Welcome modification by the SC of its own judgement

Supreme Court of India has saved the country from major constitutional crisis by modifying its own order of 15^th May 2015 by which it had directed that the photographs of Minister, Chief Minister or Governor of the states would not be published or shown in the government advertisements.

The bench consisting of Justice Ranjan Gogoi and Justice P.C. Ghosh had ruled that it amounted to sheer misuse of public money for private publicity. This order had created a lot of problems for the Federal structure of the country, where the Governors and the Chief Ministers enjoy the equal constitutional rights.

Under Part VI of the Constitution of India, the rights of the Governors, Chief Ministers and the State Legislatures are clearly defined from Article 152 to Article 213 as it is provided for the Union Executive from Articles 52 to 122 in Part V. Similarly Articles 124 to 147 of Chapter IV deal with Union Judiciary, while Chapter V from 214 to 237 deal with the State Judiciary.

Thus duties, rights and responsibilities of the Union and the States are delineated in the Constitution. Needless to say, the High Courts do not function under the Supreme Court of India, as it has no supervisory powers over the High Courts. On the other hand, the High Courts have been vested with the supervisory powers over the subordinate courts of their respective jurisdictions under Article 227. The Supreme court enjoys supremacy because of certain reasons. Firstly; it is vested with powers under Article 141 whereby the law declared by the Supreme Court shall be binding on all courts within the country. It is based on the principle of ‘stare decis’. Secondly; Article 142 provides the power to the Supreme Court to exercise its jurisdiction to render complete justice regardless of non-existence of any statutory provision. Thirdly; it is the highest Appellate Court, where the decisions of High Courts can be appealed to be upheld, set aside or modified. Fourthly; the President of India may consult it, at any time, on any question of law or the fact. This power is called the Power of Reference.

Although, it is like a consultation by the President of India from the Supreme Court yet the opinion expressed by the Supreme Court is binding on the President of India which literally means the Government of India. What is, however, the most outstanding power that is given by the Constitution to the Supreme court is Article 136, which provides vast discretionary power to grant special leave to appeal to any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 144 reinforces the authority of the Supreme Court which says all authorities civil and judicial in the territory of India shall act in its aid. Article 145 vests Supreme Court to frame its own rules. The writ jurisdiction of the Supreme Court under Article 32 is similar to that of High Courts in Article 226. In fact, the High Courts have got winder powers under Article 226 for entertaining the petitions or issuing writs. The Supreme Court while passing any order in respect of the High Courts does not give direction but makes request, although in the legal parlances any request coming from the Supreme Court has all the force of orders.

Now let us come to the background of the case. This judgment of the Supreme Court was delivered in the context of a Public Interest Litigation (PIL) filed by a non-governmental organisation Common Cause for restricting the publication or broadcast of the photographs of the Ministers, Chief Ministers and the Governors at the cost of the public exchequer. The idea of Common Cause is certainly benign and laudable in the sense that public money should not be used for private publicity. Thus, the Supreme Court in its order of 15^th May 2015 said that except the photograph of President/Prime Minister and the Chief Justice of India, no other photographs could be published or telecast in the audio visual media. This order of the Supreme Court was fraught with dangers. Although it was a welcome decision with good intentions yet it raised many issues concerning the Centre- State relationships. It was the reason that many review petitions were filed by various State Governments and others. Finally, on 18^th of march 2016, the Supreme Court modified its order to the extent that the photograph of Chief Ministers Governors and Ministers of the Government can be published or shown along with Prime Minister, President and Chief Justice of India. Since the Supreme Court is the Apex Court, therefore, its order/decisions/directions can be modified only by itself. Be that as it may, it has come as a huge relief because now the stands settled by the correct interpretation of the Constitution. Hence, this historic modification in the judgement will help balance and strengthen the federal structure of the Country.

MECHANICAL JUSTICE IS TRAVESTY OF JUSTICE

The dismissal of a petition by the Madras High Court with observation that nowhere in the Indian Penal Code it is stated that ‘eating non-vegetarian food is an offence and there is no law touching, eating habits of any religion is an offence’ is very prosaic interpretation of law but certainly not conducive to the evolution of just, fare and judicious law. The famous legal philosopher Roscoe Pound was of the view that ‘law should be stable but not stand still’. In his famous book ‘An Introduction to Philosophy and Social Control Through Law’, he had said that ‘thinking about law one has to think about the society’.  In a civilised society people must be able to assume that those with whom they deal in the general intercourse of society will act in good faith and hence; (a) will make reasonable expectation which their promises or other conduct reasonably create; (b) will carry out their undertakings according to the expectations which the moral sentiment of the community attaches’. Thus it is clear where the society fails to follow the reasonable moral expectations, ‘the law which is in the words of Austin is the command of the Sovereign’ must come into the play.

The observation of the High Court came in the disposal of the petition filed by an Advocate by profession in the High Court of Madras praying that the Writ of Mandamus be issued to the authorities to prohibit the selling and eating of the beef around the Palani temple and its stairs. This temple is perched on the hills in the Dindigul district of Tamilnadu.  He has said in his petition that the entire circle of the Holy Hills is used as Giriwal Pathai (Parikrama). Hindu devotees go around Giriwal Pathai and they feel uncomfortable to cross the shops which are housed in the temple property and occupied by people belonging to other religion. They indiscriminately use beef and other non-vegetarian food by sitting in the stairs of Palani Hills and thus insult the religious faith of Hindus.

As a matter of fact, it is the responsibility of authorities particularly the Commissioner of the Municipality of the Palani and the Commissioner of Hindu Religious and Charitable Indouments to ensure that the area surrounding temple and sacred hills are not defiled.

Justices Shri S. Manikumar and Shri C.T. Selvam are right when they say that meat eating or even the buffalo meat, which is also known as beef is eating not prohibited in the Hindu religion. But there is no gainsaying that in and around all temples, non-vegetarian food is not allowed except, of course, in the ‘Shakt Temples’, where animal sacrifices are permitted. Thus the people belonging to other religion must be conscious towards the religious sentiments. Legally also Section – 153A of the IPC says ‘Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’ – is punishable, and when it is read with Section 295 which says that ‘Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both’.Similarly Section 295A of the Indian Penal Code says that ‘Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.’

Thus the ideal situation is that the provisions of Indian Penal Code are not required to be invoked but when in such situations demand, then there should not be any hesitation in invoking them. Here the High Court was certainly go beyond what are provided in the law and it should have done which could have helped in soothing the prayed tempers. The High Court has said that the petition is filed in the nature of a public interest litigation and which cannot be allowed to be misused by the meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration. But this case is certainly does not belong to the category of an interference by an interloper. This is a matter or an issue which has its bearing the sensitivities of millions of people who go to the temple round the year. Even those who do not go to temple they feel certainly hurt when they find that ‘people belong to other faith are eating and selling the meat in the vicinity of the temple, which is perched on the hills.

Even if, the petitioner not been able to provide any documentary evidence in support of his petition, at least considering the matter of great public importance the Hon’ble High Court must have asked for the factual report from the authorities concerned to pass the appropriate order in view of the reports received from them but by summarily rejecting the petition is absolutely no justice.