A two-judge bench of the Meghalaya High Court on Friday set aside a controversial single judge order suggesting that the country be declared Hindu Rashtra to prevent it from being overwhelmed by immigrants of other religions.

Murali Krishnan May 24 2019

Meghalaya High Court

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A Division Bench of Meghalaya High Court has overruled the controversial judgment of a single judgewhich had stated that India should have been declared a Hindu country during the Partition.

A Bench of Chief Justice Mohammad Yaqoob Mir and Justice HS Thangkhiew ruled that the judgment of Justice SR Sen is legally flawed and is inconsistent with the constitutional principles. The observations made and directions passed in the judgment are totally superfluous, the Division Bench held.

Therefore it set aside the judgment in its entirety.

“After bestowing our thoughtful consideration to the entire gamut of the matter we have reached to a firm conclusion that the judgment impugned dated 10.12.2018 is legally flawed and is in-consistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety, as such shall be non est.”

India should have been declared a Hindu countryMeghalaya High Court [Read Full Judgment]

On December 10 last year, Justice Sen in his controversial judgment had urged the Prime Minister, Home Minister, Law Minister and the MPs to enact laws to allow the Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in India and to be given citizenship.

The judgment, which was delivered in a case pertaining to domicile certificate, had also stated that India should have been declared a Hindu country during the Partition, though it chose to remain a secular nation. It stated,

“Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country”

The judgment had caused outrage and Justice Sen had to subsequently issue a clarificatory statementasserting that “I am not a religious fanatic rather I respect all the religions because to me God is one.”

An appeal was filed against the same in the Supreme Court. A PIL filed against the same is still pending before the Supreme Court.

The High Court, however, noted in its judgment that pendency of SLP in Supreme Court will not bar the Division Bench from deciding the instant appeal.

“Pendency of SLP with aforesaid prayer in our humble opinion will not operate as a bar for deciding the instant appeal as is also submitted by learned counsel for the parties, more so Hon‟ble Judge against whom aforesaid relief has been sought on reaching superannuation has retired.”

A single judge had created a controversy when he had in a case involving domicile certificate of a local resident referred to the illegal immigration from outside and suggested a Hindu Rashtra as a way out to protect the Hindu way of life. Today, a division bench, comprising Chief Justice Mohammad Yaqoob Mir and Justice HS Thangkhiew, said that the single judge’s order was “legally flawed” and “inconsistent with constitutional principles”.

Disposing a petition regarding grant of a domicile certificate, Justice Sen had touched upon the topic of citizenship and had observed that he would “fail” in his duty if he did not “project the original India and its partition”. In his December 10 judgment, Sen had said, “Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country.”

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He had called the National Register of Citizens (NRC) updating process in Assam “defective as many foreigners become Indians and original Indians are left out which is very sad” and said that “nobody should try to make India… another Islamic country, otherwise it will be a doomsday for India and the world”. He had said the Centre should bring a law to allow non-Muslim and tribal communities like Khasis from Pakistan, Bangladesh and Afghanistan to live in India without any cut-off year and be given citizenship without any question or production of document.

He had also said he is “confident that only this Government under Shri Narendra Modiji will understand the gravity, and will do the needful” and “Chief Minister Mamataji will support the national interest in all respect”.

Subsequently, he issued a clarification saying that his judgment was “misinterpreted”and it was not “politically motivated”. “I also mention here that I do not belong to any political party nor have I got any dream to get any political berth after my retirement and neither is my judgment politically motivated or influenced by any party,” Sen said in his clarification.

The Supreme Court, in February this year, had issued notice on a plea seeking expunction of the remarks which read “Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country.” A bench comprising Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna issued notice to the HC registrar on the plea filed by Advocate Sona Khan and others, who contended that the judgment authored by Sen was “legally flawed and historically misleading”.