@JUDGMENTTAG-ORDER
A.P. Shah, C.J.@mdashThe Election Commission of India with a view to improving the fidelity of the electoral rolls and to evolve methods to
check impersonation and eradicate bogus voting decided to undertake the project of putting the photographs in the electoral roll itself so as to
achieve the purpose of proper identification of the electors at the polling stations. Accordingly, the Commission during the year 2003 undertook
pilot projects in two Assembly Constituencies in Kerala and two Assembly Constituencies in Harayana. In view of the encouraging results, the
Commission issued a direction vide its communication dated 18.12.2003 to the Chief Electoral Officers of all the States and Union Territories.
Pursuant to the directions issued from time to time in this regard the work had begun in various States for preparing electoral rolls with
photographs. So far as the State of Kerala and the Union Territory of Pondicherry are concerned, the preparation of electoral rolls with
photographs has been fully completed and also used in the General Elections held in May 2006. In so far as the State of West Bengal is
concerned, in 46 Assembly Constituencies the work was completed and the photo rolls were used in the General Elections held in May 2006. In
so far as the State of Tamil Nadu is concerned, the Election Commission has directed to prepare and revise the electoral rolls with photographs of
voters keeping 1.1.2006 as qualifying date for Madurai Central Assembly Constituency and in respect of the other 233 Assembly Constituencies,
the qualifying date is 1.1.2007. Bye-election has to be conducted before 19.11.2006 for Madurai Central Assembly Constituency in view of the
sudden demise of its representative immediately after the General Elections in May 2006. In respect of 143- Madurai Assembly Constituency
photo electoral roll has been prepared and the draft photo electoral roll was published on 11.8.2006 and the final photo electoral roll is ready to
be published.
2. The constitutional validity of the aforesaid direction is put in issue in this writ petition under Article 226 of the Constitution of India. The
petitioner- M.Ajmal Khan is seeking for issuance of writ of mandamus forbearing the Election Commission from in any way publishing or releasing
the photographs of the women particularly the Muslim Gosha women in the eligible voter''s list in respect of all the Constituencies in the State of
Tamil Nadu particularly for the ensuring bye-election to Madurai Central Assembly Constituency. The contention of the petitioner is that though the
requirement of photo identity cards to be kept by eligible voters for the purpose of voting cannot be disputed or the same cannot be found illegal as
it is in the welfare of the General Election and towards the fairness, but the usage of such photographs in the final electoral rolls, which is easily
accessible to any one including the representatives of political parties on payment of necessary charges, cannot be said to be necessary and
mandatory for ensuring fair election. The usage of photographs in the electoral rolls of eligible voters and in particular the photographs of Muslim
Gosha Women will easily find its way into the hands of those persons whose identity is not known, which is opposed to religious beliefs, tenets of
Koran and it will cause irreparable loss, damage, mental agony to the entire muslim community at large. It is contended that wearing of purdah by
Muslim women is one of the principles laid down in Holy Koran and it has to be strictly followed by Muslim women. From the time immemorial the
Muslim women are adhering to these principles in their life. Therefore, any interference with such religious practice would amount to interfering with
the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India.
3. Mr. K.M. Vijayan, learned senior counsel appearing for the petitioner strenuously contended that wearing of purdah by Muslim women forms
integral part of the religion and cannot be disassociated from that. That being so, the impugned direction of the Election Commission amounts to
violation of Article 25(1) of the Constitution of India. Learned Counsel cited several verses from Koran from the translation of M.M. Pickthali
which according to learned Counsel show that there are injunctions in Koran which prohibit ladies coming out in public showing their faces and a
fortiori taking of photograph. In any event, according to Mr. K.M. Vijayan, the right protected by Article 25 of the Constitution can be taken away
only by a valid law enacted by the State Legislature or the Union Legislature and not by a direction of the Election Commission which is in the
nature of an executive direction under Article 324 of the Constitution of India. Learned senior counsel urged that the impugned direction is also
violative of right of privacy protected by Article 21 of the Constitution of India. A contention is also raised by the learned senior counsel that the
impugned direction is contrary to the Registration of Electors Rules, 1760.
4. In reply, Mr. G. Rajagopalan, learned senior counsel appearing for the Election Commission submitted that the Election Commission with a view
to ensure free and fair poll is empowered to issue necessary directions under Article 324 of the Constitution of India for preparation of photo
electoral rolls. He submitted that Rule 4 of the Registration of Electors Rules, 1960 clearly provides that the roll for each constituency shall be
prepared in such form and in such language or languages as the Election Commission may direct. The Election Commission has already issued
necessary directions under Rule 4 and issued the form for preparation of photo electoral rolls. He submitted that the contention of the petitioner
that the usage of photographs in the electoral rolls of the eligible voters and particularly the Muslim Gosha women is opposed to their religious
belief has no legal basis whatsoever. In fact there has been no problem in Kerala, Pondicherry and West Bengal and all Muslim women
cooperated. Even with regard to Madurai Central Assembly Constituency there was no complaint at all from any Muslim women when they were
photographed. He submitted that any right of a citizen with regard to the election is pure, simple and statutory right and the Commission, as a
constitutional authority, is bound to treat all equally and no exception could be taken on the supposed ground of any religion.
5. The main submission of Mr. K.M. Vijayan is that Gosha or Purdah forms integral part of the religion and therefore, Election Commission has no
right to issue any direction interfering with such right protected by Article 25 of the Constitution. The relevant part of Article 25 reads as under:
25. Freedom of conscience and free profession, practice and propagation of religion: -- (1) Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate
religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law--
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of
Hindus.
A bare reading of this article shows that the freedom is subject to public order, morality and health. So the article itself permits a legislation in the
interest of public order, morality, health, etc.
6. The meaning of religion - the term as employed in Article 25 and the nature of protection conferred by Article 25 stands explained in The State
of Bombay Vs. Narasu Appa Mali, , where Chagla, C.J. Speaking for the Bench in dealing with the validity of Bombay Prevention of Hindu
Bigamous Marriages Act, whether was in violation of Article 25 of the Constitution, held as follows: -
A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If
religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the
religious practices must give way before the good of the people of the State as a whole. It is rather difficult to accept the proposition that polygamy
is an integral part of Hindu religion. But even assuming that polygamy is a recognized institution according to Hindu religious practice, the right of
the State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution, an institution in which the
State is vitally interested. If, therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social reform, and the
State is empowered to legislate with regard to social reform under Art. 25(2)(b) notwithstanding the fact that it may interfere with the right of a
citizen freely to profess, practise and propagate religion. Therefore, this legislation does not contravene Art. 25(1) of the Constitution.
7. In Masud Alam and Others Vs. Commissioner of Police and Another, , the Commissioner of Police refused his permission to the use of an
electrical loudspeaker five times a day for calling the Azan (call for prayer) as several residents of the locality complained against the practice. It
was argued for the Mutawalli of the mosque that had introduced the loudspeaker that the liberty allowed under Art. 25 of the Constitution has
been curtailed by the suppression of the use of loudspeakers to propagate the Azan in a very crowded and noisy locality where the Azan cannot
be heard, unless magnified by some such device as a loudspeaker. Sinha, J. rejecting the argument observed thus: -
No doubt, India is a secular State and under Article 25 of the Constitution, all persons are at liberty to freely practise their religion. But the above
argument overlooks the essential features of Art. 25. For, a sharp distinction must be drawn between religious faith and belief and religious
practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health, then the religious
practices must give way before the good of the people of the State as a whole.
The learned Judge further observed,
I have a few words to say about the use of loudspeakers in connection with religious houses or festivals. The discovery of the means to magnify
sound has indeed been a major scientific discovery of the age and is utilised in many useful ways, e.g., the telephone, radio etc. But like every
modern discovery in science, it has helped to create not merely a heaven but also a hell.
The indiscriminate use of the electric loudspeaker in connection with religious festivals in the city is a standing grievance of every peace-loving
citizen. The most offending instances are the uses of which it is put in connection with Hindu festivals, when the city is rocked with the raucous
cacophony of a thousand loudspeakers, dolling out cheap jazz or cinema music, which is not only singularly inappropriate to such occasions, but to
my mind, destructive of public health and morals.
8. In Gulam Abbas and Others Vs. State of U.P. and Others, , the Supreme Court taking note of the fact that for several years there had been
violent clashes between the Shias and Sunnis of Mohalla Doshipura, Varanasi leading to proceedings and several petitions before the Supreme
Court and to find a perennial solution to the problem appointed a Committee of 7 persons constituting of 3 nominees of Shias and 3 nominees of
Sunnis and the Divisional Commissioner as the Chairman. The Chairman despite the opposition of Sunnis, recommended that shifting of their two
graves so as to separate the places of worship of Shias and Sunnis was feasible. The Sunnis challenge implementation of the recommendation on
the ground of violation of their rights under Arts. 25 and 26 and lack of jurisdiction of the Supreme Court to so order. The Supreme Court held:
The exercise of fundamental rights under Arts. 25 and 26 is not absolute but must yield to give way to maintenance of public order and the
impugned suggestion was mooted by the Court and has now been found to be feasible by the Chairman of the Committee in the larger interest of
the society for the purpose of maintaining public order on every occasion of the performance of religious ceremonies and function by members of
both the sects. If the Court finds the implementation of the suggestion to be eminently fit in the interest to maintenance of public order consent of
either party would be immaterial.
9. In Dr M. Ismail Frauqui and Others Vs. Union of India (UOI) and Others, the Constitution Bench held that the protection under Articles 25 and
26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious
practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.
10. In Mohd. Hanif Quareshi and Others Vs. The State of Bihar, , the State legislation placing a total ban on cow slaughter was under challenge.
One of the submissions made was that such a ban offended Article 25 of the Constitution because such ban came in the way of the sacrifice of a
cow on a particular day where it was considered to be religious by Muslims. Having made a review of various religious books, the Court
concluded that it did not appear to be obligatory that a person must sacrifice a cow. It was optional for a Muslim to do so. The fact of an option
seems to run counter to the notion of an obligatory duty. Many Muslims do not sacrifice a cow on the Id day. As it was not proved that the
sacrifice of a cow on a particular day was an obligatory overt act for a Mussalman for the performance of his religious beliefs and ideas, it could
not be held that a total ban on the slaughter of cows ran counter to Article 25 of the Constitution. This judgment has been upheld by the Bench of
seven Judges in State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and Others, .
11. In the light of the decisions enunciated in the aforesaid judgment, it is necessary to examine whether the Gosha or Purdah is an essential
ingredient or part of the Muslim religion. The famed Koran translator Mohammad Marmaduke Pickthall, whose official translation of Koran was
cited before us said in his 1925 lecture ""The Relation of the Sexes"" that there is no text in the Koran, no saying of our Prophet, which can possibly
be held to justify the practice of depriving women of the natural benefits which Allah has decreed for all mankind (i.e. Sunshine and fresh air and
healthy movement).... The true Islamic tradition enjoins the veiling of the hair and neck, and modest conduct - that is all. This is borne out by the
following Hadith: Ayesha (R) reported that Asmaa the daughter of Abu Bakr (R) came to the messenger of Allah (S) while wearing thin clothing.
He approached her and said : ''O Asmaa! When a girl reaches the menstrual age, it is not proper that anything should remain exposed except this
and this. He pointed to the face and hands."" (Abu Dawood). He further observed that veiling of the face by women was not originally an Islamic
customs. It was prevalent in many cities of the East before the coming of Islam, but not in the cities of Arabia. The purdah system, as it now exists
in India, was quite undreamt of by the Muslims in the early centuries, who had adopted the face-veil and some other fashions for their women
when they entered the cities of Syria, Mesopotamia, Persia and Egypt. It was once a concession to the prevailing custom and was a protection to
their women from misunderstanding by peoples accustomed to associate unveiled faces with loose character. Later on it was adopted even in the
cities of Arabia as a mark of (tamaddun) a word generally translated as ''civilization'' but which in Arabic still retains a stronger flavour of its root
meaning ''townsmanship'' that is carried by the English word. It has never been a universal custom for Muslim women, the great majority of whom
have never used it, since the majority of the Muslim women in the world are peasants who work with their husbands and brothers in the fields. For
them the face-veil would be an absurd encumbrance. Thus the Purdah system is neither of Islamic nor Arabian origin. It is of Zoroastrian Persian,
and Christian Byzantine origin. It has nothing to do with the religion of Islam, and, for practical reasons, it has never been adopted by the great
majority of Muslim women.... The Purdah system is not a part of the Islamic law. It is a custom of that Court introduced after the Khilafat had
degenerated from the true Islamic standard and, under Persian and Byzantine influences, had become mere Oriental despotism. It comes from the
source of weakness to Islam not from the source of strength.
12. A noted Sudanese scholar, Dr. Hassan al-Turabi, in his trace ""On the Position of Women in Islam and in Islamic Society"" states that the verses
of the Koran ordained that the wives of the Propet (peace upon him) draw a curtain (to ensure privacy in the Prophet''s room which naturally
attracted many visitors of all sorts), and that they dress up completely without showing any part of their bodies including face and hands to any
man; though all other Muslim women were exempted from these restrictions.
13. The Canadian writers Syed Mumtaz Ali and Rabia Mills in their essay Social Degradation of Women - a Crime and a Libel on Islam explain:
One must realize and appreciate the fact that the commandment in the Qur''an in Chapter 33, verse 53, with respect to the Hijab, applies only to
the ""Mothers of the believers"" (the wives of the Holy Prophet, p.b.u.h.) whereas the wording of the Qur''an in Chapter 33 verse 55, applies to all
Muslim women in general. No screen or Hijab (Purdah) is mentioned in this verse - it prescribes only a veil to cover the bosom and modesty in
dress. Hence the unlawfulness of the practice of the Indian-style system of Purdah (full face veiling). Under this system, the Hijab is not only
imposed upon all Muslim women, but it is also quite often forced upon them in an obligatory and mandatory fashion. Even the literal
reading/translation of this Quranic verse does not support the assertion that the Hijab is recommended for all Muslim women. The Hijab/screen
was a special feature of honour for the Prophet''s p.b.u.h. wives and it was introduced only about five or six years before his death.
14. In the English translation of Koran by Muhammad Asad in Note 37 states ""We may safely assume that the meaning of illa ma zahara minha is
much wider, and that the deliberate vagueness of this phrase is meant to allow for all the time-bound changes that are necessary for man''s moral
and social growth."". In the Article ""The Question of Hijab: Suppression or Liberation"" published by The Institute of Islamic Information and
Education (III&E) and reproduced in electronic form by Islamic Academy for Scientific Research the author states that the question of Hijab
(Purdah) for Muslim women has been a controversy for centuries and will probably continue for many more. Some learned people do not consider
the subject open to discussion and consider that covering the face is required, while a majority are of the opinion that it is not required. A middle
line position is taken by some who claim that the instructions are vague and open to individual discretion depending on the situation. The wives of
the Prophet (s) were required to cover their faces so that men would not think of them in sexual terms since they were the ""Mothers of the
Believers"" but this requirement was not extended to other women.
15. In 1992 Justice Eusoff of Malaysian High Court delivered a judgment ruling that the freedom of religion guaranteed under Article 11(1) of the
Malaysian Constitution was not absolute as Article 11(5) did not authorise any act contrary to any general law relating to public order, public
health or morality. The prohibition against wearing attire that covered the face did not affect the appellant''s constitutional right to profess and
practice her religion. This decision of the Malaysian High Court was confirmed by the Malaysian Supreme Court in 1994. It is, thus, seen from the
reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.
16. Even assuming that the Purdah or Gosha is an essential ingredient of the Muslim religion, Article 25 itself makes it clear that this right is subject
to public order, morality or health and also to the other provisions of Part III of the Constitution. In T.M.A. Pai Foundation and Others Vs. State
of Karnataka and Others, , 11 Judges Bench observed as follows:
82. Article 25 gives to all persons the freedom of conscience and the right to freely profess, practice and propagate religion. This right, however, is
not absolute. The opening words of Article 25(1) make this right subject to public order, morality and health, and also to the other provisions of
Part III of the Constitution. This would mean that the right given to a person under Art. 25(1) can be curtailed or regulated if the exercise of that
right would violate other provisions of Part III of the Constitution, or if the exercise thereof is not in consonance with public order, morality and
health. The general law made by the government contains provisions relating to public order, morality and health; these would have to be complied
with, and cannot be violated by any person in exercise of his freedom of conscience or his religion to profess, practice and propagate religion. For
example, a person cannot propagate his religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.
83. Article 25(2) gives specific power to the State to make any law regulating or restricting any economic, financial, political or other secular
activity, which may be associated with religious practice as provided by Sub-Clause (a) of Article 25(2). This is a further curtailment of the right to
profess, practice and propagate religion conferred on the persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with
religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from
making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in
relation to economic, financial, political or other secular activities associated with the religious practice.
17. In Javed and Others Vs. State of Haryana and Others, , the provisions of Sections 173(1)(g) and 177(1) of Haryana Panchyati Raj Act, 1994
were challenged before the Supreme Court. The said provisions disqualify a person having more than two living children from holding the specified
offices in Panchayats. The Apex Court expressly rejected the submission that the personal law of Muslims permits performance of marriages with
four women for the purpose of procreating children and any restriction thereon would be violative of the right to freedom of religion enshrined in
Article 25 of the Constitution. The Court observed as follows: -
60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to contest an
election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to
qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates
or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion
does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction or religion simply because it is
permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or
group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing
for social welfare and reform which the impugned legislation clearly does.
61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price
and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no
unconstitutionality attaches to it.
18. In view of the foregoing discussion, we have no hesitation in holding that the direction of the Commission is not violative of Article 25 of the
Constitution. We also do not find any substance in the complaint of violation of right to privacy. In R. Rajagopal alias R.R. Gopal and Another Vs.
State of Tamil Nadu and Others, , the Supreme Court held that the right to privacy is not enumerated as a fundamental right in our Constitution, but
has been inferred from Article 21. In that case, reliance was placed on Kharak Singh Vs. The State of U.P. and Others, and other decisions of
English and American Courts, and thereafter, the Court held that the petitioners have a right to publish what they alleged to be a life
story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond
that and publish his life story, they may be invading his right to privacy for the consequences in accordance with law. For this purpose, the Court
held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education
among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether
laudatory or critical. Position may, however, be different, if a person voluntarily thrust himself into controversy or voluntarily invites or raises a
controversy. The preamble of our Constitution proclaims that we are a democratic republic. The democracy being the basic feature of our
constitutional set up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee a growth of healthy
democracy in our country. The decision of the Election Commission of putting the photographs in the electoral roll was taken with a view to
improving the fidelity of the electoral rolls and to check impersonation and eradicate bogus voting. Hence, the argument of the learned Counsel that
the decision violates the right to privacy is required to be rejected.
19. In Union of India (UOI) Vs. Association for Democratic Reforms and Another, , the Supreme Court held that under Article 324, the
superintendence, direction and control of the ''conduct of all elections'' to Parliament and to the Legislature of every State vests in Election
Commission. The phrase ''conduct of elections'' is of wide amplitude which would include power to make all necessary provisions for conducting
free and fair elections. Article 324 operates in areas left unoccupied by legislation and the words ''superintendence, direction and control'' as well
as ''conduct of all elections'' are the broadest terms. The silence of statute has no exclusionary effect except where it flows from necessary
implication. The power of the Commission is plenary in character in exercise thereof. In a statutory provisions or rules, it is known that every
contingency could not be foreseen or anticipated with precision, therefore, Commission can cope with situation where the field is unoccupied by
issuing necessary orders. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of
elections and the word ''elections'' is used in a wide sense to include the entire process of election which consists of several stages and embraces
many steps. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in
connection with elections, the Commission is required to act in conformity with the said provisions. In case where a law is silent, Article 324 is a
reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of
residuary power by the Commission in its own right as a creature of the Constitution in the infinite situations that may emerge from time to time in a
large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary direction,
Commission can fill the vacuum till there is legislation on the subject.
20. Rule 4 of the Registration of Electors Rules, 1960 clearly provides that the electoral roll for each constituency shall be prepared in such form
and in such language or languages as the Election Commission may direct. Therefore, the Election Commission was within its jurisdiction in
prescribing a form containing the photographs of the eligible voters. In the result, we find absolutely no substance in the petition and it is hereby
dismissed.
