Supreme Court of India
S.R. Bommai vs Union Of India on 11 March, 1994
Author: S Pandian
Bench: Pandian, S.R. (J), Ahmadi, A.M. (J) (J), Verma, J.S. (J) Sawant, P.B., Ramaswamy, K. & Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P. (J)
The great statesman-philosopher Dr Radhakrishnan said "When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State." (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202)
Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion. Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious purposes and to manage its own affairs in matters of religion. These two articles clearly confer a right to freedom of religion. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State's taxation power if tile proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group. Article 28 relates to attendance at religious instructions or religious worship in certain educational institutions. Then come Articles 29 and 30 which refer to the cultural and educational rights. Article 29 inter alia provides that no citizen will be denied admission to an educational institution maintained wholly or partly from State funds on grounds only of religion, etc. Article 30 permits all minorities, whether based on religion or language, to establish and administer educational institutions of their choice and further prohibits the State from discriminating against such institutions in the matter of granting and. These fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution.
As has been explained by Shri M.C. Setalvad (Patel Memorial Lectures-- 1965 on Secularism)-
"Secularism often denotes the way of life and conduct guided by materialistic considerations devoid of religion. The basis of this ideology is that material means alone can advance mankind and that religious beliefs retard the growth of the human beings ... this ideology is of recent growth and it is obvious that it is quite different from the concept of secular State in the West which took root many centuries ago. ...
A different view in relation to religion is the basis of 'secularism' understood in the sense of what may be called a 'secular attitude' towards life. Society generally or the individual constituting it tend progressively to isolate religion from the more significant areas of common life. Many of us, Hindus and Muslims and others, are in our way of life, and outlook on most matters largely governed by ideas and practices which are connected with or are rooted in our religion. The secular attitude would wean us away from this approach so that in our relations with our fellow beings or in dealings with other social groups, we have less and less regard for religion and religious practices and base our lives and actions more on worldly considerations, restricting religion and its influence to what has been called its 'proper' sphere, i.e., the advancement of the spiritual life and well- being of the individual. Secularism of this character is said to be essential to our progress as human beings and as a nation because it will enable us to shake off the narrow and restrictive outlook arising out of casteism, communalism and other like ideas which come in the way of our development. 'secularism' of the kinds we have adverted to above. ... No doubt, the two concepts are interdependent in the sense that it is difficult to conceive of a society or a group of individuals being induced to adopt a secular philosophy or a secular attitude without the aid of a secular State. A secular State is not easy to define. According to the liberal democratic tradition of the West, the secular State is not hostile to religion but holds itself neutral in matters of religion.......
Thereafter, referring to the Indian concept of secularism, the learned jurist stated as follows :
"... the secularist way of life was repeatedly preached by leaders of movement so that religious matters came to be regarded entirely as relating to the conscience of the individuals.......
"The coming of the partition emphasised the great importance of secularism. Notwithstanding the partition, a large Muslim minority consisting of a tenth of the population continued to be the citizens of independent India. There are other important minority groups of citizens. In the circumstances, a secular Constitution for independent India under which all religions could enjoy equal freedom and all citizens equal right and which could weld together into one nation, the different religious communities, become inevitable."
Thereafter, the learned jurist has gone on to point out that our Constitution undoubtedly lacks a complete separation between the church and the State as in the United States and at the same time we have no established church as in Great Britain or some other countries. In our country, all religions are placed on the basis of equality and it would, therefore, seem that it is erroneous to describe our country as a secular State. He quoted Dr Radhakrishnan who said that "the religious impartiality of the Indian State is not to be confused with secularism or atheism". He also pointed out that the proceedings of the Constituent Assembly show that "two attempts made to introduce the word 'secular' in the Constitution had failed. ..." At the same time, he asserted that....... nevertheless, it could not be said that the Indian State did not possess some important characteristics of a Secular State" and has pointed out some of the provisions of the Constitution to which we have already made a reference above. He has then stated that the ideal of a Secular State in the sense of a State which treats all religions alike and displays benevolence towards them is in a way more suited to the Indian environment and climate than that of a truly Secular State by which he meant a State which creates complete separation between religion and the State. Justice Chinnappa Reddy, delivering his Ambedkar Memorial Lecture on 'Indian Constitution and Secularism' has observed that :
"Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity. There, even while recognising the right to profess and practise religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution."
One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This is evident from the provisions of the Constitution to which we have made reference above. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life
Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
DEMOCRACY AND SECULARISM
Democracy stands for freedom of conscience and belief, tolerance and mutual respect. India being a plural society with multi-religious faiths, diverse creeds, castes and cultures, secularism is the bastion to build fraternity and amity with dignity of person as its constitutional policy. It allows diverse faiths to flourish and make it a norm for tolerance and mutual respect between various sections of the people and to integrate them with dignity and fulfilment of cravings for self-realisation of religious belief with larger national loyalty and progress. Rule of law has been chosen as an instrument for social adjustment in the event of clash of interests. In a free society, law interacts between competing claims in a continuing process to establish order with stability. Law should not only reflect social and religious resilience but has also to provide a lead by holding forth the norms for continuity for its orderly march towards an ideal egalitarian social order envisioned in the preamble of the Constitution. The culture of the law, in the Indian Democratic Republic should be on secular lines. A balance, therefore, has to be struck to ensure an atmosphere of full faith and confidence. Charles Broadlaugh in seventeenth century for the first time used secularism as antagonistic to religious dogma as ethical and moral binding force. This Western thought, in course of time gained humanistic acceptance. The word secularism defined in Oxford Dictionary means that "morality should be based solely in regard to the well-being of the mankind in the present life to the exclusion of all considerations drawn from the belief in God or a future study". In Encyclopaedia Britannica secularism is defined as "branch of totalitarian ethics, it is for the physical, moral and social improvement of mankind which neither affirms nor denies theistic problems of religion". Prof. Goethinysem of the Berlin University writing on secularism in the Encyclopaedia of the Social Sciences (1939 Edn.) defined it as "the attempt to establish autonomous sphere of knowledge purged of supernatural, fideistic presuppositions". He described it, in its philosophical aspect, "as a revolt against theological and eventually against metaphysical absolutes and universals". He pointed out that "the same trend may be charted out in the attitudes towards social and political institutions", so that men in general broke away from their dependence upon the Church which was regarded as the guardian of an eternal welfare which included that in this world as well as that in the next, and, therefore, was considered entitled to primacy or supremacy over transient secular authorities. He indicated how this movement expanded in the second half of the eighteenth century, into a secularised universalism, described as "Enlightenment", which conceived of man on earth as the source of all really significant and verifiable knowledge and light. It was increasingly realised that man depended for his welfare in this world upon his own scientific knowledge and wisdom and their applications and upon a socioeconomic system of which, willy-nilly, he found himself a part. He had, therefore, argued that the man has to take the responsibility for and bear the consequence of his own follies and inequities and not look upon them as a part of some inscrutable design of external powers or beings controlling his destiny. G.L. Holyoake, an associate of Charles Broadlaugh in his Principles of Secularism in 1859 advocated for secularism which received approval and acceptance by celebrated political philosopher J.S. Mill. Jeremy Bentham's The 'Theory of Legislation formulated in the eighteenth century stands on moral-based politics and defined law from the point of view of human welfare sought through democratic liberal channels and intended to attain "the greatest happiness of the greatest number", a maxim dear to democratic utilitarian political philosophers.
177. Secularism became the means and consciously pursued for full practical necessities of human life to liberate the human spirit from bondage, ignorance, superstition which have held back humanity. The goal of every civilised democratic society is the maximisation of human welfare and happiness which would be best served by a happy Organisation.
178. Freedom of faith and religion is an integral part of social structure. Such freedom is not a bounty of the State but constitutes the very foundation on which the State is erected. Human liberty sometimes means to satisfy the human needs in one's own way. Freedom of religion is imparted in every free society because it is a part of the general structure of the liberty in such a society and secondly because restrictions imposed by one religion would be an obstacle for others. In the past religious beliefs have become battlegrounds for power and root cause for suppression of liberty. Religion has often provided a pretext to have control over vast majority of the members of the society. Democratic society realises folly of the vigour of religious practices in society. Strong religious consciousness not only narrows the vision but hampers rule of law. The Founding Fathers of the Constitution, therefore, gave unto themselves "we people of India", the Fundamental Rights and Directive Principles of State Policy to establish an egalitarian social order for all sections of the society in the supreme law of the land itself. Though the concept of "secularism" was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution 42nd Amendment Act. The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flying at each other's throats. The secular Government should negate the attempt and bring order in the society. Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life.
179. Prof. Goethinysem in his article referred to hereinbefore outlined the process of secularism of life and thoughts by which religious sectarianism comes into contact in daily social and economic spheres of life and he summarises with "the ideal of human and social happiness through secularisation of life all the groups of people in the country striving by most enlightened methods to establish the maximum of social justice and welfare in the world". According to Pt. Jawaharlal Nehru democracy necessarily implies rigorous self-discipline without which democracy cannot succeed. Swami Vivekananda explaining the Vedantic ideas of God and religion in comparison with western thoughts stated that the religious attitude is always to seek the dignity inside his ownself as a natural characteristic of Hindu religion and religious attitude is always presented by making the subject close his eyes looking inward. Dr Thouless in his Introduction to the Psychology of Religion after analysing diverse elements and definitions of religion defined religion as "a felt practical relationship with what is believed in a superhuman being or beings". The process of secularisation of life and thought consistently increasing the withdrawal and separation of religion properly so-called from other spheres of life and thought which are governed by independent from above rules and standards. According to Sir James Freezer in his Golden Bough religion consists largely of not only of methodological and rituals dominated by all aspects of his life, social, economic, political, legal, cultural, ethical or moral, but also technological. The interaction of religion and secular factors in ultimate analysis is to expose the abuses of religion and of belief in God by purely partisan, narrow or for selfish purpose to serve the economic or political interests of a particular class or group or a country. The progress of human history is replete with full misuse of religious notions in that behalf. But the scientific and analytical spirit characterises secularism as saviour of the people from the dangers of supposed fusion of religion with political and economic activities and inspire the people. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. Trevor Ling's writings on Buddhism spoke of it as a secular religion, which teaches eight-fold path of his mastery and virtuous conduct of ceaseless, self-critical endeavour for right belief, right aspiration, right speech, right conduct, right modes of livelihood, right efforts, right-mindedness and right scripture. Buddhism rationalises the religion and civilisation to liberate individual from blindfold adherence to religious belief to rationalisation, in the language of Trevor Ling "flat alluvial expansion of secularism". Dr Ambedkar believed that Buddhism is the religion best suited to the Indian soil. Mahatma Gandhi, Father of the Nation, spoke for the need of religion thus:
,,The need of the mankind is not one of religion, but mutual respect and tolerance of the devotees of different religions. We want to reach not a data level, but unity in diversity. The soul of all religions is one, but it is encased in the multitude of forms. The latter will persist to the end of the time."
180. Dr S. Radhakrishnan, the philosopher, former President of India, in his Discovery of Faith stated that the religious impartiality of the Indian State is not to be confused with the secularism or atheism. Secularism as defined here is in accordance with the enormous religious traditions of India. It is for living in harmony with each other. This fellowship is based on the principle of diversity in unity which alone has all qualities of creativeness. In his foreword to Dr Abid Hussain's The National Culture of India, Dr S. Radhakrishnan remarked that secularism does not mean licence or a thrust of material comfort. It lays thrust on universality of the supreme fellow which may be attained by variety of ways. Indian concept of secularism means "the equal status to all religions". He said that "no one religion should be given preferential status or unique distinction and that no one religion should be accorded special privileges in national life". That would be violative of basic principles of democracy. No group of citizens can so arrogate to itself the right and privilege which it denies to others. No person shall suffer any form of disability or discrimination because of his religion, but also alike should be free to share to the fullest degree in the common life. This is the basic principle in separation of religion and the State. Granville Austin in his The Indian Constitution : Cornerstone of a Nation stated that the Constitution makers intended to secure secular and socialist goals envisaged in the preamble of the Constitution. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra 33 this Court held that : (SCR p. 297: SCC p. 32, para 44) "The Secular State rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds.
Maitland had pointed out that such a state has to ensure, through its laws, that the existence or exercise of a political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion."
It was further pointed ou: "Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law." Thereby this Court did not accept the wall of separation between law and the religion with a wider camouflage to impress control of what may be described exploitative parading under the garb of religion. Throughout ages endless stream of humans of diverse creeds, cultures and races have come to India from outside regions and climes and contributed to the rich cultural diversity. Hindu religion developed resilience to accommodate and imbibe with tolerance the cultural richness with religious assimilation and became a land of religious tolerance.
181. Swami Vivekanada stated that right of religious system and ideals is the same morality; one thing is only preached: Myself, say "Om"; another one says "Johova", another "Allah- ho-Mohammad", another cries "Jesus". Gandhiji recognised that all religions are imperfect and because they are imperfect they require perfecting themselves rather than conducting individually. He stated:
"The separate religions Hinduism, Islam, Christianity, Buddhism are different rights converging on the same point even as the tree has the single trunk but many branches and leaves so there is one perfect religion but it becomes many as it passes through the human medium. The Allah of Muslims is the same as the God of Christians and Ishwara of Hindus."
182. Making of a nation State involves increasing secularisation of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world of their own. Positive secularism, therefore, separates the religious faith personal to man and limited to material, temporal aspects of human life. Positive secularism believes in the basic values of freedom, equality and fellowship. It does not believe in hark back either into country's history or seeking shelter in its spiritual or cultural identity dehors the man's need for his full development. It moves mainly around the State and its institution and, therefore, is political in nature. At the same time religion does not include other socioeconomic or cultural social structure. The State is enjoined to counteract the evils of social forces, maintaining internal peace and to defend the nation from external aggression. Welfare State under the Constitution is enjoined to provide means for well-being of its citizens; essential services and amenities to all its people. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Prof. Holyoake, as stated earlier, who is the father of modern secularism stated that "morality should be based on regard for well-being of the mankind in the person, to the exclusion of all considerations drawn from the belief in God or a future State". Morality to him was a system of human duty commencing from man and not from God as in the case of religion. He distinguished his secularism from Christianity, the living interest of the world that is prospects of another life. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other's faith and willingness to abide by rules of self-discipline. This has to be for both as an individual and as a member of the group. Religion and secularism operate at different planes. Religion is a matter of personal belief and mode of worship and prayer, personal to the individual while secularism operates, as stated earlier, on the temporal aspect of the State activity in dealing with the people professing different religious faiths. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Swami Vivekananda, and Mahatma Gandhi, though greatest Hindus, their teachings and examples of lives give us the message of the blend of religion and the secularism for the good of all the men. True religion does not teach to hate those professing other faiths. Bigotry is not religion, nor can narrow-minded favouritism be taken to be an index of one's loyalty to his religion. Secularism does not contemplate closing each other's voices to the sufferings of the people of other community nor it postulates keeping mum when his or other community make legitimate demands. If any group of people are subjected to hardship or sufferings, secularism always requires that one should never remain insensitive and aloof to the feelings and sufferings of the victims. At moments of testing times people rose above religion and protected the victims. This cultural heritage in India shaped that people of all religious faiths, living in different parts of the country are to tolerate each other's religious faith or beliefs and each religion made its contribution to enrich the composite Indian culture as a happy blend or synthesis. Our religious tolerance received reflections in our constitutional creed.
The preamble of the Constitution inter alia assures to every citizen liberty of thought, expression, belief, faith and worship. Article 5 guarantees by birth citizenship to every Indian. No one bargained to be born in a particular religion, caste or region. Birth is a biological act of parents. Article 14 guarantees equality before the law or equal protection of laws. Discrimination on grounds of religion was prohibited by Article 15. Article 16 mandates equal opportunity to all citizens in matters relating to employment or appointment to any office or post under the State and prohibits discrimination on grounds only of inter alia religion. Article 25 while reassuring to all persons freedom of conscience and the right to freely profess, practice and propagate his religion, it does not affect the operation of any existing law or preventing the State from making any law regulating or restricting any social, financial, political or other secular activity which may be associated with the religious practice. It is subject to providing a social welfare and reform or throwing open all Hindu religious institutions of public character to all classes of citizens and sections of Hindus. Article 26 equally guarantees freedom to manage religious affairs, equally subject to public order, morality and health. Article 27 reinforces the secular character of Indian democracy enjoining the State from compelling any person or making him liable to pay any tax, the proceeds of which are specifically prohibited to be appropriated from the consolidated fund for the promotion or maintaining of any particular religion or religious denomination. Taxes going into consolidated funds should be used generally for the purpose of ensuring the secular purposes of which only some are mentioned in Articles 25 and 26 like regulating social welfare, etc. Article 28(1) maintains that no religious instruction shall be imparted in any educational institutions wholly maintained out of the State funds or receiving aid from the State. Equally no person attending any educational institution recognised by the State or receiving aid from the State funds should be compelled to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be 'Conducted in such institution or in any premises attached thereto unless such person or in the case of a minor person his guardian has given his consent thereto. By Article 30(2) the State is enjoined not to discriminate, in giving aid to an educational institution, on the ground that it is a minority institution whether based on religion or language. It would thus be clear that Constitution made demarcation between religious part personal to the individual and secular part thereof. The State does not extend patronage to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part.
In Ratilal Panachand Gandhi v. State of Bombay this Court defined religion that it is not necessarily atheistic and, in fact, there are well-known religions in India like Buddhism and Jainism which do not believe in the existence of God or caste. A religion undoubtedly has different connotations which are regarded by those who profess that religion to be conducive to their spiritual well-being but it would not be correct to say or seems to have been suggested by the one of the learned Brothers therein that matters of religion are nothing but matters of religious faith and religious belief. The religion is not merely only a doctrine or belief as it finds expression in acts as well. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar known as Shirur Mutt case this Court interpreted religion in a restricted sense confining to personal beliefs and attended ceremonies or rituals. The restrictions contemplated in Part III of the Constitution are not the control of personal religious practices as such by the State but to regulate their activities which are secular in character though. associated with religions, like management of property attached to religious institutions or endowments on secular activity which are amenable to such regulation. Matters such as offering food to the diety, etc. are essentially religious and the State does not regulate the same, leaving them to the individuals for their regulation. The caste system though formed the kernel of Hinduism, and as a matter of practice, for millenniums 1/4th of the Indian population Scheduled Castes and Scheduled Tribes were prohibited entry into religious institutions like temples, maths, etc. on grounds of untouchability; Article 17 outlawed it and declared such practice an offence. Articles 25 and 26 have thrown open all public places and all places of public worship to Hindu religious denominations or sects for worship, offering prayers or performing any religious service in the places of public worship and no discrimination should be meted out on grounds of caste or sect or religious denomination. In Kesavananda Bharati case and Indira Nehru Gandhi v. Raj Narain this Court held that secularism is a basic feature of the Constitution. It is true that Schedule III of the Constitution provided the form of oath being taken in the name of God. This is not in recognition that he has his religion or religious belief in God of a particular religion but he should be bound by the oath to administer and to abide by the Constitution and laws as a moral being, in accordance with their mandate and the individual will ensure that he will not transgress the oath taken by him. It is significant to note that the Oaths Act, 1873 was repealed by Oaths Act, 1966 and was made consistent with the constitutional scheme of secularism in particular, Sections 7 to 11.
Equally admission into an educational institution has been made a fundamental right to every person and he shall not be discriminated on grounds only of religion or caste. The education also should be imparted in the institutions maintained out of the State fund or receiving aid only on secular lines. The State, therefore, has a missionary role to reform the Hindu society, Hindu social order and dilute the beliefs of caste hierarchy. Even in matters of entry into religious institutions or places of public resort prohibition of entry only on grounds of caste or religion is outlawed.
Dr S. Radhakrishnan, stated that: "Religion can be identified with emotion, sentiments, intensity, cultural, profession, conscious belief of faith." According to Gandhiji : "By religion I do not mean formal religion or customary religion but that religion which underlies all religions." Religion to him was spiritual commitment just total but intentionally personal. In other words, it is for only development of the man for the absolution of his consciousness (sic conscience) in certain direction which he considered to be good. Therefore, religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution.
Freedom of conscience allows a person to believe in particular religious tenets of his choice. It is quite distinct from the freedom to perform external acts in pursuance of faith. Freedom of conscience means that a person cannot be made answerable for rights of religion. Undoubtedly, it means that no man possesses a right to dictate to another what religion he believes in; what philosophy he holds, what shall be his politics or what views he shall accept, etc. Article 25(1) protects freedom of conscience and religion of members of only of an organised system of belief and faith irrespective of particular affiliations and does not march out of concern itself as a part of the right to freedom of conscience and dignity of person and such beliefs and practices which are reasonable. The Constitution, therefore, protects only the essential and integral practices of the religion. The religious practice is subject to the control of public order, morality and health which includes economic, financial or other secular activities. Could the religious practice exercise control over members to vote or not to vote, to ignore the National Flag, National Anthem, national institutions? Freedom of conscience under Article 25 whether guarantees people of different religious faiths the right to religious procession to antagonise the people of different religious faiths or right to public worship? It is a fact of social and religious history in India that religious processions are known to ignite serious communal riots, disturb peace, tranquillity and public order. The right to free profession of religion and exercising right to organise religious congregations does not carry with it the right to make inflammatory speeches, nor be a licence to spread violence, nor speak religious intolerance as an aspect of religious faiths. They are subject to the State control. In order to secure constitutional protection, the religious practices should not only be an essential part but should also be an integral part of proponent's religion but subject to State's control. Otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be quoted as religious forms and make a claim for being treated as religious practices. Law as a social engineer provides the means as well as lays down the rules for social control and resolution of conflicts of all kinds in a human society. But the motive force for social, economic and cultural transformation comes from individuals who comprise the society. They are the movers in the mould of the law as the principal instrument of an orderly transient to a new socioeconomic order or social integration and fraternity among the people. The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. I am respectfully in agreement with our Brethren Sawant and Jeevan Reddy, JJ. in this respect. Secularism, therefore, is part of the fundamental law and basic structure of the Indian political system to secure to all its people socioeconomic needs essential for man's excellence and of (sic his) moral wellbeing, fulfilment of material and prosperity and political justice.
SEPARATION OF POLITICS AND RELIGION
Black's Law Dictionary (6th Edn.) page 1158 defined 'political' as pertaining or relating to the policy or the administration of Government, State or national; pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of Government; relating to the management of affairs of State as political theories; of or pertaining to exercise of rights and privileges or the influence by which individuals of a State seek to determine or control its public policy; having to do with organization or action of individuals, parties, or interests that seek to control appointment or action of those who manage affairs of a State. Political party was defined as an association of individuals whose primary parliamentary purposes are to promote or accomplish elections or appointments to public offices, positions or jobs. A political party, association or Organisation which makes contributions for the purpose of influencing or attempting to influence the electoral process of any individual or political party whose name is presented for election to any State or local elective public office, whether or not such individual is elected. Politics in positively secular State is to get over their religion, in other words, in politics a political party should neither invoke religion nor be dependent on it for support or sustenance. Constitution ensures to the individual to protect religion, right to belief or propagate teachings conducive for secular living, later to be controlled by the State for betterment of human life and progress. Positive secularism concerns with such aspects of human life. The political conduct in his "Political Thought by Dr Ambedkar" compiled by R.K. Ksheersagar, Intellectual Public House, 1992 Edn. at page 155, stated that:
"In India the majority is not a political majority. The majority is born but not made, that is the difference between a communal majority and a political majority. A political majority is not purely a majority, it is the majority which is always made, unmade and remade. A communal majority is unalterable majority in its ethics, its attitudes. Whether the Hindu communal majority was prepared to accept the views of the minorities, whether it was prepared to conceive the constitutional safeguards to the minorities." The problems according to Dr Ambedkar should be solved by adopting right principles which should be evolved and applied equally without fear or favour. According to him the majority community should accept a relative majority and it should claim absolute majority. Communal majority is not a political majority and in politics the principle of one vote one value should be adopted irrespective of related considerations. According to Abul Kalam Azad: "India is a democracy secular where every citizen whether he is Hindu, Muslim or Sikh has equal rights and privileges. Rise of fundamentalism and communalisation in national or regional politics are anti-secular and tend to encourage separatist and divisive forces laying the seeds to disintegrate the parliamentary democratic system. The political parties or candidates should be stopped from running after vote banks and judicial process must promote the citizens' active participation by interpretation of the Constitution and the laws in proper perspective in order to maintain the democratic process on an even keel."
For a political party or an Organisation that seeks to influence the electorates to promote or accomplishing success at an election for governance of parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-a-vis the Fundamental Rights and the Fundamental Duties in Part IV A and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain from violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socioeconomic and political justice, fraternity, unity and national integrity.
Under Section 29-A of the Representation of the People Act, 1951 for short 'R.P. Act' registration of a political party, or a group of individual an application to the Election Commission constituted under Article 324 for its registration as political party with a copy of the memorandum or rules or regulations of the association of the body signed by its Chief Executive Officer. The application shall contain a specific provision that the association or the body shall bear true faith and allegiance to the Constitution of India as by law established and its members shall be bound by socialism, secularism and democracy and would uphold the sovereignty and integrity of India. It is, therefore, a mandatory duty of every political party, body of individuals or association and its members to abide by the Constitution and the laws; they should uphold secularism, socialism and democracy, uphold sovereignty and integrity of the nation. Section 123(3) prohibits use of religion or caste in politics and declares that the promotion or attempt to promote violence and hatred between different classes of citizens of India on grounds of religion and caste for the furtherance of the prospects at the election of the candidate or for affecting the election of any candidate was declared to be a corrupt practice. As per sub-section (3-A) of Section 123 the promotion of, or attempt to promote feeling of enmity or hatred between different classes of Indian citizens on grounds of religion, etc. by a candidate, his election agent or any person with his consent to further the election prospects of that candidate or for prejudicially affecting the election of any candidate was declared as corrupt practice. A political party, therefore, should not ignore the fundamental features of the Constitution and the laws. Even its manifesto with all sophistication or felicity of its language, a political party cannot escape constitutional mandate and negates the abiding faith and solemn responsibility and duty undertaken to uphold the Constitution and laws after it was registered under Section 29-A. Equally it/they should not sabotage the same basic features of the Constitution either influencing the electoral process or working the Constitution or the law. The political party or the political executive securing the governance of the State by securing majority in the legislature through the battle of ballot throughout its tenure by its actions and programmes, it is required to abide by the Constitution and the laws in letter and spirit.
Article 25 inhibits the Government to patronise a particular religion as State religion overtly or covertly. Political party is, therefore, positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely in negation of the constitutional mandates but also a positive violation of the constitutional obligation, duty, responsibility and positive prescription of prohibition specifically enjoined by the Constitution and the R.P. Act. A political party that seeks to secure power through a religious policy or caste orientation policy disintegrates the people on grounds of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to the constitutional culture and basic features. Appeal on grounds of religion offends secular democracy.
An appeal to the electorates on the grounds of religion offends secular democracy. In S. Veerabadran Chettiar v. E. V. Ramaswami Naicker38 (SCR at pp. 1217 & 1218), this Court held that the courts would be cognizant to the susceptibilities of class of persons to which the appeal to religious susceptibility is made and it is a corrupt practice. Interpreting Section 123(3-A) this Court held that:
"The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds ... very circumspect in such matters and to pay due regard to feelings and religious emotions of different classes of persons with different beliefs irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise......
192. This Court in Shubnath Deogram v. Ramnarain Prasad39 held that (SCR p. 959) "[I]t would appear that the pleasure of the deities is indicated through the cock taking the food that is given to it and that the deities only thereafter accept the sacrifice of the cock. Therefore, when the leaflet stated that food should be given to the cock in the shape of votes what was meant was that the deities would be pleased if votes were cast in the box with the cock symbol."
193. In Z.B. Bukhari v. Brijmohan33 this Court held thus : "Our Constitution-makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed. "
In another case S. Harcharan Singh v. S. Sajjan Singh this Court fully discussed the question of what constitutes an appeal on grounds of religion falling within the scope of Section 123(3) and Section 123(3-A) of the R.P. Act, when there is an appeal on the ground of religion. Section 123(3) of R.P. Act should not be permitted to be circumvented to resort to technical arguments as to interpretation of the section as our Constitution is one of secular democracy. In S. Veerabadran Chettiar case this Court held thus: (SCR pp. 1217-18) "In our opinion, placing such restricted interpretation on the words of such general import, is against all established canons of construction. Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section. Nor is it absolutely necessary that the object, in order to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court."
In Mullapudi Venkata Krishna Rao v. Vedula Suryanarayana this Court held thus : "There is no doubt in our mind that the offending poster is a religious symbol. The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a 'shanku' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party."
The contention of Shri Ram Jethmalani that the interpretation and applicability of sub-sections (3) and (3- A) of Section 123 of R.P. Act would be confined to only cases in which individual candidate offends religion of rival candidate in the election contest and the ratio therein cannot be extended when a political party has espoused as part of its manifesto a religious cause, is totally untenable. This Court laid the law though in the context of the contesting candidates, that interpretation lends no licence to a political party to influence the electoral prospects on grounds of religion. In a secular democracy, like ours, mingling of religion with politics is unconstitutional, in other words a flagrant breach of constitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy, JJ., in this behalf.
Rise of fundamentalism and communalisation of politics are anti-secularism. They encourage separatist and divisive forces and become breeding grounds for national disintegration and fail the parliamentary democratic system and the Constitution. Judicial process must promote citizens' active participation in electoral process uninfluenced by any corrupt practice to exercise their free and fair franchise. Correct interpretation in proper perspective would be in the defence of the democracy and to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the court to interpret the Constitution to bring the political parties within the purview of constitutional parameters for accountability and to abide by the Constitution, the laws for their strict adherence.
Supreme Court of India
Sri Sri Sri Lakshamana ... vs State Of Andhra Pradesh & Anr on 24 January, 1996
Article 25, assist language amplifies, assures to every person subject to public order, health and morality, freedom not only to entertain his religious beliefs, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outwardly act as he thinks proper and to propagate or disseminate his ideas for the edification of others. Mahant as head of the spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. The deep layers of religion used in Articles 25 and 26 and its manifest efficacy in social well-being and integration in the onward march of civilisation from tribal society to modern life would appropriately be dealt with in the connected cases relating to Archakas. Suffice it to state that it is the duty of Mahant to practise and propagate the religious tenets of which he is an adherent and if any provision of law prevents him from propagating his doctrine that would certainly affect the religious freedom guaranteed under Article 25. Math or a specific endowment per se cannot practise or propagate religion. It can be done only by individual persons. Whether those persons propagate their personal views or the tenets for which the institution was started, is immaterial for the purposes of Article 25. Only propagation of beliefs is protected, it does not matter whether the propagation takes place in a temple or any other meeting.
Supreme Court of India
Rev. Stainislaus vs State Of Madhya Pradesh & Ors on 17 January, 1977
Equivalent citations: 1977 AIR 908, 1977 SCR (2) 611
Author: A Ray
Bench: Ray, A.N. (Cj), Beg, M. Hameedullah, Sarkaria, Ranjit Singh, Shingal, P.N., Singh, Jaswant
We have no doubt that it is in this sense. that the word 'propagate' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the follow- ers of one particular religion, and that, in turn, postu- lates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the coun- try alike.
The meaning of guarantee under Article 25 of the Con- stitution came up for consideration in this Court in Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1) and it was held as follows :--
"Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such, religious belief as may be approved of by his judgment or con- science but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others."
This Court has given the correct meaning of the Article, and we find no justification for the view that it grants. a fundamental right to convert persons to one's own reli- gion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons follow- ing the other religions. What is freedom for one, is free- dom for the other, in equal measure, and there can there- fore be no such thing as a fundamental right to convert any person to one's own religion.
Reference may also be made to the decision in Ramjilal Modi v. State of U.P. where this Court has held that the right of freedom religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that "it cannot be predicat- ed that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order". It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
Refer- ence may as well be made to the decision in Arun Ghosh v. State of WeSt Bengal where it has been held that if a thing disturbs the current of the life of the community, and does not merely affect an individual, it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to anoth- er religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. The impugned Acts therefore fall within: the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community. The two Acts do not provide for the regulation of religion and! we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.
Supreme Court of India
State Of W.B vs Ashutosh Lahiri on 16 November, 1994
In view of this settled legal position it becomes obvious that if there is no fundamental right of a Muslim to insist on slaughter of healthy cow on BakrI'd day, it cannot be a valid ground for exemption by the State under Section 12 which would in turn enable slaughtering of such cows on BakrI'd. The contention of learned counsel for the appellants that Article 25(1) of the Constitution deals with essential religious practices while Section 12 of the Act may cover even optional religious practices is not acceptable. No such meaning can be assigned to such an exemption clause which seeks to whittle down and dilute the main provision of the Act, namely, Section 4 which is the very heart of the Act. If the appellants' contention is accepted then the State can exempt from the operation of the Act, the slaughter of healthy cows even for non-essential religious, medicinal or research purpose, as we have to give the same meaning to the three purposes, namely, religious, medicinal or research purpose, as envisaged by Section 12. It becomes obvious that if for fructifying any medicinal or research purpose it is not necessary or essential to permit slaughter of healthy cow, then there would be no occasion for the State to invoke exemption power under Section 12 of the Act for such a purpose. Similarly it has to be held that if it is not necessary or essential to permit slaughter of a healthy cow for any religious purpose it would be equally not open to the State to invoke its exemption power under Section 12 for such a religious purpose. We, therefore, entirely concur with the view of the High Court that slaughtering of healthy cows on BakrI'd is not essential or required for religious purpose of Muslims or in other words it is not a part of religious requirement for a Muslim that a cow must be necessarily sacrificed for earning religious merit on BakrI'd.
Supreme Court of India
Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986
Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution. This has to be borne in mind in interpreting Art. 25.
We see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by Art. 25 is subject to (1) public order, morality and health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; or (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. Thus while on the one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practise and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform. It is the duty and function of the Court so to do. Here again as mentioned in connection with Art. 19(2) to (6), it must be a law having the force of a statute and not a mere executive or a departmental instruction.
The meaning of the expression 'Religion' in the context of the Fundamental Right to freedom of conscience and the right to profess, practice and propagate religion, guaranteed by Art. 25 of the Constitution, has been explained in the well known cases of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005 Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR 1055 and S. P. Mittal Etc. Etc. v. Union of India & Ors, [1983] SCR 729. It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases Mukherjea, J. made a reference to "Jehova's Witnesses" and appeared to quote with approval the views of Latham, CJ., of the Australian High Court in Adelaide Company v. The Commonwealth (supra) and those of the American Supreme Court in West Virginia State Board of Education v. Barnettee (supra). In Ratilal's case we also notice that Mukherjea, J. quoted as appropriate Davar, J.'s following observations In Jarnshedji v. Soonabai, 23 Bomaby ILR 122:
"If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community,-a secular Judge is bound to accept that belief-it is not for him to sit in judgement on that belief, he has no right to interfere with the conscience of a doner who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind."
We do endorse the view suggested by Davar J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein.
Supreme Court of India
Acharya Jagdishwaranand ... vs Commissioner Of Police, Calcutta ... on 20 October, 1983
We have already indicated that the claim that Ananda Marga is a separate religion is not acceptable in view of the clear assertion that is was not an institutionalised religion but was a religious denomination. The principle indicated by Gajendragadkar, CJ, while speaking for the Court in Sastri Yagnapurushadji & Ors. v. Muldas Bhudardas Vaishya & Anr., also supports the conclusion that Ananda Marga cannot be a separate religion by itself. In that case the question for consideration was whether the followers of Swaminarayan belonged to a religion different from that of Hinduism. The learned Chief Justice observed:
"Even a cursory study of the growth and development of Hindu religion through the ages shows that whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed by its own tenets, but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy. ' The averments in the writ petition would seem to indicate a situation of this type. We have also taken into consideration the writings of Shri Ananda Murti in books like Carya-Carya, Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda Vachanamritam. These writings by Shri Ananda Murti are essentially founded upon the essence of Hindu philosophy. The test indicated by the learned Chief Justice in the case referred to above and the admission in paragraph 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda Margis belong to the Hindu religion. Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga is not a separate religion, application of Article 25 is not attracted.
The next aspect for consideration is whether Ananda Marga can be accepted to be a religious denomination. In The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Mukherjee, J. (as the learned Judge then was), spoke for the Court thus:
"As regards article 26, the first question is, what is the precise meaning or connotation of the expression 'religious denomination' and whether a Math could come within this expression. The word 'denomination' has been defined in the Oxford Dictionary to mean 'a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name'."
This test has been followed in The Durgah Committee, Ajmer & Anr. v, Syed Hussain Ali & Ors. In the majority judgment in S. P. Mittal etc. v. Union of India & Ors reference to this aspect has also been made and it has been stated:
"The words 'religious denomination' in Article 26 of the Constitution must take their colour from the word 'religion' and if this be so, the expression 'religious denomination' must also satisfy three conditions:
(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
(2) common organisation, and (3) designation by a distinctive name."
Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion. Article 26 of the Constitution provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion. Mukherjea, J. in Lakshmindra Thirtha Swamiar's case (supra) adverted to the question as to what were the matters of religion and stated:
"What then are matters of religion ! The word 'religion' has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case (Davie v. Benson, 133 US 333 at 342), it has been said "that the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and Character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter". We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of 'religion' as given above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress..." "Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2) (a) of article 25 reserved the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices .."
"The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. It the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b)..."
Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion. In Laxshmindra Thirtha Swamiar's case, Mukherjea, J. observed:
"This difference in judicial opinion brings out forcibly the difficult task which a Court has to perform in cases of this type where the freedom of religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization."
The same question arose in the case of Ratilal Panachand Gandhi v. State of Bombay & Ors.(1) The Court did go into the question whether certain matters appertained to religion and concluded by saying that "these are certainly not matters of religion and the objection raised with regard to the validity of these provisions seems to be altogether baseless." In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan & Ors.,(2) this Court went into the question as to whether the tenets of the Vallabh denomination and its religious practices require that the worship by the devotees should be performed at the private temples and, therefore, the existence of public temples was inconsistent with the said tenets and practices, and on an examination of this question, negatived the plea.
The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. We have already indicated that tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established.
It is appropriate to take note of the fact that the impugned order under s. 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis. The prohibition was with reference to the carrying of daggers, trishuls and skulls. Even performance of tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.
The writ petitions have to fail on our finding that performance of tandava dance in procession in the public streets or in gatherings in public places is not an essential religious rite of the followers of Ananda Marga. In the circumstance there will be no order as to costs.
Supreme Court of India
Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors on 19 March, 1996
Very often the words "religion" and "dharma" are used to signify one and the same concept or notion; to put it differently, they are used inter-changeably. This, however, is not so, as would become apparent from what is being stated later, regarding our concept of dharma. I am of the considered view that the word religion in the two articles has really been used, not as is colloquially understood by the word religion, but in the sense of it comprehending our concept of dharma. The English language having had no parallel word to dharma, the word religion was used in these two articles. It is a different matter that the word dharma has now been accepted even in English language, as would appear from Wester's New Collegiate Dictionary which has defined it to mean : "Dharma : n. [Ekt. ff.dharayati he holds;] akin to L firmus firm: custom or law regarded as duty: the basic principles of cosmic or individual existence: nature : conformity to one's duty and nature." The Oxford Dictionary defines dharma as : "Right behaviour, virtue; the Law [Skt = a decree, custom]".
The difference between religion and dharma is eloquently manifested when it is remembered that this Court's precept is ". It is apparent that the word dharma in this cannon or, for that matter, in our saying: does not mean religion, but the same has been used in the sense defined in the aforesaid two dictionaries. This is how the President of India, Dr. Shanker Dayal Sharma, understood the word dharma in his address at the First Convocation of the National Law School of India University delivered on 25th September, 1993 at Bangalore.
Our dharma is said to be `Sanatana' i.e. one which has eternal values; one which is neither time-bound nor space- bound. It is because of this that Rg. Veda has referred to the existence `Sanatan Dharmani'. The concept of `dharma', therefore, has been with us for time immemorial. The word is derived from the root `Dh.r' - which denotes; `upholding', `supporting', `nourishing and `sustaining'. It is because of this that in Karna Parva of the Mahabharata, Verse-58 in Chapter 69 says :
"Dharma is for the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma; that is definite."
(This is the English translation of the Verse) as finding place in the aforesaid Convocation Address by Dr. Shanker Dayal Sharma.) The Brhadaranyakopanisad identified Dharma with Truth, and declared its supreme status thus :
"There is nothing higher than dharma. Even a very weak man hopes to prevail over a very strong man on the strength of dharma, just as (he prevails over a wrong-doer) with the help of the King. Therefore people say about a man who declares the truth that he is declaring dharma and about one who declares dharma they say he speaks the truth. These two (dharma and truth) are this."
(English translation of the original text as given in the aforesaid convocation address).
The essential aspect of our ancient thought concerning law was the clear recognition of the supremacy of dharma and the clear articulation of the status of `dharma', which is somewhat akin to the modern concept of the rule of law, i.e. of all being sustained and regulated by it.
In Verse-9 of Chapter-5 in the Ashrama Vasika Parva of the Mahabharata, Dhritrashtra states to Yudhisthira : "the State can only be preserved by dharma - under the rule of law."
Ashoka mentioned about victory of dharma in his rock edict at Kalsi which proclaimed his achievement in terms of the moral and ethical imperatives of dharma, and exemplified the ancient dictum : (where there is Law, there is Victory).
We may with profit refer to another learned speech given by the President of India at the valedictory session of Parliament of Religions held at Calcutta on 19th September, 1993. Dr. Sharma was there principally speaking on the contributions of Swami Vivekananda to our religion and referred in this connection to the address of Swamiji given at the International Conference of Religions held at Chicago in September 19, 1893, when he explained many salient features of the Vedic and Vedantic body of thought and defined the characteristics of a religion "whose whole scope, whole force, will be centered in aiding humanity to realize its own true... nature." The President further quoted another thought of Swami Vivekananda where he had said : "Religion is neither word nor doctrine....It is deed. It is to be and become. It is the whole soul changed into that which is believed...."
Aforesaid was the Indian concept of religion of which the framers of the Constitution were aware and it is because of this that the word "religion", as used in Articles 25 and 26 of the Constitution cannot be confined, cabined and crabbed, according to me, to what is generally thought to be religion.
Swami Rama in his book `A Call to Humanity', published by the Himalayan International Institute of Yoga Science and Philosophy of the U.S.A. in 1988 has taken pains to demonstrate the difference between religion and dharma. It would be profitable to note what this great saint has said in this regard. The word religion, as presently understood, is comprised of rituals, customs, and dogmas surviving on the basis of fear and blind faith; whereas dharma encapsulates those great laws and disciplines that uphold, sustain, and ultimately lead humanity to the sublime heights of wordly and spiritual glory. Dharma shines in the form of truth, non-violence, love, compassion, forbearance, forgiveness, and mutual sharing.
Swami Rama mentioned in this connection what the great master, Krishna, stated to Arjuna about the essence of the Upanishads. He introduced a healthy lifestyle through which people could attain the state of peace here and now. But with the passage of time, people formed a cult around Krishna, giving birth to new religion with various branches.
The distinction between religion and dharma has also been explained by saying that religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.
The author goes on to say that the perennial truths, rules, and laws that help maintain peace and harmony in one's individual and in the community life constitute dharma. It applies for all times and in all places. Social laws and even national constitutions devoid of such a dharma will lead a society toward an inevitable decline.
Thus, having love for all human beings is dharma. Helping others ahead of one's personal gain is the dharma of those who follow the path of selfless service. Defending one's nation and society is the dharma of soldiers and warriors. In other words, any action, big or small, that is free from selfishness is part of dharma.
Swami Rama has further stated that dharma has been a great force in uplifting the human race. Dharma can help us today as it did in ancient times, but only if we start living by truth, not merely believing in truth. During away from dharma and distancing oneself from the Truth is not a desirable way of living. It ultimately leads to misery. In the practice of dharma, one is advised to shed to veil of ignorance and its source ? Withholding nothing, all the great sages in the world shared their knowledge with humanity. In the Bhagavad Gita, the Bible, Koran, and Dhammapada - knowledge, like the sun, shines for all.
It is because of the above that if one were to ask "What are the signs and symptoms of dharma?", the answer is: that which has no room for narrow-mindedness, sectarianisms, blind faith, and dogma. The purity of dharma, therefore, cannot be compromised with sectarianism. A sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none. This is the core of our dharma, our psyche.
Nothing further is required to bring home the distinction between religion and dharma; and so I say that the word "religion" in Articles 25 and 26 has to be understood not in a narrow sectarian sense but encompassing our ethos of Let us strive to achieve this; let us spread the message of our dharma by availing and taking advantage of the freedom guaranteed by Articles 25 and 26 of our Constitution.
Supreme Court of India
State Of Orissa And Sri Jagannath ... vs Chintamani Khuntia & Ors on 17 September, 1997
A further aspect of the case is that the Puri Jagannath Temple is a very ancient structure which needs to be maintained properly. One of the objects of creation of Shri Jagannath Temple Fund is to maintain the temple and also to do various other chargeable works including training of Sevaks and providing medical relief, water and sanitary arrangement for the worshippers and the pilgrims and constructing buildings for their accommodation. Money is needed for all these purposes. The Temple Committee had adopted certain measures like placing closed receptacles in place of Gadu and also Hundis to ensure proper collection of the offerings. The monies are to be used for charitable purposes. The Sevaks cannot be heard to complain that their property and also religious rights had been taken away in the process. The placing of the Hundis may restrict their activities and also reduce their share in the offerings but that does not amount to abridgment of any religious or property right of the Sevaks.
Article 25 guarantees the right to profess, practice and propagate religion. In order to succeed, in this case, the Sevaks will have to establish that the duties assigned to them including collection of offerings made by the devotees amounted to 'practice of religion'. The Sevaks are servants of the temple and were subject to the discipline and control of the trustees of temple
In the case of Tilkayat Shri Govindlalji Maharaj vs. The State of Rajasthan & Ors. (1964) 1 SCR 561, it was held by the Constitution Bench of this Court that the right to manage the properties of a temple was a purely secular matter and could not be regarded as a religious practice under Article 25(1) or as amounting to affairs in matters of religion under Article 26(b). It was held in that case that the provisions of Nathdwara Temple, 1959 did not contravene Articles 25(1) and 26(b) of the Constitution in so far as the temple properties are brought under the management of the Committee. t was further held that Section 30(2)(a) of the Act in so far as it conferred on the State Government power to make rules in respect of the qualifications for holding the office of the Goswami was invalid.
But what is of significance for the purpose of this case is that it was held that even though the first part of Section 30(2)(a) was invalid, the second part of the sub- section which enabled the State Government to frame rules in regard to the allowances payable to the Goswami was valid. It was held :
"We think it is but fair that this part should be upheld so that a proper rule can be made by the State Government determining the quantum of allowances which should be paid to the Goswami and the manner in which it should be so paid. We would, therefore, strike down the first part of Sec.30(2)(a) and uphold the latter part of it which has relation to the allowances payable to the Goswami."
The Court noticed in that case that the question as to whether a certain practice was of a religious nature or not, as well as the question as to whether an affair in question is an affairs in matters of religion or not, might present difficulties because sometimes practices, religious and secular, were inextricably mixed up. But the Court had no hesitation in holding that even though the State could not assume the power of laying down the qualifications for the holding of the office of Goswami which had to be done in accordance with the ancient rules, yet, the State was free not only to fix the remuneration payable to the Goswami but also the manner of such payment. In other words, payment of remuneration to a holder of the religious office, in whatever from, is not a religious activity. The State could modify the manner and quantum of such remuneration by law.
In the instant case, we see no why the Government cannot frame rules regulating the manner of payment of the Sevaks. They may be paid by giving them a percentage of the total collections made by them inside the temple. They may also be remunerated in some other way. But the Sevaks cannot, as a matter of right religious or temporal, claim that the entire offerings made in the temple whether in the Hundis or in the closed receptacles or anywhere else must be taken into account for fixing the commission payable to them.
In the case of Sri Venkataramana Devaru & Ors. vs. The State of Mysore & Ors. (1958) SCR 895, the validity of the Madras Temple Entry Authorisation Act came up for consideration. By this Act the disability of Harijans from entering into Hindu public temples was removed. The trustees of Sri Venkataramana contended tat it was a private temple and therefore was outside the scope of the Act, This plea was rejected. it was held in that case that the rights of a religious denomination to manage its own affairs in matters of religion under Art.26(b) were subjected to and controlled by a law protected by Art.25(2)(b) of the Constitution. it was further held :
"The expression 'matters of religion' occurring in Art.26(b) of the Constitution includes practices which are regarded by the community as part of its religion and under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand for worship and how the worship is to be conducted are all matters of religion."
This case, however, does not lay down that collection of money given by way of offerings inside the temple after the worship is over, is to be treated as a religious practice. In fact, collection of money starts when the religious practice ends.
In the case of P.V.Bheemsena Rao vs. Sirigiri Pedda Yella Reddi & Ors. (1962) 1 SCR 339, the dispute related to an Inam grant. In that case this Court pointed out that there was a distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service was well known in Hindu Law. The former was a case of a service grant and was resumable when the service was not performed. The latter was not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed.
In the case before us, the Sevaks have not been remunerated by grant of land while in service. One of the jobs assigned to the Sevaks is collection of money given as offering by the pilgrims. The Sevaks were entrusted with the duty of collecting the money and handing it over to the proper authority. As a matter of practice they were allowed a small percentage of the collection of the offerings made to the deities. There is nothing religious about this collection of money by Sevaks.
In the case of Seshammal & Ors. vs. State of Tamil Nadu (1972) 3 SCR 815, a Constitution Bench of this Court examined whether the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, as amended in 1970, had in any way violated Articles 25 and 26 of the Constitution. Section 55 of the Act as amended was under challenge. This Court upheld the validity of the amendment by holding that Section 28 directed the trustee to administer the affairs of the temple in accordance with the terms of the trust or usage of the institution. The Court held that the appointment of Archaka was a secular act even though after appointment. Archaka had to discharge religious duties. His Position was that of a servant subject to the disciplinary authority of the trustee. The trustee could inquire into the conduct of such servant and dismiss him for any misconduct. The Court observed.
"In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-
line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate is the next-in-line of succession to the last holder alone, the trustee is released from the obligation imposed on him by section 28 of the Principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid".
It was held that an Archaka had never been regarded as a spiritual head. he was a servant of the temple subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the Act. That being his position the act of his appointment by the trustee was essentially secular. Merely because after appointment, the Archaka performed worship was no ground for holding that his appointment was either a religious practice or a matter of religion. he owed his appointment to a secular authority. it was also held in that case that what constituted an essential part of a religion or religious practice had to be decided by the Courts with reference to the doctrine of a particular religion including practices which were regarded by the community as a part of its religion.
This Court held that the hereditary principle in the appointment of Archakas had been adopted and accepted from antiquity and had also been fully recognised in the unamended Section 55 of the Act. But the change effected by the amendment to Section 55 namely, the abolition of the principle of next-in-the line of succession was not invalid because the usage was a secular and not a religious usage. An Archaka was not a spiritual head. He was a servant subject to the discipline and control of the trustee as recognised by unamended Section 56 of the Act. The Court observed as under :
"The Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam-Karta or the Shebait makes the appointment and the Archaka is a servant of the temple. It has been held in K Seshadri Aiyangar V. Ranga Bhattar I.L.R. 35 Madras 631 that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquiry into the conduct of such a servant and dismiss him for misconduct."
On the basis of this principle, this Court held that the Amendment Act which empowered the trustees to appoint a fit person to be Archaka to do away with the requirement of hereditary appointment was not violative or Articles 25 and 26 of the Constitution in any way That the Archakas wee discharging certain religious functions inside the temple was not disputed. A distinction was drawn between religious and secular functions discharged by the Archakas.
Our attention was drawn to a recent decision of this Court in Pannalal Bansilal Pitti and Others v. State of A.P. and Another. (1996) 2 SCC 498, where one of the points that came up for consideration was the validity of Section 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987. Section 144 did away with the system of payment of a share of offerings made "either in kind or in cash or both by the devotees either in Hundi, plate or otherwise" in the temples of Andhra Pradesh. Provisions of this Section applied to any trustee, Dharmakarta, Mutawalli, any office-holder or servant including an Archaka or Mirasidar. The Court upheld the validity of the abolition of the traditional emoluments. The Court held that the object of the Act was to prevent misuse of the trust funds for personal benefits. The Act was passed on the basis of a report of Challa Kondaiah Commission. That being the position, it was held that the legislative wisdom behind the abolition of the emoluments to various persons connected with the temple could not be doubted by the Court.
We were also referred to two other decisions of this Court in the cases of A.S.Narayana Dekshituly v. State of A.P. and Others, 91996) 9 SCC 548 and Bhuri Nath & Ors. v. The State of Jammu & Kashmir & Ors. JT 1997 (1) S.C. 456. These two judgments have no direct bearing on the controversy now before us. It is unnecessary for us to go into the questions decided in these judgments and we refrain from doing so. However, we are not to be understood as subscribing to the views expressed therein.
A review of all these judgments goes to shows that the consistent view of this Court has been that although the State cannot interfere with freedom of a person to profess, practise and propagate his religion, the State, however, can control the secular matters connected with religion. All the activities in or connected with a temple are not religious activities. The management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. If any law is passed for taking over the management of a temple it cannot be struck down as violative of Article 25 or Article 26 of the Constitution. The management of the temple is a secular act. The temple authority may also control the activities of various servants of the temple. The disciplinary power over the servants of the temple, including the priests, may be given to the Temple Committee appointed by the state. The Temple Committee can decide the guantum and manner of payment of remuneration to the servants. Merely because a system of payment is prevalent for a number of years, is no ground for holding that such system must continue for all times. The payment of remuneration to the temple servants was not a religious act but was of purely secular nature.
In view of these principles laid down in the aforesaid cases and having regard to the facts of this case, we are of the view that the installation of the Hundis for collection of offerings made by the devotees inside the Jagannath Temple at Puri did not violate the religious rights of the Sevaks of the Temple in any manner even though the sEvaks were denied any share out of the offerings made in the Hundis. Section 28-B of the Act cannot be struck down as violative of religious or property rights of the sevaks.
We are also of the view that it was open to the State to set up the Foundation Fund out of donations exceeding five hundred rupees made to the temple. The Sevaks could not claim any share out of the donations or contributions made to the Foundation Fund as of right. Sub-section (9) of Section 28-C was validity enacted.
We hold that the amended Section 28-B ad sub-section (9) of section 28-C of Shri Jagannath Temple Act, 1954 do not contravene the provisions of Articles 25(1), 26 or 300-A of the Constitution of India in any manner.
Supreme Court of India
The Commissioner Of Police & Ors vs Acharya Jagdishwarananda ... on 11 March, 2004
By, THE HONOURABLE MR. JUSTICE S. RAJENDRA BABU
By, THE HONOURABLE DR. JUSTICE AR. LAKSHMANAN & THE HONOURABLE MR. JUSTICE G.P. MATHUR
Rajendra Babu, J.
2. Ananda Marga contains no dogmatic beliefs and teaches the yogic and spiritual science to every aspirant.
3. Tandava dance was not accepted as an essential religious rite of Ananda Margis in 1955 when that order was first established. It was introduced for the first time as a religious rite in or around 1966.
4. Ananda Marga is a religious denomination of the Shiviate order, which is a well-known segment of Hindu religion.
6. After taking into account of all the relevant facts, including the above, this Court held:
"...Ananda Marga as a religious order is of recent origin and Tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances Tandava dance can be taken as an essential religious rite of the Ananda Margis. Even conceding that is so, it is difficult to accept Mr. Tarkunde’s argument that taking out religious processions with Tandava dance is an essential religious rite of Ananda Margis... On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of performance of Tandava dance by every follower of Aanda Marga. Even conceding that Tandava dance has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a necessary corollary that Tandava dance to be performed in the public is a matter of religious rite..."
7. By the above finding this Court was categorical in it’s judgment that Tandava dance in public is not an essential part of religious rites of Ananda Margi faith. The conclusion arrived at by this Court regarding the non-essential nature of Tandava dance to Ananda Margi faith was principally based on the fact that the order itself is of recent origin and the practice of dance is still more recent. Court even went to the extent of assuming that Tandava dance was prescribed as a rite and then arrived at the conclusion that taking out Tandava dance in public is not essential to Ananda Margi faith. After arriving at the above ratio, the Court further added that-
"...In fact, there is no justification in any of the writings of Shri Ananda Murti that Tandava dance must be performed in public. At least non could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf."
8. This observation cannot be considered as a clue to reopen the whole finding. By making that observation the Court was only buttressing the finding that was already arrived at. The learned judges of the High Court wrongly proceeded on the assumption that the finding of this Court regarding the non-essential nature of Tandava dance to the Ananda Margi faith is due to the non-availability of any literature or prescriptions by the founder. The High Court is under the wrong impression that an essential part of religion could be altered at any subsequent point of time.
9. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See generally the Constitution bench decisions in The Commissioner vs. L.T. Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb vs. State of Bombay 1962 (Supp) 2 SCR 496, and Seshammal vs. State of Tamilnadu (1972) 2 SCC 11, regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by ‘an essential part or practices of a religion’ is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. No body can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion whether the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.
10. Here in this case Ananda Margi order was founded in 1955. Admittedly, Tandava dance was introduced as a practice in 1966. Even without the practice of Tandava dance (between 1955 to 1966) Ananda Margi order was in existence. Therefore, Tandava dance is not the ‘core’ upon which Ananda Margi order is founded. Had Tandava dance been the core of Ananda Margi faith, then without which Ananda Margi faith could not have existed.
11. There is yet another difficulty is accepting the reasoning of the High Court that a subsequent addition in Carya Carya could constitute Tandava dance as essential part of Ananda Margi faith. In a given case it is for the Court to decide whether a part or practice is an essential part of practice of a given religion. As a matter of fact if in the earlier litigations the Court arrives at a conclusion of fact regarding the essential part or practice of a religion-it will create problematic situations if the religion is allowed to circumvent the decision of Court by making alteration in its doctrine. For example, in N. Adithayan vs. Travancore Devaswaom Board (2002) 8 SCC 106, this Court found that a non-brahmin could be appointed as a poojari (priest) in a particular temple and it is not essential to that temple practice to appoint only a brahmin as poojari. It open for that temple authorities to subsequently decide only brahmins could be appointed as poojaris by way of some alterations in the relevant doctrines? We are clear that no party could ever revisit such a finding a fact. Such an attempt will result in anomalous situations and could only be treated as a circuitous way to overcome the finding of a Court. If subsequent alterations in doctrine could only be treated as a circuitous way to overcome the finding of a Court. If subsequent alterations in doctrine could be allowed to create new essentials, the judicial process will then be reduced into a useless formality and futile exercise. Once there is a finding of fact by the competent Court, then all other bodies are estopped from revisiting that conclusion. On this count also the decision of High Court is liable to be set aside.
12. In the result, we respectfully adopt the finding of this Court in the first Ananda Margi case and allow the instant appeal. Since we find that practice of Tandava dance in public is not an essential part of Ananda Margi faith, there is no need to look into any other arguments advanced before us. The order in the Writ Petition as affirmed by the Division Bench is set aside and the Writ Petition is dismissed.
13. Before parting with this matter, it is necessary for us to refer to the observations made by this Court in Bijoe Emmanuel & Ors. vs. State of Kerala & Ors., 1986 (3) SCC 615, because reference to three Judges’ Bench has arisen on account of these observations. In Bijoe Emmanuel’s case (supra) this Court adverted to the decision of this Court in the earlier round of litigation in First Ananda Margi case (supra) and observed as follows:-
"The question in that case was whether the Ananda Margis had a fundamental right within the meaning of Article 25 or Article 26 to perform Tandava dance in public streets and public places. The court found that Ananda Marga was a Hindu religious denomination and not a separate religion. The court examined the question whether the Tandava dance was a religious rite or practice essential to the tenets of the Ananda Marga and found that it was not. On that finding the court concluded that the Ananda Marga had no fundamental right to perform Tandava dance in public streets and public places. In the course of the discussion, at one place, there is found the following sentence: