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Judgment
F.I. Rebello, J.—Rule.
Respondent waives service. By consent Rule made returnable and heard forthwith.
The Petitioner in the present case has challenged a part of the show cause notice dated 10th October, 1998 wherein the Petitioner has been called upon to furnish two sureties of respectable people from the locality. The further condition imposed is that the sureties must be well educated citizens, one practicing the Hindu faith and the other Muslim. The third condition is that the sureties must be from the same locality and the fourth that they are well educated.
It is the contention of the Petitioner that the order of the Special Executive Magistrate imposing conditions calling on the Petitioner to furnish sureties of well educated persons, one practicing the Hindu faith and the other Muslim is not sustainable. Such an order it is pointed out would be contrary to and in violation of Articles 14 and 21 of the Constitution of India. Article 21 sets out that no person shall be deprived of his life or personal liberty except according to the procedure, established by law. It is therefore, contended that by imposing a condition as imposed by the learned Special Executive Magistrate the Petitioner''s personal liberty is violated under Article 21 apart from action of the Magistrate being arbitrary in as much as it is violative of Article 14 of the Constitution of India.
Learned Additional Public Prosecutor on behalf of the State points out that the area is a communally sensitive area and therefore the actions of the Magistrate are bona fide taking into consideration the situation in the locality. It is, therefore, contended that this cannot be said to be an arbitrary or capricious exercise of power. Such a condition it is contended will not be violative of Article 14 nor for that matter will offend Article 21 of the Constitution of India.
One of the conditions imposed by the impugned order requires the Petitioner herein to furnish sureties one each from a person practicing the Hindu and Muslim faith respectively. In other words, the sureties are identified based on their religion. The other condition is that the person must be respectable. The third condition is that the persons must be well educated and the fourth is that they should be from the same locality.
In so far as the condition that the sureties must be respectable people the condition perhaps cannot be faulted as the whole purpose is to maintain peace in the area. It is true that the perception as to who is respectable may change from person to person. Generally speaking a person from the locality, normally not involved in offences involving moral turpitude or for that matter other such offences which may attract provisions of the Indian Penal Code or any special legislation excluding acts where a person is charged for bona fide political activities or like manner. This requirement, therefore, by the Magistrate that the sureties must be respectable persons cannot be found fault with if this broader aspect of the expression is understood.
Similarly, will be the case of the requirement that sureties must be from the same locality. It is true that Krishna Iyer, J. in matters of bail application has held that it is not a requirement that sureties in so far as the bail is concerned, must be from the same locality. Many a time it may be impossible for a person arrested in a particular case if he does not have roots in that community or place to furnish surety from the said place. In the instant case, however, sureties have been called upon from the Petitioner for the purpose of securing peace in the area. In other words, the man is from the locality. It is under these circumstances that the condition of person being from the locality has to be understood. I, therefore, can find no exception in the said condition.
That leaves us with two other conditions imposed viz. that sureties must be persons belonging to particular religious faiths and well educated persons. It is the basic principle of our Constitution that there can be no discrimination. Classification is however possible provided it has reasonable nexus with the object to be achieved. In the instant case the object is to maintain peace in a communally sensitive area. Can communal peace be maintained only if sureties are people professing two different faiths. Can sureties be classified based on the religion they profess. The Constitution in respect of certain matters has recognised and granted special protection to religious and linguistic minorities pertaining to their religious beliefs and/or setting up and establishing educational institutions or in matters of their language. Apart from that is it possible to classify the citizens of this country based on their religious group to maintain peace and order. That would be against the very basic philosophy of our Constitution which recognise only citizens of India. Classification based on faith to promote the objective of achieving peace may be laudable but in the end self defeating. What happens say if in a communally tense area people professing one religion do not come forward as sureties for a person professing a faith different from them and unfortunately in the present scenario this cannot be ruled out. Does this mean that their freedom is dependant on the faith they profess. This will be totally repugnant to the secular character of our Constitution. Article 15 of the Constitution, sets out that the State shall not discriminate against any citizen on ground only on religion, caste, sex or place of birth or any of them. This is an indication that citizens cannot be discriminated based on their faith, though Article 15 is based on different precept.
The notice has been issued u/s 107. The conditions imposed by the notice must therefore satisfy the requirement of Article 14 i.e. that it is not arbitrary in other words should not be against our constitutional philosophy and such a condition should not be violative of a citizen''s right to life and liberty granted by Article 21 of the Constitution. Liberty of an individual can only be restricted or affected by due process of law. In the instant case, the due process of law could be by issuance of notice u/s 107. However, the conditions in the notice must be non-arbitrary and non-discriminatory. A condition that sureties must be from two different religion denominations would clearly be arbitrary. This is nothing but a hangover of the colonial past. It is not in consonance with the Constitution which we gave to ourselves nor in consonance with the constitutional spirit as reflected in the preamble to the Constitution of India. The condition, therefore, is clearly arbitrary.
The other condition is that sureties must be well educated citizen. National statistics on education itself reveals as to what is the percentage of citizens of this country who are educated, and where not even 50% of our citizens have had access to primary education. What the Magistrate requires is a well educated citizen. What happens to the liberty of a citizen if only few available in the area for some personal reasons do not want to offer themselves as sureties. Must the life and liberty of citizens depend on the whims and fancies of well educated citizens. Even otherwise how is the object of maintaining peace, achieved by such a condition. Where in history or experience is there support for such a proposition that a citizen with a good education is necessarily a good citizen. What is well educated has also not been defined. Is it the requirement that the person must be a graduate, double graduate or holding a doctorate. Such a condition therefore is also clearly arbitrary.
In the light of that the following order:
(1) Condition that sureties must be from particular faith is arbitrary.
(2) Condition that the sureties must be well educated is also arbitrary.
(3) In the light of the above conditions in the show cause notice dated 10th October, 1998 are quashed and set aside.
Rule made absolute in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs.