31. A writ of quo warranto is a serious ingress into the personal liberty of
an individual and such writ must not be sought lightly. The burden rests heavy
upon the petitioners to establish even at the outset what the disqualification or
bar is, that is sought to be mulcted upon the individual respondents.
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Maintainability of the Writ petition will have to be decided based on the factual
and legal position that presents itself on an apparent reading of the writ petition
and since the pleadings do not reveal any Constitutional or statutory bar, the
Writ Petitions must be dismissed in limine.
32. The petitioners respond by stating that their prayer is premised on the
position that the individual respondents have committed breach of their Oath
and the offending statements amount to a fraud played on the Constitution.
These issues go to the root of the matter. That apart, a writ of quo warranto is
one of four Constitutional writ remedies and hence the question of disputing
maintainability does not arise in circumstances where the petitioners have
raised disputes that are fundamental to the matter. The question of an
efficacious alternate remedy is one which should be considered by the Court as
part of its decision on judicial review and this process cannot be sought to be
by passed or short circuited by the respondents.
Conclusion
33. I agree with the petitioners that rejecting the writ petitioners at this
juncture would be premature and, in a way, putting the cart before the horse.
The question of whether the individual respondents have the requisite authority
to hold their posts can be determined only upon a proper analysis of the
requisite provisions of the Constitution and other enactments including the RP
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Act. Respondents argue that they apparently possess the required qualifications
and there is no need to look further. This may well be so.
34. However, the arguments of the petitioners do warrant a deeper study
and appreciation and it would, in my considered view, be an over simplification
of the matter to state that an apparent and peripheral reading of the provisions
are all that is required in a matter of this nature. Casting the writ petitions away
at this stage would be a miscarriage of justice. After all, if the Court is of the
view, after hearing the parties, that the individual respondents do hold the
requisite qualifications, they will succeed. This objection has no merit and is
rejected.
III(iv) Admissibility of electronic evidence
35. The admissibility of the electronic evidence is challenged on the
ground that it is sans certification under the provisions of the Evidence Act,
1872.The evidence is of two kinds, firstly, a pen drive containing three videos
of the offending statements and transcripts thereof. The petitioners have
remedied the position by filing certificates dated 14.10.2023 under Section 65
B of the Indian Evidence Act for admission of the pen drive. In fact, with this,
the objections of the respondents stand addressed and redressed.
36. It is alleged that the digital evidence is truncated and incomplete,
modified/digitally edited/doctored by a third party and constitute disputed
questions of fact. The videos that have been filed contain the complete
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speeches of Mr.Udayanidhi Stalin and Mr.A.Raja and there is nothing to
support the assertion that they have been digitally modified. In fact, the
speeches and extracts therefrom have been available in public media ever since
they were delivered in the convention and subsequent meeting and too much
water has flown under the bridge for the individuals to raise a technical issue
on this aspect now.
37. Moreover there has been no contra evidence produced by the
individual respondents to support the allegation of tampering with the evidence.
After all, the individual respondents are best equipped with the knowledge of
what had been stated from the podium. Except for the bald allegations made,
there is nothing to commend the position that the offending statements have
been doctored and the transcription filed is incorrect. No material has been
placed before me in this regard. That apart, the statements alleged to have been
made are available in public domain.
38. On an aside, in a matter of the present nature, there is nothing to be
gained by being hyper technical. If the individual are adopting a position of
principle it would have been preferably that they stick to that position and
argue on the strength of that principle rather than succumb to hyper technical
objections. Hence this court proceeds on the basis that the video clips as well as
the texts represent a true version of what had transpired.
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39. With this, the writ petitions are held to be maintainable and WMP
No.29853 of 2023 is closed.
IV (i) Rival contentions and conclusion on (a) whether the offending
speeches are in tune with the Constitutional scheme, or do they amount to
mis/disinformation and hate speech (b) whether a Writ of quo warranto will
lie in view of the prevailing Constitutional scheme
Submissions of the Petitioners:
40. Sanatana Dharma represents and expounds core values of Hinduism.
The call for eradication of Sanatana Dharma is thus nothing but a call for
eradication of Hinduism itself and this has been justified on the anvil of
Dravidian ideology.
41. The individual respondents are well aware of the fact that Sanatana
Dharma is the same as Hinduism, as one of the earlier speakers in that very
conference had clearly stated the same, in as many words. Thus, if the speakers
had been of the view that Sanatana Dharma connoted anything other than
Hinduism, it was for them to have clearly expressed their divergence in view,
which has not been done.
42. The speeches and participation of the ministers was clearly in their
official capacity. They have not denied their statements anywhere and the only
explanation put forth is reliance upon the speeches of Periyar and Ambedkar
who had not held Constitutional posts.
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43. They point out that the Varna or caste system is not one which
operates based upon birth, but one which is attained by action and avocation.
While the entire blame for the caste system in society is attributed to the Vedic
varna system which is different from Sanatana Dharma, the State of Tamil
Nadu has a list of 184 castes falling within backward and most backward
categories
3
Such divisions do not arise from Vedic literature and are a creation
of recent times.
44. If the individual respondents are truly interested in preventing
divisions and fostering integration as they claim, it is for them to erase the
distinction between the prevailing castes in the States and bring about equality.
Petitioners specifically point out that Tamil Nadu has a 69% reservation as
against 50% reservation held by the rest of the Country and this is not a
function of the varna system of Vedic times.
45. Petitioners refer to Article 51A under Part IV A of the Constitution
that enumerates the fundamental duties cast upon all citizens. They emphasize
that while it is the duty of every citizen to promote harmony and the spirit of
common brotherhood amongst people of India transcending religious linguistic
and regional or sectional diversities, all the more, is it the duty of Constitutional
functionaries.
3
List of backward classes approved by Government of Tamil Nadu - bcmbcmw.tn.gov.in
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46. The statements made by the individual respondents amount to
disinformation and hate speech prohibited both under Article 19 as well as
Article 25 of the Constitution. The Right of free speech under Article 19 is not
an absolute right as sub-Article (2) imposes reasonable restrictions on the
exercise of the right in certain demarcated situations such as the protection of
the sovereignty and integrity of India, security of the State, friendly relations
with foreign states, public order, decency or morality in relation to contempt of
Court, defamation or incitement to an offence.
47. The law protects against statements that would prove a danger to
public order and the integrity of the Country. The statements made by the
individual respondents openly promise to destroy and do away with Sanatana
Dharma or Hinduism and thus threaten the sovereignty of the Country.
48. Sanatana Dharma references everything valuable and noble in
Hinduism and by pledging to eradicate it like they would a virus, the individual
respondents have spewed hate and vengeance on all practitioners of Hinduism.
Article 25 of the Constitution protects the freedom of conscience and free
profession as well as practice and propagation of religion. Hinduism or
Sanatana Dharma is a religious faith, the practice of which is protected under
Article 25.
49. Hence, the actions of the individual respondents who are
functionaries under the Constitution constitute a fraud played upon the
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Constitution and an abuse of their high offices. They point out that a speech of
a sitting Minister would amount to an actionable tort and rely on the judgment
of the Supreme Court in Kaushal Kishor V. State of U.P
4
. in this context.
50. Mr.T.V.Ramanujan refers to Schedule III of the Constitution of India
that deals with forms of Oaths and Affirmations. The text of the Oath to be
made prior to assumption of office reads thus:
‘1.A…B., do swear in the name of God/Solemnly affirm that I
will bear true faith and allegiance to the Constitution of India as by
law established, (that I will uphold the sovereignty and integrity of
India, that I will faithfully and conscientiously discharge my duties
as a Minister for the State of…. And that I will do right to all
manner of people in accordance with the Constitution and the law
without fear or favour, affection or ill-will’.
51. Since the text of the Oath requires an affirmation that the candidate
should act in conscience with the Constitution, there is a Constitutional
requirement cast upon them to act without fear, favour, affection or ill-will,
treating all persons equally irrespective of their faith. By their statements, the
respondents have failed to uphold the principles of the Constitution violating
the Oath taken by them under Schedule III of the Constitution of India.
52. Article 164(3) states that it is mandatory for the Governor to
administer the Oath of office and secrecy upon a Minister prior to his entering
into office and such Oath is not an empty formality. He refers to the decision of
4
(2023) 4 SCC 1
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the Division Bench of this Court in Anbazhagan K., etc. V. The Secretary, The
Tamil Nadu Legislative Assembly & 3 others
5
.
53. In that case, Legislators belonging to the D.M.K. Party, the present
Ruling party to which the private respondents claim allegiance, had burnt a
copy of the Constitution for which they had been expelled from the House by
the Speaker. The expulsion was challenged before this Court and upheld, the
Court holding that an elected representative who makes an Oath or affirmation
under Article 188 is duty bound to bear true faith and allegiance to the
Constitution of India. Burning a copy of the Constitution would constitute a
breach of that Oath.
54. In the case of All India Anna Dravida Munnetra Kazhagam V. State
Election Commissioner & 4 others
6
, election to the Chennai Corporation was
set aside in Writ Petition as it had been marred by violence. This relief was
granted despite the availability of the alternate remedy of an Election Petition
under the provisions of the Chennai City Municipal Corporation Act, 1919.
55. The argument relating to breach of Oath was defended by the learned
Advocate General citing several cases to the effect that quo warranto would not
lie on the basis of an allegation that there had been violation of the Oath of
office by the answering respondents, as the Constitution contained an in-built
scheme to address this issue. Courts have uniformly concluded that an MLA
5
1987 Writ L.R.668
6
2007 (1) CTC 705
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held office at the pleasure of the Governor and hence it was only the Governor
who was the competent authority to decide on the question of his
disqualification.
56. Perhaps realising the vulnerability of the argument relating to breach
of Oath, the petitioners then argue that the individual respondents have
perpetrated fraud on the Constitution by virtue of their offensive statements and
participation in the convention. Reference is made to the judgements in
Andhra Pradesh Scheduled Tribes Employees Association V. Aditya Pratap
Bhanj Dev
7
and K.Venkatachalam V. A. Swamickan
8
.
57. Those judgments dealt with the concept of fraud played on a Statute
and the Court states that the concept of fraud committed on the Constitution
was very similar to fraud being played on a Statute. Any action which would
subvert the object and purpose of the Constitution would amount to fraud on
the Constitution. Mr.T.V.Ramanujan argues that the comparison by
Mr.Udhayanidhi Stalin and others of Sanatana Dharma to diseases like Corona,
dengue, malaria, HIV and Leprosy is unconstitutional, in extremely bad taste
and reveals the hatred of the individual respondents towards Hindus.
58. He makes reference to the Constitution Assembly Debates on
10.09.2019 in the context of the Article relating to right to property. Pandit
Jawaharlal Nehru while referring to the basic principle that no person shall be
7
(2001) 6 ALD 582
8
(1999) 4 SCC 526
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deprived of his property save by the authority of law, refers to the fixation of
compensation and the fact that there should be no challenge to the same except
if there had been ‘fraud committed on the Constitution’ in the following terms:
Naturally the judiciary comes in to see if there has been a fraud
on the Constitution or not. But normally speaking one presumes
that any Parliament representing the entire community of the
nation will certainly not commit a fraud on its own Constitution
and will be very much concerned with doing justice to the
individual as well as the community.
59. Mr.Ramanujan then refers to the speech of Dr.B.R.Ambedkar as
follows:
Now, Sir, I come to the amendments of my honourable Friend,
Friend, Kazi Syed Karimuddin. His first amendment which I
propose to take for consideration is amendment No. 1152. By this
amendment he wants to add treason, bribery and other high
crimes and misdemeanours after the words, violation of the
Constitution. My own view is this. The phrase violation of the
Constitution is quite a large one and may well include treason,
bribery and other high crimes or misdemeanours. Because
treason, certainly, would be a violation of the Constitution.
Bribery also will be a violation of the Constitution because it will
be a violation of the Oath by the President. With regard to crimes,
the Members will see that we have made a different provision with
regard to the trial of the President for any crimes or
misdemeanours that he may have made. Therefore, in my view,
the addition of these words, treason and bribery, are unnecessary.
They are covered by the phrase violation of the Constitution.
60. In Andhra Pradesh Scheduled Tribes Employees Association (supra),
the principles of law in relation to fraud and misrepresentation have been
summarized as follows:
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1. In judicial proceedings, fraud renders a judgment of a Court
a nullity and void. Either superior or inferior Court is bound to
treat a judgment obtained by playing fraud on the Court a
nullity.
2. In proceedings other than judicial, an order obtained by fraud
and misrepresentation and/or a determination as a result of
fraud cannot be allowed to stand. Fraud unravels everything,
and no person can keep an advantage or benefit or privilege
obtained by playing fraud.
3. In the field of private law, mere misrepresentation without
proof of deceit or intention to deceit cannot vitiate the contract
or render the contract void; it is only voidable. In the field of
public law, however, fraud on public authorities is a special
species of fraud, which without anything further must deny the
person the benefit obtained by fraud. Whether intention or no
intention, whether malafide or bona fide, public law does not
permit a person to retain the advantage obtained by fraud.
4. The concept of fraud on the statute and fraud on the
Constitution has similarities more than one. Any action, which
subverts the objects and purposes of the Constitution, amounts
to fraud on the Constitution.
5. A person who does not belong to SC/ ST/BC secures
appointment to an office or post under the State or public
employment by producing fake certificate must be held guilty of
playing fraud on the Constitution, and such person shall not be
entitled to plead doctrine of promissory estoppel or equitable
estoppel.
6. The principle of finality of litigation cannot be pressed when
fraud is alleged to be the basis for the decision/ determination.
7. Fraud, can be challenged in any Court even in collateral
proceedings. The principle of estoppel and doctrine of res
judicata have no application when fraud is the basis of judgment
sought to be nullified under which right or privilege is claimed.
8. Fraud can either be proved by established facts or inference
can be drawn from admitted and/or undisputed facts. When
fraud is inferred under Section 44 of the Indian Evidence Act,
1872, the Court as well as the authority alleging fraud can
ignore a decision obtained by fraud.
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61. My attention is drawn to the conclusion at serial No.4 above, which
states that any action which subverts the objects and purposes of the
Constitution would amount to fraud on the Constitution. He thus impresses that
the offending statements of the individual respondents amount to fraud on the
Constitution, since they are in direct opposition to Constitutional principles of
fraternity, secularism and equality of all faiths.
62. In the case of A.Swamickan v. K.Venkatachalam and another
9
,
K.Venkatachalam v. A.Swamickan and Another
10
, the Madras High Court and
thereafter the Hon’ble Supreme Court held that the whole of the election
process was vitiated with fraud. The challenge to the election of
K.Venkatachalam from Lalgudi Assembly Constituency was set aside on the
factual basis that the appellant had impersonated another person with the same
name as his, in the application form.
Cases cited by Mr.T.V.Ramanujan
(i)Acharya Maharajshri Narendra PrasadjiAnandprasadji Maharaj and
Others v. State of Gujarat and Others [(1975) 1 SCC 11]
(ii)Subhash Desai v. Sharad J.Rao and Others [1994 Supp (2) SCC 446]
(iii)Lily Thomas and Others v. Union of India and Others [(2000) 6 SCC 224]
(iv)State of Karnataka and Another v. Dr.Praveen Bhai Thogadia [(2004) 4
SCC 684]
(v)Dr.D.C.Wadhwa and Others v. State of Bihar and Others [(1987) 1 SCC
378]
(vi)Magesh Karthikeyan v. The Commissioner of Police, Police
Commissionerate, Avadi, Chennai and another [WP.No.30692 of 2023 dated
31.10.2023]
(vii)K.C.Chandy v. R.Balakrishna Pillai [1985 SCC OnLine Ker 198]
9
1986 SCC OnLine Mad 114
10
(1999) 4 SCC 526
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(viii)Alappey Asharaf v. Chief Minister, Govt. Secretariat,
Thiruvananthapuram-695 001 and others [(2018) 1 KLT (SN 40) 30
63. Mr.G.Rajagopalan specifically refers to the statements by
Mr.P.K.Sekar Babu as well as his presence and participation in the convention,
pointing out that such acts are in violation of several guarantees set out under
the Constitution. The Preamble guarantees liberty of thought, expression,
belief, faith and worship and Article 25, the Right of Freedom of religion.
Article 51(c) urges respect to International Law and Article 51A(f) to value and
preserve the rich heritage of our composite National culture.
64. A distinction was drawn between the freedom of speech under Article
19(1)(a) which is subject to reasonable restriction under Article 19(2) and
Article 25 which grants the right to freedom of religion which is absolute,
except on the grounds of public order, morality and health. Article 25 requires
to be implemented not only qua the State but qua co-citizens as well and any
violation of this guarantee must be interfered with and set right. All the more if
the violator is one holding Constitutional office.
65. The Constitutional guarantee of freedom of religion flows from
obligations under International covenants and in this context, reference is made
to the International Bill of Human Rights, 1948 and the International Covenant
on Civil and Political Rights, 1966. Particular exception is taken to the
offensive statements on the ground that Government in the State is expected to
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be secular. Members of all faiths are required to be treated equally and it is an
aberration for an individual holding a Constitutional post to express an opinion
against any one particular religion.
66. A specific argument is raised on the distinction between personal
morality and Constitutional morality, in that, while a citizen may hold a set of
morals that are general in nature or even coloured by personal prejudices,
sitting ministers are expected to be above such prejudices. The offensive
statements and participation of the Minister holding portfolio of Hindu
Religious & Charitable Endowments Department in the convention for
abolition of Sanatana Dharma reveals his deep seated prejudice as far Hinduism
and Hindus are concerned.
67. The HR & CE Minister heads a department that supervises more than
30,000 temples in the State. The temples espouse Hinduism and Hindu
philosophy that are based upon the core values of Sanatana Dharma. In fact,
the officials of the HR & CE Department have to make an Oath as provided for
under the ‘Manner of Proof of Professing Hindu Religion Rules, 1961’ issued
under G.O.Ms.No.4055 Revenue dated 23.09.1961.
68. The Rule requires the pledge to be taken by the appointee in the
immediate presence of the Executive Officer or Chairman, Board of Trustees of
the religious institution before the presiding deity in the nearest Hindu
Religions Institution selected, in the presence of two witnesses. Such pledge,
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once taken, should be reduced to writing and placed before the head of the
office as a permanent record.
69. The form of pledge is as follows:
‘Pledge to be in the form prescribed – Every person
appointed or deemed to be appointed under the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act
22 of 1959), shall sign a pledge in the form appended to these
rules.
Form prescribed under rule 2 issued under section
116(2)(xxiv) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 (Tamil Nadu Act 22 of 1959).
´I…….. son of ……… residing at…… village…… taluk……
district…… appointed to the post of……… do solemnly swear that
I am a Hindu by birth and profess the Hindu Religion.
Signature
Witnesses:
1.
Sworn before me
Signature and
Designation of Officer
70. The Hindu Religious Charitable and Endowments Act, 1959 (in short
‘HR & CE Act’) proceeds on the statutory premise under Section 10 that all
appointees under that Act, such as the Commissioner and other servants of the
HR & CE Department would be persons who profess the Hindu religion.
71. Section 25 of the HR & CE Act requires the appointees under the Act
to observe the forms and ceremonies appropriate to religious institutions and
hence it is all the more incumbent upon the individual holding portfolio of HR
&CE to ensure that he does not speak against the very philosophy of the faith
which he professes to oversee and protect.
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72. The specific argument is that in this view of the matter, there is little
need, and it is unnecessary, to restrict oneself to the specific stipulations of the
RP Act. The obligations under the Constitution must be implemented in letter
and spirit. The Directive Principles of State policy, especially Article 51A must
be given meaning and purpose, especially the spirit of brotherhood. Such a
requirement would have to be read into the law as in the alternative, there
would be gross distortion of the Constitutional scheme.
73. Mr.Karthikeyan submits that Mr.A.Raja is an elected member of the
Lok Sabha having contested the election in the Reserved Constituency for
Scheduled Cases. Clause 3 of Scheduled Caste Order, 1950 states that
‘Notwithstanding anything contained in paragraph 2, no person who professes
a religion different from the Hindu religion shall be deemed to be a member of
a Scheduled Caste’.
74. Thus this individual has necessarily to profess Hinduism, since he is
admittedly part of the Scheduled Caste community. In such circumstances, his
statements equating Sanatana Dharma to diseases like HIV AIDS and leprosy
are in total violation of Constitutional principles and constitute rank fraud
played upon the Constitution.
75. As it is self-destructive for one who is expected to profess Hinduism
to seek eradication of that very faith, clearly he is not a practitioner of that faith
and loses his eligibility to contest the election in the Reserved Constituency.
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One way or the other, his statements amount to a fraud on Constitution
attracting the writ of quo warranto.
Reply of the Respondents
76. In common, all individual respondents have referred, in extenso, to a
publication of the year 1902 by the Board of Trustees of the Central Hindu
College, Banaras titled Sanatana Dharma – An Elementary Textbook of Hindu
Religion and Ethics
11
’. Mr.Wilson takes me through several pages of the
publication and attempts to interpret what has been stated in the Book. He
points out that as per that publication, the basis of Sanatana Dharma are the
Vedas and other compendiums, the chief of which is what has been referred to
in that publication, as Aryan Law by Manu.
77. Chapter VII of the publication refers to four castes and specific
reference is made to a passage from the Rig Veda where the avocations to be
followed by the four castes are set out.
‘”The Brahmana was His mouth: the Rajanya was made
His two arms; His two thighs the Vaishya; the Shudra was born
from His two feet.”
78. The above verse has been referred to point out the inequality in the
caste system. According to them, it is this system of inequality that has
perpetrated through the centuries leading to oppression of certain classes of
societies, at the instance of the upper castes.
11
Published by Board of Trustees, Central Hindu College, Benares 1902
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79. Several other portions of the book have also been referred to, such as
reference to the Aryan invasion theory, all of which tie up with their stand
relating to caste discrimination and domination of the Aryans from the North
who imposed on the Dravidians. Their case is thus that Sanatana Dharma is
nothing but Varna Dharma.
80. They submit that the Constitution endows them with wide powers to
express their ideas and opinions. Being staunch followers of the Dravidian
school of thought propounded over many decades by Periyar, Anna and
Karunanidhi, they believe that there should be equality among the citizens in
the State. According to them, Sanatana Dharma is the font of all inequality
which the oppressed and depressed classes of societies have had to face over
the years.
81. Learned Advocate General would, fairly, confirm the conduct of the
convention and the contents of the statements of the individuals. He submits
that there is no usurpation of public office which is the only premise upon
which a quo warranto may be considered. As elected representatives, two of the
individual respondents have been appointed to the seat of MLA by the
Governor. Likewise, they hold such post at the pleasure of the Governor. Thus,
termination too can only be upon the cessation of such pleasure and not
otherwise.
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82. Learned Advocate General would also take me through Articles 173,
191, 192 and 193 of the Constitution, referring thereafter to the RP Act which
sets out the relevant qualifications/disqualifications of elected representatives.
Section 5 of the RP Act stipulates the qualification for membership in the
Legislative Assembly. Clause (a) and (b) are inapplicable to the present Writ
Petitions. Clause (c) states that the qualification required is that he be an elector
for any Assembly Constituency in that seat.
83. Section 8 provides for disqualification upon conviction for various
offences. The pre-requisite is thus that the candidate should have been
convicted and in the present case, there is not even an FIR pending as against
the individual respondents. This submission is not factually correct as the
Court is given to understand by the Petitioners at the time of closure of
submissions that several FIRs are pending as against the individual
respondents.
84. That apart and even otherwise, the convictions referred to in Section
8 of the RP Act relate to specific offences alone and admittedly the individual
respondents have not suffered any convictions on those scores. There is a
presumption, as noticed by the Supreme Court in the case of Y.S.Rajasekara
Reddy that the appointment of representative of the people is in order unless
such a representative has usurped that office.
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85. The Constitution provides for elected representatives to serve at the
pleasure of the Governor. As, in this case, the eligibility criteria as per the
Constitution as well as the RP Act have been met and the individuals do not
attract any of the disqualifications under the Constitution or RP act, the
questions of Quo Warranto does not arise. It is only the Governor who is the
appointing authority who could decide on the continuance of their appointment.
Cases cited by the Advocate General
(i)Samsher Singh v. State of Punjab and another [(1974) 2 SCC
831]
(ii)B.P.Singhal v. Union of India and Another [(2010) 6 SCC 331]
(iii)Manoj Narula v. Union of India [(2014) 9 SCC 1]
(iv)Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal
Pradesh Legislative Assembly and others [(2016) 8 SCC 1]
(v)U.N.R.Rao v. Indira Gandhi [(1971 (2) SCC 63]
(vi)K.R.Ramaswamy alias Traffic Ramaswamy v. State, rep. by the
Chief Secretary, Government of Tamil Nadu, Fort St. George,
Chennai-600 009 and others [2012 (2) CTC 481]
(vii)Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others [(2014) 1 SCC 161]
(viii)Keisham Meghachandra Singh v. Hon’ble Speaker Manipur
Legislative Assembly and others [2020 SCC OnLine SC 55]
(ix)Ramachandran v. M.G.Ramachandran, the Chief Minister of
Tamil Nadu, Madras 9 and others [1987 100 LW 178]
(x)Dr.Y.S.Rajasekara Reddy and others v. Sri Nara Chandrababu
Naidu and others [AIR 2000 AP 142]
(xi)Hardwari Lal, Ex-M.P. (Lok Sabha) v. Ch.Bhajan Lal, Chief
Minister, Haryana, Chandigarh and others [1993 (1) SCC 184]
86. Mr.Wilson also adopts the arguments of the learned Advocate
General on the question of law, reiterating emphatically that it is only upon the
candidate attracting the finite disqualifications mentioned in Section 8 of the
RP Act that he could be disqualified. Such disqualifications must be construed
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strictly and there could be no expansion or elaboration of the same at the
instance of the Court.
Cases cited by Mr.P.Wilson
(i)Navtej Singh Johar and Others v. Union of India [(2018) 10 SCC
1]
(ii)Dr.Ranjeet Suryakant Mohite and others v. Union of India and
another [PIL.No.139 of 2010 dated 23.09.2014]
(iii)Indibily Creative Private Limited and others v. Government of
West Bengal and Others [(2020) 12 SCC 436]
(iv)Union of India and another v. S.P.Anand and others [(1998) 6
SCC 466]
(v)Anna Mathews and others v. Supreme Court of India and others
[(2023) 5 SCC 661]
(vi)ManikkaSundara Bhattar and others v. R.S.Nayudu, Executive
Officer and trustee of Sri MinakshiSundareswarar Devasthanam at
Madura and others [(1945) 58 LW 113]
(vii)Elangovan v. The Secretary, Home Department, Secretariat,
Fort St.George, Chennai-600 009 and others [WP.No.27398 of
2023 dated 15.09.2023]
(viii)S.Khushboo v. Kanniammal and another [(2010) 5 SCC 600]
(ix)Supriyo @ Supriya Chakraborty and another v. Union of India
[2023 INSC 920]
(x)Kaushal Kishor v. State of Uttar Pradesh and Others
[MANU/SC/0004/2023]
(xi)Kedar Nath Singh v. State of Bihar [1962 SCC OnLine SC 6]
(xii)People’s Union for Civil Liberties (PUCL) and another v.
Union of India and another [(2003) 4 SCC 399]
(xiii)Shreya Singhal v. Union of India [(2015) 5 SCC 1
(xiv)S.Tamilselvan and other v. The Government of Tamil Nadu,
rep. by the Secretary, Home Department, Fort St. George, Chennai
600 009 [(2016) 3 LW 577]
(xv)Ramji Lal Modi v. State of U.P. [AIR 1957 SC 620]
(xvi)Retd. Armed Forces Medical Association and others v. Union
of India and others [(2006) 11 SCC 731]
(xvii)Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others [(2014) 1 SCC 161]
(xviii)University of Mysore and another v. C.D.Govinda Rao and
another [(1963) SCC OnLine SC 15]
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(xix)State of West Bengal v. Anindya Sundar Das and others
[(2022) SCC OnLine SC 1382]
(xx)AIIMS Student’s Union v. AIIMS and others [(2002) 1 SCC
428]
(xxi)Lily Thomas v. Union of India and others [(2013) 7 SCC 653]
(xxii)Manoj Narula v. Union of India [(2014) 9 SCC 1]
(xxiii)Arjun PanditraoKhotkar v. Kailash KushanraoGorantyal and
others [(2020) 7 SCC 1]
(xxiv)S.Ramachandran v. The State of Tamil Nadu and Others
[MANU/TN/5011/2023]
(xxv)Public Interest Foundation and others v. Union of India and
another [(2019) 3 SCC 224]
(xxvi)Nand Kishore Garg v. Govt. Of NCT of Delhi and others
[MANU/DE/2640/2022]
87. Mr.Jothi would start by expressing his suspicion of the motives of the
petitioners in approaching this Court. This aspect of the matter has been dealt
with in the paragraphs touching upon maintainability. He would then argue
that the Writ petition is malafide and would also chronicle in extenso the
achievements of Mr.P.K.Sekar Babu after he had assumed the post of HR &CE
Minister.
88. He has filed a compilation of the achievements of the HR & CE
Minister, stating that he had inspected 271 Temples during the period June
2021 to 31.12.2022 and 29 temples in the year 2023. Several measures have
been taken towards the betterment of the temples which are under the control of
the HR & CE Department. Grants have been sanctioned to several temples that
have benefitted both the temples as well as the devotees who visit. Thirupani
work is in full swing in many temples and there is a concerted effort to survey
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the lands belonging to the temples and recover them from the clutches of
encroachers.
89. The websites of various State departments of the state are being
reconciled to reflect land holdings of the temples. Stolen idols have been
recovered and strong rooms and icon centres are being set up on an on-going
basis to protect the idols as well as precious items including jewellery.
Training schools have been set up for Odhuvars and the conduct of festivals is
grand throughout the State.
90. Benefits such as enhanced salaries and retirement benefits have been
granted. Temple premises including the temple tanks and the quality of
prasadams is not just being maintained, but is being improved consistently.
91. Mr.Jothi would impress upon the Court that his client is a religious
person who is a devotee of Lord Ayappa and a Hindu. However, he does not
practise Sanatana Dharma he asserts. To me, this statement only reveals total
ignorance about the principles of Sanatana Dharma as elaborated in the
paragraphs to follow. He too takes me in minute detail through the publication
by Central Banaras University, attacking specific words, phrases and passages.
He submits that the ideology perpetrated in the publication is based on the
permanence of Dharma which he finds objectionable as, according to him, there
is nothing eternal in the world.
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92. He refers to extracts from a publication titled ‘Manu Neethi (Smruti)
Dharma Shasthiram’
12
. In this book, the author has sought to translate couplets
from the Manu Smruti and my attention is drawn to those verses which
emphasize and highlight divisions in society. He also refers to a publication of
one, Swamy, titled Hindu madham 1000 kelvibathilgal
13
translated to read
Hinduism - 1000 questions and answers.
93. Both these books illustrate the pitfalls of, and the inequality in the
caste system, which is nothing but Sanatana Dharma. Referring to Vallalar, he
talks of oneness among humans and universal principles of equality. He
questions why the Manu Smruti must be taken to be the basis of Hinduism or
Sanatana Dharma as Manu is only one among several Hindus. He argues that
the caste system sounds a death knell to the dignity and fraternity assured by
the Constitution and is in violation of Article 15 and 17. He cites and relies
upon the following cases:
Cases cited by Mr.Jothi
(i)Gopala Moopanar and others v. DharmakartaSubramaniyaIyer
and others [1 L.W. 675]
(ii)Hadibandhu Behera v. Banamali Sahu [1960 SCC OnLine Ori
53]
(iii)SastriYagnapurushadji and others v. MuldasBhudardas Vaishya
and another [(1966) 3 SCR 242]
(iv)Sardar Govindrao and Others v. State of Madhya Pradesh and
others [(1982) 2 SCC 414]
(v)S.P.Mittal v. Union of India and others [(1983) 1 SCC 51]
12
Extracts of Sanskrit Slokas – Tamil Transalated Version by Sr.VI.T.Mythili
13
Swami - reference unknown and not supplied
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(vi)All India Democratic Women’s Association and Janwadi Samiti
v. Union of India [(1989) 2 SCC 411]
(vii)Jai Singh and another v. Union of India and others [AIR 1993
Rajasthan 177 Full Bench]
(viii)State of Karnataka v. Appa BaluIngale and Others [1995 Supp.
(4) SCC 469]
(ix)Pannalal Bansilal Pitti and others v. State of A.P. and Another
[(1996) 2 SCC 498]
(x)A.S.NarayanaDeekshitulu v. State of A.P. and Others [(1996) 9
SCC 548]
(xi)F.GhouseMuhiddeen v. The Govt. of India and another [2002-3-
L.W. 136]
(xii)N.Adithayan v. Travancore Devaswom Board and Others
[(2002) 8 SCC 106]
(xiii)BhagwanDass v. State (NCT of Delhi) [(2011) 6 SCC 396]
(xiv)Arumugam Servai v. State of Tamil Nadu [(2011) 6 SCC 405]
(xv)Adi Saiva Sivachariyargal Nala Sangam and Others v.
Government of Tamil Nadu and Another [(2016) 2 SCC 725]
(xvi)PaitabhiramaAyyar v. Michell [Manu/TN/0105/1890] (Second
Appeal No.1473 of 1888 dated 18.03.1890)
(xvii)ThiruSabanatha Oil Sivachariyar v. The Commissioner, H.R.
& C.E. Department, Uthamar Gandhi Salai, Chennai-34 and others
[2010 (2) CTC 867]
94. The above judgements cited by Mr.Jothi touch upon the evils of
untouchability as deals with by the Courts over the years. I need hardly refer to
them in detail as I am in solidarity with the sentiments that untouchability is to
be severely eschewed and all measures must be taken to prevent this curse. This
Court, and any Court with a conscience would state so. He adopts the
arguments of the learned Advocate General on the question of law relying upon
the judgements in the following cases:
(i)K.C.Chandy v. R.Balakrishna Pillai [1985 SCC Online Ker]
(ii)Bijoe Emmanuel and Others v. State of Kerala and Others
[(1986) 3 SCC 615]
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(iii)K.R.Ramaswamy alias Traffic Ramaswamy v. State Rep. by the
Chief Secretary and 2 Others [2012 (2) CTC 481]
(iv)Manoj Narula v. Union of India [(2014) 9 SCC 1]
(v)Joseph Shine v. The Chief Minister of Kerala and 4 others
[2017 SCC Online Kerala 6533]
95. Referring to Article 51A that has been relied upon by the petitioners,
he would point out that fundamental duties are not legally enforceable, relying
upon the decisions in K.R.K.Vara Prasad v. Union of India]
14
, Surya Narain
Choudhary v. Union of India and others
15
, R.Venkateshwara Rao v. Union of
India and Others
16
and Shyam Narayan Chouksey v. Union of India
17
.
Submissions of Mr.Viduthalai
96. Mr. Viduthulai submits that Mr.A.Raja is a representative of the
Nilgiris Constituency comprising, in the majority, of persons from the most
backward, suppressed and marginalised communities. He has served in the
Union Cabinet and has been Member of Parliament for more than 20 years.
Having been a witness to the marginalization of society that Sanatana Dharma
propagates and encourages, he acutely feels the need to exercise his duty as a
public servant to highlight social evils and archaic facets of Sanatana Dharma
that militate against Constitutionally enshrined principles of equality and
justice.
14
[AIR 1980 Andhra Pradesh 243]
15
[A.I.R. 1982 Rajasthan High Court 1 (Jaipur Bench)
16
AIR 1999 Andhra Pradesh 328
17
[(2018) 2 SCC 574
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97. Sanatana Dharma is not a holy grail, he states, but is being used by
many in society to perpetrate practices that are socially divisive. According to
him, the original texts of Sanatana Dharma incorporate the idea of division of
labour determined by one’s birth. This division known as Varna, classifies
individuals into four classes of which the last class is the class that serves the
other three classes.
98. Historically, Sanatana Dharma relegates women to a subservient and
less esteemed status. Thus, there is nothing untoward in his speech which was
made with the sole intention of achieving congruity amongst various
fundamental rights enshrined in Articles 14, 15, 19 and 25 and to protest
against unconstitutional ideologies as envisaged under the texts of Sanatana
Dharma.
99. Mr.Raja is a student of the law and has recently authored an Article
on ‘The Constitutional Irrelevance of Sanatana Dharma’, in a weekly. That
article, through which I am taken in detail, has this to say:
WHAT IS SANATAN Dharma really? The definitions and contents
of Sanatana Dharma have never been placed for public scrutiny
visibly in the land where it originated; so far, most explanations
have come from non-indian, non-Hindu Indologists, especially
European scholars. Yet, in twenty-first-century India, attempts are
always being made to project any discussion on the subject as an
object of fissiparous communal politics. The recent debates on
Sanatana Dharma have also been marred by abominable remarks
made by the Prime Minister and others, which were myopic and
flagrant.........
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100. In this article too, reference is made to the 1916 publication by the
Central Banaras University which all the individuals have adopted as a sort of a
textbook primer on the subject. Detailed references are made to the
Constitutional debates, writings of Dr.B.R.Ambedkar, Sarvepalli
Radhakrishnan and Shyama Prasad Mukherjee. He speaks of Hindu Code Bill
introduced by Dr.B.R.Ambedkar in February. 1949, while noticing which,
Ambedkar is stated to have said:
‘To leave inequality between class and class, between sex and
sex which is the soul of Hindu society untouched and go on
passing legislation relating to economical problem to make a
farce of our Constitution’.
101. On Sanatana Dharma itself he states:
‘the Ashoka’s wheel represents to us a wheel of the law, the
wheel of the Dharma…. There are ever so many institution
which are worked into our social fabric like caste and
untouchability. Unless these things are scrapped, we cannot
say that we either seek truth or practice virtue. This wheel,
which is a rotating thing, which is a perpetually revolving
thing, indicates to us there is death in stagnation. There is life
in movement. Our Dharma is Sanatana, eternal not in the
sense that is a fixed deposit, but in the sense that it is
perpetually changing. Its uninterrupted continuity is its
Sanatana Character. So even with regard to our social
condition, it is essential for us to move forward…This flag
tells us “be ever alert, be ever on move, go forward, flexible,
compassionate, decent democratic society in which
Christians, Sikhs, Musalmans, Hindus, Buddhists will all find
a safer shelter”.
In addition to western scholars, Sir C P Ramasamy Iyer, in
his work, Hindu Faith and Culture, acknowledges ‘the fairly
advanced civilisation of Dravidians in the South’ and
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the ‘commercial and cultural interaction of Aryans from the
North with them’. He also noted that despite linguistic and
racial differences, a comprehensive legal system prevailed
throughout this region.
In light of these historical contexts, also considering the
materials of framing the Indian Constitution, Hindu customs
and practices in existence and debates of the Constituent
Assembly on Ambedkar’s Hindu Code Bill, the nation has to
revisit the relevancy of Sanatana Dharma in free India’s
written Constitution to preserve our secular values without
fear and favour.
102. The conclusion is that the traditional journey of orthodox Hindu
customs, Shastras and other outdated sacred texts would have to be put to the
test of reasoning set out under the Constitution. The principles enshrined under
the Constitution are Liberty, Equality and Fraternity and they contain no room
for ‘shastrical interpretations’. Thus, he cautions ‘whosoever be at the exalted
positions on the orbits of the Executive, Legislature and Judiciary of this great
Nation, looking back and patronizing outdated ‘Dharmas’ in any form and in
any nomenclature is not only legally irrelevant but also an attempt to defame
and defile our Constitution’.
103. Mr.R.Viduthalai refers to Articles 84, 102 and 103 that provide for
qualifications, disqualifications and the competent authority to take the step of
disqualification in the case of an MP.
104. That apart, the grounds of disqualifications as derived from under
Article102(1)(e) of the Constitution make specific reference to Sections 8, 8A,
9, 9A, 10,10A, 11 and 11A of the R.P.Act, 1951. Nowhere is there any
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disqualification in the nature as projected by the petitioners. A new
disqualification cannot be read either into the Constitution or the RP Act. In
light of the comprehensive and exhaustive framework that has been set out,
there is no merit in this Writ Petition.
105. He refers to the Halsbury’s Laws of England that clarify that a Writ
of Quo Warranto and an injunction in lieu thereof cannot be granted as a
matter of course. Reference is made to the Henry Farran Darley v. Robert
Kinahan
18
to the effect that a Writ of Quo Warranto is a severe proceeding not
normally favoured by law. It is contrary to the ordinary rule of law and such
power must be sparingly exercised.
106. It is only in situations where a holder of public office does not
possess requisite qualifications or, having incurred a statutory or Constitutional
disqualification, is still continuing in office that such a writ would lie. The
appropriate authority to be approached in this matter, as clarified in De Smith’s
Judicial Review of Administrative Action, is the Constitutional functionary as
the question of qualification falls within the scope of Parliamentary privilege
and is not a question which can be taken cognizance of by Courts. The
respondents distinguish Venkatachalam’s case maintaining that there has been
no fraud committed in this case.
18
(1846) 12 Cl.F 520, 8 E.R. 1513
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107. That apart, all citizens enjoy the freedom of speech, a positive right,
encompassing the right to critique, negate and differ. It provides for
constructive criticism and encourages contrary views. Such elements serve as
fundamental pre-requisites for nurturing meaningful dialogue among the
citizenry for development of the State and the economy itself.
108. Legislative intent has been highlighted time and again by Courts
and the consistency and uniform conclusion is that there would be no progress
without freedom to speak, freedom to write, freedom to think, freedom to
experiment, freedom to criticize (including criticism of the Government) and
freedom to dissent.
109. Reference is made to Handy side V. The United Kingdom
19
,
highlighting the following paragraph:
The supervisory functions of a Court oblige it to pay the utmost
attention to the principles characterising a democratic society &
Freedom of expression constitutes one of the essential foundations
of such a society, one of the basic conditions for its progress and
for the development of every man. Subject to paragraph 2 of
Article 10 (art. 10-2), it is applicable not only to information or
ideas that are favourably received or regarded as inoffensive or
as a matter of indifference, but also to those that offend, shock or
disturb the State or any sector of the population.
Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society.
This means, amongst other things, that every formality condition
restriction or penalty imposed in this sphere must be
proportionate to the legitimate aim pursued.
19
European Court of Human Rights – Application No.5493/72 dated 07.12.1976, Strasbourg
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From another standpoint, whoever exercises his freedom of
expression undertakes duties and responsibilities the scope of
which depends on his situation and the technical means he uses.
The Court cannot overlook such a person duties responsibilities it
enquires, as in this case, whether restrictions or penalties were
conducive to the protection of morals which made them in a
democratic society.
Cases cited by Mr.Viduthalai
(i)Indian Young Lawyers Association and others (Sabarimala
Temple, In Re v. State of Kerala and others [(2019) 11 SCC 1]
(ii)Henry Farran Darley v. Robert Kinahan [(1846) 12 Cl. & F.
520, 8 E.R. 1513]
(iii) Bharati Reddy v. The State of Karnataka and Ors. [(2018) 6
SCC 162]
(iv)University of Mysore v. C.D.Govinda Rao and another [AIR
1965 SC 491]
(v)Dr.Y.S.Rajasekara Reddy and others v. Sri Nara Chandrababu
Naidu and others [AIR 2000 AP 142]
(vi)Vidadala Harinadha babu and etc. v. N.T.Ramarao, Chief
Minister, State of Andhra Pradesh, Hyderabad and others [AIR
1990 AP 20]
(vii)P.N.Dubey v. Union of India and Others. [AIR 1989 MP 225]
(viii)B.Premanand and Others. V. Mohan Koikal and Others
[(2011) 4 SCC 266]
(ix)Aswini Kumar Ghose and another v. Arabinda Bose and
another [(1952) 2 SCC 237]
(x)Rohitash Kumar & Others v. Om Prakash Sharma & Others
[(2013) 11 SCC 451]
(xi)Kallara Sukumaran v. Union of India and Others [AIR 1986
Ker 122]
(xii)Government of Andhra Pradesh and Others V.P.Laxmi Devi
[(2008) 4 SCC 720]
(xiii)Baldev Singh Gandhi v. State of Punjab and Others [(2002) 3
SCC 667
(xiv)Handyside v. The United Kingdom [European Court of Human
Rights – Application No.5493/72 dated 07.12.1976, Strasbourg]
(xv)S.Rangarajan v. P.Jagjivan Ram and others [(1989) 2 SCC
574]
(xvi)Supriyo @ Supriya Chakraborty and another v. Union of India
[2023 SCC OnLine SC 1348]
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(xvii)Indira Nehru Gandhi v. Raj Narain and another [1975 (Supp.)
SCC 1]
(xviii)Dr.Ashwani Kumar v. Union of India and another [(2020) 13
SCC 585]
(xix)Divisional Manager, Aravali Golf Club and another v.
Chander Hass & Another [(2008) 1 SCC 683]
IV.(b) Conclusions on the question of whether the offending statements
amount to dis/misinformation and hate speech
110. While not intending this to be a paper on theology or religion, I
would necessarily have to discuss and arrive at conclusions on certain concepts
related to religion, as a precursor to the discussion and conclusions on legal
issues. This assumes all the more importance as the individual respondents are
Constitutional functionaries.
111. The term ‘Sanatana’ means eternal, timeless and perpetual. It is an
adjective and would hence normally, qualify a noun or a pronoun. In this
instance, the word ‘Sanatana’ qualifies the noun ‘Dharma’, which means
principles/or a value system. The phrase ‘Sanatana Dharma’ thus means an
‘eternal or perpetual, value system or code of conduct’.
112. As an incidental observation, the use of the word ‘Sanatana’ as a
standalone expression is thus confusing as, it is only if both terms are used
together, as Sanatana Dharma, that the phrase would have the desired meaning.
It is timeless and pervades all life forms irrespective of barriers, divisions or
differences.
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113. A instructional book on Sanatana Dharma entitled Sanatana –
Dharma Catechism
20
, and used for moral instruction of students contains the
following questions and answers:
Q. 1. What is the meaning of the words Sanatana Dharma?
A.. 1. Sanatana means eternal; Dharma means religion.
Q. 2. To what religion is this name given?
A. It is given to the Hindu religion, which is the oldest of the religions
now in the world.
Q. 3. Is this the only reason for giving to it the name eternal?
A. No. It is also given because the great truths taught in it are eternal.
114. Simultaneous with creation, Rta, meaning ‘truth’ or ‘order’ in
Sanskrit, leading to the doctrines of dharma (duty) and karma (accumulated
effects of good and bad actions) pervaded the Universe and all life forms. Rta is
the physical order of the universe and the moral law of the world. Rta is a
central concept in early Vedic philosophy, Satya, in the mid vedic periods and
Dharma in post vedic period. In each phrase, Rta, Satya and Dharma were
fundamental and responsible for the proper functioning of natural, moral,
religious and sacrificial orders.
115. Dharma is universal in application, irrespective of the faith of an
individual. Universal values, such as honesty, integrity, respect for elders and
compassion, to name a few, elevate the quality of society in general and are
virtues that are timeless in application.
20
Published by Theosophical Publishing House (First Edition 1949)
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116. The core principles of Dharma are those that do not admit of
divergence of opinion and thus impress all form of living beings without
division. What then is this Dharma which is proscribed as being timeless,
perennial, perpetual and eternal. Answers are found in the Yajnavalkya Smriti
21
and Manu Smriti
22
to describe Dharma as,
"Self-possession, patience, self-control, integrity, purity,
restraint, intelligence, learning, truthfulness, absence of anger-
these ten are the marks of dharma."
"Harmlessness, truth-speaking, refraining from theft, control of
the senses such is the essence of the dharma that Manu declared
for all the four castes."
"Truthfulness, absence of theft, absence of anger, modesty,
purity, intelligence, self-possession, self- control, restraint of
the senses, learning-this is declared to be the whole of dharma."
117. The derision felt by the respondents towards Sanskrit was quite
palpable. The clear impression conveyed by the individual respondents is that
Sanskrit is elitist, exclusionist and being on the brink of extinction, irrelevant
today. However, as the principles of Sanatana Dharma are contained in the
Vedic texts that are in Sanskrit, the effort to understand, at least peripherally,
the primary texts with the assistance of authentic commentaries by
Skandaswamy, Sayanar, Bhattabhaskar or other respected commentators should
have been undertaken if one is to have a proper understanding of the principles.
Translations and unauthenticated commentaries will just not do.
21
Yajnavalkya, iii.66
22
Manusmiriti, vi.92
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118. The submissions put forth by the individual respondents make it
clear that no such effort has been taken. Instead popular notions such as the
Aryan invasion theory and others are being mechanically articulated without
any real, in-depth study to back them. As regards the term ‘Aryan’, that term
only denotes a qualification and means ‘noble’. It can thus be used to reference
any individual holding that qualification.
119. That apart, the universal and eternal code of morality advocated by
Sanatana Dharma is not circumscribed by a medium, such as a language and
such exalted values would, in Tamil be referred to as Aram (mwk;). The
principles of ‘Aram’ have been expounded in Tamil literature, both religious
and spiritual such as the Tholkapiyam, Agananuru, Purananuru, Thirukkural,
Prabhandham and Thevaram, that contain reference to concepts meaning
virtuous and moralistic living, equivalent to Dharma. Book I of Thirukkural is
entitled Aram (Righteousness) and contains kurals 31 to 40, all extolling the
traits of virtuous living, and is extracted below:
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120. The references are thus copious enough to lead to the unambiguous
conclusion that both Tamil and Sanskrit literature congregate to point to a
unified set of rules for a way of life that involves simple living and high
thinking with unimpeachable morals.
121. At the Court’s request, a sample study of the original vedic texts
was undertaken by senior professors in the Kuppuswami Sastri Research
Institute, Madras, that confirm, prima facie, the position that the phrase
Sanatana Dharma has always been used in the context of high moral values and
virtuous living. My thanks to them for this timely assistance. There is
absolutely no material to lead to the conclusion that that phrase was used only
in the context of the Varna system or to propagate unfair and inequitable
divisions of society in any manner.
122. Some instances where the phrase Sananta Dharma is used in Vedic
literature are
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The Khanapur plates of Madhavavarma
23
contains the phrase
Sanatanadharma (‘the eternal religion’). The Glossary of Historical Tamil
Vaishnava Prose (up to 1800 AD)
24
contains the following definition:
123. While it is correct to state that the Rig Veda provides for a division
of castes, such classification is based on avocation and not on the birth of a
person. A pointed query was put to the individual respondents as to what
material they had based their conclusions on, that Sanatana Dharma meant only
Varna Dharma. Apart from the publication of the Central Banaras University, a
book entitled The Law code of Manu
25
, the books referred to by Mr.Jothi, there
are no authoritative texts, commentaries or any material to indicate that the
individual respondents had undertaken any study worth its name to come to that
conclusion.
124. The restrictive meaning attributed to the phrase Sanatana Dharma is
clearly erroneous as Sanatana Dharma connotes that eternal, perpetual and
universal code of conduct that is uplifting, noble and virtuous. This is the first
of my conclusions on this aspect.
23
(vide EpigraphiaIndica vol.27, p. 312) assigned to the 6th century A.D
24
Vol. III Published by Santissadhana, Chennai
25
A new translation based on the critical edition by Patrick olivelle
Published by Oxford University Press
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125. The second issue is as to whether Sanatana Dharma is different and
distinct from Hinduism. Swami Vivekananda in the book Hinduism
26
In his
seminal paper presented at the World Parliament of Religions on 19.09.1983
commences stating ‘three religions now stand in the World which have come
down to us from time pre-historic – Hinduism, Zoroastrianism and Judaism.
They have all received tremendous shocks and all of them proved by their
survival their internal strength’
126. On Hinduism, Vivekananda goes on to say,
The Hindus have received their religion through revelation,
the Vedas. They hold that the Vedas are without beginning and
without end. It may sound ludicrous to this audience, how a book
can be without beginning or end. But by the Vedas no books are
meant. They mean the accumulated treasury of spiritual laws
discovered by different persons in different times. Just as the law
of gravitation existed before its discovery, and would exist if all
humanity forgot it, so is it with the laws that govern the spiritual
relations between soul and soul and between individual spirits
and the Father of all spirits were there before their discovery,
and would remain even if we forgot them. The discoverers of
these laws are called Rishis, and we honor them as perfected
beings. I am glad to tell this audience that some of the very
greatest of them were women.
127. While Sanatana Dharma, is understood as the universal and
perpetual code of virtuous conduct propagated from times immemorial, the
term ‘Hindu’ is a development far later in time. Sarvepalli Radhakrishnan says
26
Published by Sri Ramakrishna Mutt, Mylapore Thirtieth print
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in Hindu View of Life
27
, that the term Hindu originally had territorial
significance, implying residence in a well-defined geographical area.
128. Those who lived on the banks of the river Sindhu (Indus), were
practitioners of Sanatana Dharma. The word ‘Sindhu’ came to be modified over
the years by foreign invaders to ‘Hindu’ and in time, became associated with
the people living in that area. As the Hindus/practitioners of Sanatana Dharma
expanded their area of residence, they carried with them the tenets of Sanatana
Dharma as well
28
. Sanatana Dharma thus forms the very core of Hinduism and
the two, Sanatana Dharma and Hinduism are immutable, one and the same. This
is the second conclusion on this aspect.
129. This is not to say that those that lived elsewhere were bereft of a
virtuous code of conduct. As discussed in the paragraphs supra, Tamil literature
has enough and more reference to ‘Aram’, celebrated and practiced diligently
by the people. The principles of Sanatana Dharma and Aram are thus premised
on similar value systems of high thinking and a virtuous way of life.
130. Aurobindo has elaborately addressed the principles of Sanatana
Dharma. He states, in a collection of his works
29
, as follows:
What is this religion which we call Sanatana, eternal? It is the
Hindu religion only because the Hindu nation has kept it,
because in this peninsula it grew up in the seclusion of the sea
27
Published by Harper Collins Publishers India 13
th
Impression
28
The Hindu view of life S.Radhakrishnan – Harper Collins Publishers India
29
Sanatana Dharma AnAurobindonian Perspective 1 – RY.Deshpande – 1
st
Edition
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and the Himalayas, because in this sacred and ancient land it
was given as a charge to the Aryan race to preserve through the
ages. But it is not circumscribed by the confines of a single
country, it does not belong peculiarly and for ever to a bounded
part of the world. That which we call the Hindu religion is
really the eternal religion, because it is the universal religion
which embraces all others. If a religion is not universal, it
cannot be eternal A narrow religion, a sectarian religion, an
exclusive religion can live only for a limited time and a limited
purpose. This is the one religion that can triumph over
materialism by including and anticipating the discoveries of
science and the speculations of philosophy
……
This Hindu nation was born with the Sanatana Dharma, with it
it moves and with it it grows. When the Sanatana Dharma
declines, then the nation declines, and if the Sanatana Dharma
were capable of perishing, with the Sanatana Dharma would
perish. The Sanatana Dharma, that is nationalism
30
131. By seeking to eradicate Sanatana Dharma, the respondents, in effect,
undertake to eradicate much that is virtuous in society. This assumes
importance, since they are utterances by persons holding Constitutional posts
and the apprehension is that the full power of the State machinery would be
utilised for this purpose. In fact, Mr.Udhayanidhi Stalin indicates so, in as
many words, stating …. On behalf of the youth wing of the Dravida Munnetra
Kazhagam, we have conducted a training camp meeting on behalf of the DMK,
the history of the Dravidian movement, the history of the language war,
constituency-wise on behalf of our youth wing. The chief minister has given us
an order and next we are going to conduct it union-wise area-wise. We will be
conducting training camp 2.0 soon…’
30
Complete Works of Sri Aurobindo 8
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132. This is indeed an alarming situation. While there may be ideological
differences between persons holding power, the differences are expected to be
based on a thorough understanding of the system being critiqued and
importantly, to be constructive and not destructive of any Faith. Statements
made in public by sitting Ministers and MPs must be factually and historically
accurate.
133. Whatever may be their personal ideology, members holding
Constitutional positions can espouse only one morality and that is, the morality
propounded by the Constitution. The participation in the convention, and
subsequent statements of the HR & CE Minister are particularly exceptionable.
The factum of participation by itself, connotes endorsement of the theme and
purpose of the convention which militates violently with his Constitutional
position as well as his position as the avowed benefactor of Hindu religious
endowments.
134. By equating Sanatana Dharma to HIV AIDS, Leprosy, malaria and
corona, the individual respondents have revealed an alarming lack of
understanding of Hinduism. Their statements are perverse, divisive and
contrary to Constitutional principles and ideals and tantamount to gross dis or
misinformation.
135. In the article penned by Mr.A.Raja there is a reference to a
publication titled ‘Hindu Faith and culture’ attributed to C.P.Ramasami Aiyar.
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The Court was unable to find a publication by that name. However there is a
publication entitled Speeches of Sachivottama Sir C.P. Ramaswami Aiyar,
Dewan of Travancore
31
wherein a series of lectures delivered by
Dr.C.P.Ramaswami Aiyar have been compiled. This is what he has to say in a
lecture delivered in Bangalore on the political spirit and self-discipline that it
must place upon itself:
The political spirit described as characteristic of modern society
has its own place but it should not be allowed to trespass into
domains that have least to do with politics. In order to achieve
these ends, every attempt should be made not to succumb to the
scientific and technological creeds which are apt to become
dangerous idolatories but to remember that the main implication
of culture and the true end of education are the creation of a sense
of proportion and a realisation of ultimate human values which
alone will contribute to humane thinking and humane living.
136. Swami Vivekananda in his publication on Hinduism
32
, refers to
Hinduism as a universal religion. After setting out a short sketch of the
religious ideas of the Hindus, he says,
The Hindu may have failed to carry out all his plans, but if
there is ever to be a universal religion, it must be one which
will have no location in place or time; which will be infinite
like the God it will preach, whose sun will shine upon the
followers of Krishna and of Christ, on saints and sinners alike;
which will not be Brahmanic or Buddhistic, Christian or
Mohammedan, but the sum total of all these, and still have
infinite space for development; which in its catholicity will
embrace in its infinite arms, and find a place for every human
being, from the lowest grovelling savage not far removed from
the brute, to the highest man towering by the virtues of his
head and heart almost above humanity, and making society
31
Published by Government Press, Trivandrum, 1944
32
Published by Sri Ramakrishna Mutt (First edition, January 1946)
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stand in awe of him and doubt his human nature. It will be a
religion which will have no place for persecution or
intolerance in its polity, which will recognize divinity in every
man and woman, and whose whole scope, whose whole force
will be centred in aiding humanity to realize its own true and
divine nature.
137. The effort of any reasonable, fair and well intentioned leader must
be aimed towards identifying the commonalities of different sections of the
people so as to unite, rather than divide them. Though criticism is essential for
growth, it must be constructive to ensure that progress, rather than destruction,
is the destination.
138. This Court agrees unequivocally that there are inequities based on
caste, present in society today and that they are to be eschewed. However, the
categorization of castes as we know them today, is a far more recent and
modern phenomenon
33
. The State of Tamil Nadu has 184 registered castes and
the State is a cacophony of pulls and pressures by groups of persons claiming
allegiance to one caste or the other.
139. This ferocity among persons belonging to different castes is also, in
part, on account of the benefits made available to them. Can one lay the blame
for these torturous circumstances entirely on the ancient Varna system? The
answer is emphatically in the negative. If the leaders in a State wish to lead an
egalitarian land with equal sharing of resources among all the people, they
33
Moments in a History of Reservation – Bhagwan Das – Economic and Political Weekly, October.21-
November.3 2000, Vol.35 No.43/44
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must set an example by exhibiting fairness in approach, moderation in speech
and a sincere desire to understand the differences between their people.
140. Divisions based on caste are deeply entrenched in State of Tamil
Nadu and the State must undoubtedly do all in its power to eliminate such
evils. Instead the individuals are seen to be fanning casteist passions which is
not in the interests of the State or its people.
141. It is a matter of record that there have been severe ravages by
fellowmen, at differing points in time, to different sections of society, all in the
name of supremacy and perceived domination of caste as well as a response to
perceived domination by certain castes. I refrain from chronicling the details,
as not being directly relevant to the subject matter of this order and also for the
reason that there is no benefit to be gained in re-visiting past events and
episodes that have been the source of pain, trauma and deep sadness to sections
of people at different points in time.
142. Suffice it to say that such events must be deprecated and this Court
does so unequivocally. There must be repair and damage control on an ongoing
basis to correct the unfairness of the past. There must, consequently, also be
sincere introspection on the methods that can be evolved to correct injustices
and foster equality, today and going forward.
143. The varna system does not contemplate or suggest division on the
basis of birth, but based on avocation. The system was designed to work
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towards the smooth functioning of society centuries ago where the chief
avocations were identified based on the then needs of society. The relevance of
such a system today, is itself moot.
144. On the aspect of hate speeches, three Judges of the Supreme Court
first considered the issue of hate speeches in Pravasi Bhalai Sangatha V.
Union of India and others
34
. The prayer was for mandamus declaring hate or
derogatory speeches made by political or religious leaders on religion, caste,
region and ethnic lines violative of various Articles under the Constitution.
145. At that time, the Court was of the view that the law had not
developed enough to enable passing of guidelines in rem, to deal with issue of
hate speeches. Judicial review or judicial intervention, they felt, must be
restricted to those cases that were capable of being addressed specifically and
in a focussed manner. After all, they state, if there were any arbitrary or
unreasonable action taken by any person, it would attract the existing
provisions of law including the Indian Penal Code calling for appropriate
action. It was thus proper, they felt, that matters be addressed on a case to case
basis rather than general guidelines be issued.
146. The burning issue of hate speech was then dealt with by the
Supreme Court in the case of Tehseen S.Poonawalla V. Union of India
35
. The
Court was concerned with animal vigilantism perpetuated on the basis of
34
AIR 2014 SC 1591
35
AIR 2018 SC 3354
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differences between groups of citizens of religion and thought processes. The
Court categorically says that hate, as a product of intolerance, ideological
dominance and prejudice ought not to be tolerated lest it leads to a reign of
terror. The individual respondents in this matter will do well to heed this note
of caution
147. There is a fine balance between speaking one’s mind and having the
freedom to do so, and such freedom constituting an infraction on the
ideological preferences, views, opinions and practices of others. Paragraphs 20
and 21 of the judgment is apt when it says:
20. Hate crimes as a product of intolerance, ideological
dominance and prejudice ought not to be tolerated; lest it results in
a reign of terror. Extra judicial elements and non-State actors
cannot be allowed to take the place of law or the law enforcing
agency. A fabricated identity with bigoted approach sans
acceptance of plurality and diversity results in provocative
sentiments and display of reactionary retributive attitude
transforming itself into dehumanisation of human beings. Such an
atmosphere is one in which rational debate, logical discussion and
sound administration of law eludes thereby manifesting clear
danger to various freedoms including freedom of speech and
expression. One man's freedom of thought, action, speech,
expression, belief, conscience and personal choices is not being
tolerated by the other and this is due to lack of objective
rationalisation of acts and situations. In this regard, it has been
aptly said:-
"Freedom of speech is a principal pillar of a free
government; When this support is taken away, the
Constitution of a free society is dissolved and
tyranny is erected on its ruins."
21. Freedom of speech and expression in different forms is the élan
vital of sustenance of all other rights and is the very seed for
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germinating the growth of democratic views. Plurality of voices
celebrates the Constitutionalist idea of a liberal democracy and 6
Benjamin Franklin, On Freedom of Speech and the Press, from the
Pennsylvania Gazette, November, 1737 ought not to be suppressed.
That is the idea and essence of our nation which cannot be, to
borrow a line from Rabindranath Tagore, “broken up into
fragments by narrow domestic walls” of caste, creed, race, class or
religion. Pluralism and tolerance are essential virtues and
constitute the building blocks of a truly free and democratic
society. It must be emphatically stated that a dynamic
contemporary Constitutional democracy imbibes the essential
feature of accommodating pluralism in thought and approach so as
to preserve cohesiveness and unity. Intolerance arising out of a
dogmatic mindset sows the seeds of upheaval and has a chilling
effect on freedom of thought and expression. Hence, tolerance has
to be fostered and practised and not allowed to be diluted in any
manner.
148. India is a democracy and the Constitution propounds a secular
Government with equal freedom to all its citizens. Hate and divisiveness,
particularly from the hands of the Government, is anathema to such freedom,
and assume a seriousness bordering on danger. The freedom of speech
guaranteed under Article 19(1) is not absolute in that it is tempered by a set of
reasonable restrictions set out under Article 19(2). The nature and dimensions
of the restrictions will have to be tested on the anvil of situations as and when
they occur.
149. The Supreme Court, in Poonawalla’s case, states that in a rights
based approach to Constitutional legitimacy, democratic governance must
propel and drive towards stronger foothold for liberties so as to ensure
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sustenance of higher values of democracy, paving the way for spontaneous
Constitutional order.
150. The State has a positive obligation to protect the fundamental rights
and freedoms of all individuals irrespective of race, caste, class or religion.
‘The State has a primary responsibility to foster a secular, pluralistic and
multi-culturalistic social order so as to allow free play of ideas and beliefs and
co-existence of mutually contradictory perspectives’. ‘Stifling free voices, they
say, ‘can never bode well for a true democracy and it is essential to build
societies which embrace diversity in all spheres and re-build trust of the
citizenry in the State machinery’(Paragraph 23 of the judgment in
Poonawalla’s case).
151. A series of guidelines have been issued in Poonawalla’s case to
formulate preventive measure to prevent incidences of hate speech and crimes.
There has also been a general direction issued to the police to initiate action
suo motu if the police detect incidents of hate speech. There has been some
consequence of this in the present matter.
152. As a counter blast to the conduct of the convention, certain other
groups had organised a meeting to discuss the concepts and philosophy of
Hindutva. There was a challenge to the conduct of that meeting in
W.P.No.25907 of 2023, which had been disposed on 05.09.2023 permitting the
conduct of the meeting. This was followed by W.P.No.30692 of 2023, wherein
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the prayer was for a direction to the respondents therein, being the
Commissioner of Police, Chennai and Inspector of Police, M-2 Milk Colony
Police Station, to give permission to the petitioner in light of the orders of this
Court in W.P.No.25907 of 2023 on 05.09.2023, to organize a conference to
debate on Dravidian ideologies and other social issues on 29.10.2023 between
10 am. and 6 p.m. at the closed auditorium in Madhavaram Milk Colony by
considering the petitioner's representation dated 26.09.2023.
153. While disposing that Writ Petition on 31.10.2023,
Dr.Jayachandran,J had made a distinction between the earlier Writ Petition and
the one that he was dealing with, pointing out that the earlier Writ Petition
dealt with the conduct of a peaceful meeting, whereas the present Writ Petition
had destructive overtones. He also indicated that the offensive statements that
are the subject matter of the present Writ Petitions, in fact, attracted application
of the guidelines of the Supreme Court to the police regarding suo motu
intervention. However, no specific directions were issued.
154. As against this Writ Petition, R1 filed a Writ Appeal that came to be
closed by the First Bench of this Court noting that there had been no action
taken by the police subsequent to the order of Dr.Jayachandran,J and hence
there was no prejudicial cause of action. Liberty was granted to R1 to approach
the Court should it become necessary, at a later date.
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155. The purpose of faith is to unify and not divide. There are, in
Hinduism, two concepts, Vyapyagnanam and Vyapakagnanam, the former
referring to focused and pointed study of a subject matter, and the latter, wider
in approach and encompassing a great deal more of that subject, albeit
peripherally. While the proper approach for study of any subject would be the
former, that is to say, any subject matter must be addressed in a focussed and
in-depth manner, in the interests of unity and cohesiveness, it is sometimes,
preferable for the study to be peripheral and broad based.
156. The logic is that the latter would enable identification of points of
commonality and similarity leading to unification at some level, whereas deep
and in-depth study would only throw up points of differences and division
between the subject matters.
157. Contemporary discourse amongst vedic scholers addresses the
crying need for compatibility amongst the various schools of thought within the
Hindu religion itself, such that the religion is not fragmented or divided. This
scenario is not unique to Hinduism alone and I dare say that most faiths
accommodate several branches within their fold, with marked differences in
their philosophy and procedures. Leaders in all the faiths will do well to
identify broad points of unity among the branches of their faiths rather than
focus on the narrow differences between them. It is no different in the case of
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a State. The effort must be to unite rather than divide and it is this effort that
decides the bonafides of the leadership.
158. It is well settled that it is Constitutional morality that binds a
Constitutional functionary. Such morality enjoins the individual respondents to
be neutral and fair in their dealings with the people. The individual respondents
have undoubtedly acted contrary to Constitutional principles and ideals and
their statements amount to disinformation and hate against members of a
specific community.
159. Seen in this backdrop, the question that arises is as to whether it is
contrary to Constitutional ideals principles for Constitutional functionaries to
vow to annihilate a section of their own people who follow a particular faith,
and whether such statements violate the promise of secular values under the
Constitution? The answer is unambiguously in the affirmative.
Conclusions on the question of law
160. The scope of writ of quo warranto has been discussed in Attorney
General V.Barstow
36
in the following terms:
It is foreign to the objects and functions of the writ of quo
warranto to direct any officer what to do. It is never directed to
an officer as such, but always to the person – not to dictate to
him what he shall do in his office, but to ascertain whether he is
Constitutionally and legally authorized to perform any act in, or
exercise any functions of the office which he lays claim.
36
4 Wis 659 at Page 773
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161. Reference in this regard may also be made to the decision in Darley
V. The Queen
37
and the King’s Bench in R v. Speyer
38
.
162. Chapter II of the Constitution deals with the Executive and Article
154 vests the Executive power of the State in the Governor. The Governor is
appointed by the President by warrant and Articles 155 and 156 state that he
holds office during the pleasure of the President.
163. He is assisted in the rendition of his duties by the Council of
Ministers with the Chief Minister at its head, who aid and advice the Governor
in the exercise of his functions except in those situations where, under the
Constitution, he is required to exercise his functions at his discretion. Article
164 relates to other provisions as to Ministers and the relevant portions are
extracted below:
164. Other provisions as to Ministers.—
(1) The Chief Minister shall be appointed by the Governor
and the other Ministers shall be appointed by the Governor on the
advice of the Chief Minister, and the Ministers shall hold office
during the pleasure of the Governor:
. . . .
(2) The Council of Ministers shall be collectively responsible
to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor
shall administer to him the Oaths of office and of secrecy according
to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months
is not a member of the Legislature of the State shall at the
expiration of that period cease to be a Minister.
37
12, Cl & Fin. 520
38
(1916) 1 KB 595
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(5) The salaries and allowances of Ministers shall be such as
the Legislature of the State may from time to time by law determine
and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule.
…….
164. Article 164 states that the Chief Minister shall be appointed by the
Governor and the other Ministers shall be appointed by the Governor on the
advice of the Chief Minister. Such Ministers, once appointed, hold office
during the pleasure of the Governor. Article 164(3) enjoins a Minister prior to
entering upon his office to be administered an Oath by the Governor. The Oath
of office and of secrecy is as per the forms set out for that purpose in the III
Schedule.
165. The Constitution requires, under Article 173, the candidate to be a
citizen of India above the age of 25, to have subscribed before a person
authorised in that behalf, an Oath or Affirmation as set out under the Third
Schedule and to satisfy all other qualifications as prescribed by law made by
Parliament. Likewise, Article 84 requires an MP to be a citizen above 30 years
in the case of a seat in the Council of States and 25 years in the case of a seat in
the House of the People, to have subscribed before a person authorised in that
behalf, an Oath or Affirmation as set out under the Third Schedule and to
satisfy all other qualifications as prescribed by law made by Parliament.
166. The disqualifications for a candidate to be an MLA are prescribed
under Article 191 (1) of the Constitution as being, holding of an office of profit
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under the Government of India or State Government, being of unsound mind as
declared by a competent Court, being an undischarged insolvent, not being a
citizen of India/voluntarily acquiring citizenship of a foreign State/being under
acknowledgement of allegiance or adherence to a foreign State or being
disqualified by or under a Central Law.
167. Under Article 191(2), a person shall be disqualified from being an
MLA if he attracts any disqualification as under the Tenth Schedule providing
for defection. Similar disqualifications are provided under Article 102 (1) and
(2) for being chosen as an MP. Moreover, there is an efficacious remedy
available under Article 192 and the Governor shall decide if the member
concerned has incurred any of the disqualifications under Article 191(1) after
consultation with the Election Commission, his decision in that respect being
final. There is a penalty for sitting and voting prior to making Oath or
Affirmation or when not qualified or when disqualified as provided under
Article 193. Likewise Articles 84, 102, 103 and 104 set out a similar scheme in
respect of MPs.
168. Article191, 192 and 193 read thus:
191. Disqualifications for membership.—
(1) A person shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council of a State—
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify its
holder;
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(b) if he is of unsound mind and stands so declared by a competent
court; (c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament. hold
an office of profit under the Government of India or the Government of
any State specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule.
192. Decision on questions as to disqualifications of members.—
(1) If any question arises as to whether a member of a House of the
Legislature of a State has become subject to any of the disqualifications
mentioned in clause (1) of article 191, the question shall be referred for
the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall
obtain the opinion of the Election Commission and shall act according
to such opinion.
193. Penalty for sitting and voting before making Oath or affirmation
under article 188 or when not qualified or when disqualified.—If a
person sits or votes as a member of the Legislative Assembly or the
Legislative Council of a State before he has complied with the
requirements of article 188, or when he knows that he is not qualified or
that he is disqualified for membership thereof, or that he is prohibited
from so doing by the provisions of any law made by Parliament or the
Legislature of the State, he shall be liable in respect of each day on
which he so sits or votes to a penalty of five hundred rupees to be
recovered as a debt due to the State.
169. Article 84, 102, 103 and 104 relating to MPs read thus:
84. Qualification for membership of Parliament.—A person shall not
be qualified to be chosen to fill a seat in Parliament unless he—
(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or
affirmation according to the form set out for the purpose in the Third
Schedule;
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(b) is, in the case of a seat in the Council of States, not less than thirty
years of age and, in the case of a seat in the House of the People, not
less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament.
102. Disqualifications for membership.—(1) A person shall be
disqualified for being chosen as, and for being, a member of either
House of Parliament—
(a) if he holds any office of profit under the Government of India or
the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent
court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament. 2
[Explanation.—For the purposes of this clause] a person shall not be
deemed to hold an office of profit under the Government of India or
the Government of any State by reason only that he is a Minister
either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House
of Parliament if he is so disqualified under the Tenth Schedule.
103. Decision on questions as to disqualifications of members.— (1)
If any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications
mentioned in clause (1) of article 102, the question shall be referred
for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act
according to such opinion.
104. Penalty for sitting and voting before making oath or
affirmation under article 99 or when not qualified or when
disqualified.—
If a person sits or votes as a member of either House of Parliament
before he has complied with the requirements of article 99, or when
he knows that he is not qualified or that he is disqualified for
membership thereof, or that he is prohibited from so doing by the
provisions of any law made by Parliament, he shall be liable in
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respect of each day on which he so sits or votes to a penalty of five
hundred rupees to be recovered as a debt due to the Union.
170. The RP Act, under Section 5 prescribes the qualifications for
membership of the Legislative Assembly and states that a person shall not be
qualified to fill such a seat unless, in the case of a seat reserved for the
Scheduled Caste or Scheduled Tribe of that State, he is himself a member of
any of those castes or tribes and is an elector for any assembly constituency in
that State. There is a prescription likewise for the autonomous district of
Assam. In the case of any other seat, he should be an elector for any assembly
constituency in that State.
171. The other disqualifications under Chapter III of the RP Act are
conviction under certain laws under Section 8, guilt of corrupt practice under
Section 8-A dismissal for corruption or disloyalty to the State having held
office under the Government of India or any State under Section 9, a
Government contractor under section 9-A, any person holding office under a
Government company or Corporation under Section 10 and failure to lodge
corrupt accounts of election expenses under Section 10-A. The
disqualifications are set out under the RP Act and are specific and finite and
there is no scope for expansion of the same.
172. Section 8 enumerates conviction for certain specified convictions
and reads thus:
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8. Disqualification on conviction for certain offences.—(1) A
person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between
different groups on ground of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or section 171E (offence of bribery) or
section 171F (offence of undue influence or personation at an
election) or sub-section (1) or sub-section (2) of section 376 or
section 376A or section 376B or section 376C or section 376D
(offences relating to rape) or section 498A (offence of cruelty
towards a woman by husband or relative of a husband) or sub-
section (2) or sub-section (3) of section 505 (offence of making
statement creating or promoting enmity, hatred or ill-will between
classes or offence relating to such statement in any place of
worship or in any assembly engaged in the performance of
religious worship or religious ceremonies) or the Indian Penal
Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955),
which provides for punishment for the preaching and practice of
“untouchability”, and for the enforcement of any disability arising
therefrom; or
(c) section 11 (offence of importing or exporting prohibited
goods) of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an
association declared unlawful, offence relating to dealing with
funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified place) of
the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of
1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act,
1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or section
4 (offence of committing disruptive activities) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of
section 3 to 6) of the Religious Institutions (Prevention of Misuse)
Act, 1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes
in connection with the election) or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence of
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booth capturing) or clause (a) of sub-section (2) of section 136
(offence of Fraudulently defacing or fraudulently destroying any
nomination paper) of this Act; [or]
(j) section 6 (offence of conversion of a place or worship) of
the Places of Worship (Special Provisions) Act 1991]; [or]
(k) section 2 (offence of insulting the Indian National Flag
or the Constitution of India) or section 3 (offence of preventing
singing of National Anthem) of the Prevention of Insults to
National Honour Act, 1971 (69 of 1971) ; [or]
(l) the Commission of Sati (Prevention) Act, 1987 (3 of
1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002),] 5
[shall be disqualified, where the convicted person is sentenced to—
(i) only fine, for a period of six years from the date of such
conviction;
(ii) imprisonment, from the date of such conviction and
shall continue to be disqualified for a further period of six years
since his release.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or
profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961);],
and sentenced to imprisonment for not less than six months, shall
be disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his release.
173. The question of whether a violation of Oath by a Minister could
attract the writ of quo warranto is no longer res integra and has been the subject
matter of consideration in several writ petitions.
174. In Hardwari Lal, Ex-M.P. (Lok Sabha) V. Ch.Bhajan Lal, Chief
Minister, Haryana, Chandigarh
39
, the Supreme Court was of the opinion that
violation of Oath would not attract such disqualification as it was not within the
39
1993 (1) SCC 184
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enumerated grounds of disqualification provided under the Constitution. They
say, at paragraph 9 as follows:
9. It may further be noticed that such breach of Oath is not
a permanent disqualification or a permanent disability for a
Member under the Constitution or under a law.Even in terms
of Article 191 the disqualification lasts so long as the
conditions exist and no further. Reference in this regard may
be usefully made to the Division Bench decision of the Kerala
High Court in Kallara Sukumaran v. Union of India, AIR 1986
Kerala 122. A situation was rightly conceived where a person
enters an office as an unqualified person to continue so by
operation of the disqualification provisions of the Constitution
as in a case where a person becomes a Minister without being
a Member of the Legislature of the State. In that event, he can
function as such for six months whereafter he would cease to
be a Minister in case at that time he is not a Member of the
Assembly. Similarly a person duly elected as a Member of the
Assembly may become subsequently disqualified in any of the
modes mentioned under Article 191. In that event, his existing
Membership is extinguished and operates as a bar for further
or a further choice of a person as a Member of the Legislative
Assembly. The Court also noticed that an authority to take a
decision as to disqualification referred to under Article 191 of
the Constitution is the Governor who has to act in the manner
specified under Article 192. We are in complete agreement
with the view taken by the Division Bench that these provisions
forcefully suggest that the Constitution exhaustively deals and
provides for heads of disqualification. We are also in
agreement with the view taken by the Division Bench that it is
not for the Courts to expand the scope of disqualification or
increase the heads of disqualification. As in that case, so also
here, as we have noted above, the contention is that violation
of Oath by the Chief Minister (in that case by the Minister)
operates as disqualification. The contention has to be rejected
as in our opinion that will tantamount to adding grounds of
disqualification provided under the Constitution. That
certainly is not our function.
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175. While an Oath of office or secrecy is not an empty formality and has
great Constitutional significance, intervention on account of disqualification
would have to relate to disqualifications enumerated under the Constitution
alone.
176. In the case of Dr.Y.S.Rajasekara Reddy and others v. Sri Nara
Chandrababu Naidu and others
40
, writ of quo warranto was sought as against
Nara Chandrababu Naidu. In that case too, it was reiterated that quo warranto
can be issued only to a person who usurps office or to one who has forfeited his
right to office by indicating disqualification. The Bench also refers in that
regard to a presumption of continued existence of qualification necessary for
the appointment of a holder of office. Referring to various decisions, they re-
affirm the position that Chief Minister and Ministers hold office during the
pleasure of the Government, and it is only the Governor, the appointing
authority in whom the power to dismiss vests.
177. They go so far as to say that on the principle of joint and several
liability of the Cabinet in the Parliamentary system of democracy, the Governor
too would not be competent to dismiss either the Chief Minister or Ministers in
the Cabinet for breach of Oath.
178. In Ramachandran V. M.G.Ramachandran, the Chief Minister of
Tamil Nadu, Madras
41
, a learned single Judge of this Court considered a plea
40
[AIR 2000 AP 142]
41
1987 100 LW 1783
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for quo warranto against the then Chief Minister alleging that he had advocated
that members of the Mandram that bore his name could carry a knife with them
for security purposes. It was thus alleged that he had breached the Oath of
office taken by him which would be a Constitutional impediment for his
continuance in office.
179. This Writ Petition came to be dismissed, this Court making a
distinction between breach of Oath and absence of Oath itself. While the latter
would result in Constitutional disqualification for continuance in office, as
Article 163 requires a Minister prior to assume of office to take Oath of office
and of secrecy, a breach of Oath does not form part of the list of
disqualifications under the Constitution.
180. In Keisham Meghachandra Singh (three Judges of the Supreme
Court considered questions relating to the X Schedule of the Constitution of
India in the context of the 11
th
Manipur Legislative Assembly. On the question
of disqualification, they reiterated that the question of disqualification would
arise only in the context of the disqualifications enumerated and none other.
They also reiterated that the power to resolve such a dispute would vest in the
Constitutionally appointed authority only.
181. In the case of Dhobei Sahoo
42
, the Orissa High Court had issued a
quo warranto. In appeal, the Bench reiterated that ‘it is clear as noon day that
42
(2014) 1 SCC 161
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the jurisdiction of the High Court while issuing a writ of quo warranto is a
limited one and can only be issued when the person holding the public office
lacks the eligibility criteria or when the appointment is contrary to the
statutory rules.’
182. In K.R.,Ramaswamy alias Traffic Ramaswamy
43
quo warranto had
been sought as against the then Minister for Forests, on the ground that there
was a violation of the Chennai City Municipal Corporation Act prohibiting
erection of digital banners. The Court, referring to several judgments,
reiterated the applicability of the pleasure doctrine and the fact that a complete
machinery has been provided in the Constitution for that purpose.
183. In the case of Manoj Narula
44
, the point raised was whether a person
with a criminal background or one who had been charged with offences
involving moral turpitude could be appointed as Minister for the Central and
State Governments. The litigation was instituted as probono publico on the
ground that there has been unfettered appointments of Ministers who were
involved in serious and heinous crimes.
184. After dealing with the concept of Democracy, the Court noted the
purity and the importance of the election process referring to the judgment in
the case of Mohinder Singh Gill and another v. Chief Election Commissioner,
New Delhi and others
45
. They also refer to Union of India v. Association for
43
2012 (2) CTC 481
44
(2014) 9 SCC 1
45
1978 (1) SCC 405
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Democratic Reforms and another
46
wherein judicial note was taken of the fact
that money power is gathered from black sources and once elected to power, is
used for retention of power and re-election.
185. In Manoj Narula’s case judicial note was taken note of the
criminalization of politics. The conclusion however, was that in the absence of
a Constitutional impediment or statutory prohibition, no additional prohibition
could be imposed by way of judicial interpretation, as the functionaries
designated with the necessary power under the Constitution are the sole
repositories of power.
186. The relations between the Governor, Executive and Legislature have
been constitutionally cast and well settled and do not brook intervention by
judicial process. In Narula’s case every party and stakeholder before the Court
was unanimous that politics must not be criminalized. However, even the
prayer for framing of possible guidelines for appointment of a Minister in the
Central or the State was declined by the Court, which felt that it was only for
the appropriate Legislature to decide whether such Guidelines are necessary
and frame the same. The conclusions are as follows:
133. The discussion leads to the following conclusions:
133.1. To become a legislator and to continue as a legislator, a
person should not suffer any of the disqualifications mentioned
in Section 8 of the Representation of the People Act, 1951;
46
2002 (5) SCC 294
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133.2 There does seem to be a gap in Section 8 of the
Representation of the People Act, 1951 inasmuch as a person
convicted of a heinous or a serious offence but awarded a
sentence of less than two years imprisonment may still be
eligible for being elected as a Member of Parliament;
133.3 While a debate is necessary for bringing about a suitable
legislation disqualifying a person from becoming a legislator,
there are various factors that need to be taken into
consideration;
133.4 That there is some degree of criminalization of politics is
quite evident;
133.5 It is not for this Court to lay down any guidelines relating
to who should or should not be entitled to become a legislator
or who should or should not be appointed a Minister in the
Central Government;
134. The range of persons who may be elected to a Legislature
is very wide and amongst those, who may be appointed a
Minister in the Central Government is also very wide, as
mentioned above. Any legislator or non- legislator can be
appointed as a Minister but must quit as soon as he or she
earns a disqualification either under the Constitution or
under Section 8 of the Representation of the People Act,
1951.[84] In B.P. Singhal this Court observed that “a Minister
is hand-picked member of the Prime Minister's team. The
relationship between the Prime Minister and a Minister is
purely political.”
135. In addition to the above, how long a Minister should
continue in office is best answered by the response to a question
put to the British Prime Minister John Major who was asked to
“list the circumstances which render Ministers unsuitable to
retain office.” His written reply given to the House of Commons
on 25th January, 1994 was:
“There can be a variety of circumstances but the main
criterion should be whether the Minister can continue
to perform the duties of office effectively.”
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187. In Nebam Rebia and Bamang Felix
47
a Constitution Bench of the
Supreme Court decided the ambit of power of the Governor under Article 163,
reiterating the rule of Cabinet responsibility. Referring to the judgment in
Samsher Singh’s case to the effect that our Constitution does not accept any
parallel administration or diarchy, they also referred to the Constitution Bench
judgement in U.N.R. Rao V. Smt. Indira Gandhi
48
, where these principles were
reiterated. Thus, while discretion is only available to the Governor under
Article 163, it is not all pervasive but circumscribed by the power under the
Constitution itself.
188. Great reliance has been placed by the petitioners on the judgment in
the case of K.Venkatachalam
49
. The facts of that case are that one
K.Venkatachalam had been declared as elected as MLA for the Lalgudi
Assembly Constituency. His election was contested and this Court allowed the
Writ Petition on the ground that he did not possess the basic qualifications
prescribed under clause (c) of Article 173 of the Constitution read with Section
5 of the RP Act.
189. Venkatachalam challenged the judgment. The Supreme Court
found, as a fact that there was an elector in the electoral roll for Lalgudi
Assembly Constituency by the same name, and that Venkatachalam had been
47
(2016) 8 SCC 1
48
(1971) 2 SCC 63
49
(1999) 4 SCC526
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fraudulently representing to be an elector of that Constituency using the
similarity in the name of that person.
190. The question that arose for consideration was whether, in those
circumstances, the jurisdiction of the Court under Article 226 of the
Constitution can be exercised and the Court declare that he was disqualified to
be an MLA. The Court held that Venkatachalam had, in his nomination form,
impersonated a person known as ‘Venkatachalam Son of Pethu’ taking
advantage of the fact that the first name was the same. In such circumstances,
they held that the appellant would be criminally liable as he has filed his
nomination on an affidavit impersonating himself and that if he were to allowed
to sit and vote in the assembly it would be a fraud on the Constitution. At
paragraph 27, they state as follows:
Article 226 of the Constitution is couched in widest
possible term and unless there is clear bar to jurisdiction of the
High Court its powers under Article 226 of the Constitution can
be exercised when there is any act which is against any
provision of law or violative of Constitutional provisions and
when recourse cannot be had to the provisions of the Act for the
appropriate relief. In circumstances like the present one bar
of Article 329(b) will not come into play when case falls
under Articles 191 and 193 and whole of the election process is
over. Consider the case where the person elected is not a citizen
of India. Would the Court allow a foreign citizen to sit and vote
in the Legislative Assembly and not exercise jurisdiction
under Article 226 of the Constitution?
191. The decision of the High Court in declaring that he was not entitled
to sit in the Assembly was upheld. This decision has been bulwark of the
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petitioner’s arguments to say that commission of fraud against Constitution can
well be taken to be a disqualification.
192. In the case of Anbazhagan K, declaration had been sought on the
ground that the resolution passed by the Tamil Nadu Legislative Assembly
expelling that petitioner and nine other Members who had burnt a copy of the
Constitution, was incorrect.
193. The First Bench of this Court concurred that the burning of the
Constitution or defiling the same in any manner would be contrary to the
Constitution and that it would be for the House to decide how to deal with such
a Member. An elected representative who makes an Oath or Affirmation is duty
bound to bear true faith and allegiance to the Constitution of India and uphold
the sovereignty and integrity of India.
194. Burning a part of the Constitution unquestioningly constitutes a
breach of that Oath. However, the resolution of expulsion did not take effect on
the ground that the members had incurred disqualification for committing a
breach of Oath but rather, it was founded on the conduct of elected members
which the Assembly considered derogatory to the dignity of the Constitution as
well as the dignity of the Assembly. To be noted, that the relief sought there
was not judicial intervention by way of a disqualification and quo warranto but
a challenge to the order of expulsion itself.
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195. In the present case, my conclusions in the paragraphs supra are
unambiguous that the offending statements spew hate against a particular
community, the Hindus and constitutes dis/misinformation. However, these
conclusions cannot be stretched so as to justify a writ of quo warranto as I
would then be reading into the Constitution and the provisions of the RP Act,
the disqualification of hate speech and perpetration of mis/disinformation. The
line of judgments cited by the individual respondents, some referred to supra,
have held this to be impermissible. The definition of the word ‘disqualified’
under Section 7(b) of the RP Act is as follows:
7. Definitions.—In this Chapter,—
(b) “disqualified” means disqualified for being chosen as,
and for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State 4 [under the
provisions of this Chapter, and on no other ground.
196. Hence, a disqualification fastened upon a candidate can be under the
list of disqualifications enumerated under Sections 8 to 11A only ‘and on no
other ground’.
197. There is no dispute on the question that the individuals do hold the
requisite qualifications under the Constitution and RP Act. A combined reading
of the Constitution and RP Act would thus permit no other disqualifying
situations to be considered save those situations mentioned therein.
198. The relevant provisions of the R.P. Act identify specific instances
of conviction which would attract disqualification. Section 153-A deals with
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the offence of promoting enmity between different groups of people on the
ground of religion, race, place of birth, residence or language and doing acts
prejudicial to maintenance of harmony.
199. The allegations of the petitioners as against the individual
respondents are exactly on point. While FIRs are stated to be pending in
various States in regard to the offending statements, admittedly, there has been
no conviction as on date. Thus, the relief of quo warranto as sought for by the
petitioners is premature as no cause of action arises at this juncture of time for
such issuance. The relief sought thus cannot be granted.
On the Judgement in re. Kaushal Kishor
200. A Constitution Bench of the Hon’ble Supreme Court considered the
following questions in Kaushal Kishor (supra)
1.Are the grounds specified in Article 19(2) in relation
to which reasonable restrictions on the right to free speech
can be imposed by law, exhaustive, or can restrictions on the
right to free speech be imposed on grounds not found in
Article 19(2) by invoking other fundamental rights?
2.Can a fundamental right Under Article 19 or 21 of
the Constitution of India be claimed other than against the
'State' or its instrumentalities?
3.Whether the State is under a duty to affirmatively
protect the rights of a citizen Under Article 21 of the
Constitution of India even against a threat to the liberty of a
citizen by the acts or omissions of another citizen or private
agency?
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4.Can a statement made by a Minister, traceable to
any affairs of State or for protecting the Government, be
attributed vicariously to the Government itself, especially in
view of the principle of Collective Responsibility?
5.Whether a statement by a Minister, inconsistent with
the rights of a citizen under Part Three of the Constitution,
constitutes a violation of such Constitutional rights and is
actionable as 'Constitutional Tort"?
201. The judgment has been authored by two Hon’ble Judges and their
views are found in tabular form as below:
180………..
Questions His Lorship’s views B.V.Nagarathna’s views
1) Are the grounds
specified in Article
19(2) in relation to
which reasonable
restrictions on the right
to free speech can be
imposed by law,
exhaustive, or can
restrictions on the right
to free speech be
imposed on grounds not
found in Article 19(2) by
invoking other
fundamental rights?
The grounds lined up in
Article 19(2) for
restricting the right to
free speech are
exhaustive. Under the
guise of invoking other
fundamental rights or
under the guise of two
fundamental rights
taking a competing
claim against each
other, additional
restrictions not found in
Article 19(2), cannot be
imposed on the exercise
of the right conferred by
Article 19(1)(a) upon
any individual.
I respectfully agree with
the reasoning and
conclusion of His
Lordship, in so far as
Question No. 1 is
concerned.
2) Can a fundamental
right Under Article 19
or 21 of the Constitution
A fundamental right
Under Article 19/21 can
be enforced even
The rights in the realm
of common law, which
may be similar in their
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of India be claimed
other than against the
'State' or its
instrumentalities?
against persons other
than the State or its
instrumentalities.
content to the
Fundamental Rights
Under Article 19/21,
operate horizontally;
However, the
Fundamental Rights
Under Articles 19 and
21, do not except those
rights which have also
been statutorily
recognised. Therefore, a
fundamental right
Under Article 19/21
cannot be enforced
against persons other
than the State or its
instrumentalities.
However, they may be
the basis for seeking
common law remedies.
But a remedy in the form
of writ of Habeas
Corpus, if sought
against a private person
on the basis of Article
21 of the Constitution
can be before a
Constitutional Court
i.e., by way of Article
226 before the High
Court or Article 32 read
with Article 142 before
the Supreme Court.
As far as non-State
entities or those entities
which do not fall within
the scope of Article 12
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of the Constitution are
concerned, a writ
petition to enforce
fundamental rights
would not be entertained
as against them. This is
primarily because such
matters would involve
disputed questions of
fact.
3) Whether the State is
under a duty to
affirmatively protect the
rights of a citizen Under
Article 21 of the
Constitution of India
even against a threat to
the liberty of a citizen by
the acts or omissions of
another citizen or
private agency?
The State is under a
duty to affirmatively
protect the rights of a
person Under Article
21, whenever there is a
threat to personal
liberty even by a private
actor.
The duty cast upon the
State Under Article 21 is
a negative duty not to
deprive a person of his
life and personal liberty
except in accordance
with law.
The State however has
an affirmative duty to
carry out obligations
cast upon it under
Constitutional and
statutory law. Such
obligations may require
interference by the State
where acts of a private
party may threaten the
life or liberty of another
individual. Hence,
failure to carry out the
duties enjoined upon
the State under
Constitutional and
statutory law to protect
the rights of a citizen,
could have the effect of
depriving a citizen of his
right to life and
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personal liberty. When a
citizen is so deprived of
his right to life and
personal liberty, the
State would have
breached the negative
duty cast upon it Under
Article 21.
4) Can a statement
made by a Minister,
traceable to any affairs
of State or for
protecting the
Government, be
attributed vicariously to
the Government itself,
especially in view of the
principle of Collective
Responsibility?
A statement made by a
Minister even if
traceable to any affairs
of the State or for
protecting the
Government, cannot be
attributed vicariously to
the Government by
invoking the principle of
collective responsibility.
A statement made by a
Minister if traceable to
any affairs of the State
or for protecting the
Government, can be
attributed vicariously to
the Government by
invoking the principle of
collective responsibility,
so long as such
statement represents the
view of the Government
also. If such a statement
is not consistent with the
view of the Government,
then it is attributable to
the Minister personally.
5) Whether a statement
by a Minister,
inconsistent with the
rights of a citizen under
Part Three of the
Constitution, constitutes
a violation of such
Constitutional rights
and is actionable as
'Constitutional Tort'
A mere statement made
by a Minister,
inconsistent with the
rights of a citizen under
Part-III of the
Constitution, may not
constitute a Violation of
Constitutional rights
and become actionable
as a Constitutional tort.
But if as a consequence
of such a statement, any
act of omission or
A proper legal
framework is necessary
to define the acts or
omissions which would
amount to
Constitutional torts, and
the manner in which the
same would be
redressed or remedied
on the basis of judicial
precedent.
It is not prudent to treat
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commission is done by
the officers resulting in
harm or loss to a
person/citizen, then the
same may be actionable
as a Constitutional tort.
all cases where a
statement made by a
public functionary
resulting in harm or loss
to a person/citizen, as
Constitutional torts.
Public functionaries
could be proceeded
against personally if
their statement is
inconsistent with the
views of the
Government. If,
however, such views are
consistent with the views
of the Government, or
are endorsed by the
Government, then the
same may be vicariously
attributed to the State on
the basis of the principle
of collective
responsibility and
appropriate remedies
may be sought before a
court of law.
202. The relief sought for by the petitioners in that case is different from
the relief sought for in these Writ Petitions. The facts in that case are that the
Minister for Urban Development of Government of U.P. had made certain
unacceptable statements in a press conference. The petitioners had been
travelling on a National Highway to attend the death ceremony of a relative
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when they were waylaid by a gang who snatched away their cash, and jewellery
and gang raped his wife and minor daughter.
203. The Minister concerned claimed in a press conference that it was a
political conspiracy. The petitioner thus prayed for a impartial enquiry into the
matter convinced that no justice could be obtained from the police department
where the Minister had revealed such insensitivity.
204. This judgment has been cited by Mr.Viduthulai to highlight the
Bench’s conclusion that it is for the Legislature to adopt a voluntary model
code of conduct for persons holding public offices which was in tandem with
and would reflect Constitutional morality as well as values of good
governance. The Bench has also suggested the creation of an appropriate
mechanism like an Ombudsman to deal with such violations, as and when they
arise.
205. The petitioners request that, in the event the Court is not persuaded
to issue quo warranto, the prayer may be suitably moulded. It has been
reiterated time and again that the quality of the people’s representatives is in
the hands of the people alone, and it is the vox populi that will ultimately
prevail. In Kallara Sukumaran v. Union of India and Others
50
, a Division
Bench of the Kerala High Court says this:
12. The morality or propriety of an undesirable person
continuing as a Minister is essentially a political question to be
50
AIR 1986 Ker 122
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eminently dealt with and at any rate initially, at the political level,
such as by the Chief Minister, by the Legislature, and 'the general
public holding a watching brief over them', and later by the
Constitutional functionaries as provided in the Constitution itself.
Such was the reaction of Dr. Ambedkar when he referred to this
topic. (Constituent Assembly Debates Vol. VII, page 1160). If that be
so, that is an area where the High Court's jurisdiction under Article
226 is hardly attracted. This view has the support of the decision of
the Delhi High Court in Inder Mohan v. Union of India,
MANU/DE/0089/1979 : AIR 1980 Delhi 20. Whether Sri. Bahuguna
could with propriety continue as a Minister of the Union
Government was not a matter for the Court to decide -- it was held.
The idea is cogently and forcefully expressed by Frankfurter J. in
Charles W. Baker v. Joe C. Carr (1962) 369 US 186 : 7 Led 2 663 :
.....there is not under our Constitution a judicial remedy
for every political mischief..... In this situation, as in others of
like natures, appeal for relief does not belong here. Appeal
must be to an informed, civically militant electorate. In a
democratic society like ours, relief must come through an
aroused popular conscience that sears the conscience of the
people's representatives.
206. The limits of judicial intervention are limited and useful reference
in this regard may be had to the following paragraphs of the judgment in
Divisional Manager, Aravali Golf Club and another v. Chander Hass &
Another
51
31. If the legislature or the executive are not functioning
properly it is for the people to correct the defects by
exercising their franchise properly in the next elections and
voting for candidates who will fulfill their expectations, or by
other lawful methods e.g. peaceful demonstrations. The
remedy is not in the judiciary taking over the legislative or
executive functions, because that will not only violate the
delicate balance of power enshrined in the Constitution, but
51
[(2008) 1 SCC 683
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also the judiciary has neither the expertise nor the resources
to perform these functions.
32. Of the three organs of the State, the legislature, the
executive, and the judiciary, only the judiciary has the power
to declare the limits of jurisdiction of all the three organs.
This is a great power and hence must never be abused or
misused, but should be exercised by the judiciary with the
utmost humility and self-restraint.
33. Judicial restraint is consistent with and complementary
to the balance of power among the three independent
branches of the State. It accomplishes this in two ways. First,
judicial restraint not only recognizes the equality of the other
two branches with the judiciary, it also fosters that equality
by minimizing inter-branch interference by the judiciary. In
this analysis, judicial restraint may also be called judicial
respect, that is, respect by the judiciary for the other coequal
branches. In contrast, judicial activisms unpredictable
results make the judiciary a moving target and thus
decreases the ability to maintain equality with the co-
branches. Restraint stabilizes the judiciary so that it may
better function in a system of inter- branch equality.
34. Second, judicial restraint tends to protect the
independence of the judiciary. When courts encroach into the
legislative or administrative fields almost inevitably voters,
legislators, and other elected officials will conclude that the
activities of judges should be closely monitored. If judges act
like legislators or administrators it follows that judges
should be elected like legislators or selected and trained like
administrators. This would be counterproductive. The
touchstone of an independent judiciary has been its removal
from the political or administrative process. Even if this
removal has sometimes been less than complete, it is an ideal
worthy of support and one that has had valuable effects.
In Dennis V. United States
52
, Mr.Frankfurther, J observed as follows:
52
341 US 494-592:95 L Ed 1137 (1951)
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Courts are not representative bodies. They are not designed
to be a good reflex of a democratic society. Their judgment is best
informed, and therefore, most dependable, within narrow limits.
Their essential quality is detachment, founded on independence.
History teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of the
day and assume primary responsibility in choosing between
competing political, economic and social pressure.
207. Clearly, the individual respondents have engaged in the vice of
disintegration and fomenting of fissiparous tendencies and thus the anxiety of
the Writ Petitioners to safeguard the integrity of the nation and its
Constitutional values is understandable. However, even in such a situation, the
Court is bound by the letter of law while considering the prayer for quo
warranto. The list of enumerated disqualifications becomes sacrosanct and
constitutes a Lakshman rekha that cannot be breached.
208. The doctrine of separation of powers would require that Judges
perform the Constitutional function of safeguarding the supremacy of the
Constitution while exercising the power of judicial review in a fair and even
handed manner. Thus, while checking the encroachment of power, the
Judiciary must itself guard against encroaching beyond its own bounds.
209. The Court is given to understand that the petitioners and other as
seriously concerned as they are, have initiated multifarious actions as against
the offending statements. The matter has been raised before the Hon’ble
Supreme Court, which has issued notice to the respondents. A petition seeking
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disqualification is also stated to be pending before the Governor. All the more
for the reason that the appropriate authority under the Constitution has been
approached in this matter, it must be left to that authority to decide the issue on
disqualification having regard to all appropriate parameters.
210. The respondents have urged that the freedom to practice religion
guaranteed under Article 25 is subservient to other freedoms including freedom
of speech as guaranteed under Article 19. This cannot, however, be taken as a
sanction for unconstitutional, insensitive and erroneous statements, derogatory
of particular faith, particularly from those holding Constitutional posts.
Indeed, this argument cannot be seen to be advanced by holders of high
Constitutional posts to justify offensive statements made against persons of a
particular religious faith.
211. I conclude this point once again quoting Vivekananda in Hinduism
as follows: ‘Enough!’ There has been enough of criticism, there has been
enough of fault-finding. The time has come for the rebuilding, the
reconstructing; the time has come for us to gather all our scattered forces, to
concentrate them into one focus, and through that, to lead the nation on its
onward march, which for centuries almost, has been stopped. The house has
been cleansed; let it be inhabited anew.
212. Whatever be one’s faith, language or allegiance, the laws of the
universe guarantee that Dharmo Rakshati Rakshitah (Dharma protects those
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who protect it). With this, these Writ Petitions stand disposed. Barring those
MPs that have been ordered specifically in the course of this order, all other
connected Miscellaneous Petitions are closed. No costs.
06.03.2024
Index : Yes / No
Speaking Order/Non-speaking order
Neutral Citation: Yes/No.
Sl
To
1.The Secretary,
Tamil Nadu Legislative Assembly,
Secretariat, Fort St. George, Chennai-600 009
2.The Secretary,
Lok-Sabha,
18, Parliament House,
103, Parliament House Annexe,
New Delhi-110 003
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