Quraan Society vs The Union of India (UOI) and Others

P.S. Mishra, C.J.—The Society purportedly formed for the purpose of advancement of the case of the Muslims in all respects has moved this Court under Article 226 of the Constitution of India, seeking inter alia, a Writ, order or direction in the nature of Mandamus, to restrain the respondents from holding the elections slated to be held on and from 27th April, 1996 for the Lok Sabha as well as six State Assemblies in the country and for a direction that elections be held only after 20th May, 1996.

The present Lok Sabha, it is stated in the affidavit on behalf of the petitioner, is to reach its end by 19th June, 1996. Elections are proposed to be held however from 27th April, 1996 onwards in four stages. It is alleged the 1st respondent-Union of India as well as the Prime Minister of India suggested holding the elections in the last week of May and first week of June, 1996. The 2nd and 3rd respondents however i.e., the Election Commission of India and the Chief Election Commissioner rejected the representation of the 1st respondent and the Prime Minister as well as various other persons and decided to hold elections in the last week of April, 1996 and the first week of May, 1996.

It is stated however that the proposed elections are falling In the month of Zilhijah, which is a holy month for every Muslim and the period of the Haj pilgrimage to the holy Mecca, the place of birth of Prophet Mohammed and the Khane-e-Kaba, the house of God located at Mecca in Saudi Arabia Holy Quran enjoins every Mussulman to visit Mecca in the holy month of Zilhijah and Muslims all over the world take it as their religious duty to visit Mecca once in life time. The month of Zilhijah begins from 20th April and such Muslims who decide to visit Mecca would stay for a period of 10 to 15 days and the visit to the land of Khane-e-Kaba and other holy places in Saudi Arabia would take not less than two weeks time. Petitioner also states:-

"As per the practice, every muslim has to perform certain Religious duties at Makka and thereafter, he shall visit the Madina, which is located in Soudi Arabia and which is around 800 K.M. away from Makka. Madina is a place where the Prophet Mohammed stayed there for 10 long years and died. He was buried there, hence, it is a Holy Place for every Muslim. Every Muslim who visits the Madina must offer prayers 40 times i.e., 5 times a day for 8 days. The place known as Gubade Khazra is the Holyist place for all the muslims. This pilgrimage will take atleast one month to complete. Every year around 2 lakh people from this country will visit Makka and Madina, in this Holy month. If the permission is given, more number of muslims will visit the Holy Place in this Holy month. In view of the nonavailability of the facilities at Makka for such a huge croud, the Government of India restricts the number of persons, who can visit Makka."

Contending accordingly that there is a conflict between the performance of the religious duty and the exercise of franchise which every adult above 18 years of age for at least about 2 lakhs of Muslims who are permitted to visit Mecca in the holy month of Zilhijah, the petitioner states that the decision to hold elections in the last week of April and the first week of May, 1996 by the 2nd and the 3rd respondents has the effect of denying to a substantial number of potential voters belonging to the Muslim community the right of franchise and vote to elect their representatives as well as their right under Article 25 of the Constitution of India to profess, propagate and practise their religion and belief.

Part XV of the Constitution of India contains provisions as to elections to Parliament and to the Legislature of every State and of elections to the Office of President and Vice President held under the Constitution and provides for elections to the House of the People and to the Legislative Assemblies of the States to be on the basis of adult suffrage. Article 326 therein states that the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. Article 327 of the Constitution states that subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Article 328 gives power to the Legislature of a State to make provision with respect to election to such Legislature in so far as provision in that behalf is not made by the Parliament. Article 324 vests superintendence, direction and control of elections in the Election Commission and provides for the appointment of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment after consultation with the Election Commission of Regional Commissioners. The Representation of the People Act, 1950 followed by the Representation of the People Act, 1951, the law contemporaneous to the adaptation of the Constitution by the people of India and other laws supplemental to the provisions in the said Acts take care of the nominations, withdrawal of nominations, scrutiny of nomination papers and holding of poll, if necessary and publication of results of the election etc. These laws give to the Election Commission authority to schedule the elections and it is not in dispute the Election Commission of the day i.e., the Chief Election Commissioner and besides him two Election Commissioners have decided and accordingly notified the schedule of election to the House of the People i.e., Lok Sabha and six State Assemblies.

One can take judicial notice of the fact that the Commission before deciding upon the election schedule for the house of the People and the State Legislatures entered into consultations with the political parties and the Government of India and took into account the consensus of all those who are primarily concerned with the elections before giving its approval to the schedule of elections. It is needless to emphasize that with a clear secular commitment to a democracy in the Indian Republic under the Constitution of India, liberty of thought, expression, belief, faith and worship is a primary and basic tenet. That is how the people of India have resolved to constitute India into a sovereign socialist secular democratic republic. Nothing which will impair liberty of thought, expression, belief, faith and worship subject to the provisions of the Constitution of India can find approval of the ultimate sovereign i.e., the people of India. The House of the People and the State Legislatures are constituted to perform the solemn duty of securing to all the citizens of India justice-social, economic and political, equality of status and of opportunity, liberty of thought, expression, belief, faith and worship and to promote among the people of India fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The basic features of the Constitution under which the Republic of India is constituted are obviously, if nothing more secularism and democracy. Constitution is not a mere law. It is also the machinery by which laws are made. It is a living and organic thing which of all instruments has the greatest claim to be construed broadly and liberally. (See Goodyear India Ltd., Gedore (India) Pvt. Ltd., Kelvinator of India Ltd. and the Food Corporation of India and Another Vs. State of Haryana and Another, ). Articles 25, 26, 27, 28, 29 and 30 together deal with right to freedom of religion and secure for the Nation, subject to public order, morality and health and through the other provisions of Part-Ill of the Constitution, freedom of conscience and the right freely to profess, practise and propagate religion. Adherence to one''s religious practice thus is one of the fundamental freedoms of all persons who live or stay on the soil that is called India. Amongst the accepted commands of Islam like Namaz and Zakath as religious practices of every Musalman, Haj is also a practice which every Muslim aspires to fulfil. No interference thus can be permitted to a Mussulman''s decision to perform Haj. Any interference with that shall be interference with one such fundamental freedom which every Indian enjoys under the Constitution of India. Security, however, to the above freedom is ensured by keeping the secularism alive and effective and secularism can survive only if democracy is not at peril. The document of faith of the people of India will remain a mere illusion if the fundamental of the fundamentals i.e., democracy is not secured and is threatened by any act of any section of its people.

Learned Counsel for the petitioner has fairly accepted the position that the House of the People and the State Legislatures have to be constituted as without their being constituted and without their functioning, the people will cease to have any representation and constitutional institutions will cease to be representative in character. He has pointed out that any schedule for elections to the House of the People and the State Legislatures coinciding with the expiry of the period of the present House of the People i.e., Lok Sabha and other State Legislatures without in any manner interfering with the freedom of the Muslim community to perform Haj in the holy month of Zilhijah would have balanced the interest of the democracy on the one hand with that of the Muslim community on the other hand and caused no interference with either of the two interests i.e., the interests of the democracy and the freedom of religious practice.

Indeed, it shall be advisable and it shall always be in the interests of the people if care is taken that obligations arising under the Constitution do not affect the fundamental freedoms including the freedom of conscience and religion. While balancing however, various public interests, it will be necessary to see interests of the people of all hue and colour of every faith and belief and of every region of the country. Democracy no doubt is a rule by majority in the sense that persons elected by the majority votes and constituting the majority in the Legislature including the House of the People form the core of the executive to execute the mandates of the Constitution. A rule of majority however, does not mean, interests of the minority are ignored. A rule of majority in a democracy is the rule of the representatives who are elected by the majority of the voters and who take care of the interests of the minority also who have either not voted for them or have a different choice. Constitutional authorities, wherever they are, are expected to bear the above in mind in taking any decision touching the interests of the people or any section thereof.

When however, we come to the issue before us, we are not in a position to find that in fixing various schedules for elections for the house of representatives and the State Legislatures, the above has not been kept in mind. It appears, for those who have opted for the Haj this year or at least for quite a few of them the schedule for the elections is not suitable. If they opt for exercising their franchise and the right to vote, they may have to postpone the pilgrimage to Mecca. There is thus some element in the dates decided by the Election Commission for the elections of touching the freedom of conscience and religion of such voters who have opted for Haj and who have been sponsored for the pilgrimage by the Government of India. We do not have however, materials to suspect any foul in the decision of the Commission with a view to deny to the members of the Muslim community their right of franchise and vote during the proposed elections. The benefit must go to the Commission of balancing the interests of every person who is a voter. Since the Commission has, we have already noticed, taken the above decision after a number of consultations with the representatives of the various political parties (there is no material and there is no reason to think that political parties have not represented the interests of the Muslim community when they have expressed their opinion), a slight and a small infraction of the right of a community or a religious denomination on account of the more pressing need of preserving the democracy, in our opinion, cannot give such a cause that the Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.

Before we part with the judgment, we express in no uncertain terms, that at no time the Election Commission is expected to ignore the interests of any section of the people of India in deciding about the elections or in respect of any matter touching the affairs of election and in doing so, obviously, to bear in mind interests of all communities and religious denominations. Any departure from the above may in a given situation make commission''s decision violative of the rights of the people or any section thereof and the Court may not be left with any alternative but to interfere with any such decision of the Commission.

For the reasons as above, we do not feel persuaded to entertain the instant petition. The petition is accordingly dismissed.