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A Bench of Chief Justice Mohammad Yaqoob Mir and Justice HS Thangkhiew ruled that the judgment of Justice SR Sen is legally flawed and is inconsistent with the constitutional principles. The observations made and directions passed in the judgment are totally superfluous, the Division Bench held.
Therefore it set aside the judgment in its entirety.
“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.”
On December 10 last year, Justice Sen in his controversial judgment had urged the Prime Minister, Home Minister, Law Minister and the MPs to enact laws to allow the Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in India and to be given citizenship.
The judgment, which was delivered in a case pertaining to domicile certificate, had also stated that India should have been declared a Hindu country during the Partition, though it chose to remain a secular nation. It stated,
“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”
The judgment had caused outrage and Justice Sen had to subsequently issue a clarificatory statement asserting that “I am not a religious fanatic rather I respect all the religions because to me God is one.”
An appeal was filed against the same in the Supreme Court. A PIL filed against the same is still pending before the Supreme Court.
The High Court, however, noted in its judgment that pendency of SLP in Supreme Court will not bar the Division Bench from deciding the instant appeal.
“Pendency of SLP with aforesaid prayer in our humble opinion will not operate as a bar for deciding the instant appeal as is also submitted by learned counsel for the parties, more so Hon‟ble Judge against whom aforesaid relief has been sought on reaching superannuation has retired.”