The controversial judgment passed by the single bench of Justice S R Sen of Meghalaya High Court observing that India ought to have been declared a "Hindu Rashtra", has been set aside by the Division Bench in appeal.
The Division Bench of Chief Justice Mohammed Yakoob Mir and Justice H S Thangkhiew observed that the judgment was "legally flawed and inconsistent with constitutional principles".
While considering a petition relating to refusal of Domicile Certificate to an army recruit, Justice Sen(now retired) had observed that anybody opposing the Indian laws and Constitution cannot be considered as a citizen of this country. Justice Sen further went ahead to observe that India should have been declared a "Hindu Rashtra" based on religion.
"…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", Justice Sen had observed in the December 10 judgment.
After the judgment caused an uproar, Justice Sen issued a clarification two days later stating that he was not a "religious fanatic" and that the judgment has been "misinterpreted".
While setting aside the judgment in appeal by the Meghalaya Government, the Division Bench observed :
"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"
The Division Bench observed that the issue in the the writ petition was very simple i.e. whether the petitioner was entitled to the domicile certificate. But the single bench "travelled beyond the pleadings" in making the observations.
"The observations and directions being not inconformity with law, in-consistent with constitutional principles and being superfluous in the context of the memo of writ petition and provisions of the Constitution shall have to be ignored, as such shall be treated as non est", said the bench.
The Division Bench underlined that a judge should not be guided by emotion.
The directions in the judgment regarding bringing a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis,Khasis and Garos who have already come to India and who are yet to come from Pakistan, Bangladesh and Afghanistan were criticised by the bench.
"These were not the issues at all and have a colour of offending secular colour of the country and the provisions of the Constitution of India", the Division Bench observed.
Any observation directly or in directly which offends the preamble of the Constitution cannot be sustained, added the Division Bench.
Justice Sen, who retired last March, had also had made an appeal to Prime Minister Narendra Modi to protect India from becoming another Islamic country, observing, "I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a dooms day for India and the world. I am confident that only this Government under Shri. Narendra Modiji will understand the gravity, and will do the needful as requested above and our Chief Minister Mamataji will support the national interest in all respect."
The judgment of Justice Sen had drawn widespread criticism from several quarters as opposed to the secular ethos of the Constitution.
A petition is at present pending in the Supreme Court seeking removal of these observations.