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Jharkhand High Court · body

2011 DIGILAW 919 (JHR)

Kamal Nayan Prabhakar v. Union of India

2011-09-22

P.P.BHATT, PRAKASH TATIA

body2011
Order Per, the Chief Justice Heard the learned counsels for the parties. 2. The P.I.L. has been classified in three categories. (a) Public Interest Litigation, (b)Private Interest Litigation, and (c)Personal Interest Litigation 3. This writ petition has been filed in the category of P.I.L. From the averments made in the writ petition itself, we are satisfied that this is not a P.I.L., but it is a S.F.L. We are treating it as a “Shameful Petition” for the reasons that by this writ petition, a young boy, who is yet to complete his Graduation as per the facts stated in the writ petition, tried to pollute the soul of the Constitution. The writ petitioner in his writ petition has grievance that Respondent No. 3, His Excellency, the Governor of Jharkhand, while taking (subscribing) the oath has violated Article 159 of the Constitution of India, because of the sole reason that in place of the word “God” and “Ishwar”, he uttered the word “Allah” added three words “Ke Nam Par” in his oath. In the entire writ petition, the only plea which has been taken, is that under Article 159 of the Constitution, the format has been given, which accepts the oath in the name of “God” or in view of the authentic translation of the word “God” the oath could have been taken in the name of “Ishwar”. According to the petitioner merely because of this reason, the oath taken by the Respondent No. 3 is absolutely illegal, being contrary to the provisions of Article 159 of the Constitution of India. The learned counsel for the petitioner argued the matter on 19th September, 2011 at length and thereafter, he was allowed further time to argue the matter. 4. According to the petitioner merely because of this reason, the oath taken by the Respondent No. 3 is absolutely illegal, being contrary to the provisions of Article 159 of the Constitution of India. The learned counsel for the petitioner argued the matter on 19th September, 2011 at length and thereafter, he was allowed further time to argue the matter. 4. Today, learned counsel for the petitioner formulated five points and substantially they according to him are the questions of law, (i) whether a thing, which is required to be done in a particular manner prescribed by law, is required to be done in such a manner only, (ii) whether any person can be allowed to take oath under Article 159 of the Constitution of India, otherwise than as provided under Article 159 of the Constitution and more particularly, in the manner, as prescribed under Article 102 of the Constitution of Pakistan, (iii) whether Respondent No. 3 could have been allowed to amend the format of oath, (iv) whether the words specified in Article 159 could have been changed and again the question has been posed, that (v) whether the oath taken in violation of Article 159, can be legalized ? 5. As we have already stated, the points raised in the writ petition was only limited that the oath of the post of Governor could not have been otherwise than in the name of “God” and particularly could not have been in the name of “Allah”. But, today, while advancing the arguments, learned counsel for the petitioner submitted that in view of the authoritative translation of the Constitution, which is also by the act of the Parliament, in the place of word “God”, the oath can be taken in the name of “Ishwar” also but cannot be in the name of “Allah”. Then the learned counsel for the petitioner submitted that “God” and “Ishwar” are the names of a super natural power and these names are accepted by all, irrespective of caste, creed and religion, but “Allah” is not an accepted form of the “God” or “Ishwar” by all. Then the learned counsel for the petitioner submitted that “God” and “Ishwar” are the names of a super natural power and these names are accepted by all, irrespective of caste, creed and religion, but “Allah” is not an accepted form of the “God” or “Ishwar” by all. The learned counsel for the petitioner also submitted that the word “Allah” is an Arabic word and the authentic language of the Indian Constitution is English and Hindi, therefore, the word uttered in Arabic language in taking oath by the Respondent No. 3, cannot be recognized and by using the word “Allah”, in fact, a different language, different from recognized language, has been used in taking oath, which is also not permissible under the Indian Constitution. 6. Then the petitioner's contention is that the three words have been added “Ke Nam Par”, which are not the words used in oath, prescribed under Article 159 of the Constitution of India. These arguments have been advanced by the learned counsel for the writ petitioner after studying the subject and he has relied upon the judgment of the Hon'ble Supreme Court in the case of Dental Council of India & Anr. Vs. Hari Prakash and Ors. reported in (2001) 8 SCC 61 and also upon the judgment of the Supreme Court in the case of Mohammad Ali Khan and Ors. Vs. Commissioner of Wealth- tax reported in AIR 1997 SC 1165 to emphasize that the language in the statute, if prescribes the particular procedure to be followed and there cannot be any change by any person. 7. It is very shocking that the above arguments have been submitted by the learned counsel for the writ petitioner, even after noticing the meaning of the word “God” from the two different dictionaries of the “Oxford” publication, which have been shown by learned counsel for the petitioner himself wherein, it has been clearly mentioned that God is known as “Allah” in Muslim religion. Therefore availability of books, easy access to knowledge without understanding is of no use. Therefore availability of books, easy access to knowledge without understanding is of no use. Even after reading these definitions, without putting any material from any author of the religion, without putting on record any other instance, further submitted that taking of the oath in the name of “God” is a custom, and the learned counsel for the petitioner also tried to convince this Court that in past, five of the Hon'ble Presidents of India, His Excellency Dr. Zakir Hussain, His Excellency Hon'ble Justice M. Hidaytullah, His Excellency Fakruddin Ali Ahmed and His Excellency A.P.J. Abdul Kalam, took oath in the name of “God” and therefore, this may be accepted to be as “custom” for the purpose of taking oath to the level that it became “custom” and this procedure has attained the status of “customary law”, ignoring the fact that what are the requirements of a custom to become law and contradicting his own arguments that where a procedure is prescribed by law, no other procedure is permissible. It has been submitted that, that is a custom to take oath in the name of “God” for Muslims so as to become a law, prohibiting all persons from taking oath of the Muslim community in the name of “Allah”, and now they are required to take oath only in the name of “God” or “Ishwar”. 8. Learned counsel for the petitioner more than once drew our attention to the fact that India is a secular country and we have already observed that we are shocked to see that such type of petitions, polluting the soul of the Constitution has been filed and that too not as a petition filed by a ignorant party, in person, but has been filed through Advocate, therefore, we specifically asked the pertinent question to the learned counsel for the writ petitioner that since the writ petitioner is a student as per the averments made in the writ petition, what research he (Advocate himself) did before signing such petition, rather to say before dictating this type of writ petition. From bare perusal of the writ petition, we can infer that it clearly proves that the writ petitioner himself did not do any work on the subject. From bare perusal of the writ petition, we can infer that it clearly proves that the writ petitioner himself did not do any work on the subject. It must be in the knowledge of all the Advocates that any petition filed in the Court not only in the name of Public Interest Litigation but in any other form, if they are putting their signatures on the petitions, though they may not to be required to verify the facts but their signatures can make them also responsible for abusing the process of the Court. They may be responsible for not making any study and filing the petition indicating certainly towards falling standard of the Bar and such their acts may defame entire Bar without any rhyme or reason and particularly, when a Court found that Bar has shown its worth in the matter of putting pleadings and arguing the matters. Since the petitioner's Advocate is a very young Advocate and he may have practised for ten years but has no much actual experience , therefore, we are making it clear to the Bar as a whole that the Court may not be liberal in such matters and the consequences for such Advocates may be much harsh than mere observations for the Advocate. 9. Why we have termed it as a shameful petition? Because of the very simple reason that in a secular country, respect to all religions is not only choice but is mandatory and no violation can be tolerated and when the Courts have entertained the Public Interest Litigation by evolving the procedure to do justice normally, to the weaker sections or for the persons who themselves cannot get the justice can also do the justice by dealing with such petition and petitioners, more strongly then anybody can expect from the Court. If one wants to use the Court as a launching pad for creating disharmony and destruction in the matter of any religion, then it will not be tolerated. If one wants to use the Court as a launching pad for creating disharmony and destruction in the matter of any religion, then it will not be tolerated. 10 .In this case, without any rhyme or reason and without any basis, rather say, contrary to the facts situation, contrary to the knowledge of the counsel himself, derived from the well recognized dictionaries defining the word “God”, “Ishwar” and “Allah” and making it clear that all are same and synonyms of each other , it has been argued that “Allah” is an accepted form of “God” only in Muslim Community and “Ishwar” is translation of “God” and the “God” and “Ishwar” are accepted name of God by all the communities. If such type of absurd arguments are entertained, then it appears that, learned counsel for the writ petitioner himself failed to understand that his submission amounts to saying that the “God” and “Ishwar” are the accepted form of the God in the Muslim Community and “Allah” is not accepted by all as word used for “God”. Such type of arguments clearly indicate that even in the authoritative dictionaries, definitions and expressions given can not satisfy the persons like the petitioner. We may also take help of the other dictionaries other than the dictionaries relied upon by the learned counsel for the writ petitioner, which are the Chambers Dictionaries, published by Allied India Limited, New Delhi in the year 2002, wherein also the word “Allah” has been shown to be the name of “God” and the same is the position in the New Oxford Dictionary of English, published in the year 1998, wherein also the word “Allah” has been shown as the name of “God” amongst the Muslim and learned counsel for the petitioner in his argument also stated that “Allah” is an Arabic name, reference of which is also found in the New Oxford Dictionary of English and therefore, we can presume that even after having the knowledge that there is no difference between the “God”, “Ishwar” and “Allah”, yet the argument has been advanced emphatically to project and a wrong has been committed by taking oath in the name of “Allah” violating the Constitution. Another dictionary, Oxford Advanced Learner Dictionary in the 7th Edition for “Allah”, it has been shown that it is a noun, and is the name of “God” amongst the Muslims and in the Hindi-English Dictionary, published by the publisher, P. Bose the Hindi word “Allah” has been defined to be not only as “God” but also as “Ishwar”, therefore, if the petitioner would have looked into any of the dictionary at least before objecting to the oath of the Governor of Jharkhand much less to any further study of the subject that what is synonym of what with reference to “God” and “Ishwar” he would not have filed the writ petition. Initially, learned counsel submitted and admitted that the “God” is noun and noun is not changed if it's reference is required in any other language and according to this reason also the 'God” could not have been spoken as “Allah” but when learned counsel found that his argument contrary to his argument that “God” has been translated by the approval of Parliament as “Ishwar”, he did not press this argument that “God” cannot be translated, yet argument for “Allah” is same that “Allah” cannot be translation of “God”. From this it appears objection against the oath is not for change in word but against use of name “Allah”. 11. Learned Additional Advocate General at this juncture, intervened and has shown the debate of Constituent Assembly, wherein, in the presence of members of all communities and religions, Sri H.V. Kamath while addressing on the form of oath has spoken as under:- “Therefore, Sir, in the end, I would appeal to the House that we are heirs to an immortal and a spiritual heritage, a heritage which is not physical, nor material nor temporal: a heritage which is of the spirit – a spirit that is, ever was, and ever shall be, a heritage that is eternal. Let us not squander this invaluable heritage. Let us not dissipate this heritage: let us remain true to our ancient heritage, our spiritual genius. Let us not lightly cast away the torch that has been handed down to us from time immemorial. Let us in the words of Swami Vivekananda aspire to conquer the world spiritually. Let us blaze forth a trial that will be the light of the world as long as the sun and moon and stars endure. Let us not lightly cast away the torch that has been handed down to us from time immemorial. Let us in the words of Swami Vivekananda aspire to conquer the world spiritually. Let us blaze forth a trial that will be the light of the world as long as the sun and moon and stars endure. I shall only end with the words which were ever on Mahatma Gandhi's lips: “Ishwar Allah tere nam Sabko Sanmati de Bhagvan” 12. In view of the above reasons, now we come to the literary interpretation of the Article 159 of the Constitution of India, which has been given by the learned counsel for the petitioner to Article 159. If we accept the arguments of the learned counsel for the writ petitioner, then it will be difficult to subscribe the oath of office by any person for the post of Governor, may he be of any caste, creed or religion and even if, he believes in “God” or “Ishwar”, because, according to the learned counsel for the writ petitioner's interpretation, not a single word in the format of oath can be added, can be substituted, can be altered or can be modified and therefore, the English word “God” and in Hindi translation, “Ishwar” could not have been uttered as “Allah”. The argument was with full vehemence and with full emphasis that not a single word can be deleted or substituted from the format of oath. Now, therefore, we would like to quote the entire Article 159 of the Constitution with the format of oath to understand the argument of the learned counsel for the writ petitioner. “159. Oath or affirmation by the Governor:- Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that Court available, an oath or affirmation in the following form that is to say - “I, A.B., do swear in the name of God that I will Solemnly affirm faithfully execute the office of Governor (or discharge the functions of the Governor) of ................ (name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of .......... (name of the State).” 13. In the main part of Article 159 of the Constitution, it is nowhere provided that the oath taking person shall utter his name while taking oath. We are mentioning this only to show the absurdity in the argument. Then, it is the format of oath, which has been shown to be so rigid, so as to not to accept a single alteration or omission of single word. Then the first words are “I A.B. do” ....and therefore, the persons who takes oath, he shall have to utter, while taking oath, “I A.B......” and not his name. Learned counsel for the petitioner then submitted that in place of “A. B.”, one can speak his name and when learned counsel for the petitioner was confronted with the words “[name of the State]”, has been used twice in the format of this oath, indicating clearly that where there is a requirement of insertion of a name, it has been provided in the format of the oath, specifically but so, has not been provided after the word A.B. how one can add his name in the oath while taking oath, there was no answer by the learned counsel for the petitioner. We painfully consider this aspect of the matter to that extent, because of the reason that format of oath has been projected to be of such great importance, so as to provoke a student (or a tool in the hands of other persons) to challenge the appointment of the highest constitutional authority in the State with the pleas touching the religious sentiments. Such type of the petitions can only demoralize the bona fide, laborious students, who have already shown their worth in the matter of raising issues of public importance by filing the Public Interest Litigation Petitions in the Court and also by arguing themselves. We do not want to demoralize such students. Consequence of such writ petitions can cause damage of disturbing the communal harmony also. We do not want to demoralize such students. Consequence of such writ petitions can cause damage of disturbing the communal harmony also. We fail to understand, what was the reason for raising objection for use of the word “Allah” and particularly when the word is well recognized and accepted worldwide as is apparent from the various dictionaries, apart from the very many authors, may have written on the meaning of the word “God”, “Ishwar” and “Allah”. 14. Then learned counsel for the petitioner vehemently submitted that the words “Ke Nam Par”, have been added in the oath, which are not the words in the format of the oath given in Article 159 which is apparent from the oath, taken by Respondent No. 3. Form in which respondent no. 3 sworn the oath has been placed on record by the petitioner along with the supplementary affidavit. 15. Learned counsel for the petitioner also submitted that in United States of America, the present President of the United States when missed to take oath in the exact format and some words have been either interchanged or missed while taking oath, the President of the United States voluntarily took oath afresh. Learned counsel for the petitioner brought the Constitution of the United States of America and relies upon Section 1 (8) of Article II, which is as under: - “Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” 16. The learned Additional Advocate General submitted and drew our attention to the Corpus Juris Secundum, Volume 67, wherein the oath and affirmation have been discussed in Corpus Juris Secundum says : - “S. 6 – Under Constitutional or Statutory Provisions,- Where a statute prescribes a particular form of oath or affirmation, that form should be followed; substantial compliance therewith may be sufficient. Library References Oath – 5. Constitutional or statutory provisions regulating oaths, their administration, and the filing of oaths, should be given effect. However, substantial compliance with the form prescribed by the statute is all that is necessary, and where no particular form is prescribed, there need be only a substantial compliance with the requirements of the statute. Library References Oath – 5. Constitutional or statutory provisions regulating oaths, their administration, and the filing of oaths, should be given effect. However, substantial compliance with the form prescribed by the statute is all that is necessary, and where no particular form is prescribed, there need be only a substantial compliance with the requirements of the statute. Where the oath taken complies with the statute, additional language therein, not required by statute, may be rejected as surplusage, and where a party makes no objection to the mode of administering an oath at the time, the oath is as valid as though it had been administered in strict conformity with the statute. The rigid rule which is applied to oaths in criminal proceedings has not been extended to ministerial acts in civil proceedings. An oath required under a rule of court may be required to affirm the truth of the matter on the basis of personal knowledge and not on the basis of hearsay. An affirmation, instead of an oath, may be taken where the case falls within the scope and meaning of a constitutional or statutory provision permitting it, but where the statute permits affirmation only if religious scruples against swearing are shown, such scruples must be shown. 17. From the language used in the American Constitution, it is clear that language in oath for American President and in Indian Constitution in Article 159 are different. In Indian Constitution, it has been provided that “an oath or affirmation in the following form, i.e. to say-” The learned counsel for the petitioner missed to note that in the Article 159, itself the words have been used “to say”. Meaning thereby that this is a format only and has been prescribed, which is to be used for oath and in Article 159, words have not been used that “he shall take following oath” or like words. Even when in American Constitution, the word “shall” has been used and it is written that “shall take the following oath or affirmation....” yet it has been observed that substantial compliance of oath is sufficient. As we have already found that the substantial compliance of oath in true spirit and meaning is the soul of any oath. Even when in American Constitution, the word “shall” has been used and it is written that “shall take the following oath or affirmation....” yet it has been observed that substantial compliance of oath is sufficient. As we have already found that the substantial compliance of oath in true spirit and meaning is the soul of any oath. An oath is an oath, when it is taken in the name of “God”, in which, one has faith and if one is non believer, an atheist then an oath solemnly, otherwise that cannot be an oath. Here in this case, in the form in which, oath has been subscribed by His Excellency, the Governor of Jharkhand, leads to one meaning and one meaning only, even after the use of the words “Ke Nam Par” that the Respondent No. 3 has taken oath in full and true sense and in the spirit of the provision made in the Constitution. The arguments which have been advanced by the writ petitioner without any legal foundation and without any study on the subject, needed to be deprecated. 18. Learned counsel for the petitioner for whom we have already observed that he has provided us, the copy of the Constitution of the United States of America and he is ready with two volumes of the books containing the constitution of almost all the countries and he ventured to look into the constitution of the Pakistan, a neigh bouring country and with the help of constitution of Pakistan, he drew our attention to the form of oath of the Governor of province in Pakistan as provided under Article 102 of the Constitution of Pakistan and learned counsel for the petitioner submitted that here the words have been used “[in the name of Allah, the most beneficent, the most merciful]”, therefore, the Respondent No. 3 while taking oath as the Governor of the State of Jharkhand virtually took oath as is provided in the Pakistani Constitution for Governor of province of Pakistan. We are rejecting this argument as worse than our already observed comments for the writ petitioner of filing the shameful writ petition. Simply because the word “Allah” has been used in the Constitution of Pakistan in the format of oath of Governor of province of Pakistan, can it be said that “Allah” is the solely of the country, Pakistan? We are rejecting this argument as worse than our already observed comments for the writ petitioner of filing the shameful writ petition. Simply because the word “Allah” has been used in the Constitution of Pakistan in the format of oath of Governor of province of Pakistan, can it be said that “Allah” is the solely of the country, Pakistan? It appears that in this petition, all sorts of wrongs has been done. 19.We would have dismissed this writ petition with heavy cost of at least Rs. 10 lacs but since writ petitioner is a student and we have to correct the young person and not to punish him by imposing fine of Rs. 10 lacs as he may not be in a position to bear this cost of Rs.10 lacs and hope that he will learn lesson and may not become misadventurist and in future, will devote his time in studies and in case, wants to approach the Court of law for filing the Public Interest Litigation, he will first study the subject and will do his research and then he will discuss the matter with relevant person and if finds difficulty in presenting his case through advocate because of, in his opinion, less understanding of the Advocate, then he himself should argue the matter and may not depend upon the Advocate who is ready to put his signature on any of the petition without understanding the matter and without making any research in the legal side on the issue so that such student's talent may not be affected because of non-proper presentation of his case in the Court. We are making these observations for the guidance of both the litigants as well as Advocates, indicating what is the role of the Advocate and more particularly, in the matter of Public Interest Litigation. We are constrained to observe that in spite of the several judgments of the Hon'ble Supreme Court, the Court's time has been not only wasted but procedure has been abused violently as well as mercilessly. In this regard, we may refer the judgment of the Hon'ble Apex Court delivered in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402 , wherein the appeal preferred by the respondent has been dismissed with a cost of Rs. In this regard, we may refer the judgment of the Hon'ble Apex Court delivered in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402 , wherein the appeal preferred by the respondent has been dismissed with a cost of Rs. 01 lac and the Hon'ble Supreme Court has laid down the guideline, which are as under:- (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with PIL, it is appropriate for each High Court to properly formulate rules for encouraging genuine PIL and discouraging PIL filed with oblique motives. The High Courts which have not yet framed the rules, should do so within three months. The Registrar General of each High Court is directed to ensure that a copy of rules prepared by the High Court is sent to the Secretary General of the Supreme Court immediately thereafter. (3)The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL. (4)The Courts should be prima facie satisfied regarding the correctness of contents of the petition before entertaining a PIL. (5)The Courts should be fully satisfied that substantial Public Interest is involved before entertaining the petition. (6)The Courts should ensure that petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7)The Courts before entertaining PIL should ensure that PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing public interest litigation. (8) The Courts should also ensure that petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and petitions filed for extraneous considerations. (Emphasis supplied) 20. The Hon'ble Supreme Court in para 143 considered the issue of abuse of Public Interest Litigation which we would like to quote here: “Of late, such an important jurisdiction as public interest litigation which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. Time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. The Court has to protect and preserve this important jurisdiction in the larger interest of the people of this country but effective steps have to be taken to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts”. (Emphasis supplied) 21. We may notice from this judgment that in a public interest litigation, the Hon'ble Supreme Court has considered as many as 111 judgments to decide that petition, which the Hon'ble Supreme Court found to be so frivolous that after observing very/many many things, dismissed the writ petition with cost of Rs. 01 Lac only and we can understand the labour which is being done by the Courts even in the matter, where frivolous petitions are filed for oblique motive. Looking to the age of the writ petitioner and his educational qualifications, coupled with the fact that he has annexed a newspaper cutting, wherein, it has been indicated that an objection has been raised against the respondent No. 3's taking oath in the manner, which we have considered and he also pleaded in the writ petition that such objection was raised by one Member of the Legislative Assembly, he may have been inspired by such act of any individual but ignored that such MLA himself did not approach this Court. There may be possibility that a young boy may have been misguided by the objections referred above and we hope that he may not have become a tool in the hands of any other person or persons, who acts in unscrupulous manner and we hope that it may be his own misadventurism, which can be tolerated in place of his becoming tool in the hands of others in such a sensitive and important issue. 22.We are of the opinion that the writ petition is not a bona fidely filed writ petition nor has been filed for public interest, rather it has been filed with ulterior motive may be if the petitioner does not know any thing because of his lack of understanding but has abused the process of the Court. 23. As we have already observed that in view of the age of the writ petitioner and his education, we are not imposing exemplary cost of Rs.10 lacs. 23. As we have already observed that in view of the age of the writ petitioner and his education, we are not imposing exemplary cost of Rs.10 lacs. Accordingly, this writ petition is dismissed.