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2008 DIGILAW 196 (KER)

Remya Raju v. Government of Kerala

2008-03-14

THOTTATHIL B.RADHAKRISHNAN

body2008
Judgment : 1. Petitioners 1 & 2 are two students of SDA School Sadanandapuram, Kottarakkara and are appearing for the SSLC examination of March 2008, conducted by Government of Kerala, which commenced on 12.03.08. According to them, they belong to the Seventh Day Adventist denomination; a world wide Protestant Christian denomination and are therefore entitled to fundamental right under Art 25(1) of the Constitution to freely profess, practise and propagate that religion. According to them, in terms of the core faith of the members of that denomination, they have to abstain from any activity from 6 a.m. to 6 p.m. on Saturdays and therefore it will be impermissible for them, in the context of their religion, to appear for the examination scheduled tomorrow, i.e., 15.03.2008. They filed this writ Petition on 13.2008, relying on Ext. P2 Government order dt. 21.12,1961 by which the Government had decided that if there are any candidates belonging to Jews Or Seventh Day Adventist denomination to appear for the examination, special arrangements will be made for them, for conducting the examination after 6 p.m. 2. When this matter came up for admission on the afternoon of 13.08, in the wake of Ext. P2, the learned Government Pleader was requested to obtain instructions. He states today that Ext.P2 has since been withdrawn and the timetable was set sufficiently early in terms of R. 11(2) in Chap.VIII of the Kerala Education Rules. He accordingly stated that the petitioners could have no claim as is projected by them. 3. Learned counsel appearing for the petitioners relying on the decisions of the Apex Court in Bijoe Emmanuel Vs. State of Kerala (1986 KLT 1037 (SC) AIR 1987 SC 748) and Bramchari Sidheswar Shai Vs. State of West Bengal (AIR 1995 SC 2089), dilating in detail on the scope of the term in Art.21(1) of the Constitution, contended that the abstinence of the members of the denomination in question from any activity during the day time on Saturdays, being intricately connected and deep rooted in the faith and belief of the members of that denomination, no law made by the State can impinge on the freedom guaranteed by Art.25(1) except to the extent of the power to legislate on the ground of public order, morality and health. He accordingly argued that the students belonging to the denomination of the petitioners are entitled to have the examination scheduled in such a manner by which they would not be compelled to write the examination between 6 a.m. and 6 p.m. on Saturdays since such participation in examination would result in the petitioners injuring their religious beliefs: Ultimately he pointed out that Ext. P2 was held in the field from 1961 and the benefit should be permitted to run during the present academic year also, though the Government may be at liberty to withdraw a Government Order. 4. Thelearned Government Pleader argued that no distinction on the basis of caste, creed, colour or religion has been made at any point of time and any concept referable to Ext.P2 Government Order is no more adhered to by State Government which conducts different examinations. He also pointed out that as a matter of fact, the plus two examinations for the current year also were held 9n Saturdays. As stated by him, even the Central Board of Secondary Education commenced its board examinations this year on Saturday. 5. Art.25(1) has to be read and appreciated in the context of the various limbs of Art.25. An examination of that Article would show that Art.25(1) and Clause (a) of Art.25(2) are interconnected. Art.25(1), as already noticed, guarantees to all persons equality in the matter of entitlement to freedom of conscience and the right to profess practice and propagation of religion. Art.25(2) (a) provides that nothing in Art.25 shall affect the operation of any existing law or prevent State from making any law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice. The provision in Art.25 is essentially a protective constitutional instrument by which the freedom of conscience and right to freely profess, practice and propagate religion are enjoined, subject to public order, morality and health and other provisions of Part III of the Constitution The State if it makes any provision affecting the freedom of conscience and the right to freely profess, practice and propagate religion, has to justify such legislation on the touchstone of public order, morality, health and the other provisions of Part III, if challenged. This is how Art.25 works: 6. This is how Art.25 works: 6. An examination of Part III of the Constitution, held in the backdrop of the Directive Principles of State Policy, as enshrined in Part IV and fundamental duties as enshrined in Art.51 A, the sole provision in Part IVA, would advise that, having regard to the secular component of the Indian Republic, no right guaranteed by Art.25 of the Constitution to any citizen can, in any manner, erode the secular rights referable to the other provisions of the Constitution. This is how the protective right under Art.25 sustains along with the principles of Art.14, which enjoins equality before law and equal protection of the laws. 7. In that view of the matter, the Kerala Education Act and the Kerala Education Rules are nothing but secular laws, which have to be enforced without any classification of citizens on the basis of caste, creed, colour, religion, sex or other differentia, except to the extent provisions, are made in tune with the constitutional goals and provisions. Therefore, the manner of conducting examinations is a subject of a secular nature and hence, no provision available under Art.25 could be put to take the stand against conduct of examination on any particular day simply on the ground that it would militate against the provisions of Art.25. At any rate; scheduling of an examination on a day which may not be acceptable to a class of citizens professing a particular religion does not infract the fundamental rights guaranteed by Art.25(1). This is all the more so because, the sweep of Art.25(1) is regulated only by the terms thereof. In this view of the matter, Art.25(1) is no answer to any opposition to the scheduling of public examinations on any date. Therefore, the contention of the petitioners based on Art.25(1), is repelled. 8. The executive Government, in its wisdom; is entitled to modulate the timetable which is one of the functions of the executive in terms of law governing education. To ensure harmony and various aspects, as are relevant in social life, the Government may take decisions which are, in its view, required in public interest. It is not within the domain of judicial review to interfere with such decisions, except in cases of violations to the constitutional or statutory provisions. To ensure harmony and various aspects, as are relevant in social life, the Government may take decisions which are, in its view, required in public interest. It is not within the domain of judicial review to interfere with such decisions, except in cases of violations to the constitutional or statutory provisions. So much so, the learned Government Pleader is justified in stating that, as of now, Ext.P2 having been withdrawn, the petitioners have been advised that they can take an examination under the "Save An Year Scheme", if they are unable to take the examination on Saturdays. 9. Ext.P2 Government Order shows that the fact situation right from 1961 was that the students belonging to the denomination of the petitioners were permitted to write examinations after 6 p.m. in the event of the examination being scheduled on Saturdays. That Government Order held the field, at least, until the institution of this Writ Petition since the statement on behalf of the Government is that Ext.P2 was withdrawn only now. Therefore even when the timetable was set for this years examination, it was obvious that Ext.P2 was in force. Setting a timetable in terms of R.8 (2) of Chap. Viii, K.E.R. is an executive exercise. Ext.P2 is an executive order of the Government. Though it would not have an over riding effect on the provisions of R.8(2) of Chap.VIII of K.E.R., its gaze continues to fall, as one containing the policy of the Government, at least as on the date when the current time table for the examination was set. Therefore, this is not a case where the petitioners 1 and 2 who are in the threshold of their life and appearing for, probably, the first public examination in their life, should be deferred to go for the SAY examination. Justice on the facts and circumstances is abundantly clear that wisdom of Government withdrawing EA. P2 should operate only from the next year. it is, hence, so ordered and it is directed that the respondents shall take necessary steps to ensure that EA. P2 is given effect to in the matter of conducting examinations as far as the petitioners are concerned. 10. The Writ Petition is ordered accordingly.