Recently Apex Court in case of Shabrimala in a PIL filed by an Association opened entry doors for females for Darshan. A review is filed and there is lot of opposition within the section of Society who follow the Religion or Deity.
It a very good Judgment by majority of Judges, have analyzed Fundamental Rights in details. As society moves forward there has to be advancement in approach and this approach is well accepted by Hindu Religion so far, whether it is Sati Pratha, adoption by Widow, right of inheritance so on.
But there is a dissenting Judgment on Justice Indu Malhotra which raises potential legal questions and therefore its necessary to analyze and discuss.
Senior Counsel Mr.Parasaran submitted “ It was further submitted that the status of this temple as a religious
denomination, was settled by the judgment of the Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors. AIR 1993 Ker 42 The High Court decided the case after recording both documentary and oral evidence. The then Thanthri – Sri Neelakandaru, who had installed the deity was examined by the High Court as C.W.6, who stated that women during the age group of 10 to 50 years were prohibited from entering the temple much before the 1950s.”
This judgment being a declaration of the status of this temple as a religious denomination, is a judgment in rem. The said judgment has not been challenged by any party. Hence, it would be binding on all parties, including the Petitioners herein.
The following observation from the judgment of this Court in Dr.Subramanian Swamy v. State of Tamil Nadu & Ors. (supra) was relied upon: “The declaration that Dikshitars are religious denomination or section thereof is in fact a declaration of their status and making such declaration is in fact a judgment in rem.” (Internal quotations omitted)
The fundamental analysis is :
The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith.
The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practices, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.
The practice of restricting the entry of women belonging to the age group of 10 to 50 years, was challenged as being violative of Articles 15, 25, and 26 of the Constitution before a Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors. The High Court held that the restriction on the entry of women between the ages of 10 to 50 years was in accordance with the practice prevalent since time immemorial, and was not violative of Articles 15, 25, and 26 of the Constitution.
A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals are also regarded as an integral part of religion. If the tenets of a religion lay down that certain ceremonies are to be performed at certain times in a particular manner, those ceremonies are matters of religion, and are to be protected as a religious belief.
The High Court concluded by holding:
“Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 andbelow 50 from trekking the holy hills of Sabarimala and ering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of
India.
(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry)
Act, 1965 since there is no restriction between one section and another section or between one class and
another class among the Hindus in the matter of entry to a Temple whereas the prohibition is only in respect of
women of a particular age group and not women as a class.”
In view of the conclusions summarised above, the High Court directed the Travancore Devaswom Board not to permit women belonging to the age-group of 10 to 50 years “ to trek the holy hills of Sabarimala in connection with the pilgrimage. The Judgment of the Kerala High Court was not challenged any further, and has attained finality.
Thus viewed, such findings of fact ought not to be re-opened in a Petition filed under Article 32.
These are very important observation and cannot be overlooked.
Now question arises can a final order and decree be set-aside in Writ Jurisdiction?
There are many Judgments and in ordinary case, every High Court and Supreme Court direct to first avail appropriate remedy.
In Lal Singh vs Chandresh Rajasthan High Court held the suit filed under Order XXXVII Rule 1 and 2 of the Code of Civil Procedure had been finally adjudicated and culminated in the judgment and decree dated 21.1.2015; and rejection of the application under Order XXXVII Rule 4 of the Code of Civil Procedure has merged in the said decree, against which a regular appeal under Section 96 of the Code of Civil Procedure has been provided, for which, the petitioner cannot invoke writ jurisdiction of this Court under Article 227 of the Constitution of India.
In Jacky vs Tiny @ Antony & Ors on 9 April, 2014 Supreme Court decided following question
The only question which is required to be determined in this case is whether the High Court while exercising its power under Articles 226 and 227 of the Constitution of India is competent to set aside the plaint ?
Held A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.
What is PIL?
PIL can be filed against govt only, not individuals
A PIL may be filed against state government, central government, municipal authority not any private party. But, private person may be included in PIL as ‘Respondent’, after concerned of state authority. i.e. a private factory in Mumbai which is causing pollution then public interest litigation can be file against government of Mumbai, state pollution central board including that private factory of Mumbai.
Filing of PIL under act 32, 226 or 133
The court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress. Any citizen can file a public case by filing a petition:
Under Act 32 of the Indian Constitution, in the Supreme court.
Under Act 226 of the Indian Constitution, in the High court.
Under sec. 133 of the Criminal Procedure Code, in the court of Magistrate.
Source of Hindu Law
Hindu Law one of the source is custom and its potency. Custom is transcendent Law see (RM) 1954 Mad.657.
The Judicial Committee of Ramnad case said,” Under the Hindu system of Law ,clear proof of usage will outweigh the written text.”
A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a Custom, in order that it may be legal and binding, must have been used so long that the memory of man rennet not to the contrary”
All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (See Mt. Subhani v.Nawab, A.I.R. 1941 P.C. 21 at 32). A custom may be proved by general evidence as to itsexistence by members of the tube or family who would naturally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v. Mt. Channi Bibi, A.I.R. 1925P.C. 267 at 271). (See Beg v. Allah Ditta, A.I.R. 1916 P.C. 129 at 131 ;Saleh Mohammad v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 25) 975 Supp SCC’ 1: (1976) 2 SCR 347 170 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.
According to Sir John Salmond, “Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.” He further say that “The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.”
In Kandulapati Kanakaratnam vs Kandulapati Narasimha Rao, Being on 28 August, 1941 Equivalent citations: (1941) 2 MLJ 803 JUDGMENT Alfred Henry Lionel Leach, C.J.
The question which arises for decision in this appeal is whether the adoption by a Hindu widow of a son to her deceased husband is invalid when the widow is actuated, not by a sense of religious duty, but by an improper motive. Two arguments have been advanced on behalf of the appellant. In the first place it is said that a Hindu widow cannot make a valid adoption when she has been prompted by a corrupt motive. In the second place it is said that here the consent of the nearest sapinda cannot be regarded as being a lawful consent because he gave it under the impression that Gopalam had by will directed the second respondent to adopt a son to him. The second contention was not seriously pressed and calls for little comment. The appellant mainly relies on a passage in the judgment of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, which is usually referred to as the Ramnad case. It was there held that according to the law prevalent in the Madras Presidency a Hindu widow who has not received authority from her husband may nevertheless’ adopt a son to him if she has received the consent of his kinsmen. Subsequent decisions make it clear that by kinsmen is meant the nearest sapindas. The passage relied upon by the appellant reads as follows:
It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every case must depend upon the circumstances of the family. All that can be said is that there should be such evidence of the assent of kinsmen as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.
The question was fully debated by the Bombay High Court in Ramachandra Bhagawan v. Mulji Nanabhai (1896) I.L.R. 22 Bom. 558, which was decided by a Full Bench of five Judges. The Court held, one Judge dissenting, that in the Bombay Presidency any discussion of the widow’s motive in making an adoption was irrelevant, because a widow in the Bombay Presidency had the power to adopt without any consent and the adoption resulted in religious benefit to her deceased husband.
A valid custom should be ancient. In Ramalakshmi v. Sivanatha, (1872) 14 MIA 585, the Privy Council observed:“It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence”.
To start discussion and understand the issue ,we must know the law in force governing these proceedings.
Any civil suit is governed by Code of Civil Procedure,1908 ( said C.P.C) and amended from time to time. Relevant provisions of said C.P.C are as under:
Section 9 : PART I : SUITS IN GENERAL
Jurisdiction of the Courts and Res judicata
Courts to try all civil suits unless barred
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
[Explanation I] – A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
[Explanation II – For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]
Place of suing
15. Court in which suits to be instituted
Every suit shall be instituted in the Court of the lowest grade competent to try it.
Institution of suits
26. Institution of suits
Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 4[leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :— (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee;
5[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property]; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), 6[or by any corresponding law in force in 7[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypres in one or more of the following circumstances, namely :— (a) where the original purposes of the trust, in whole or in part,— (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,— (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, of (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]
Exercise of powers of Advocate-General outside presidency-towns.—The powers conferred by sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.
Now let us see provisions of Fundamental Rights and Constitutional Rights:
The relevant provisions are as under:
PART III
FUNDAMENTAL RIGHTS
General
In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Article 14 enshrined in the Constitution gives Right to Equality. It says:
Right to Equality
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15 says :
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion,race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.]
[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
Article 25 and 26 relates to Fundamental Right in respect of Religion. They are :
Right to Freedom of Religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Is deity a living being and citizen of India? Can he sue or be sued in personal name?
Now let us see Can Custom and Usage of a Religion be subject matter of Right to Equality or interference thereof by court also violets Article 25?
Now let us discuss and find out answers of each question.
Is deity a living being and citizen of India?
Let us discuss in terms of precedents and Judgments:
In Vidyapurna Tirtha swami Vs. Vidyanidhi Tirtha Swami & Ors., ILR 27 Mad. 435 (at 457), by Bhashyam Ayyangar, J. (approved in Yogendra Nath Naskars case, 1969 (1) SCC 555) the property given in trust becomes irrevocable and is none was appointed to manage, it will be managed by the court as representing the sovereign. This can be done by the Court in several ways under Section 92, CPC or by handing over management to any specific body recognised by law. But the trust will not be allowed by the Court to fail. Endowment is when donor parts with his property for it being used for a public purpose and its entrustment is to a person or group of person in trust for carrying out the objective of such entrustment. Once endowment is made, it is final and it is irrevocable. It is the onerous duty of the persons entrusted with such endowment, to carry out the objectives of this entrustment. They may appoint a manager in the absence of any indication in the trust or get it appointed through Court. So, if entrustment is to any juristic person, mere absence of manager would not negate the existence a juristic person
In Ram Jankijee Deities and Ors. Vs. State of Bihar and Ors., 1999 [5] SCC 50, this Court while considering two separate deities, of Ram Jankijee and Thakur Raja they were held to be separate Juristic Persons. So, in the same precincts, as a matter of law, existence of two separate juristic persons were held to be valid.
In Shriomani Gurudwara Prabandhak vs Shri Som Nath Dass & Ors An idol becomes a juristic person only when it is consecrated and installed at a public place for public at large. Every idol is not a juristic person. So every Guru Granth Sahib cannot be a juristic person unless it takes juristic role through its installation in a gurudwara or at such other recognised public place.
Who can represent Idol?
Tarit Bhusan Rai And Anr. vs Sri Sri Iswar Sridhar Salagram : AIR 1942 Cal 99 the rule of law now stands there are several distinct rights of suit in respect of the endowed property, viz., (1) the idol itself as a juristic person has the right of suit like all other owners ; (2) the shebait, the recognized human agency through which the idol must, from its very nature, act, has a distinct right, distinct from, and, in normal cases, in supersession of the idol’s right of suit Jagindindra Nath Roy v. Hemanta Kumari Debi (‘4) 32 Cal. 129; (3) the prospective shebaits as persons interested in the endowment have a right of suit; (4) worshippers and members of the family have right of suit. The question before us is not who else can sue in his own right but who else, other than a shebait, can represent the idol when the suit is in enforcement of the idol’s right of suit. Ordinarily the shebaits alone will have the right to represent the idol. In special cases the Court may appoint some one to represent it. The rules of law that can be gathered from the decided cases in this respect appear to be–(1) that normally a shebait alone can represent an idol in a suit or proceeding; (a) that where there are several shebaits, the entire body of them will represent the idol; (b) that under some special circumstances even a co-shebait can represent the idol; Nirmal Chandra v. Jyoti Prosad that it is only under some special circumstance that the idol may be represented by (a) a prospective shebait; (b) a worshipper or any person interested in the endowment; (3) that when persons other than the shebaits come to represent the idol, they can represent the idol only by an appointment by the Court.
Conclusion: Idol is Juristic person and can be represented by shebait . No person of his own can appear unless appointed by Court to represent the case.
Now moving to Question No.2
Now let us see Can Custom and Usage of a Religion be subject matter of Right to Equality or interference thereof by court also violets Article 25?
Rabindra Kumar Pal @ Dara Singh Versus Republic of India(2011) 2SCC490
In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that the State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.
Ratilal Panachand Gandhi Versus State of Bombay 1954 AIR(SC) 388 : 1954 (1) MLJ 718
A religious sect or denomination has. the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for religion and for religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs.
It is perfectly true, as has been stated (1) Vide Halsbury, 2nd Edn., VOl. IV, P. 228, by the learned counsel for the appellants, that it is an established maxim of the Jain religion that Divadraya or religious property cannot be diverted to purposes other than those which are considered sacred in the Jain scriptures. But apart from the tenets of the Jain religion, we consider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority- to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold, therefore, that clause (3) of section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1), must be, held to be void.
Articles 25 and 26 constitute the fundamental rights to freedom of religion guaranteed to the citizens of this country. Article 25 (1) protects the citizen’s fundamental right to freedom of conscience and his right freely to profess, practice and propagate religion. The protection given to this right is, however, not absolute. It is subject to public order, morality and health as Art. 25 (1) its-elf denotes. It is also subject to the laws, existing or future, which are specified in Art. 25 (2). Article 26 guarantees freedom of the denominations or sections thereof to manage their religious affairs and their properties. Article 26 (b) 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 ; and Art. 26 (d) lays down a similar right to administer the property of the denomination in accordance with law. Article 26 (c) refers to the right of the denomination to own and acquire movable and immovable, property and it is in respect of such property that clause (d) makes the provision which we have just quoted. The scope and effect of these articles has been considered by this Court on several occasions. “The word “religion” used in Art. 25 (1),” observed Mukherjea, J., speaking for the Court in the case of the Commissioner, Hindu Religious Endowments, Madras (1). “is a matter of faith with individuals and communities and it is not necessarily theistic. It undoubtedly has its basis in a system of beliefs or doctrines which are regarded by. those who profess (1) [1954] S.C.R. 1OO5.
In Shri Venkataramana Devara v. The State of Mysore (1), Venkatarama Aiyar, J., observed “‘that the matter of religion in Art. 26 (b) include even practices which are regarded by the community as parts of its religion.” It would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25 (1) and Art. 26 (b) extends to such practices. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question ? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which (1) [1958] S.C.R. 895, 909.
Custome, Usage and Practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali , and observed that in order that the practices in question should be treated as a part of religion they ‘must be -regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 25 (1).
In this connection, it cannot be ignored that what is protected under Arts. 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Art. 25 (1) or Art. 26 (b) has been contravened. The protection is given to the practice of religion and to the denomination’s right to manage its own affairs in matters of religion. Therefore- whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practice religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in [1962] 1 S.C.R. 383,411.
If matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matters of religion, then, of course, the rights guaranteed by Art. 25 (1) and Art. 26 (b) cannot be contravened.
It is true that the decision of the question. as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may Dot be easy, it must nevertheless be attempted in dealing with the claims for protection under Arts. 25 (1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under Arts. 25(1) and 26(b), Latham, C. J.,’s. observation in Adelaide Company of Jehovah’s witnesses Incorporated v. The Commonwealth (1), that “what is religion to one is superstition to another”,
See also Tilkayat Shri Govindlalji … vs The State Of Rajasthan 1963 AIR 1638, 1964 SCR (1) 561
Conclusion:
There is some aspect which are not argued or brought to notice of the Hon’ble Supreme Court?
Without any comments I put this article to rest and its for those who are representing the case in Supreme Court
11th October,2018
Mumbai.
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