IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.09.2006
Coram:
The Honourable Mr.A.P.SHAH, CHIEF JUSTICE
and
The Honourable Mr.Justice K.CHANDRU
Writ Petition No. 26841 of 2006
M.Ajmal Khan ... Petitioner
vs.
1. The Election Commission of India
rep. by its Chief Election Commissioner,
New Delhi-1.
2. Union of India
rep. by its Secretary to Government,
Public (Elections) Department,
New Delhi -1.
3. State of Tamil Nadu,
rep. by its Chief Secretary to Government,
Fort.St.George, Chennai-9.
4. The State Election Commissioner,
Chennai.
5. The District Collector,
Madurai District, Madurai. ... Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus forbearing the respondents from publishing or releasing the Electoral Rolls with the photographs of eligible women voters particularly Muslim Gosha Women voters of all the Constituencies in the State of Tamil Nadu, especially for the ensuring bye-election to Madurai Central Assembly Constitutency.
For Petitioner ::: Mr.K.M.Vijayan,
Senior Counsel
for Mr.K.Premkumar
For Respondents
1 & 2 ::: Mr.G.Rajagopalan,
Senior Counsel
For Respondents
3 to 5 ::: Mr.Raja Kalifulla
Government Pleader
O R D E R
(The Order of the Court was made by Hon'ble The Chief Justice)
The Election Commission of India with a view to improving the fidelity of the electoral rolls and to evolve methods to check impersonation and eradicate bogus voting decided to undertake the project of putting the photographs in the electoral roll itself so as to achieve the purpose of proper identification of the electors at the polling stations. Accordingly, the Commission during the year 2003 undertook pilot projects in two Assembly Constituencies in Kerala and two Assembly Constituencies in Harayana. In view of the encouraging results, the Commission issued a direction vide its communication dated 18.12.2003 to the Chief Electoral Officers of all the States and Union Territories. Pursuant to the directions issued from time to time in this regard the work had begun in various States for preparing electoral rolls with photographs. So far as the State of Kerala and the Union Territory of Pondicherry are concerned, the preparation of electoral rolls with photographs has been fully completed and also used in the General Elections held in May 2006. In so far as the State of West Bengal is concerned, in 46 Assembly Constituencies the work was completed and the photo rolls were used in the General Elections held in May 2006. In so far as the State of Tamil Nadu is concerned, the Election Commission has directed to prepare and revise the electoral rolls with photographs of voters keeping 1.1.2006 as qualifying date for Madurai Central Assembly Constituency and in respect of the other 233 Assembly Constituencies, the qualifying date is 1.1.2007. Bye-election has to be conducted before 19.11.2006 for Madurai Central Assembly Constituency in view of the sudden demise of its representative immediately after the General Elections in May 2006. In respect of 143- Madurai Assembly Constituency photo electoral roll has been prepared and the draft photo electoral roll was published on 11.8.2006 and the final photo electoral roll is ready to be published.
2. The constitutional validity of the aforesaid direction is put in issue in this writ petition under Article 226 of the Constitution of India. The petitioner-M.Ajmal Khan is seeking for issuance of writ of mandamus forbearing the Election Commission from in any way publishing or releasing the photographs of the women particularly the Muslim Gosha women in the eligible voter's list in respect of all the Constituencies in the State of Tamil Nadu particularly for the
ensuring bye-election to Madurai Central Assembly Constituency. The contention of the petitioner is that though the requirement of photo identity cards to be kept by eligible voters for the purpose of voting cannot be disputed or the same cannot be found illegal as it is in the welfare of the General Election and towards the fairness, but the usage of such photographs in the final electoral rolls, which is easily accessible to any one including the representatives of political parties on payment of necessary charges, cannot be said to be necessary and mandatory for ensuring fair election. The usage of photographs in the electoral rolls of eligible voters and in particular the photographs of Muslim Gosha Women will easily find its way into the hands of those persons whose identity is not known, which is opposed to religious beliefs, tenets of Koran and it will cause irreparable loss, damage, mental agony to the entire muslim community at large. It is contended that wearing of purdah by Muslim women is one of the principles laid down in Holy Koran and it has to be strictly followed by Muslim women. From the time immemorial the Muslim women are adhering to these principles in their life. Therefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India.
3. Mr.K.M.Vijayan, learned senior counsel appearing for the petitioner strenuously contended that wearing of purdah by Muslim women forms integral part of the religion and cannot be disassociated from that. That being so, the impugned direction of the Election Commission amounts to violation of Article 25(1) of the Constitution of India. Learned counsel cited several verses from Koran from the translation of M.M.Pickthali which according to learned counsel show that there are injunctions in Koran which prohibit ladies coming out in public showing their faces and a fortiori taking of photograph. In any event, according to Mr.K.M.Vijayan, the right protected by Article 25 of the Constitution can be taken away only by a valid law enacted by the State Legislature or the Union Legislature and not by a direction of the Election Commission which is in the nature of an executive direction under Article 324 of the Constitution of India. Learned senior counsel urged that the impugned direction is also violative of right of privacy protected by Article 21 of the Constitution of India. A contention is also raised by the learned senior counsel that the impugned direction is contrary to the Registration of Electors Rules, 1760.
4. In reply, Mr.G.Rajagopalan, learned senior counsel appearing for the Election Commission submitted that the Election Commission with a view to ensure free and fair poll is empowered to issue necessary directions under Article 324 of the Constitution of India for preparation of photo electoral rolls. He submitted that Rule 4 of the Registration of Electors Rules, 1960 clearly provides that the roll for each constituency shall be prepared in such form and in such language or languages as the Election Commission may direct. The Election Commission has already issued necessary directions under Rule 4 and issued the form for preparation of photo electoral rolls. He submitted that the contention of the petitioner that the usage of photographs in the electoral rolls of the eligible voters and particularly the Muslim Gosha women is opposed to their religious belief has no legal basis whatsoever. In fact there has been no problem in Kerala, Pondicherry and West Bengal and all Muslim women cooperated. Even with regard to Madurai Central Assembly Constituency there was no complaint at all from any Muslim women when they were photographed. He submitted that any right of a citizen with regard to the election is pure, simple and statutory right and the Commission, as a constitutional authority, is bound to treat all equally and no exception could be taken on the supposed ground of any religion.
5. The main submission of Mr.K.M.Vijayan is that Gosha or Purdah forms integral part of the religion and therefore, Election Commission has no right to issue any direction interfering with such right protected by Article 25 of the Constitution. The relevant part of Article 25 reads as under: -
" 25. Freedom of conscience and free profession, practice and propagation of religion: -- (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law--
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."
A bare reading of this article shows that the freedom is subject to public order, morality and health. So the article itself permits a legislation in the interest of public order, morality, health, etc.
6. The meaning of religion the term as employed in Article 25 and the nature of protection conferred by Article 25 stands explained in The State of Bombay v. Narasu Appa, AIR 1952 Bombay 84, where Chagla, C.J. Speaking for the Bench in dealing with the validity of Bombay Prevention of Hindu Bigamous Marriages Act, whether was in violation of Article 25 of the Constitution, held as follows: -
" A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. It is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. But even assuming that polygamy is a recognized institution according to Hindu religious practice, the right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution, an institution in which the State is vitally interested. If, therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social reform, and the State is empowered to legislate with regard to social reform under Art.25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate religion. Therefore, this legislation does not contravene Art.25(1) of the Constitution."
7. In Masud Alam v. Commissioner of Police, AIR 1956 Cal.9, the Commissioner of Police refused his permission to the use of an electrical loudspeaker five times a day for calling the Azan (call for prayer) as several residents of the locality complained against the practice. It was argued for the Mutawalli of the mosque that had introduced the loudspeaker that the liberty allowed under Art.25 of the Constitution has been curtailed by the suppression of the use of loudspeakers to propagate the Azan in a very crowded and noisy locality where the Azan cannot be heard, unless magnified by some such device as a loudspeaker. Sinha,J. rejecting the argument observed thus: -
" No doubt, India is a secular State and under Art.25 of the Constitution, all persons are at liberty to freely practise their religion. But the above argument overlooks the essential features of Art.25. For, a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health, then the religious practices must give way before the good of the people of the State as a whole."
The learned Judge further observed,
"I have a few words to say about the use of loudspeakers in connection with religious houses or festivals. The discovery of the means to magnify sound has indeed been a major scientific discovery of the age and is utilised in many useful ways, e.g., the telephone, radio etc. But like every modern discovery in science, it has helped to create not merely a heaven but also a hell.
The indiscriminate use of the electric loudspeaker in connection with religious festivals in the city is a standing grievance of every peace-loving citizen. The most offending instances are the uses of which it is put in connection with Hindu festivals, when the city is rocked with the raucous cacophony of a thousand loudspeakers, dolling out cheap jazz or cinema music, which is not only singularly inappropriate to such occasions, but to my mind, destructive of public health and morals."
8. In Gulam Abbas v. State of Uttar Pradesh, (1984) 1 SCC 81, the Supreme Court taking note of the fact that for several years there had been violent clashes between the Shias and Sunnis of Mohalla Doshipura, Varanasi leading to proceedings and several petitions before the Supreme Court and to find a perennial solution to the problem appointed a Committee of 7 persons constituting of 3 nominees of Shias and 3 nominees of Sunnis and the Divisional Commissioner as the Chairman. The Chairman despite the opposition of Sunnis, recommended that shifting of their two graves so as to separate the places of worship of Shias and Sunnis was feasible. The Sunnis challenge implementation of the recommendation on the ground of violation of their rights under Arts.25 and 26 and lack of jurisdiction of the Supreme Court to so order. The Supreme Court held:
"The exercise of fundamental rights under Arts.25 and 26 is not absolute but must yield to give way to maintenance of public order and the impugned suggestion was mooted by the Court and has now been found to be feasible by the Chairman of the Committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of religious ceremonies and function by members of both the sects. If the Court finds the implementation of the suggestion to be eminently fit in the interest to maintenance of public order consent of either party would be immaterial."
9. In M.Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360 the Constitution Bench held that the protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.
10. In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, the State legislation placing a total ban on cow slaughter was under challenge. One of the submissions made was that such a ban offended Article 25 of the Constitution because such ban came in the way of the sacrifice of a cow on a particular day where it was considered to be religious by Muslims. Having made a review of various religious books, the Court concluded that it did not appear to be obligatory that a person must sacrifice a cow. It was optional for a Muslim to do so. The fact of an option seems to run counter to the notion of an obligatory duty. Many Muslims do not sacrifice a cow on the Id day. As it was not proved that the sacrifice of a cow on a particular day was an obligatory overt act for a Mussalman for the performance of his religious beliefs and ideas, it could not be held that a total ban on the slaughter of cows ran counter to Article 25 of the Constitution. This judgment has been upheld by the Bench of seven Judges in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
11. In the light of the decisions enunciated in the aforesaid judgment, it is necessary to examine whether the Gosha or Purdah is an essential ingredient or part of the Muslim religion. The famed Koran translator Mohammad Marmaduke Pickthall, whose official translation of Koran was cited before us said in his 1925 lecture "The Relation of the Sexes" that there is no text in the Koran, no saying of our Prophet, which can possibly be held to justify the practice of depriving women of the natural benefits which Allah has decreed for all mankind (i.e. Sunshine and fresh air and healthy movement).... The true Islamic tradition enjoins the veiling of the hair and neck, and modest conduct that is all. This is borne out by the following Hadith: Ayesha (R) reported that Asmaa the daughter of Abu Bakr (R) came to the messenger of Allah (S) while wearing thin clothing. He approached her and said : 'O Asmaa! When a girl reaches the menstrual age, it is not proper that anything should remain exposed except this and this. He pointed to the face and hands." (Abu Dawood). He further observed that veiling of the face by women was not originally an Islamic customs. It was prevalent in many cities of the East before the coming of Islam, but not in the cities of Arabia. The purdah system, as it now exists in India, was quite undreamt of by the Muslims in the early centuries, who had adopted the face-veil and some other fashions for their women when they entered the cities of Syria, Mesopotamia, Persia and Egypt. It was once a concession to the prevailing custom and was a protection to their women from misunderstanding by peoples accustomed to associate unveiled faces with loose character. Later on it was adopted even in the cities of Arabia as a mark of (tamaddun) a word generally translated as 'civilization' but which in Arabic still retains a stronger flavour of its root meaning 'townsmanship' that is carried by the English word. It has never been a universal custom for Muslim women, the great majority of whom have never used it, since the majority of the Muslim women in the world are peasants who work with their husbands and brothers in the fields. For them the face-veil would be an absurd encumbrance. Thus the Purdah system is neither of Islamic nor Arabian origin. It is of Zoroastrian Persian, and Christian Byzantine origin. It has nothing to do with the religion of Islam, and, for practical reasons, it has never been adopted by the great majority of Muslim women.... The Purdah system is not a part of the Islamic law. It is a custom of that Court introduced after the Khilafat had degenerated from the true Islamic standard and, under Persian and Byzantine influences, had become mere Oriental despotism. It comes from the source of weakness to Islam not from the source of strength.
12. A noted Sudanese scholar, Dr.Hassan al-Turabi, in his trace "On the Position of Women in Islam and in Islamic Society" states that the verses of the Koran ordained that the wives of the Propet (peace upon him) draw a curtain (to ensure privacy in the Prophet's room which naturally attracted many visitors of all sorts), and that they dress up completely without showing any part of their bodies including face and hands to any man; though all other Muslim women were exempted from these restrictions.
13. The Canadian writers Syed Mumtaz Ali and Rabia Mills in their essay Social Degradation of Women a Crime and a Libel on Islam explain:
" One must realize and appreciate the fact that the commandment in the Qur'an in Chapter 33, verse 53, with respect to the Hijab, applies only to the "Mothers of the believers" (the wives of the Holy Prophet, p.b.u.h.) whereas the wording of the Qur'an in Chapter 33 verse 55, applies to all Muslim women in general. No screen or Hijab (Purdah) is mentioned in this verse it prescribes only a veil to cover the bosom and modesty in dress. Hence the unlawfulness of the practice of the Indian-style system of Purdah (full face veiling). Under this system, the Hijab is not only imposed upon all Muslim women, but it is also quite often forced upon them in an obligatory and mandatory fashion. Even the literal reading/translation of this Quranic verse does not support the assertion that the Hijab is recommended for all Muslim women. The Hijab/screen was a special feature of honour for the Prophet's p.b.u.h. wives and it was introduced only about five or six years before his death."
14. In the English translation of Koran by Muhammad Asad in Note 37 states "We may safely assume that the meaning of illa ma zahara minha is much wider, and that the deliberate vagueness of this phrase is meant to allow for all the time-bound changes that are necessary for man's moral and social growth.". In the Article "The Question of Hijab: Suppression or Liberation" published by The Institute of Islamic Information and Education (III&E) and reproduced in electronic form by Islamic Academy for Scientific Research the author states that the question of Hijab (Purdah) for Muslim women has been a controversy for centuries and will probably continue for many more. Some learned people do not consider the subject open to discussion and consider that covering the face is required,while a majority are of the opinion that it is not required. A middle line position is taken by some who claim that the instructions are vague and open to individual discretion depending on the situation. The wives of the Prophet (s) were required to cover their faces so that men would not think of them in sexual terms since they were the "Mothers of the Believers" but this requirement was not extended to other women.
15. In 1992 Justice Eusoff of Malaysian High Court delivered a judgment ruling that the freedom of religion guaranteed under Article 11(1) of the Malaysian Constitution was not absolute as Article 11(5) did not authorise any act contrary to any general law relating to public order, public health or morality. The prohibition against wearing attire that covered the face did not affect the appellant's constitutional right to profess and practice her religion. This decision of the Malaysian High Court was confirmed by the Malaysian Supreme Court in 1994. It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.
16. Even assuming that the Purdah or Gosha is an essential ingredient of the Muslim religion, Article 25 itself makes it clear that this right is subject to public order, morality or health and also to the other provisions of Part III of the Constitution. In T.M.A.Pai Foundation v. State of Karnataka, AIR 2003 SC 355, 11 Judges Bench observed as follows: -
" 82. Article 25 gives to all persons the freedom of conscience and the right to freely profess, practice and propagate religion. This right, however, is not absolute. The opening words of Article 25(1) make this right subject to public order, morality and health, and also to the other provisions of Part III of the Constitution. This would mean that the right given to a person under Art.25(1) can be curtailed or regulated if the exercise of that right would violate other provisions of Part III of the Constitution, or if the exercise thereof is not in consonance with public order, morality and health. The general law made by the government contains provisions relating to public order, morality and health; these would have to be complied with, and cannot be violated by any person in exercise of his freedom of conscience or his religion to profess, practice and propagate religion. For example, a person cannot propagate his religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.
83. Article 25(2) gives specific power to the State to make any law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice as provided by sub-clause (a) of Article 25(2). This is a further curtailment of the right to profess, practice and propagate religion conferred on the persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice."
17. In Javed v. State of Haryana, (2003) 8 SCC 369, the provisions of Sections 173(1)(g) and 177(1) of Haryana Panchyati Raj Act, 1994 were challenged before the Supreme Court. The said provisions disqualify a person having more than two living children from holding the specified offices in Panchayats. The Apex Court expressly rejected the submission that the personal law of Muslims permits performance of marriages with four women for the purpose of procreating children and any restriction thereon would be violative of the right to freedom of religion enshrined in Article 25 of the Constitution. The Court observed as follows: -
"60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction or religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does."
61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it."
18. In view of the foregoing discussion, we have no hesitation in holding that the direction of the Commission is not violative of Article 25 of the Constitution. We also do not find any substance in the complaint of violation of right to privacy. In R.Rajagopal v. State of T.N., (1994) 6 SCC 632, the Supreme Court held that the right to privacy is not enumerated as a fundamental right in our Constitution, but has been inferred from Article 21. In that case, reliance was placed on Kharak Singh v. State of U.P., (AIR 1963 SC 1295) and other decisions of English and American Courts, and thereafter, the Court held that the petitioners have a right to publish what they alleged to be a life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy for the consequences in accordance with law. For this purpose, the Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. Position may, however, be different, if a person voluntarily thrust himself into controversy or voluntarily invites or raises a controversy. The preamble of our Constitution proclaims that we are a democratic republic. The democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee a growth of healthy democracy in our country. The decision of the Election Commission of putting the photographs in the electoral roll was taken with a view to improving the fidelity of the electoral rolls and to check impersonation and eradicate bogus voting. Hence, the argument of the learned counsel that the decision violates the right to privacy is required to be rejected.
19. In Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112, the Supreme Court held that under Article 324, the superintendence, direction and control of the 'conduct of all elections' to Parliament and to the Legislature of every State vests in Election Commission. The phrase 'conduct of elections' is of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. Article 324 operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. The silence of statute has no exclusionary effect except where it flows from necessary implication. The power of the Commission is plenary in character in exercise thereof. In a statutory provisions or rules, it is known that every contingency could not be foreseen or anticipated with precision, therefore, Commission can cope with situation where the field is unoccupied by issuing necessary orders. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where a law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary direction, Commission can fill the vacuum till there is legislation on the subject.
20. Rule 4 of the Registration of Electors Rules, 1960 clearly provides that the electoral roll for each constituency shall be prepared in such form and in such language or languages as the Election Commission may direct. Therefore, the Election Commission was within its jurisdiction in prescribing a form containing the photographs of the eligible voters. In the result, we find absolutely no substance in the petition and it is hereby dismissed.
ns/pv
To:
1. The Election Commission of India
rep. by its Chief Election Commissioner,
New Delhi-1.
2. Union of India
rep. by its Secretary to Government,
Public (Elections) Department,
New Delhi -1.
3. State of Tamil Nadu,
rep. by its Chief Secretary to Government,
Fort.St.George, Chennai-9.
4. The State Election Commissioner,
Chennai.
5. The District Collector,
Madurai District, Madurai.
[PRV/7940]
