3. Membership in a Society, not a Fundamental Right
4. ‘Subscription in Arrears’: Afford Opportunity of Payment
5. Individual Membership Rights
6. Individual Can Maintain Cause of the Collective Body
7. Individual and Corporate Membership Rights
8. When Minority can File Suits Without Sanction of Majority
9. Exceptions to the rule in Foss Vs. Harbottle
9. No Personal Liability on Members & Gov. Body
10. Co-op: Society has Corporate Personality & Its Liability
11. Elected Representatives of a Church can Protect Property
12. No Taxing When Members Avail the Facilities
13. Admission of New Members
14. Instances When Court Interferes
Provisions of the Societies Registration Act, 1860:
15. Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
Disqualified members: But in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months
1. Definition of ‘Member’ & Right to Vote
Norms & Formation of Governing Body is Left to Bye Laws.
The definition of ‘Member’ in the Societies Registration Act, 1860 (in Sec.15) is not exhaustive, as it is ‘for the purposes of this Act’ alone. Therefore it is legitimate to say that the disqualifications specified in the second limb of Section 15 (restriction to vote; and not to count as a member, because of subscription-arrears) is confined[1] to the activities enjoined to the ‘members’ in the So. Registration Act: ie. to take part in the meeting to make bye laws (S. 9), amend the ‘purposes’ (S. 12), take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.
So. Regn. Act does not specifically deal with or direct ‘election’ of the governing body.[2] The mode and modalities of formation of the governing body is resolutely left, under Sec.16, to the ‘rules and regulations of the society’.
Sec.16 reads:
Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.
It cannot be understated as an omission in the Act. Pointing out the fundamental right guaranteed (Article 19(1)(c) of the Constitution of India) to form associations, and that the bye laws bind the members as a contract, even if it can be argued that the founders of a society are free to make bye laws which provide for permanent governing body, without an election, it appears that such a society cannot be recognised under the Societies Registration Act in our country which values democratic principles as paramount. Bye laws of a society or a club is a contract amongst its members; and therefore, it must be reasonable.[3]
It is also possible to demonstrate that the right to vote can be conferred upon the life-members or honorary-members even in a registered society (who have not signed the roll/list of members or are in arrears). In Periyar Self-Respect Propaganda Institution Vs. State of Tamil Nadu[4] it is observed:
“By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society and certainly it cannot assume the colour of a fundamental right. Neither the Institution nor the Charitable Society, or the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterized as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”
2. State-Acts Empower Registrar to Call Meeting for Elections
Societies Registration Act, 1960 as amended by the State of UP empowers the Registrar to call a meeting of the General Body of a society for electing its office bearers. In such cases, it is legitimate to say that the Registrar has to resort the definition in the Act to determine the members entitled to attend the meeting and to vote.
3. Membership in a Society, not a Fundamental Right
It is settled law that no citizen has a fundamental right under Article 19(1)(c) of the Constitution of India to become a member of a society, though it is a Co-operative Society established under a statute.[5]
The Hindi Sahitya Sammelan Vs. Jagdish Swamp[6] is the authority for the proposition that the right to form an association enjoins with it a right to continue to be associated with it as well as to ensure that only those persons are admitted to the association whom they voluntarily admitted.
In Satya Narain Tripathi Vs. State of UP[7] it is observed as under
“But a right to form an association on the one hand and the right to be elected to an office of such association or to participate in the elections on the other hand have been held to be distinct rights and the latter can be claimed only in accordance with the provisions of the bye-laws of the association or under a statute while the former can be claimed also as a fundamental right.”
Vide 97th Amendment to the Constitution of India[8] the right to form Co-operative Societies has been made a fundamental right. But the same would not alter the principle of membership in such societies; because, the right to form a Co-operative Society is different from the right to become a member therein which continues to be governed by the provisions of the Act, the Rules and the Bye laws.[9]
4. ‘Subscription in Arrears’
Affording Opportunity of Making Payment
Non-payment of subscription will not amount to relinquishment of membership, unless the person had been afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The Societies Registration Act does not provide for automatic expulsion or removal/termination of membership for non-payment of subscription fees.
While considering Section 2 (b) of the Karnataka Societies Registration Act (similar provision to Sec. 15 of the Societies Registration Act), the High Court of Karnataka (R.P. Sethi, G. Patri Basavana Goud JJ.), in Lingappa Police Patil Vs. Registrar of Societies[10] after referring to dictionary meaning of ‘resignation’ and various Supreme Court decisions[11] it is held as under:
“In view of what we have noted hereinabove, it cannot be said that mere non-payment of the subscription would amount to resignation within the meaning of Section 2 (b) of the Act. Non-payment of subscription would also not amount to relinquishment of membership, unless a person is afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The society may be justified and the respondents may prescribe any such rule which provides for affording an opportunity to the defaulting member to make the payment of the arrears of subscription and upon failure, without valid reasons, declare the defaulter to cease to be the member for the purposes of the Act and the Rules. A reference to the proviso to Sub-section (2) of Section 6 of the Act clearly indicates that save as otherwise provided by the Act, no rule or regulation of the society can exclude any member from being entitled to vote.”
In Lingappa Police Patil Vs. Registrar of Societies[12] it is also held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause[13] for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act.
5. Individual Membership Rights
(See Chapter: Individual Membership Rights)
With respect to the individual membership rights of a member of a society registered under the Societies Registration Act, the general principles governing the rights of an individual share holder or a member of a company would apply.[14]
Following are recognised by Courts as ‘individual membership rights’ in a company[15].
(i) Right to vote,
(ii) right to stand as a candidate as a director and
(iii) set-right illegal acts.
These rights can be asserted by a member in his personal capacity without the sanction of the majority or without impleading the company as a co-plaintiff or defendant.
In the often quoted decision, Nagappa Chettiar Vs. Madras Race Club[16] it is observed:
“A share-holder is entitled to institute a suit to enforce his individual rights against the Company such as his right to vote or his right to stand as a director of a company at an election ……….. It is open to a majority always to set right a thing which was done by the majority either illegally or irregularly if thing complained of was one which the majority of the company were entitled to do legally and was within the powers of the company, by calling a fresh meeting. That is the reason why in such cases the court refuses to interfere at the instance of a share-holder even in a representative action brought by him. If the majority, however, acts in an oppressive manner, it is not as if the minority are without a remedy. …… From this it follows that a share-holder or share-holders are entitled to bring an action:
(1) In respect of matters which are ultra vires the company and which the majority of share-holders were incapable of sanctioning (See Burland Vs. Earl, 1902 AC 83);
(2) Where the act complained of constitutes a fraud on the minority and
(3) Where the action of the majority is illegal“.
6. Individual Can Maintain Cause of the Collective Body
Where the right of an individual is affected or infringed, and, he has no other effective remedy, and where there are no vitiating circumstances such as delay, latches, etc., the cause of the collective body will be maintainable at the instance of an individual.[17]
7. Individual Membership Rights and Corporate Membership Rights
The Kerala High Court in Joseph Vs. Jos[18] observed as under:
“… There are two kinds of rights for a member of the company, one the individual membership right, and the other the corporate membership right. So far as the corporate membership rights are concerned, a shareholder can assert those rights only in conformity with the decision of the majority of the shareholders. An individual membership right is a right to maintain himself in full membership with all the rights and privileges appertaining to that status. …”
8. When Minority can File Suits Without Sanction of Majority
Exceptions to the rule in Foss Vs. Harbottle
See Chapter: How to Sue Societies & Clubs
9. Liability of So: No Personal Liability on Members & Gov. Body
See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.
10. Co-op: Society has Corporate Personality; Liability It’s Own
Merely because of a person having been its president for some time will not be liable for payment of the dues of a Co-operative Society; because, a Co-operative Society registered under the Co-operative Societies Act is a legal entity invested with a corporate personality which makes it distinct and different from the various members constituting it. The liability of the society is its own and not that of its members or office bearers, and has to be met by the society itself.[19] It is held in State of Punjab Vs. Amolak Ram Kapoor[20] as under:
“Since the Board was a society registered under the Societies Registration Act and as per rules and regulations it could acquire and sell property, the recovery of arrears of sales tax imposed on the Board could only be recovered from the property of the Board and not from the members of the Board.”
Ninety Seventh Amendment of our Constitution provided constitutional status to the Co-operative Societies and it has brought out radical changes in the concept of Co-operative Societies. Democratic functioning and autonomy have now become the core constitutional values of a Co-operative Society.
11. Elected Representatives of a Church can Protect Property
In Latin Archdiocese of Trivandrum Vs. Seline Fernandez[21] the question came whether the plaintiffs were competent to represent the parish and claim rights against the third party defendants. The third parties (though were also parishioners of the very same Church), by the nature of the claim set up by them, as against the Church, with reference to the property, stood as rival claimants with the Church.
The court found that the suit having been initiated and prosecuted with the ultimate aim of protecting the Church property (as per the Canon Law Church property vests in the hands of the Bishop or the Vicar and clearly mandates a consent from either of these two personalities for initiating a litigation) the sanction of the ordinary was not necessary; and that the plaintiffs who were the elected representatives, entrusted with the administration of the Church, were competent to initiate civil proceedings before the Civil Court. And that under the Canon law, the temporal goods belong to the parish (which, by law, was a public juridic person) and every administrator was bound to protect the property of the Church with the diligence of a good house holder; and also that the plaintiffs, individually, being the parishioners of the Church, were competent to represent the ‘juridic person’.
The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[22] It has been clearly laid down by the Supreme Court in Deoki Nandan Vs. Murlidhar[23] that the worshippers have a ‘beneficial interest’ (not the ‘proprietary interest’ or interest pertaining to owners). A worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity. [24] Even in matters where Indian Trusts Act applies, Section 63 of the Indian Trusts Act is not exhaustive of remedies available to a beneficiary. Where the trustee has improperly alienated trust property the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.[25]
When the Shebait acted adversely to the interest of the idol and fails to take action to safeguard its interest, it was held by our Apex Court in Bishwanath Vs. Thakur Radha Ballabhji[26] that there was no justification for denying the right to a worshipper to file suit to seek appropriate reliefs. The Supreme Court observed that it had been held in a number of decisions[27] that worshippers may file a suit praying for possession of a property on behalf of an endowment. It was also observed that an idol was in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol could certainly be clothed with an ad hoc power of representation to protect its interest. In Ramchand Vs. Janki Ballabhji Maharaj[28] the Supreme Court held that a person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its property against the Pujari or Manager, on behalf of the deity to protect the property from mismanagement or misappropriation.
12. No Taxing When Members Avail the Facilities
In Commissioner of Income-tax Vs. Darjeeling Club Ltd.[29] a Division Bench of Calcutta High Court observed that there was a long line of decisions in which it had been held that supplies made by a club to its members or the facilities afforded by a club to its members for a price would not amount to business activity of the club, even though there might be surplus of revenue over expenditure and the surplus could not be taxed as business profits if the sales were confined to the members of the Club only. There cannot be any distinction, with respect to this matter, between a temporary member and an honorary member. Any surplus contribution will be held for the benefit of the members. The benefit of the surplus fund must go back to the members as a class.
Where facilities including accommodation is provided to the members through the instrumentality or agency of the Club, neither the Club is the landlord, nor the members – during their stay – are the tenants of the Club. The members by virtue of their membership are entitled to avail of the facilities of their Club (accommodation) according to its rules, as of right. What is paid by the members for their accommodation cannot be treated as rent and the income cannot be regarded as income from the house-property under the Income Tax Act.[30]
13. Admission of New Members
The bye laws of a Society or a Club prescribe the qualifications of the Members to be admitted. They are in the nature of contract between the members. Therefore the right of admission of new members also remains at the will and option of the members.[31] The State or an enactment cannot compel admission of members, contrary to the bye laws of a Society.[32] What is the ‘interest’ of the Society or a Club is to be determined by the society.[33]
14. Instances When Court Interferes
See Chapter:Court’s Jurisdiction to Interfere in the Internal Affairs.
15. Disqualification of Members
Section 21(1)(g) of the Telangana Co-operative Societies Act, 1964, provides that a person shall be disqualified for being a member if he fails to attend two consecutive annual General Body meetings without leave of absence. Proviso to sub-Section (3) of Section 21 states that “no member shall be removed under this sub-Section unless he had an opportunity of making a representation against the proposed action of removal and a copy of resolution removing the member shall be communicated to such person and on such communication, he shall be deemed to have ceased to be a member of the society”.
In Bollineni Ravindranath Vs. Sate of Telangana[34] the The High Court of Telangana held that exclusion of members of the society from the voters list of eligible voters for not attending two consecutive General Body meetings of the society was patently illegal. It was pointed out that there was no material to show that they followed the procedure in Section 21(3) proviso to disqualify any member who did not attend two consecutive Annual General Body meetings without leave of absence, by giving him an opportunity of being heard as mandated by the proviso thereto, and thereafter such member was removed by the General Body of the society.
In Arun Laxman Ashan Vs. Jeevan C Idnani[35] details furnished by respondents as to forming front were rejected on the ground that the same were not in accordance with the requirement under the rules. Though steps were taken by respondents within time limit, certain documents were not filed within the time limit. No opportunity was given to respondents to cure such defects. The Bombay High Court held that the provisions of Rule 5, directing time-limit to furnish (proper) application, was directory and not mandatory.
Whether the edict in a statute is mandatory or directory is to be determined with reference to the nature and circumstance in which it is given. In Pratap Singh Vs. Krishna Gupta[36] the Supreme Court has observed that some rules are vital and go to the root of the matter; that they cannot be broken; that others are only directory and breach of them can be overlooked provided there is substantial compliance with the Rules read as a whole and provided no prejudice ensues; and that it is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment is obeyed or fulfilled substantially. In Hari Vishnu Kamath Vs. Ahmad Ishaque[37] it is stated as under:
“It is well-established that an enactment in form mandatory might in substance be directory and that the use of the word shall does not conclude the matter. The question was examined in length in Lulius v. Bishop of Oxford (1880) 5 AC 214 and various Rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the Legislature which is the determining factor and that must ultimately depend on the context.”
[2] But various States’ amendments (and State-Acts) provide for the same.
[3] Alty Vs. Farrell: (1896) 1 QB 638; Kruse Vs. Johnson: (1898) 2 QB 91, Scott Vs. Pilliner: (1904) 2 KB 855, Repton School Governors Vs. Repton Rural District Council:(1918) 2 KB 133; Chester Vs. Bateson: (1920) 1 KB 829; Attorney General Vs. Denhy: 1925 Ch 596: All referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.
[5] Zoroastrian Co -operative Housing society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306; State of U.P. Vs. C.O.D. Chheoki Employees’ Co-op. Society Ltd : AIR 1997 SC 1413; Supreme Court Bar Association and Ors. Vs. B.D. Kaushik: (2011) 13 SCC 774.
[13] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585: AIR 1990 NOC 26(Del).
[14] Satyavart Sidhantalankar Vs. Arya Samaj, Bombay: AIR 1946 Bom 516; Nagappa Vs. Madras Race Club: AIR 1951 Mad 831; Shridhar Misra Vs. Jaihandra: AIR 1959 All 598.
[15] See also: CL Joseph Vs. Jos: AIR 1965 Ker 68; Star Tiles Works Vs. N. Govindan: AIR 1959 Ker 254
[22] Vemareddi Ramaraghava Reddi Vs. Kondaru Seshu Reddi, AIR 1967 SC 436; Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228. In this case distinguished (pointing out actual worship of the idol sans right to worship) Sri Thakur Krishna Chandramajiu Vs. Kanhayalal, AIR 1961 All 206. See also: Jangi Lal Vs. B. Panna Lal, AIR 1957 All 743; Behari Lal Vs. Thakur Radha Ballabhji, AIR 1961 All 73
[24] Sri Ishwar Vs. Gopinath Das: AIR 1960 Cal 741: See also : Samit Pani Brahmachary Vs. Mayapur Chaitanya Math: AIR1999 Cal 132; Thakurji Maharaj Vs. Dankiya: AIR 1986 All 247.
[25] See: Janakirama Iyer Vs. Nilkanth Iyer: AIR 1962 SC 633
[27] Radhabai Vs. Chimnaji: (1878) ILR 3 Bom 27, Zafaryab Ali Vs. Bakhtawar Singh: (1883) ILR 5 All 497; Chidambaranatha Thambirarn Vs. P. S. Nallasiva Mudaliar: AIR 1918 Mad 464, Dasondhay Vs. Muhammad Abu Nasar: AIR 1917 Mad 112 (FB), Radha Krishnaji Vs. Rameshwar Prasad Singh: AIR 1934 Pat 584; Manmohan Haldar Vs. Dibbendu Prosad Roy: AIR 1949 Cal 199. Following two decisions of the Privy Council were also referred to: Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick: 52 Ind App 245: AIR 1925 PC 139 Kanhaiya Lal Vs. Hamid Ali: 60 Ind App 263: AIR 1933 PC 198 (1).
[28] AIR 1970 SC 532. See also Kt. N. Ram Thenappa Chettiar Vs. N. S. Kr. Karuppan Chettiar: AIR 1968 SC 915
[29] 1985 (153) ITR 676: Referred to in Saturday Club Vs. Asst. Commr. Service Tax: 2005-1 Cal LT 575.
[30] Saturday Club Vs. Asst. Commissioner Service Tax Cell Calcutta : 2005-1 Cal LT 575
[31] Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973
[32] Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306.
[33] State of Maharashtra Vs. Karvenagaar Sahakari Griha (2000) 9 SCC 295: Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR 2005 SC 2306
1. Provisions of the Societies Registration Act, 1860
2. How to Sue an Unregistered Society or a Club
3. Decision Binds all Represented
4. Virtually Suit By or Against Entire Members
7. How Sec. 6 is an Enabling Provision
8. Suit shall be in the Name of President, Chairman
9. Our Law Does Not Favour ‘Corporation Sole’
10. Sec. 6 Impliedly Bars Filing a Suit in the Name of Society
11. When Society need not be Necessary Party?
12. Is Society, a Necessary Party?
13. Personal Liability of Members and Governing Body
14. Sec. 6 is Not Strictly Followed by our Courts
15. Notice to a Society, Notice to all Members
Provisions of the Societies Registration Act, 1860:
“6. Suits by and against societies – Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.
Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
7. Suits not to abate -No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit proceedings shall be continued in the name of or against the successor of such person.
8. Enforcement of judgment against society – If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.
9. Recovery of penalty accruing under bye laws – Whenever by any bye laws duly made in accordance with the rules and regulations of the society, or, if the rules do not provide for the making of bye laws, by any bye laws made at a general meeting of the members of the society convened for the purpose (for the making of which the concurrent votes of three-fifths of the members present at such meeting shall be necessary), any pecuniary penalty is imposed for the breach of any rule or bye laws of the society, such penalty, when accrued, may be recovered in any court having jurisdiction where the defendant shall reside, or the society shall be situate, as the governing body thereof shall deem expedient.
10. Members liable to be sued as strangers – Any member who may be in arrear of a subscription which according to the rules of the society he is bound to pay, or who shall possess himself of or detain any property of the society in a manner or for a time contrary to such rules, or shall injure or destroy any property of the society, may be sued for such arrear or for the damage accruing from such detention, injury, or destruction of the property in the manner hereinbefore provided.
Recovery by successful defendant of costs adjudged – But if the defendant shall be successful in any suit or other proceedings brought against him at the instance of the society, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the society, and in the latter case shall have process against the property of the said society in the manner above described.
11. Members guilty of offences punishable as strangers – Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully, and maliciously destroy or injure any property of such society, or shall forge and deed, bond, security for money, receipt, or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and, if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.”
Introduction:
Societies, Clubs and Companies are formed by the teamwork and co-operation of the people associated with them, at its beginning.
A Company is a Juristic person. Hence it can sue or be sued in its name.
Proceedings in a suit by or against a registered society is different from that of an unregistered society or a club.
How to Sue an Unregistered Society or a Club
An unregistered society or a club is not a legal person;[1]and therefore, it has to sue or be sued only in the names of all its members. It can be done invoking Order I Rule 8 CPC which enables the society to sue, or be sued, in a representative character.
When a suit is filed by a member seeking reliefs concerning the society or a club, relating to a matter common to all members, he has to file it (also) as representing other members of the society, other than the defendants (usually office-bearers); and if it is a personal matter of the plaintiff, seeking relief against all other members, the plaintiff has to sue against one or two members (usually office-bearers) as representatives of others.
Objective of Order I Rule 8 CPC and Manner of its Publication
The objective of Order I Rule 8 CPC, which is an enabling provision, is avoidance of multiplicity in litigation; and the decision in such a suit binds both present and future members.[2] Such a suit can be proceeded with even where the person sought to be made a representative refuses to do so.
In Sukadev Tapaswai v. Sri Sidheswar Mahadev Bija Silod[3] it is pointed out that Order I Rule 8 CPC ‘notice of the institution of the suit’ should include the names of the persons who have been permitted to represent others, so that the persons interested may have an opportunity of knowing who have been selected to represent them.
Decision Binds all Represented, and Constitutes Res Judicata
To bring an action under Order I Rule 8 CPC, the persons on whose behalf the suit is brought must have the same interest. The decision in such a representative suit will bind all the persons sought to be represented; and it will constitute res judicata, under Section 11, CPC.[4]
Registration does not Confer Juristic Personality
Registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status.[5] In Illachi Devi Vs. Jain Society Protection of Orphans India[6] it is held by our Apex Court as under:
i) The mere fact of registration will not make a society distinct from association of persons. (Para 20)
ii) A Society registered under the Societies Registration Act is not a body-corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a Society registered under the Societies Registration Act is not a juristic person. (Para 21)
iii) A society, whether registered or unregistered, may not be prosecuted in criminal court, nor is it capable of ownership of any property or of suing or being sued in its own name. (Para 22) Vesting of property does not take place in the Society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf. (Para 26)
‘Suit By or Against a Regd. So.’ is Virtually Suit By or Against Entire Members
A society or a club, both registered and unregistered, is the compendium of its members. When it sues or is sued all its members should be made parties. As shown above, registration of Societies under the Central or State Societies Registration Act does not give the society a corporate status. [7]
Expressions in the Societies Registration Act, ‘property belonging to a society’[8] and ‘property of the society’,[9] do not give the society a corporate status; and it “merely describes the property which vests in trustees or Governing Body”.[10]
Following the above propositions, it can be legitimately concluded that the common expression, ‘suit by or against a society’, legally and virtually denotes suit by or against its entire members.
How Sec. 6 is an Enabling Provision
The earlier view taken by various courts in India was that the registered societies were legal persons and they could sue or be sued in their own name;[11] and that Sec. 6 was only an enabling (or added) provision to sue or be sued ‘in the name of the president, secretary’, etc. This view does not hold good in the light of Unani Tibia College case[12]and Illachi Devi case.[13]
Suing entire members of the society, either in person or invoking Order I Rule 8 CPC, is the normal rule. But, Sec. 6 enables to sue (or be sued) every registered society (i.e., all its members) in the name of its president, secretary, etc., as shall be determined by the rules and regulations of the society (or through such person as shall be appointed by the governing body for the occasion).
Suit shall be in the Personal Name of President, Chairman, etc.
From the expression in Sec. 7 of the Societies Registration Act, that ‘proceedings shall be continued in the name of or against the successor of such person’, it is clear that the words in Sec. 6 of the Societies Registration Act, ‘sue or be sued in the name of President, Chairman, or Principal Secretary, or Trustees,’ refers to filing suit by or against the President, Chairman, Principal Secretary or Trustees in their ‘personal name’; and not in their ‘official status’ “as” President, Chairman, Principal Secretary or Trustees.
Person who Signs Pleadings must be Authorised by the Byelaws
The Supreme Court, in P. Nazeer Vs. Salafi Trust, AIR 2022 SC 1580, held:
(i) A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its byelaws.
(ii) The byelaws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society,
since section 6 of the Societies Registration Act, provides that ‘every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and,
in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion’.
(iii)Unless the plaintiff, which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the byelaws to do so, the suit cannot be entertained
The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit affiliated to a registered society is of no consequence, unless the byelaws support the institution of such a suit.
Suits by a Company
Proper authorisation is essential for signing a plaint on behalf of a Company. Though, the Secretary or any Director or other Principal officer can sign pleadings by virtue of their office, as per Order 29 Rule 1 of the CPC, the view taken in some decisions was that neither the directors nor the managing director would have the right to represent the Company, in a suit unless they were duly authorised by a resolution taken by the Board of Directors at a meeting duly constituted for the said purpose.[14]
The Delhi High Court, in Nibro Limited Vs. National Insurance Company Ltd. (1991),[15] it is observed, with regard to the source of power of the Directors, as under:
“25. It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting-in all others cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.”
It was observed by in Nibro Limited that a director or a secretary of a Company could certainly give the authority to institute a suit to another person, as provided under Order III Rule 1 CPC, if the director or secretary was authorised by law to file a suit on behalf of the company.
Order III Rule 1 provides that ‘any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided, that any such appearance shall, if the Court so directs, be made by the party in person’.
If an authority is given to a pleader or a recognised agent, under Order III Rule 1, that recognised agent or pleader can, certainly, file an appearance as authorised.
The Bombay High Court, in Alcon Electronics Pvt. Ltd Vs. Celem (2015),[16] observed, with respect to the source of power of the Directors, as under:
“The essential requirement of this provision is that the Company which is a juristic person must itself decide to sue. Once that is done, it would authorise one of its Directors who is the agent of the Company or its principal officers the Secretary of the Company or the Managing Director to file the Suit. The suing in each case is a separate act. The Company acts only through its meetings. Hence the Board of Directors in the day to day management of the company must decide and resolve to sue or not to sue. A blanket authority cannot be given to a particular Managing Director or Director to sign the papers and document/s, including the power to sue. The power to sue requires application of mind upon the particular cause of action. It requires the Company to pay the requisite Court fee. It requires the Company to be represented by a legal officer being an Advocate of the Court. It is an act which, therefore, is not a part of the day to day management of the Company. A Company would decide in a given case upon legal advice or otherwise whether or not it would sue upon a given cause of action. Such exercise is imperatively required to be performed if the intention of the Company, which is only a juristic person, is to be deciphered. That act, of course, may be undertaken even after the filing of the Suit and ratified by the Board as all other acts of management. However, the seminal requirement is to see the act of the Company though its Board or members (dependent upon whether the resolution is passed in the Board meeting or a general meeting) or is given by the Company itself (under its Articles of Association).”
The Delhi High Court pointed out in Radico Khaitan Limited Vs. JD Wines (2020),[17] that the impropriety, if any, in signing the pleadings by the officers of a Company can be ratified.
It is held in Bhupesh Rathod v. Dayashankar Prasad Chaurasia[18] (in a Sec. 138, NI Act – criminal – proceedings) that there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company; and that the format itself cannot be said to be defective though it may not be perfect (The Apex Court followed: Associated Cement Co. Ltd. v. Keshavanand, (1998-1 SCC 687).
Locus Standi of a Member to Challenge Election
In Tej Bahadur vs Shri Narendra Modi[19] the Apex Court considered the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he had a right to question the election. After finding that the appellant was not a duly nominated candidate, it is held as under:
“We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.”
The Apex Court held in Bar Council of Delhi Vs. Surjeet Singh[20]:
A voter could challenge the election.
Merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account.
A member of a Society does not have the right to challenge Election unless his rights are personally affected by the impugned action.[21] He should have been a candidate or acquired the right to vote.
In Committee of Management, Sri Kachcha Baba inter College, Varanasi Vs. Regional Committee, PanchamMandal[22] it was held that a group of members of the General Body (and not by a rival committee of management) had no locus standi to challenge the result of the elections.[23]
There were divergent views, in UP, on the right of an individual member to file a writ petition. In certain cases[24] it was held that an individual member had no right to file the writ petition. The other set of decisions[25] observed that the writ petition could be maintained, subject to the existence of efficacious alternative remedy, when there was a breach of right of a person affecting his right to form an association, which was a fundamental right under Article 19(1)(c) of the Constitution, or there was a breach of the Statute. Both the divergent views had been considered by a Division Bench in Committee of Management, Arya Kanya Pathshala Inter College, Bulandshahar v. State of U.P.[26] The Division Bench observed as under:
“There is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management….. It is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case…..”[27]
Right of an individual member to Challenge
In Jagdambika Prasad Pandey Vs. State of UP[28] it is held that where an individual is aggrieved by an action of Authorities, such individual has the right to approach the Court in writ jurisdiction. It is observed as under:
“33. With regard to the arguments regarding maintainability of the writ petition on behalf of the petitioners, this Court has perused the judgment rendered by the Division Bench in Ratan Kumar Solanki Vs. State of U.P. and Others reported in 2010 (1) ADJ 262. This Court finds that after considering two Division Bench judgments rendered in Dr. P.P. Rastogi Vs. Meerut University and Others reported in 1997 (1) U.P.LBEC 415 and Umesh Chandra Vs. Mahila Vidyalaya and others, 2019 (8) ADJ 536, as well as two Single Judges’ decisions in Smt. Vimla Devi Vs. Dy. Director of Education, Agra Region, Agra, reported in 1997 (3) ACC 1807 and Bhagwati Vs. State of U.P. and Others reported in 2006 (2) ADJ 361; the Division Bench observed that a writ petition at the instance of an individual member of the Society would be maintainable, since, recognition of illegally constituted committee affects the democratic rights of the individual Member of the Society and his Fundamental Right to form an association. The Division Bench observed that no doubt it is true that an individual Member cannot represent the Committee of Management and challenge the order or action of any Authorities whereby the Committee of Management is allegedly affected and if an action or order affects the Committee of Management, the Collective Body, the Body itself can challenge the same or may authorize an individual to represent it and to challenge such an action or order of the Authorities. However, where the individual is aggrieved by an action of the Authorities, such individual has locus-standi, to approach this Court in Writ jurisdiction.” [29]
Review by members
In Dr. PP Rastogi Vs. Meerut University[30] it was observed that an individual member of a Committee of Management had no locus standi to file Review Petition and it was only the Committee of Management alone which could appear as a party in the case; and that to permit individual members of the Committee of Management to appear would create a lot of problems because any individual member or several members may file applications at any time through his/their own separate counsel, would result in confusion.
Procedural Defects Should Not Defeat a Just Cause
It is trite law that one should not be non-suited for technical reasons, and that the procedural defects or procedural irregularities which are curable, or which do not go to the root of the matter, should not be permitted to defeat a just cause.[31] It is pointed out in United Bank of India Vs. Naresh Kumar[32] by our Apex Court that there is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case.
Suit in the name of ‘wrong’ plaintiff, out of inadvertent mistake – Effect
In Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186, original Plaintiff has filed the suit as Director of a Private Limited Company. Supreme Court [after referring State of Maharashtra v. Hindustan Construction Company Limited Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75], permitted the Private Limited Company to correct the mistake (and allowed to continue the suit as Plaintiff) – finding that the director had filed the suit, as plaintiff, out of an inadvertent mistake.
In State of Maharashtra v. Hindustan Construction Company Limited, (2010) 4 SCC 518, Supreme Court held as under:-
“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 (CA) – an appeal that came up before the Court of Appeal, Brett M.R. stated:
“… The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….”
In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held as under:
“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”
“7. …The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.”
In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-
“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
.(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”
Supreme Court Expanded Powers of Authorities of Companies in Filing Pleadings
Order 6 Rule 14 read with Order 29 Rule 1 CPC
Under Order 29 Rule 1 of the CPC, Secretary or any Director or other Principal Officer can sign pleadings by virtue of his office. A Company being a juristic entity, Board of Directors can authorise any person to sign pleadings, by passing a resolution or giving a power of attorney, by virtue of Order 6 Rule 14 read with Order 29 Rule 1 CPC. If pleadings have been signed by one of its officers, the Company can ratify it. Such ratification can be express or implied.
In Parmeshwari Prasad Gupta Versus Union of India[33] it is held by Our Apex Court that the ratification would relate back to the date of the act ratified.
It is held by our Apex Court in the aforesaid decision of Naresh Kumar (1997)[34] that a Court can, after taking all the circumstances of the case, come to the conclusion that the Company must have ratified the act of signing the pleading. It is pointed out that the courts below must have, in any case, directed the company to produce a proper power of attorney, or they must have allowed a competent person to be examined to prove the apparent ratification. The Court’s own words in United Bank of India Vs. Naresh Kumar (1997)[35] read as under:
“10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement or its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.”
In a subsequent decision, in State Bank of Travancore Vs. Kingston Computers (2011)[36] it is held by our Apex Court as under:
“14. In our view, the judgment under challenge is liable to be set aside because the Respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the Appellant and authorized Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file suit on behalf of the company.”
In this decision (of Kingston Computers) there had neem no scope to ponder on the doctrines as to ‘technical or procedural defects’ as done in the earlier decision in Naresh Kumar (1997).[37] The decision, in Kingston Computers may be distinguishable from Naresh Kumar on the ground that there was no evidence in Kingston Computers to show that the signatory was a Director of the Company, and no resolution of the Board of Directors was produced to prove that the signatory was authorised to file the suit.
Effect of Complaint in the (Personal) name followed by ‘MD‘
In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (2022) 2 SCC 355, in a Criminal Complaint under Sec. 138 of the NI Act, (personal) name of the Managing Director was stated first; followed by official status, ‘Managing Director’ (he held in the Company). An affidavit was filed by the Managing Director stating that the Company had authorised him to file the complaint. A copy of the Board Resolution was also presented. In the body of the complaint it was not stated that he was the MD. The respondent contended that the complaint was filed in the personal capacity not on behalf of the Company. The Supreme Court held as under:
“The body of the complaint need not be required to contain anything more in view of what has been set out at the inception coupled with the copy of the Board Resolution.”
“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”
Our Apex Court explained that a Manager or a Managing Director ordinarily by the very nomenclature can be taken to be the person in-charge of the affairs Company for its day-to-day management and within the activity would certainly be calling the act of approaching the court either under civil law or criminal law for setting the trial in motion.
Any Authorised Person Can Continue the proceedings for the Company
In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further as under:
“If a complaint was made in the name of the Company, it is necessary that a natural person represents such juristic person in the court and the court looks upon the natural person for all practical purposes. It is in this context that observations were made that the body corporate is a de jure complainant while the human being is a de facto complainant to represent the former in the court proceedings. Thus, no Magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the Company till the end of the proceedings.”
Even if Initially No Authority, the Company Can Rectify the Defect
In Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, (supra) held further:
“Not only that, even if there was initially no authority the Company can at any stage rectify that defect by sending a competent person.”
Our Law Does Not Favour ‘Corporation Sole’
Our law does not favour characterising a ‘Corporation Sole’ as a Juristic Person,[38] except officials such as President of India, District Collectors, Secretaries/Office-Heads of various Departments of Government, Village Officers, etc.
But, under the specific provision in Order XXX, rule 7 CPC, read with Order XXI rule 50 (1)(b) CPC, it appears that ‘a person having the control or management of the partnership business’ can appear before the court otherwise than “in his own name” (that is, in the official capacity in the firm).
Order XXX, rule 7 CPC postulates as under:
“No appearance except by partners: Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.”
Order XXI rule 50 (1)(b) CPC posits as under:
“(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner.”
Sec. 6 Impliedly Bars Filing a Suit in the Name of Society
As already stated, our Apex Court has repeatedly[39]made it clear that Sec. 6 of the Societies Registration Act provides that a registered society must sue or be sued through the office bearer or a nominee, as provided in that section. Therefore, it can be concluded that Sec. 6 impliedly bars filing a suit in the name of the society, otherwise than through its President, Secretary or the nominated person.
When Society (or All Its Members) need not be Necessary Party?
Suit to protect or recover property.
As held by the Privy Council in Jagadinadra Nath Vs. Hemanta Kumari Debi[40] and our Apex Court in Vemareddi Ramaraghava ReddiVs. Kondaru Seshu Reddi,[41] Shebait of a temple has the authority to institute a suit in his own name to protect and recover property belonging to the deity.[42] By various authoritative decisions, it is made clear that when the trust is admitted, or where the right or title over the property is not in dispute, the deity will not be a necessary party, in suits for protection of the property and the rights of the trust.[43] Same is the case for framing a scheme.[44]In Monindra Mohan Vs. Shamnagar Jute Factory[45] a Division Bench held that the deity is not a necessary party in a suit filed on behalf of the Hindu public for declaration that the land in question was a debasthan of the idol and that it is a public place of warship.
It is appropriate to import this analogy to matters of societies also. Where the right or title over the property is not in dispute, and the suit is filed by a person who is bound to protect the property of a society, it can be concluded that the suit is not liable to be dismissed holding that the society as such (that is, all its members) is a necessary party. The ‘necessary party’ is not defined in the Code of Civil Procedure. But from the judicial dicta it may be laid down that there are two tests. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and secondly it will not be possible to pass an effective decree in the absence of such a party.[46]
It is observed in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[47] that, though, as per the Canon Law the church property vests in the hands of the Bishop or the Vicar, the parish being by law a public juridic person, and the plaintiffs (the elected representatives of the parishioners entrusted with the administration of the church) were entitled to represent the juridic person, the plaintiffs were competent to initiate civil proceedings (with the ultimate aim of protecting the property belonging to the church) before a Civil Court.
Is Society, a Necessary Party?
Kania, J., in AS Krishnan Vs. M. Sundaram,[48] laid down (earlier view) as under:
“In my opinion as the position of the members of this society is similar to that of the share holders of the company and as the acts of the defendants which are challenged are in respect of the society it is necessary that the society should be a party to this litigation. I do not think it is competent to the plaintiff either alone or representing himself and the other members of the society other than defendants to bring a suit. …… In the absence of the society as a party to this litigation, I am of opinion that the suit as framed is not maintainable and the Court has no jurisdiction to try the suit in the absence of the society.”
Since it is unequivocally held by our Apex Court in Illachi Devi case[49] that a society cannot sue or be sued in its name, it is peremptory that the suit by or against a society should be brought as provided under Sec. 6 of the So. Regn. Act.
As regards the internal management of the society, whether the society as such, and not its individual members, has to sue is considered in Ram Charan Agarwala Vs. Shridhar Misra.[50] It was held as under:
“There have been a large number of cases both in India as also in England where courts has to consider whether a suit can be brought in respect of the internal management of a company otherwise than in the name of the company itself, by individual members thereof. There is good authority for the proposition that the case of society registered under the Act is similar to that of a club or a joint-stock company, (See A. S. Krishnan v. M. Sundaram, AIR 1941 Bom 312). A Full Bench of this Court in the case of 1947 All LJ 637 (AIR 1948 All 146) (supra), has held that the same principles apply to a club which applied to a joint-stock company. In the leading case on the subject Foss v. Harbottle (1843) 2 Hare 461, it was held that the normal rule is that the corporation should sue in its own name and in its corporate character, or in the name of some one whom the law has appointed to be its representative. Mozley v. Alston, (1847) 16 LJ Ch 217, is an authority for the proposition that ordinarily individual share-holders cannot sustain a Bill in their own names in respect of a matter common to all or relating to the internal management of the company. In the case of Mac Doughall v. Gardiner (1875) 1 Ch D 13, the Court held that it could not interfere in the internal management of a company and dismissed an action brought by one Share-holder on behalf of himself and all other share-holders excluding the Directors, against the Directors and the company complaining against certain matters decided at a meeting. To the same effect is the decision of the Bombay High Court in Bhajekar v. Shinkar, AIR 1934 Bom 243 and of the Madras High Court in Nagappa v. Madras Race Club, AIR 1951 Mad 831. The Bombay High Court took the same view in S. Sidhantalankar v. Arya Samaj Bombay, AIR 1946 Bom 516, which was a case of a registered society. This general rule however has got an exception as pointed out in the Madras and Bombay cases referred to above. The exception is that a share-holder can bring an action even with regard to an internal management of a company if (1) the action of the majority is ultra vires the company; (2) where the act complained of constitutes a fraud on the minority; (3) where the action of the majority is illegal and (4) where a special resolution is required by the Article of the Company and the assent of the majority to such special resolution is obtained by a trick, or even where a Company authorised to do a particular thing only by a special resolution does it without a special resolution duly passed.”
Sec. 6 is Not Strictly Followed by our Courts
If Sec. 6 is strictly followed:
no suit can be filed the name of the society (even if it is a registered one);
in the absence of provisions in the bye-laws empowering the president/ secretary or anybody else to file a suit or writ-petition,and in the absence of due appointment by resolution by the General/Governing Body, the suit or writ-petition filed by the president/secretary or anybody else would not be maintainable;[51]
if the rules and regulations of the society do not determine the person against whom a suit is to be filed, any person having a claim or demand against a society can sue the president, secretary or the trustees thereof (in their name), only if in-spite-of-an-application to the governing body, some other officer or person is not nominated (to be the defendant); and
a general statement in the bylaw[52]authorising an office-bearer to ‘represent the society in any legal proceeding’ does not enable him to file a suit on behalf of the society; because, this provision, in the bye laws, would only authorise such office bearer to represent the society in a properly instituted suit; and the authority to file a suit is quite different from the authority to represent the society in a suit which has been validly instituted.
Doctrine of Substantial Representation
It is noteworthy that the diktats in Sec. 6 are not invariably followed by our courts; but, adopted the doctrine of ‘substantial representation’.[53] In Singhai Lal Chand Jain Vs. Rashtriya Swayamsewak Sangh, Panna[54] our Apex Court observed as under, with respect to an unregistered association, Rashtriya Swayam-sewak Sangh (RSS):[55]
“Procedure is the handmaid to the substantive justice. …. It is true that no permission of the Court was taken to be sued in a representative capacity by or on behalf of the Sangh. But Clause (b) of Order 1, Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a Member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.”
In this decision the following passage from Surayya Begum Vs. Mohd. Usman[56] was quoted:
“The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu Family, and so has been a trustee. In cases where the provisions of Order 1, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure: ‘Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating’.”
Notice to a Society, Notice to all Members
The notice to a Co-operative Society will be deemed as notice to all its members. In Daman Singh Vs. State of Punjab and Haryana[57] it is pointed out by our Apex Court, with respect to a Co-operative Society, that S. 13(9)(a) provides for the issue of notice to the societies and not to individual members and that S. 13(9)(b), however, gives the members an opportunity to be heard.
It is legitimate to maintain that,in appropriate cases, it may be proper to extend these principles as to service of notice,to both registered and unregistered societies,and a club also, with regard tothe matters-touching-rights-or-duties of the society ‘as a body’; for example, notice as to nonpayment of tax or revenue.The notice to the society or a proper office bearer will be deemed as notice to all its members.
Book No. 3: Common Law of CLUBS and SOCIETIES in India
[1] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.
[2] TN Housing Board Vs. TN Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Jamiat Ulama Vs. Maulana Mahmood Asad Madni: ILR 2008-17 Dlh 1950
[3] AIR 1986 Ori 100; Anang Pal Vs. UOI: 2010-1 CivCC 168, 2009-164 DLT 10; Veerabhadrappa Dandappa Hanchinamani Vs. Nannesab Goususab Pathan: 2006-5 AIR KarR 354,CIVCC 2007 1 147; Jogiram Mohapatra Vs. Sibaram Pradhan: 2005-1 Ori LR 612; K. Devi Vs. Laishram Ningol Leinambi Devi: 1995-3 GauLT 367.
[4] Mahboob Sahab Vs. Syed Ismail: AIR1995 SC 1205; T N Housing Board Vs. T N Ganapathy, (1990) 1 SCC 608: AIR 1990 SC 642; Venugopala Naidu Vs. Venkatarayulu: (1989) Supp 2 SCC 3 56: AIR 1990 SC 444. Ahmed Adam SaitVs. M. E. Makhri AIR 1964 SC 107. Arumughathan Vs. S Muthusami Naidu: 1993-1 CivCC 79: 1992-1 Mad LJ 532
[5] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.
[7] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458. Illachi Devi Vs. Jain Society Protection of Orphans India: AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.
[10] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458
[11] Shanti Sarup Vs. RadhaswamiSatsangSabha, Dayalbagh Agra: AIR 1969 All. 248; K.C. Thomas Vs. R.B. Gadaook, AIR 1970 Pat 163; Khiri Ram Gupta and Another versus Nana Lal: AIR 1964 Pat. 114, SatyavartSidhantalankar Vs. AryaSamaj, Bombay : AIR 1946 Bom. 516; NabadwipBhajanAsram Vs. Commissioner of Nabadwip Municipality : AIR 1959 Cal 361; Sonar Bangala Bank Vs. Calcutta Engineering College: AIR 1960 Cal 409.
[12] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458.
[13] Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.
[14]B. MookerjeeVs State Bank of India: AIR1992 Cal 250; Nibro Limited Vs National Insurance Co: AIR 1991 Del 25
[15]AIR 1991 Delhi 25: Quoted in: United India Periodicals Pvt. Ltd. Vs. CMYK Printech Ltd. : 2018-248 DLT 227
[21] Ram Pal Singh Vs. State of U P: LAWS (ALL)-2015-5-99. Referred to: Ram PyareLal Vs. State of U.P. 2015 3 ADJ 577; Indian Sugar Mills Association Vs. Secretary to Government, UP: AIR 1951 All 1; Dr. PP Rastogi Vs. Meerut University, 1997 1 UPLBEC 415; Vimla Devi Vs. Deputy Director of Education, 1997-3 ESC 1807; 2010 (1) ADJ 262
[23] Referred to in SatyaNarainTripathi Vs. State of U P: 2008 – 2 ADJ 222, 2008-71 ALLLR 698.
[24] Dr. P.P. Rastogi v. Meerut University, Meerut, 1997-1 UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra, 1997-3 ESC 1807; Bhagwan Kaushik v. State of U.P., 2006-2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009-75 All LR 29
[25] Kamla Kant Agrawal v. State of U.P., 2008-7 ADJ 601; Committee of Management, Janta Inter College, Sultanpur, District Haridwar v. Joint Director of Education, I Region, Meerut, 1999-1 UPLBEC 170; Ratan Kumar Solanki v. State of U.P., 2010-1 ADJ 262 (DB).
[31] United Bank of India Vs. Naresh Kumar:AIR 1997 SC 3; Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh: AIR 2006 SC 269; VarunPahwa Vs. Mrs. RenuChaudhary: AIR 2019 SC 1186: 2019-3 JT 109
[38] Samatha Hyderabad Abrasives And Minerals Vs. State of AP: AIR 1997 SC 3297; T.K. SanthanagopalaChettiar Vs. Thimmi M. SeetharamaChettiar 1968-2 Mad LJ 41; S GovindaMenon Vs. Union of India: AIR 1967 SC 1274; S C Sreemanavikraman Raja Vs. Controller of Estate Duty: 1957-2 Mad LJ 226.
[39] Board of Trustees, Ayurvedic&Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Vs. Tata, AIR 2010 SC 2943.
[51] Advocates Association Vs. District Registrar and Registrar of Societies: AIR 2006-4 Kar R 218: 2006-4 Kar LJ 526; Relied on: Muddappa Vs. Panchaksharaiah: ILR1985 Kar 1230; Inamdar Vs. BF Swamy: ILR1991 Kar 1654
[52] See: Inamdar Vs. BF Swamy, ILR1991 Kar 1654. Referred to in Advocates Association Vs. District Registrar : 2006-4 AIR Kart 218
[53] SubramaniaPillai Vs. Masterly: AIR1976 Mad 303
Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres. “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7E
Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Hec. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13
Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22
Landlord desiring to resume any land shall apply to the Land Tribunal.
31
Fair rent determined by Land Tribunal.
51A 51B
Landlord not to enter on land surrendered or abandoned by the tenant. Contravention is made punishable.
54(1) 55 57 57 (3) 57 (6) 61
54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal. 55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59 57. The LT after enquiries, pass orders determining purchase price. (3). The Land Tribunalallows the purchase of the land it determines. (6). The Land Tribunalforwards orders to the Land Board. 61. Tenant to pay rent (under orders of LT) pending proceedings
59
When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt. ILR 2010(2) Ker. 845. 72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt.
72B
Cultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72D
The cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72E
Such a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (E.g., exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72C
Provides for suo moto action by LT. (No time limit). Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
72K
LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74
Prohibition of future tenancies.
Chp. III Sec. 81
Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc. Note: 1. Section 81(1) exempts Government lands from the provisions of Chapter III. The Proviso says that the following Government lands will not stand exempted. 1. Government-lease-lands 2. Lands that fall under Section 13 (Fixity) and 3. Lands that fall under Section 72 (Lease lands vest in Government). 4. Section 81(4) “permits”use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
82
Ceiling area – 5/10 standard acres.
83
No person can hold or possess excess of ceiling area. (Holding is by tenant.) It is a total bar. (Note: plantations, industrial area etc. are exempted.) Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB); RaghunathLaxmanWani v. The State of Maharashtra (AIR 1971 SC 2137) The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84
Certain transfers – void.
85(1)
Surrender excess.
85(2)
Owners and Tenants (in excess of the ceiling area) should furnish ceiling return to Land Board before March 31, 1971, before the Land Board (including lands exempted under S. 81). Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)
Excess shall be surrendered. Note: Tenant must have approached the LT(with respect to each plantation, if he has more plantations)(He cannot declare himself a tenant) It is clear from the following provisions: (Before 1. 1. 1970) S. 54(1) – A cultivating tenant has to apply to LT(for the purchase of right, title and interest.) S. 55 – Purchase price and fair rent fixed by LT S. 57 – LT after giving notice and enquiries, pass orders (on theapplication for the purchase of right, title and interest). S. 57(3) – LT allots the purchase land it determines. S. 57(6) – The Land Tribunalforwards a copy of orders to the Land Board. S. 61 – Cultivating tenant to pay rent (under orders of LT) S. 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant. (After 1. 1. 1970) S. 72B – cultivating tenant to apply to the LT, for Purchase Certificate. S. 72D. The cultivating tenant has to pay purchase price to the Government [fixed by the LT] on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.) S. 72F(5) – Land Tribunal shall issue notice to consider the claims and objections from the land owner or intermediaries, and pass an order specifying, inter alia, the rent [under S. 72F(5)(h) ] payable by the cultivating tenant to the Government. S. 72F(6) & (7) – LT shall pass Orders on encumbrance or charge for maintenance or alimony and compensation payable to the landowner or that intermediary. It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board) under sec. 61 and 59.
85(3A)
The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area) shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)
On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)
Whereon a person fails to file statement under 85(2), LB shall intimate TLB – TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also have to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file a statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suomotu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85A
File ceiling return within March 2, 1973 before Land Board..
86(1)
On determination of the extent to be surrendered under S. 85- Excess vests in Govt. andTaluk Land Board shall issue an order accordingly.
86(3)
Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)
Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)
Nothing appliesto property of Govt. under KLC Act.
87 Exp. II
If a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for that portion. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)
Sec. 112 (5A)
On acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72. Sec. 112 (5A)(a) says that the compensation for any building or other improvementsbelonging to the landownershall be awarded to the Government; and clause (b) says that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
Note: Analysis of the author and the law rendered by the Supreme Court of India are given.
Point No. 1
What is brought about by Section 65B, Evidence Act?
It enables a litigant to prove computer output (secondary evidence)
‘without further proof or production of electronic record’ (original), and
by producing a ‘certificate’ (as provided in this Section.
Presumption is provided as to the correctness of the computer output (copy or print out) under Sec. 65B(5)(c).
Sec. 65B deals with ‘Computer Output’ (copy) and not ‘Electronic Record’ (original) as authoritatively pointed out by the Hon’ble Supreme Court.
Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it does not pertain to use of (original) ‘electronic record‘ as evidence in court.
Relevant portions of Sec. 65B read as under:
Sec. 65B. Admissibilityof electronic records:
(1) … any information contained in an electronic record which is PRINTED….. or COPIED….. (hereinafter referred to as the computer output) shall be admissible ….. as evidence of any contents of the original ….”
Supreme Court (Anver PV v. PK Basheer, 2014-10 SCC 473) held as under:
“24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216)
Point No. 2A.
Non-obstante clause (‘Notwithstanding Anything’) in Sec. 65B – Not exclude Sec. 65.(Note – Contra view by Supreme Court)
What is enabled by the non-obstante clause is – a copy or printout of electronic evidence ‘shall be deemed to be also a document’.
‘Notwithstanding-clause’ in Sec. 65B keeps all other sections in the Evidence Act undisturbed; and it provides for an additional enabling provision – without disabling the force of existing provisions to prove the copy or printout of electronic evidence. Therefore, the copy or printout can be proved under Sec. 65 of the Evidence Act.
Relevant portions of Sec. 65A and Sec. 65B read as under:
Sec. 65A: Special provisions as to evidence relating to electronic record:
The contents of electronic recordsMAY BEprovedin accordance with the provisions of section 65B.
Sec. 65B: Admissibility of electronic records:
(1) Notwithstandinganything contained in this Act, any information … which is printed …… or copied …….. shall be Deemed to be ALSO a Document …
Supreme Court (Arjun Panditrao v. Kailash Kushanrao) held as under –
“31. Thenon-obstante clausein sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose. …...”
“34. …. in Anvar P.V. (supra) … this Court made it clear …… and also that a written certificate under Section 65B(4) is a sine qua non for admissibility of such evidence ……“
Point No. 2B.
Sec. 65B deals with ‘Admissibility’ (alone) of a Computer Output/Copy. If ‘truth’ is in question, it must be proved according to other provisions of the Evidence Act.(Note – Contra view by Supreme Court)
Sec. 65B does not deal with ‘truth’ of the contents of the electronic record; it deals with ‘admissibility of copy’ alone.
The electronic record mentioned in Sec. 65B is – that which is ‘relevant‘; for, it must be one “of which direct evidence would be admissible”.
For, Sec. 65B deals with ‘admissibility of copy’ alone, if truth is in question, it must be proved according to other provisions of the evidence act; ie. by oral, documentary or presumptive evidence.
Sec. 65A: Special provisions as to evidence relating to electronic record:
The contents of electronic recordsMAY BEprovedin accordance with the provisions of section 65B.
Sec. 65B: Admissibilityof electronic records:
(1) … any information contained in an electronic record which is printed ….. or copied….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”
Supreme Court (Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, held as under –
“31. Thenon-obstante clausein sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose. …...”
“34. …. in Anvar P.V. (supra) … this Court made it clear that the special provisions of Sections 65A and 65B of the Evidence Act are a complete Code in themselves …… “
Point No. 2C.
Sec. 65B does NOT bar proving copy (by) invoking Sec. 65; Sec. 65B is an enabling provisionthat enables to prove copy otherwise than (by) laying the foundationor conditions laid down inSec. 65 (such as loss of original).(Note – Contra view by Supreme Court)
Sec. 65B is an added and enabling provision to prove the copy or printout – otherwise than proving the conditions laid down in Sec. 65 (such as loss of original, original with other side).
By the deeming provision (fiction) in Sec. 65B, a ‘copy’ is raised to the states of a (original) document.
Relevant portion of Sec. 65B reads as under:
Sec. 65B: Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information … which is printed …… or copied …….. shall be Deemed to be ALSO a Document ….
Supreme Court (Arjun Panditrao), held as under –
“35. …….. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P.V., (supra) and CANNOT be said to be a correctstatement of the law. The said view is accordingly overruled.”
Point No. 3A.
‘STATEMENTS’ alone can be PROVED by ‘Certificate’ under S. 65B(4).(Note – Contra view by Supreme Court)
The ‘statements‘ (such as bank account statements) alone can be PROVED in evidence under S. 65B, through a ‘certificate’ provided under Sec. 65B(4). It is clear from a simple reading of 65B(4).
Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not proof. But, it appears that Sec. 65B(4) which takes care of ‘statements‘, deals with authenticity or proof of truth, also;
because, it is laid down
(i) that the certificate “shall be EVIDENCE (proof?) of any(?) matter stated” therein, and
(ii) that, for the purposes of this sub-section, “it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
Sec. 65B(4) reads:
“(4) In any proceedings where it is DESIRED TO GIVE a STATEMENT in evidence, by virtue of this section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record CONTAINING the STATEMENT and describing the manner in which itwas produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be EVIDENCE of any matter stated in the certificate;
and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
“59. We may reiterate, therefore, that the certificaterequired under Section 65B(4) is acondition precedentto the admissibility of evidence by way of ELECTRONIC RECORD…. . “
Point No. 3C.
Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit, (except for ‘Statements’).(Note – Contra view by Supreme Court)
The computer output (copy) containing the information, such as CCTV footage, photo or video in a CD, can be admitted in evidence under S. 65B if only the conditions mentioned in S. 65B(2) (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) are satisfied, through oral evidence or affidavit. Only exception is to “statements”.
Relevant portions of Sec. 65B read as under:
Sec. 65B: Admissibility of Electronic Records:
(1) …. (computer output) shall be deemed to be also a document,if the CONDITIONS mentioned in this section are SATISFIED ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein (Isn’t “or of any fact stated therein” surpussage?) ……
(2) The conditions ….. shall be the following, namely:—
(a) …. the computer was used regularlyto store … information for the purposes (?) of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which ….. information …… was regularly fed into the computer in the ordinary course of the said activities (Isn’t the words “during the said period, information of the kind contained in the electronic record or of the kind from which” a surplusage?);
(c) throughout the material part …. the computer was operating properly ……; and
(d) the information contained in the electronic record reproducesor is derived from such information fed into the computerin the ordinary course of the said activities. (Isn’t the words “or is derived from such information fed into the computer” a surplusage – especially in view of the wordings of clause (b)?)
Supreme Court (Arjun Panditrao) held as under –
“59. ….. Oralevidence in the place of such certificate CANNOT possibly sufficeas Section 65B(4) is a mandatory requirement of the law. … Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner statedand not otherwise. To hold otherwise would render Section 65B(4) otiose.”
Point No. 4
Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B.(Note – Contra view by Supreme Court)
It is clear that the computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is:
S. 65B(2)(a) computer was USEDREGULARLY to STORE or process information
of the activities REGULARLY CARRIED ON
BY THE PERSON having lawful control,
S. 65B(2)(b) information was REGULARLY FED
in the ORDINARY COURSE,
S. 65B(2)(d) the information is REPRODUCED in the
ORDINARY COURSE of the SAID ACTIVITIES.
(For example – Computer Account statements in a Bank.)
For all other computer outputs (copy of, photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc.), one has to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65.
Should the ‘Correctness’ of Copy or Print-out Must be Proved?
No.
S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because, S. 65B(5)(c) lays down-
‘a computer out-put shall be taken to have been produced by a computer’.
Sec. 65B(5)(c) reads:
S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put, inasmuch as S. 65B(5)(c) lays down that ‘a computer out-put shall be taken to have been produced by a computer’.
Sec. 65B(5)(c) reads:
‘a computer output shall be taken to have been produced bya computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
What are to be proved (through a Certificate):
Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216) para 21 reads as under:
“Under Sub-section (4), a certificate is to be produced that
identifies the electronic record containing the statement and
describes the manner in which it is produced, or
gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer,
by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” – whichever is appropriate.
Admissibility and Presumption as to correctness of Computer Output
Sec. 65B declares and expressly lays down that computer output (copy or print)
(i) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and
(ii) shall be admissible in any proceedings, without further proof or production of the original, as evidence
of any contents of the original or
of any fact stated therein of which direct evidence would be admissible.
If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in Sec. 65B(2) are satisfied) the burden to prove otherwise is cast on the person who opposes it.
The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of feeding information into the computer in the ‘ordinary course‘ eloquently support this proposition.
Note:
(i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
(ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
(iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.
Presumption of Fact Means Truth/Correctness of Fact
St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:
“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
Section 65B is brought to Indian law from Section 5 of the UK Civil Evidence Act, 1968. It remains a sheer fact that by the time we borrowed this provision (2000) from the UK law, they repealed (1995) it. (It is pointed out in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216.)
The present UK Act (Civil Evidence Act 1995) does not make any special provision for Electronic Evidence or Computerised Records. It deals this matter under the head ‘hearsay evidence’ and makes ‘safeguards’ with respect to the hearsay evidence.
Who can give Certificate under Sec. 65 B
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 makes it clear-
The certificate can be given by anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device.
The person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B. (It is provided to give the certificate to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.
Can the Certificate u/s 65B be GivenLong After the Electronic Record was Produced
In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 it was held that by virtue of Section 65B(4), the Certificate u/s 65B can be given long after the electronic record has actually been produced by the computer. (Note: the certificate to be given is to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.
PART III –LANDMARK DECISIONS
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision (on CCTV footage). It is held:
“Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision (on CDs containing election speeches). It is held:
“That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision (on CCTV footage).
It is held, as to make CCTV footage admissible, as under:
“Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
Sonu v. State of Haryana (2017-8 SCC 570): two- judge bench decision (on Call Detail Records – CDRs – of mobile phones). It is held:
“The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objectionwas taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ), two- judge bench decision (on videography of the scene of crime). Tomaso Bruno (2015) was followed in. It was held as under:
“(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision (on CCTV footage). It substantially followed PV Anwar (2014) with a ‘clarification’.
Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for Sec. 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is ‘clarified’ and directed to ‘read’ Anver “without the words – ‘under Section 62 of the Evidence Act’ “.
“59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. … Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.”
In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
“What is clear from this judgment (Tomaso Bruno) is that the judgment of Anvar P. V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P. V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P. V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”
PART IV
Presumptions Incorporated in Evidence Act While Introducing Sec. 65 A and 65 B
Sec. 81A. Presumption as to Gazettes in electronic forms
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody
85A Presumption as to electronic agreements
The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
85B Presumption as to electronic records and electronic signatures
(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
85C Presumption as to Electronic Signature Certificates
The Court shall presume, unless contrary is proved, that the information listed in a 86 Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
88A. Presumption as to electronic messages
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
“Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.
End Note:
Sec. 65A and Sec. 65B of the Evidence Act read:
Sec. 65A: Special provisions as to evidence relating to electronic record:
The CONTENTS of electronic recordsmay bePROVEDin accordance with the provisions of section 65B.
Sec. 65B. Admissibility of electronic records:
(1) Notwithstandinganything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated thereinof which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary courseof the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic recordcontaining the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate;
and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
Mullaperiyar Disputes and Adjudication of Legal Issues.
Saji Koduvath, Advocate.
Foreword
Laws are made for better life and safety of men. Various rules as to bars and barriers are introduced in the legal system on this principle; whether it be Res Judicata, Constructive Res judicata, Order II rule 2 Bar, Estoppel or Judicial Precedent. Can such negative legal principles be allowed to successfully sound and strike-out in the SUPREME COURT, when the Life and Safety of a Large Number of Citizens of India are reasonably (apprehended to be) in peril, is one of the main questions that arise in Mullaperiyar Dam issue. Those legal doctrines, though interminable, cannot stand as a bar for the SUPREME COURT, especially when it reverberates devastating danger arising out of a structure made by the hands of man. The findings that are made in such a matter arose quarter a century back, should not be allowed to remain constant and untouched. Raising bar by law in this matter will be harsh and imprudent.
Brief History of Mullaperiyar.
Mullaperiyar is situated in Idukki District of the State of Kerala. The dam at Mullaperiyar was built between 1887 and 1895. During that time, this area was under the Kingdom of (erstwhile) Travancore. The purpose of making the dam was irrigation of the severely draught affected, otherwise fertile, land under the Madras Presidency, situated east of Travancore. The designer and builder of this masonry gravity-dam was a British engineer. Before constructing the dam, a lease agreement had been executed on October 29, 1886 between the Maharaja of Travancore and the Secretary of State for India in Council.
“I SIGN WITH BLOOD OF MY HEART”
The lease project under the agreement covered a long period of 999-years. It is said to be unconscionable inasmuch as it came into being out of the mighty clout of the British, and it was practically a unilateral agreement. Certain historians say that the Maharaja of Travancore had bewailed: “I SIGN THIS WITH THE BLOOD OF MY HEART”.
1970Supplemental Agreements
After independence, two supplemental agreements were executed, in 1970, by the State of Tamil Nadu and State of Kerala. The first one increased the rent from Rs. 5 per acre to Rs. 30 and gave fishing rights in the Periyar lake to Kerala. And, it was recorded that all other covenants in the 1886 lease deed would remain in force. The second supplemental agreement allowed Tamil Nadu to generate electricity and to pay a nominal consideration to Kerala.
Disputes triggered by the end of the 20th century
The disputes that triggered by the end of the 20th century, between the State of Kerala and the State of Tamil Nadu with respect to the maintenance of maximum height of water level of the dam, lead to the formation of an Expert Committee. The committee gave its final report on 16.03.2001. It suggested that the water level in the Mullaperiyar reservoir could be raised up to 142 ft.
Despite the recommendation of the Expert Committee, the Government of Kerala, pointing out safety hazards, continued its protest against the move to raise the water level in the reservoir beyond 136 ft.
Is Mullaperiyar Dam Really a Water-Bomb?
Mullaperiyar dam is constructed in Periyar river above the level of Idukki reservoir. Mullaperiyar is situated 36 kms away (south-east) from Idukki. Water from Mullaperiyar dam will reach the Idukki reservoir when the shutters of Mullaperiyar dam are opened.
On October 29, 2021, while the water-level of the Mullaperiyar dam surpassed limit prescribed by the Supreme Court, and the Tamil Nadu raised shutters, Kerala water resources minister urged people, through a press release, not to be panic, and he declared that there was nothing to be ‘concerned about’. It is seen pointed out by the minister that the storage capacity of Idukki is 70.5 Thousand Million Cubic feet (TMC) as compared to 12.758 TMC of Mullaperiyar; and therefore, the water ‘released’ from the latter would only raise the former’s level by a quarter of a foot (hindustantimes.com : Oct 29, 2021).
But, those people who raise alarm on Mullaperiyar issue say that the dam is in an area where the seismic activity is high; and that the people there feel tremors, frequently. It is a sheer fact that the people of Kerala believe that Vallakadavu, Vandiperiyar, Chappathu and Upputhara towns, situated between Idukki and Mullaperiyar, will be engulfed in flood waters if Mullaperiyar dam is damaged. They further point out that the people of Kerala experienced, in the 2018-flood, that mere rain water (pored for a few days) was capable of immersing a good number of towns and villages; and they compare it with the incomparable water in Idukki reservoir!
Besides Idukki dam, the water in Idukki reservoir is held-back by the service of Cheruthoni and Kulamavu dams also. There are people who believe that the galloping rushy water (if) exploded from the Mullaperiyar dam would be capable of destroying various dams of Idukki reservoir. In case water in Idukki reservoir is burst-out, no doubt, the damage will be devastating. And, it is feared, in such an event, the water in the dam will reach the Arabian sea only after submerging Aluva, Eranakulam Town, Kcohi Airport etc. among many other townships and villages.
Is Idukki dam large enough to hold the entire water that is stopped by Mullaperiyar?
In rainy season both dams will be filled in. But the water level of both dams will be lower in summer. Therefore, the the answer to the question, depends upon the ‘season’. So far as rainy a season is concerned, the storage capacity of both dams itself (Idukki – 70.5 TMC; Mullaperiyar – 12.758 TMC) gives the answer.
History of Union Carbide Disaster
It appears that no effective study is conducted, or it is not published, as to what all villages or towns will be affected, if a mishap occurs; and what all places will give shelter to the the people who may be affected by flooding. The history of Union Carbide disaster at Bhopal should not be allowed to be repeated; in Bhopal, people rushed to the factory premises, seeking help, when the devastating gas outburst took place in the factory compound!
Validity of the century old agreement
After promulgation of the Constitution of India, or after independence, there is only ‘one country and one land’. It is seen argued that the agreement that was executed at a time where this land stood divided should not be allowed to be used as a weapon of oppression, especially since the agreement was an unconscionable one; and the provisions therein should not be pointed out against the reconstruction of the dam by the State of Kerala spending from its own pouch.
Mullaperiyar Litigation – In a Nutshell
First Case – 2006 – Mullaperiyar Environmental Protection Forum v. Union of India
Second Case – 2014 – State of Tamil Nadu v. State of Kerala
Third Case – Originated in 2020 – Dr. Joe Joseph v. State of Tamil Nadu
First Mullaperiar Dam Case Before the Supreme Court
A writ petition was filed by Mullaperiyar Environmental Protection Forum before the Supreme Court (Mullaperiyar Environmental Protection Forum v. Union of India) raising disputes as to the water level to be maintained in the dam. The Apex Court gave its decision on 27.02.2006 (reported in (2006) 3 SCC 643). The Apex Court permitted to rise the water level in the Mullaperiyar dam up to 142 ft. The State of Kerala and its officers were restrained from causing any obstruction to the rising of level. It was also observed that, after the strengthening-work was completed to the satisfaction of CWC, independent experts would examine the matters ‘on safety angle before the water level is permitted to be raised up to 152 ft’.
Second Mullaperiar Dam Case Before the Supreme Court
State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696, is the second prominent Supreme Court decision on Mullaperiyar dam related issues. It is pronounced in the matter of validity of an enactment made by the State of Kerala; viz, The Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The crux of the issue in that case was as regards the maximum water level to be maintained in the Mullaperiyar dam. The State of Tamil Nadu argued that the rights implored in this dispute had already been crystallised in the earlier Judgment on the (first) Mullaperiyar dam case, Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643. Accepting the claim of Tamil Nadu, the Apex Court restrained the State of Kerala by a decree of permanent injunction from obstructing the State of Tamil Nadu from increasing the water level to 142 ft.
Third Mullaperiar Dam Case Before the Supreme Court
Urging that the matters involved in the Mullaperiyar dam issues require a reconsideration in the ‘safety and security’ angle, a third round of litigation (Dr. Joe Joseph v. State of Tamil Nadu) is originated in 2020 before the Supreme Court.
Kerala Irrigation and Water Conservation (Amendment) Act, 2006
Within less than three weeks of the decision in Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643, the Kerala State Legislature amended Kerala Irrigation and Water Conservation Act, 2003, by passing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006. The Amendment Act, in its application to and effect on the Mullaperiyar dam (as found by the Supreme Court in State of Tamil Nadu v. State of Kerala, 2014-12 SCC 696), seeks to attain the following:
“(a) It substitutes Section 62 with a new provision whereby, notwithstanding the judgment of this Court and notwithstanding anything contained in any treaty, contract, 1886 Lease Agreement and 1970 supplemental agreements, the function of evaluation of safety of the Mullaperiyar dam and the power to issue directions to Tamil Nadu as custodian are conferred upon Dam Safety Authority;
(b) the Dam Safety Authority is empowered, inter alia, to restrict the functioning of Mullaperiyar dam and/or to conduct studies on the advisability of raising or lowering of the maximum water level or the full reservoir level;
(c) Mullaperiyar dam is considered by Kerala legislature to be endangered and by virtue of Section 62(A), it takes away the right of Tamil Nadu to increase, expand the FRL or in any manner increase the water level as set out in the Second Schedule except in accordance with the provisions of the Act;
(d) under Section 62A(4), Tamil Nadu as custodian has to submit an application to the Dam Safety Authority for its prior consent for the increase in the water level;
(e) it takes away all rights of Tamil Nadu including the right which has passed into judgment of this Court to increase the water level;
(f) the Dams Safety Authority has power to order de-commissioning of the Mullaperiyar dam.”
Challenge by the State of Tamil Nadu
The Kerala (Amendment) Act, 2006 led the State of Tamil Nadu to challenge the Act contending, inter alia, the following:
Usurpation of judicial power
(a) The impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising the water level when such questions fall exclusively within the province of the judiciary and have already been determined by this Court in its judgment dated 27.02.2006.
Violation of legislative competence
(b) 2006 Amendment Act is beyond the legislative competence of the State of Kerala insofar as it affects the Mullaperiyar dam in view of Section 108 of the SR Act which is a law made by Parliament under Articles 3 and 4 of the Constitution, which confer plenary power to traverse all legislative entries in all the three lists including Entry 17 List II.
Violation of rule of law and separation of power
(c) The impugned legislation, in its application to the Mullaperiyar dam, violates the rule of law and the federal structure and the separation of power under the Constitution. The Kerala State Legislature has taken the law in its own hands after the declaration of law by this Court. Kerala having participated in the adjudicatory process before the Apex Court, it cannot become a Judge in its own cause and seek to reverse the decision of this Court because it has gone against it.
Disobeyance of Apex Court decision
(d) The impugned legislation not only fixes and limits the FRL to 136 ft. in direct contravention of the judgment of the Apex Court but also proceeded to authorise the Dam Safety Authority of Kerala – to disobey and disregard the decision of the Apex Court by various other provisions.
(Amendment) Act Overturned and nullified Apex Court verdict
(e) 2006 (Amendment) Act is not a validation act but a mere device to defy, obstruct and nullify the judgment of this Court and constitutionally interfere with, restrict or extinguish the legal rights of Tamil Nadu as upheld by this Court. A Legislature cannot by mere declaration and enactment overrule and nullify a judicial decision. The direct object and effect of the impugned legislation is to overturn the judgment of the Apex Court and to arrogate to Kerala the power to prevent Tamil Nadu from exercising its legal rights which have already been upheld by this Court.
Reliefs sought for
The State of Tamil Nadu had sought for two-fold relief:
(i) to declare the 2006 (Amendment) Act passed by the Kerala legislature as unconstitutional in its application to and effect on the Mullaperiyar dam and
(ii) to pass a decree of permanent injunction restraining the first defendant from applying and enforcing the impugned legislation interfering with or obstructing the plaintiff from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.02.2006 in W. P. (Civil) No. 386 of 2001 with connected matters.
Defence by State of Kerala
The State of Kerala resisted the suit raising, among others, the following contentions:
The suit itself is not maintainable.
Contract Unconscionable
1886 Lease Agreement is an unconscionable contract because of its duration (999 years) as well as the fact that the lease conveys for a small rent a vital resource of Kerala. The lease was obtained by the Secretary of State for India in England obviously by holding threat of paramountcy over Maharaja of Travancore, who was his vassal.
The two supplemental agreements of 1970 have not been executed in terms of mandatory provisions of Article 299 of the Constitution and, therefore, they do not constitute contracts in the eye of law. In any event, these agreements do not bind the State legislature at all.
999 years Agreement lapsed under Indian Independence Act
The 1886 Lease Agreement for 999 years stood lapsed under the provisions of Section 7(1)(b) of the Indian Independence Act, 1947.
From 1947 to 26.01.1950, the lease was continued as a temporary lease on annual basis. After 26.01.1950, even the temporary continuation of the lease came to an end. The possession of the land held and continued by the then Government of Madras and now Tamil Nadu, after 26.01.1950 has no juridical basis.
Kerala legislature competent to modify the terms in public interest
Entries 17 and 18 of List II (State List) and Entries 17, 17-A and 17-B of the Concurrent List of the Seventh Schedule to the Constitution justify the competency of Kerala legislature to enact the 2006 (Amendment) Act.
It is competent for the Kerala legislature to modify Kerala legislature to modify the terms the terms of the lease in public interest (if the lease has survived as contended by the Tamil Nadu), as the lease inherited under Article 295 of the Constitution does not bind the legislature of the state and that it is always open to the legislature to modify such conditions by law.
2006 (Amendment) Act – dams fall within the territory of Kerala
Kerala legislature enacted the 2006 (Amendment) Act for regulating the storage levels of 22 dams listed in the Second Schedule read with Section 62A (1), as these dams fall entirely within the territory of Kerala and these dams are considered to be endangered on account of their age, degeneration, degradation, structural or other impediments. Such a law is perfectly valid.
Under Section 62A(3) of the 2006 (Amendment) Act, the FRL can be increased beyond 136 ft. after obtaining prior consent of the Dam Safety Authority headed by a retired Judge of the High Court.
If Tamil Nadu approaches under Section 62A(3), Kerala reserves its right to oppose such plea by demonstrating how such increase would lead to spread of backwater beyond the contour line of 155 ft. and how the flora and fauna including ecology would be destroyed.
2006 (Amendment) Act creates a working mechanism to deal with a problem like displacement of those whose lands are likely to be affected by the backwater effect.
Safety of the dam
The impact of increased storages on the safety of the dam will also be demonstrated before the Dam Safety Authority. This was not the matter that was required to be considered by this Court in the previous case, since in that case, the focal issue was the implications of the increase in height upon the safety and integrity of the dam.
Structure of the Mullaperiyar dam
It is not constructed entirely with rubble masonry in lime mortar. The front and rear faces are constructed of uncoursed rubble masonry in lime mortar. The hearting (center core) is of lime surkhi concrete, therefore, dam cannot be considered as homogeneous masonry dam under any circumstances. In view of Kerala, a dam could never have been intended to remain for long years without decommissioning at some point of time. For this background, people in Kerala living in the downstream region of the Mullaperiyar dam have raised serious apprehensions against the safety of the structure.
Periyar is not an inter-state river
River Periyar is not an inter-state river. It has asserted that river Periyar is an intra-state river as it rises in Quilon District in Kerala and traverses only through the territory of Kerala before falling into the Arabian sea. The total catchment of Periyar basin is 5398 sq. km. of which only about 113 or 114 sq. km. lie within the territory of Tamil Nadu. Even this small catchment of 113 sq. km. lying in Tamil Nadu, is in the downstream region of the Mullaperiyar dam. Therefore, no water from this catchment is contributed to the kitty of Mullaperiyar dam.
Earlier judgment of the Court:No res judicata in public interest Matters
The judgment concluded the issue relating to safety of the people and degradation of the environment, apart from issue arising from Article 363 of the Constitution. The doctrine of res judicata or constructive res judicata has no relevance to the question of powers on the Kerala legislature to regulate the storage level of the Mullaperiyar dam in larger public interest by legislation. Kerala states that the impugned legislation removes the legal basis of the judgment, i.e., the right of Tamil Nadu to store water up to 142 ft. in Mullaperiyar reservoir. The legislature is competent to remove the basis of any judgment and, therefore, it is not permissible for Tamil Nadu to claim any right to store water at Mullaperiyar dam beyond 136 ft. Kerala has assailed the findings and conclusions in the earlier judgment dated 27.02.2006 on all possible grounds.
Suit Not Maintainable under Article 131 of the Constitution
The basis of claim made by Tamil Nadu lies in the 1886 Lease Agreement which is a contractual right leading to civil dispute, if any, but it is not in dispute in the constitutional context as required under Article 131 of the Constitution of India. Kerala’s further case is that 1886 Lease Agreement was executed between the Maharaja of Travancore and Secretary of State for India in England and as such the agreement is in the nature of treaty and act of state, the enforcement of which is barred by proviso to Article 131 of the Constitution. Tamil Nadu, therefore, cannot seek enforcement of 1886 lease deed before this Court.
Report of the Expert Committee for assessing the structural safety of the dam
This report was relied upon by the Court in its judgment on 27.02.2006. Both the interim report and final report submitted by the Expert Committee are riddled with inconsistencies and the views of the Committee do not constitute an authoritative opinion. Kerala has denied that storages at Mullaperiyar dam beyond 136 ft. will not pose any danger.
Water beyond 136 ft. would not be required
Storage at Mullaperiyar dam beyond 136 ft. would not be required to meet the irrigation requirement of 2,08,144 acres in 5 southern districts of Tamil Nadu, although the irrigation originally planned was not more than 1.5 lakh acres. The contention of Tamil Nadu that due to non-restoration of FRL from 136 ft., Tamil Nadu’s irrigation is getting suffered is not correctet. Tamil Nadu was able to irrigate more area with Mullaperiyar water, even after lowering the water level to 136 ft.
Nub of theFindings in the 2nd Mullaperiar Dam Case
The 2014 Judgment in the 2nd Mullaperiar dam case went against the stance of Kerala, mainly, on the following observations and findings of the Supreme Court:
When dispute already adjudicated, one of the parties cannot overturn the final judgment. When the dispute between two States has already been adjudicated upon by the Supreme Court, any unilateral law enacted by one of the parties results in overturning the final judgment. A judicial decision can be reopened in the changed circumstances by the Court alone and no one else.
A final judgment remains in force until altered by the court. A categorical finding has been recorded by the Court in the earlier judgment that the Mullaperiyar dam is safe and that judgment has become final and binding. A final judgment remains in force until it is altered by the court. Legislature cannot reopen or alter a judicial decision rendered on a finding of fact.
Kerala Act infringes the doctrine of separation of powers and rule of law. The impugned 2006 (Amendment) Act is bad because it infringes the doctrine of separation of powers and rule of law. Legislature cannot indirectly control the Courts. The Amendment Act is a classic case of nullification of a judgment.
Legislature has clearly usurped the judicial power. If the judgment of this Court and the 2006 (Amendment) Act are placed side by side, both cannot stand together. By such law, the legislature has clearly usurped the judicial power.
If substantial changes the Court can be approached. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam.
Issues, and Findings of the Supreme Court (in 2014 Judgment in the 2nd Mullaperiar dam case) in a Nutshell
Issue Nos
Issues
Findings in Nutshell
1.
Whether the suit is maintainable under Article 131 of the Constitution of India.
Maintainable.
5.
Whether the suit based on a legal right claimed under the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of State for India on 29.10.1886, is barred by the proviso to Article 131 of the Constitution of India?
Not barred.
6.
Whether the first defendant is estopped from raising the plea that the deed dated 29.10.1886 has lapsed, in view of subsequent conduct of the first defendant and execution of the supplemental agreements dated 29.05.1970 ratifying the various provisions of the original Deed dated 29.10.1886.
The State of Kerala (first defendant) is estopped.
7
Whether the lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India on 29.10.1886 is valid, binding on first defendant and enforceable by plaintiff against the first defendant.
The lease deed is valid and binding on the first defendant and it is enforceable by plaintiff.
2. (a)
Whether the Kerala Irrigation and Water Conservation (Amendment) Act 2006 is unconstitutional and ultra vires, in its application to and effect on the Mullai Periyar Dam?
Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires.
3.
Whether the rights of the plaintiff, crystalised in the Judgment dated 27.02.2006 passed by this Court in WP(C) No. 386/2001 can be nullified by a legislation made by the Kerala State Legislature?
(ii.) The rights crystallized in the Judgment cannot be nullified by a legislation.
4. (a)
Whether the judgment dated 27.2.2006 of this Court in WP(C) No. 386/2001 operated as res judicata, in respect of all or any of the defences set up by the first defendant in its written statement?
The earlier judgment operates as res judicata on the issue of the safety of Mullaperiyar dam for raising water level to 142 ft. and ultimately to 152 ft. after completion of further strengthening measures on the Mullaperiyar dam.
4(b)
Whether the pleas relating to validity and binding nature of the deed dated 29.10.1886, the nature of Periyar River, structural safety of Mullai Periyar Dam etc. raised by the first defendant in its defence, are finally decided by the judgment of this Court dated 27.2.2006 in WP(C) No. 386/2001, and consequently first defendant is barred from raising or reagitating those issues and pleas in this suit, by the principle of res judicata and constructive res judicata?
The plea raised by Kerala relating to the lease deed dated 29.10.1886 and structural safety of Mullaperiyar dam have been finally decided by the judgment of this Court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit.
10
Whether the first defendant can obstruct the plaintiff from increasing the water level of Mullai Periyar Dam to 142 ft. and from carrying out repair works as per the judgment dated 27.2.2006 of this Court in WP(C) No. 386/2001.
Kerala cannot obstruct Tamil Nadu from increasing the water level of Mullaperiyar dam to 142 ft. and from carrying out repair works as per judgment dated 27.2.2006.
8
Whether the first defendant is estopped from contending that Periyar River is not an inter-State river.
Kerala cannot be permitted to contend that river Periyar is an intra-State river.
9
Whether the offer of the first defendant, to construct a new dam across River Periyar in the downstream region of Mullai Periyar Dam would meet the ends of justice and requirements of plaintiff.
For the construction of new dam, there has to be agreement of both the parties. The offer made by Kerala cannot be thrusted upon Tamil Nadu.
11
To what relief is the plaintiff entitled to?”
Tamil Nadu is entitled to the reliefs as prayed in para 40 (i) and (ii) of the suit. Consequently, it is declared that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature is unconstitutional in its application to and effect on the Mullaperiyar dam.
2(b)
Whether plaintiff is entitled to a permanent injunction restraining the first defendant from applying and enforcing the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 with reference to Mullai Periyar Dam?
The 1st defendant – State of Kerala – is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.2.2006 in W.P.(C) No. 386/2001 with connected matters.
Third Round of Litigation:Dr. Joe Joseph v. State of Tamil Nadu
Fresh spurt of arguments are surged in the Supreme Court on filing the Writ Petition, Dr. Joe Joseph v. State of Tamil Nadu, in 2020, beseeching a re-look on the issues on the premises of ‘safety and security’ . The Apex Court has already taken notice of the need to ‘ensure the safety of people’; and it directed the State of Tamil Nadu, on March 16, 2021, to furnish requisite information to the Supervisory Committee. The Court further directed that the Supervisory Committee should take necessary steps including issuance of appropriate directions to the concerned party-States as may be necessary and to submit an action taken report before the Court.
Now the matter is in the process of settlement of issues to be addressed in the case.
End Notes:
Important observations & findings in State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696:
Arguments of State of Kerala: “135. On the other hand, the argument of Mr. Harish N. Salve, learned senior counsel for Kerala, is that the legislature of every State has not just the power but the obligation to take appropriate legislative measures to ensure the safety and security of its residents. Where the legislature of a State is satisfied that there is a need to curtail the use or storage of a water reservoir to protect its citizenry and elects to enact legislation as a precautionary measure, the legislation cannot be said to be in excess of the legislative competence of the State if it relates to reservoir and dam within the legislating State. Kerala legislature has imposed precautionary measures by placing pro tem restrictions on the storage level of the dams mentioned in the Second Schedule read with Section 62A(2) of the 2006 (Amendment) Act and the said restrictions are based on the legislative wisdom of the Kerala legislature that these dams are endangered on account of their age, degeneration, degradation, structural or other impediments. While adjudicating upon the constitutional validity, Mr. Harish Salve argues that the Court must proceed on the premise that the legislature understands and correctly appreciates the needs of its own people and its laws are directed to the problems made manifest by its experience and are based on adequate grounds.
136. Mr. Harish N. Salve, learned senior counsel for Kerala heavily relies upon ‘precautionary principle’ and ‘public trust doctrine’ and argues that Kerala legislature was competent to override the contracts and regulate safety of the Mullaperiyar dam situated within its territory across river Periyar. His submission is that the State as sovereign retains continuing supervisory control over navigable waters and underlying beds. It is his submission that the State has a duty of ‘continuing supervision’ even after such rights have been granted. In this regard strong reliance is placed by him on Pfizer Animal Health.”
Legislature cannotindirectly control the Courts: “141. It is true that the State’s sovereign interests provide the foundation of the public trust doctrine but the judicial function is also a very important sovereign function of the State and the foundation of the rule of law. The legislature cannot by invoking ‘public trust doctrine’ or ‘precautionary principle’ indirectly control the action of the Courts and directly or indirectly set aside the authoritative and binding finding of fact by the Court, particularly, in situations where the executive branch (Government of the State) was a party in the litigation and the final judgment was delivered after hearing them.”
Legislature cannot alter a judicial decision rendered on a Finding of Fact. “143. This Court in Mullaperiyar Environmental Protection Forum, after hearing the State of Kerala, was not persuaded by Kerala’s argument that Mullaperiyar dam was unsafe or storage of water in that dam cannot be increased. Rather, it permitted Tamil Nadu to increase the present water level from 136 ft. to 142 ft. and restrained Kerala from interfering in Tamil Nadu’s right in increasing the water level in Mullaperiyar dam to 142 ft. Thus, a judgment has been given by this court in contest between the two States in respect of safety of Mullaperiyar dam for raising water level to 142 ft. The essential element of the judicial function is the decision of a dispute actually arising between the parties and brought before the court. Necessarily, such decision must be binding upon the parties and enforceable according to the decision. A plain and simple judicial decision on fact cannot be altered by a legislative decision by employing doctrines or principles such as ‘public trust doctrine’, ‘precautionary principle’ ‘larger safety principle’ and, ‘competence of the State legislature to override agreements between the two States’. The Constitutional principle that the legislature can render judicial decision ineffective by enacting validating law within its legislative field fundamentally altering or changing its character retrospectively hasno application where a judicial decision has been rendered by recording a finding of fact. Under the pretence of power, the legislature, cannot neutralise the effect of the judgment given after ascertainment of fact by means of evidence/materials placed by the parties to the dispute.”
Afinal judgment remains in force until altered by the court: “A decision which disposes of the matter by giving findings upon the facts is not open to change by legislature. A final judgment, once rendered, operates and remains in force until altered by the court in appropriate proceedings.
145. Section 62A declares the dam to be endangered. The Second Schedule appended to the Act fixes the height of the water level at 136 ft. though this Court in its judgment had declared Mullaperiyar dam safe and permitted the increase of the water level to 142 ft. Moreover, the 2006 (Amendment) Act authorises the Dam Safety Authority to adjudge its safety to allow raising of water level. The provision is in direct disregard of the judgment of this Court. Section62A also freezes all work on the damallowed by this Court in its judgment dated 27.2.2006. In our opinion, by 2006 (Amendment) Act, the Kerala legislature has overturned a final judgment in the interest of its own executive Government. The impugned law amounts to reversal of the judgment of this Court which determines directly the question of safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder Tamil Nadu’s legal right has been determined.”
Judicial decision on a particular fact cannot be reopened by legislature: “146. On behalf of Kerala, it is strenuously argued by Mr. Harish Salve that right to safety of the people being a public right could not have passed into 2006 judgment of this court. In this regard, heavy reliance is placed on the majority decision of the Wheeling Bridge. Firstly, public right qualification in Wheeling Bridge has no application in the present case as there is a critical difference between the provisions impugned before us and the provisions which were impugned before US Supreme Court in Wheeling Bridge. The principle question before the US Supreme Court in Wheeling Bridge was whether or not the compact could operate as a restriction upon the power of courts under the Constitution to regulate commerce among several States. In response to the argument urged before it that the Congress cannot have the effect to annul the judgment of the court already rendered or the rights determined thereby was accepted as a general proposition but this proposition was held not applicable in the matters of adjudication upon the public rights. In our view, a legislation violating the separation of powers principle cannot be saved by carving out an exception that the legislature has regulated a public right. We think that the act of legislature designed to achieve a legitimate regulatory measure does not grant constitutional immunity to such law enacted in violation of separation of powers principle or in other words, rule of law. Once a judicial decision on ascertainment of a particular fact achieves finality, we are afraid the legislature cannot reopen such final judgment directly or indirectly. In such cases, the courts, if brought before them, may reopen such cases in exercise of their own discretion.
147. In our view, Wheeling Bridge qualification by the majority decision of U.S. Supreme Court cannot be read to permit the actual revision of the final judgment by the legislature. If Wheeling Bridge lays down the proposition that a judgment declaring a public right may be annulled by subsequent legislation as contended by Mr. Harish Salve, then we say, as we must, that we are not persuaded to accept such proposition of majority judgment in Wheeling Bridge29. The two separate opinions in Wheeling Bridge one by McLean J. and the other by Wayne J. – though in minority- also did not accept such proposition.
148. The above discussion must also answer the argument of Mr. Harish Salve that rules of inter partes litigation do not determine the obligation of the State for safety of its people. We do not think it is necessary to consider the opinion of Weeramantry, J. in Gobcikovo-Nagymaros Project (ICJ) in detail. The stress laid by Weeramantry, J. is that where issue of serious or catastrophic environmental danger arises, the Court must look beyond inter partes adversarial procedures.”
It is open to approach court for re-assessing safety aspect: “149. It is true that safety of dam is an aspect which can change from time to time in different circumstances but then the circumstances have to be shown based on which it becomes necessary to make departure from the earlier finding. It is always open to any of the parties to approach the court and apply for re-assessing the safety aspect but absent change in circumstances, factual determination in the earlier proceedings even on the questions such as safety of dam binds the parties. If the circumstances have changed which necessitates a re-look on the aspect of safety, the Court itself may exercise its discretion to reopen such case but legislative abrogation of judgment for even the very best of reasons and genuine concern for public safety does not clothe the legislature to rescind the judgment of the court by a legislation.”
Mullaperiyar dam was found safe and that finding was not imaginary: “150. The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate it, is noted to be rejected. What has been found as a fact by judicial determination cannot be declared otherwise by applying legal fiction. We are, however, persuaded to accept the submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that the Mullaperiyar dam is safe was found by this Court and that finding of fact can never be deemed to be imaginary by a legal fiction which then proceeds to deem the opposite to be real, viz., that the dam is endangered. This is not a matter of legislative policy as it is being made out to be, rather in our opinion, it is incursion in the judicial process and functions of judicial organ. The declaration in Section 62A read with item No. 1 of the Second Schedule leaves no manner of doubt that the enactment is intended to reach the question decided by the Court.“
The impugned law is a classic case of nullification of a judgment: “151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.
152. There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States. If this was permitted under the Constitution, the Union and the States which have any dispute between them inter se would enact law establishing its claim or right against the other and that would lead to contradictory and irreconcilable laws. The Constitution makers in order to obviate any likelihood of contradictory and irreconcilable laws being enacted has provided for independent adjudication of federal disputes. Article 131 of the Constitution confers original jurisdiction upon this Court in relation to the disputes between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States insofar as dispute involves any question on which the existence or extent of a legal right depends. The proviso appended to Article 131 carves out an exception to the jurisdiction of this Court to a dispute arising out of treaty, agreement, covenant, engagement, sanad or other similar instrument which have been entered into or executed before the commencement of the Constitution and continues in operation after such commencement, which are political in nature. In relation to dispute relating to waters of inter-State river or river valleys, Article 262 provides for creation of tribunal or forum for their adjudication. In federal disputes, Parliament or State legislatures by law, if seek to decide a dispute between the two States or between the Union and one or more States directly or indirectly, the adjudicatory mechanism provided in Articles 131 and 262 of the Constitution would be rendered nugatory and, therefore, such legislation cannot be constitutionally countenanced being violative of separation of powers doctrine.
153. Mr. Harish Salve, learned senior counsel is right in his submission that a legislation can never be challenged on the principles of res judicata and that it binds a party and not the legislature. The question here is not that the 2006 (Amendment) Act is unconstitutional on the ground of res judicata but the question is, when a categorical finding has been recorded bythis Court in the earlier judgment that the dam is safe for raising the water level to 142 ft. and permitted the water lever of the dam being raised to 142 ft. and that judgment has become final and binding between the parties, has the Kerala legislature infringed the separation of powers doctrine in enacting such law? In what has already been discussed above, the answer to the question has to be in the affirmative and we hold so.
154. Where a dispute between two States has already been adjudicated upon by this Court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power.”
Court can be approached if emergent situation as to safety of dam.: “165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal . In N.D. Jayal, Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz., (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.”
Safety of Mullaperiyar dam – Evidence and EC Report
195. Having done elaborate and detailed appraisal and analysis of the voluminous tests and reports of experts and having regard to the concerns expressed by Kerala about the safety of the Mullaperiyar dam, EC has summarized its conclusions on the three aspects, viz.,
(a) hydrologic safety;
(b) structural safety; and
(c) seismic safety as follows:
“A) Hydrologic Safety
23. The MPD is found hydrologically safe. The Probable Maximum Flood (PMF), with a peak flow of 2.12 lakh cusecs (6003 cumecs) is accepted by EC. It can be routed over the reservoir FRL 142 ft (43.28
m) to safely pass over the MPD spillway with 13 gates operative, resulting into a peak out flow of 1,43,143 cusecs (4053 cumecs), raising the Maximum Water Level (MWL) to elevation 153.47 ft (46.78 m) transiently. Even for the Test Case of one gate remaining inoperative, the MWL raises to elevation 154.10 ft (46.97 m) when PMF impinges the reservoir at FRL 142 ft (42.28 m).
B) Structural Safety
24. Both the main and Baby Dam (gravity and earth), are structurally safe. FRL can be restored to the pre-1979 position. Following maintenance and repair measures, should however be carried out in a time-bound manner: i) treatment of upstream surface, ii) reaming of drainage holes, iii) instrumentation, iv) periodical monitoring, analysis and leading away the seepage from toe of the dam towards downstream, v) geodetic re-affirmation, etc., vi) the dam body should be grouted with a properly designed grout mix of fine cement / suitable chemical / epoxy / polymer according to expert advice so that its safety continues to remain present.”
C) Seismic Safety
25. MPD is found to be seismically safe for FRL 152 ft (46.33 m) / MWL 155 ft (47.24 m) for the identified seismic design parameters with acceleration time histories under 2-D FEM Analysis. The strength and other properties of dam material presently available, indicate ample reserve against the likely stresses / impacts assessed under this analysis. In addition, reserve strength of cable anchors makes the dam further safe. The suspicion about existence of a geological fault in the Baby Dam foundation is ruled out. The recent earthquake activity in the dam area is considered of no consequence to the seismic safety. Also, it has caused no distress to MPD / Idukki dams.”
CC investigations carried out with representatives of both the States: “196. Kerala has vehemently challenged the EC report and its conclusions. Mr. Harish Salve, learned senior counsel for Kerala, argues that the ITS reports contained in 50 CDs and 4 DVDs are not admissible and should not be considered as part of material on record before this Court. He submits that EC suo motu decided to conduct investigations, tests and studies on various aspects related to the case through the apex organizations, the Coordination Committee was formed, headed by Dr. C.D. Thatte, member of the EC, and consisting of representatives of Kerala and Tamil Nadu and though the representatives of States were made part of the Coordination Committee, but their role was limited to more of being an observer and unilateral decisions regarding the studies, etc., were taken by Dr. C.D. Thatte, which were prejudicial to the interest of Kerala. Kerala’s grievance is that the EC on 5.12.2011 declined to disclose and supply the copies of results and ITS reports without dealing with the question of prejudice. Subsequently, EC submitted its report before this Court and the Court directed the Registry on 4.5.2012 to supply copy of the report of the EC to party States and, accordingly, the Registry of this Court made available a photocopy of the report. The report supplied by the Registry to Kerala did not include the results and reports of the ITS listed in Annexure 6.1 of the report but later on pursuant to the order of this Court dated 31.8.2012, all 50 CDs and 4 DVDs were supplied to the counsel for Kerala. It is submitted on behalf of Kerala that the fair procedure and rules of natural justice demanded that the EC should have disclosed the results and reports of ITS relied upon by it and given an opportunity to Kerala on the acceptability of the ITS reports. It is strenuously urged by learned senior counsel for Kerala that the ITS reports are the opinions of experts and, therefore, the EC could not have relied upon such results and reports without giving an opportunity to it to meet the adverse contents and Kerala has the right to cross-examine the authors and also to lead evidence of experts, if any, challenging the adverse results and reports of the ITS. In this regard, Kerala referred to the application made before EC on 21.11.2011. Kerala also relied upon the decision of Queens Bench in Regina.
197. We are not persuaded by the submissions of Mr. Harish Salve. It is true that 50 CDs and 4 DVDs containing ITS reports were supplied to Kerala pursuant to the order of this Court dated 31.8.2012 after the report had been submitted by the EC but the fact of the matter is that the EC decided to conduct the investigations, tests and studies on various aspects relating to the safety of the Mullaperiyar dam through the apex organizations pursuant to the task given to it by this Court. The EC in its proceedings dated 17.2.2011 formed a Coordination Committee which comprised the representatives of both the States.It is very difficult to accept that the role of the representatives of the States in the Coordination Committee was limited to that of being an observer. The ITS reports have been given by the organizations and bodies which are expert on the job. We have no hesitation in holding that the investigations, tests and technical studies were directed to be carried out by the EC in association with representatives of both the States.”
Oral evidence on contents of documents (unless secondary evidence is permitted, and unless fall under the exceptions in Sec. 92 Evidence Act) will be of no use, as it will be ‘irrelevant’.
Part I
Best-Evidence Rule.
Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:
No.
Propositions
Sec. in Evd. Act
1
Best available evidence must be produced. If not, adverse presumption may be taken.
114 (g)
2
Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).
60
3
Documents must be proved by Primary Evidence. Contents of documents and electronic records are not allowed to be proved by oral evidence; nevertheless, secondary evidence is allowed when it is so permitted.
64 & 65; 59; 22, 22A & 144.
4
To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.
91
5
No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
92
6
Sec. 93 and 94 speaks as to exclusion of evidence.
93 & 94
7
Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.
94 to 99
8
Circumstantial and Presumptive evidence can be resorted to in proper cases.
114
9
Substantive evidence that requires corroboration must be corroborated.
157
10
When secondary evidence is permitted (under Sec. 65), Oral Evidence is a kind of secondary evidence.
Contents of documents are to be proved by producing the document itself, or its copy; oral evidence is permitted only in rare occasions.
Best evidence rule insists production of original (i.e., primary evidence) when it exists. ‘Oral evidence as to the contents of a document is admissible only in rare occasions’. It is the purposive layout and scheme of the Evidence Act – as emanated from Sections 59, 61, 62, 64, 65 and 144.
Sec. 59 of the Evidence Act reads as under:
“59. Proof of facts by oral evidence: All facts, except the contents of documents or electronic records, may be proved by oral evidence.”
Sec. 61 of the Evidence Act reads as under:
61. Proof of contents of documents.—The contents of documents may be proved either by primary or by secondary evidence.
Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court.
Sec. 64 of the Act requires that that the documents are to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.
Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.
Sec. 144 of the Evidence Act reads as under:
144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Sec. 22 says that oral admissions as to contents of documents are relevant if the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document.
Sec. 22A says as to oral admissions as to contents of electronic records as under:
“When oral admissions as to contents of electronic records are relevant
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”
‘Rule of Best Evidence’ – Sections 22, 59, 61, 62, 64 and 144 of the Evidence Act
These Sections of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)
Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.
The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v. V Padma, AIR 2010 Kant 124. It is said as under:
“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”
Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).
The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:
“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.” (Quoted in Placido Francisco Pinto v. Jose Francisco Pinto, 2021-10 SCR 676; V Anantha Raju v. T M Narasimhan, AIR 2021 SC 5342)
In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:
“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”
However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).
Sec. 22 of the Evidence Act – Only a Declaratory Provision
Sec. 22 of the Evidence Act reads as under:
22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
Sec. 22 emphasises one thing positively – excepting the circumstances exempted (when entitled to give secondary evidence, and the genuineness of a document is in question) oral admissions on contents of the document are not relevant. That is even if such an evidence is tendered it will be discarded.
Is the principle, ‘Oral admissions as to the contents of a document are not relevant’, (originally) emerged from Sec. 22?
The answer is, ‘No’.
Because:
Sec. 22 primarily refers to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’.
Sec. 22 is included in the sections that pertains to ‘Admissions’ (comes in Part I), in Chapter II, which speaks on ‘Relevancy of Facts’, and not in Part II that deals with ‘Proof’.
As the marginal note (or heading) denotes, it is meant for setting forth – ‘When oral admissions as to contents of documents are relevant’. Two circumstances are laid down in Sec. 22. They are:
(i) When the party proposing to prove the contents of a document is entitled to give secondary evidence of the contents of such document under the rules “hereinafter contained“, and
(ii) When the genuineness of a document produced is in question.
Therefore, it is clear that we have to resort to other provisions of the Evidence Act (Sections 59, 61, 62, 64, 65 and 144) to see the ‘entitlement’ (as to) – ‘When a party to the litigation can give secondary evidence of the contents of such document’.
Sec. 22 – Variance from English Law on Admission of Contents of Document
In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, with reference to Sec, 22 Evid. Act, as under:
23. Tyte v. Jones (referred to in the foot-note to Farr v. Price (1800) 1 East. 55 : 102 E.R. 22) seems to rest on another principle of the English law which the Indian Legislature had deliberately departed from, in enacting Section 22 of the Evidence Act. The proof that was permitted in Tyte v. Jones was to the effect that when the money for which the unstamped promissory note had been given was demanded of the defendant, he acknowledged the debt. This is explicable in the light of the rule supported by some authority in England that admissions by a party, even when proved by parol evidence, constitute an exception to the ‘best evidence’ rule (see Singleton v. Barrett (1832) 2 C. & J. 368 : 149 E.R. 157). This view has been criticised even in England (see Taylor on Evidence, Sections 410 to 412), and Section 22 of the Indian Evidence Act adopted the stricter view and relegated ‘oral’ admissions as to the contents of a document to the category of “secondary evidence”.
“Better Evidence” Rule in English Law – Despite Admission of Contents of Document
Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 ShimLC 341, referred English decisions on insistence of “better evidence”, as under:
“Greenleaf in his evidence at page 82 explained and stated the rule thus:
‘.. A fourth rule which governs the production of evidence that which requires the best evidence of which the case, in its nature, is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact but its design to prevent the introduction of any, which from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent, that the better evidence is withheld, it is fair to presume that the party has some sinister motive for not producing and that if offered, his design would be frustrated….’
In Earl of Suffolk v. Greenwill, Ch. Rep. 89 (92), the Court ruled that it was dangerous to admit the contents and sufficiencies of deeds to be proved by the testimony of witnesses, the construction of deeds being the office of the Court. Tinterden, L.C.J. in Vincent v. Cole, M & M. 257, observed:
‘I have always (perhaps more so than other Judges), acted most strictly on the rule that what is in writing shall be proved by the writing itself. My experience has taught me the extreme danger or relying on the recollection of the witnesses, however, honest, as the contents of the written instruments; they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule’.”
Rule of ‘Next Best Evidence’
Under the Rule of Best Evidence the law requires, production of the nextbestevidence if it is not possible to produce the bestevidence. See the following:
Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
2008-1 RCR (RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456
In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.
Best Evidence Rule insists evidence of High Probative Value
Though various kinds of secondary evidences are provided under Sec. 63, the probative value of one kind (say, a photograph of an original, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists evidence bearing high probative value.
Part II
When Document Available, Oral Evidence NOTadmitted; Even if Admitted, NO use
Oral Admission of Witnesses on document is Bad and Barred in Indian Law as that of ‘hearsay evidence’.
Will Erroneous or Misguided Oral Evidence on Contents of a Document Harm its Author? No. Because, such evidence is ‘irrelevant’.
It is beyond doubt that ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’ (Shiba Sankar Nanda v. Padmini Naik ILR 2011-1 Cut (Ori) 792).
When Document Available, Oral EVIDENCE as to its Contents Discarded. Oral evidence as to the contents of a document is admissible only in rare occasions. As observed in Shiba Sankar Nanda v. Padmini Naik, ILR 2011-1 Cut (Ori) 792, ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’. Sections 22, 59, 61, 62, 64, 65 and 144 of the Evidence Act support this view.
Sec. 22 – If Document Available, Oral ADMISSIONS of its Author Ignored. Sec. 22 of the Evidence Act reads as under:
22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
Sec. 22 emphasises one thing positively – excepting the two circumstances exempted (when entitled to give secondary evidence and the genuineness of a document is in question) oral admissions on contents of a document (i.e. admission by its author or a person under him) are not relevant. In other words, even if such an evidence is tendered it will not be looked into by the court.
Sec. 22 primarily pertains to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’. Because, Sec. 22 is included in the sections that deal with ‘Admissions’; and it comes in Part I, Chapter II, which speaks on ‘Relevancy of Facts’; and not in Part that relates to ‘Proof’, that is Part II. It is further clear from the marginal note (or heading) of Sec. 22 (‘When oral admissions as to contents of documents are relevant’).
At the same time it must be seen that Section 22 marches in Chapter II, which speaks on ‘Relevancy of Facts’. Sec. 5 raises a total bar to irrelevant ‘evidence’. Sec. 5 of the Evidence Act reads as under:
“Section 5: Evidence may be given of facts in issue and relevant facts:
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”
Therefore, Sec. 22 bars the author and persons under him from giving oral evidence as to contents of the document, if the document is available.
Bulk of Evidence Waste Time and Space of the Courts
It is very important to note that the oral statements of witnesses as regards the contents in an admitted document is irrelevant and therefore liable to be eschewed. Therefore, such statements could not harm or benefit the party to the suit or the maker thereof. Still, it is a sheer fact that bulk of such evidence is adduced in court wasting the time and space of the courts.
Statements of Witnesses as Explanation of Admitted Document is also Excluded. As already shown, the oral statements of witnesses as regards the contents in an admitted document is irrelevant; and therefore they are liable to be eschewed. Further, Sec. 93 and 94 speak as to exclusion of evidence (i) that intend to ‘explain or amend ambiguous document’ and (ii) that stands ‘against application of the document to existing facts’.
Sec. 93 and 94 speaks as to exclusion of evidence.
Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.
Interpretation of Documents (Except Wills) – Provisions under Evidence Act
Produce Document itself (Sec. 91); and No oral evidence can be given –
(i) for varying, adding to, etc. its terms (S. 92).
(ii) to explain a document, on its face, ambiguous (S. 93).
(iii) to show a plain document not meant to apply such facts (S. 94).
Evidence can be given –
(i) to show language of a plain – (but) unmeaning to facts – document is used in a peculiar sense (S. 95).
(ii) to show language used – (though) applies to several persons – in a document apply to one only (S. 96).
(iii) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(iv) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets (S. 97).
(v) to show the meaning of illegible characters of technical expressions of words used in a peculiar sense (S. 98).
Interpretation of Wills
.(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
(ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.
Sec. 93 to 100 Evidence Act read as under:
93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
99. Who may give evidence of agreement varying terms of document. –– Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
100.Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills
Part III
EXCEPTIONS to the Rule of Irrelevancy of Oral Evidence on Documents
Sec. 92 Evidence Act reads as under:
92. Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms
Following are the exceptions in Sec. 92 Evidence Act to the general rule as to bar of oral evidence on contents of documents:
Provisos to Sec. 92:
Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Admission of Contents of Document in Pleadings
In Perumal Chettiar v. Kamakshi Ammal, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:
“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.)) This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”
Secondary evidence allowed only when permitted under Sec. 65
Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.
Sec. 63 lays down the mode of secondary evidence permitted by the Act. It reads as under:
“63. Secondary evidence means and includes—
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
As pointed out earlier, Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given. They read as under:
(a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.
Oral Evidence on ‘Sham’ Document
Section 92 of the Indian Evidence Act, 1872 directs exclusion of evidence or oral agreement as to the terms of any contract. But, under the first proviso to Section 92 any fact that may invalidate any document, such as fraud, intimidation, illegality, want of due execution can be led into evidence. It permits the plaintiff to assert that the document was never intended to be acted upon and the document is a sham.
The question as to ‘sham’ nature arises only when one party asserts that there has been a different transaction altogether than what is recorded in the document. Oral evidence is admissible in law for that purpose. [See: Placido Francisco Pintov. Jose Francisco Pinto, 2021 SCC OnLine SC 842. Referred: Smt. Gangabai v. Smt. Chhabubai (1982) 1 SCC 4, and Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595].
In Roop Kumar it is held as follows:
“22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.”
Construction of a Document Raises a Question of Law
In Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, it is observed as under:
“Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises aquestion of law.”
In Hero Vinoth Minor v. Seshammal, AIR 2006 SC 2234, it is observed as under:
“It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.”
Part IV
Words in the Instruments Matters; Not to the Presumed Intention
Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:
“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)
Oral Evidence must be Direct; Hearsay Evidence, Inadmissible
As per the Evidence Act (Sec. 3), ‘evidence’ means and includes oral evidence and documentary evidence. As stated earlier, Sec. 59 of the Evidence Act says that all facts, except the contents of documents or electronic records may be proved by oral evidence. Sec. 60 directs that the oral evidence must be direct.
Best available evidence must be produced; If Not, Adverse Presumption will be Taken
Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.
But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).
The rule that best available evidence must be produced is taken in the following cases: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal v. Badkulal, AIR 1953 SC 225; A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P., AIR 2003 SC 3024; Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.
In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:
“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”
Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:
“13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”
In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient.(See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)
In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:
“22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”
With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:
“28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”
Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.
InDigamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.
Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.
It is a fact that certain weaker sections of the citizens of India suffer from their caste identity. The policy of reservation of employment in government-jobs, and fixing quotas/seats in educational institutions, legislatures etc., are ensured to these people by the Constitution of India itself. It is with the view to uplift this weaker section, who faced with the ‘historical injustice’ and the ‘age-old sufferings’.
Why No Reservation to Backward Muslims and Christians (SCs/STs/Dalits)?
As observed in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, the Christianity does not acknowledge caste system. The same is the case of Muslims also. Therefore, it is strongly argued that it cannot be said that the members of these religions suffer from any social indifference, disadvantage or apathy.
It is also seen pointed out that the denial is out of fear that:
(i) the extension would adversely affect the existing ‘reservation-quotas‘ for Hindu, Sikh and Buddhist SCs/STs;
(ii) the Christians and Muslims would benefit from both ‘SC/ST-advantages’ and ‘minority-rights‘; and
(iii) it would lead to sudden ‘mass conversion‘ from Hinduism, Sikhism and Buddhism to Christianity and Islam.
LEGAL AND CONSTITUTIONAL BARRIER
The Legal and Constitutional barrier to extending Reservation to Muslim and Christian SCs/STs (Dalits) is The Constitution (Scheduled Castes) Order, 1950.
In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, made the Order. Para 2 and 3 of the Order reads as under:
“2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in [Parts to [XXII], {XXIII}, XXIV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.
[3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu [, the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.] ”
COUNTER ARGUMENTS
1. The Constitution of India
The Presidential Order, 1950 was promulgated disregarding the binding edicts in the Constitution, such as the Preamble, Articles 14, 15, 25, etc..
The Constitution of India, in its Preamble itself secure to all its citizens “EQUALITY of status and of opportunity”.
Article 14 of the Constitution eloquently guarantees “Equality Before Law” as the most valuable Fundamental Right as under:
“14. Equality before law: 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 Prohibits discrimination as under:
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
Clause 4 of the Article 15 reads as under:
“(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.”
Article 25 declares the fundamental Rightto profess, practise and propagate religion as under:
“25. Freedom of conscience and free profession, practice and propagation of religion:
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) …..”
2. International Declarations, Covenantsand Recommendations
The Presidential Order, 1950 stands against Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Report of the Committee on the Elimination of Racial Discrimination etc..
Article 2 of the Universal Declaration of Human Rights reads as under:
“Freedom from discrimination: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 2 of the International Covenant on Civil and Political Rights Adopted on 23 March 1976,reads as under:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.”
The United Nations’, ‘Report of the Committee on the Elimination of Racial Discrimination’, Seventieth session, 19 February -to- 9 March 2007, reads as under:
“179. The Committee notes with concern that Dalits who convert to Islam or to Christianity to escape caste discrimination reportedly lose their entitlement under affirmative action programmes, unlike converts who become Buddhists or Sikhs (arts. 5 (d) (vii) and 2 (2)).
The Committee recommends that the State party restore the eligibility for affirmative action benefits of all members of scheduled castes and scheduled tribes having converted to another religion.”
3. Reports of Various Commissions and Committees Appointed by the Government of India
The Government of India appointed several commissions and committees to make recommendations on the situation of the SCs and STs. The following important commissions considered the ‘discriminatory exclusion’ of eligible groups from the list of ‘scheduled casts/tribes’:
Report of Backward Class Commission headed by Kaka Kalelkar, , 1955
Parliamentary Committee on Untouchability, Economic and Educational Advancement of the Scheduled Castes (L. ElayaPerumal Commission Report) 1969
Report on Minorities by High Power Panel on Minorities, SCs and STs & Other Weaker Sections, Ministry of Home Affairs, Government of India, New Delhi, 1983
Mandal Commission Report of the Backward Classes Commission, 1980.
National Commission to Review the Working of the Constitution (NCRWC)(Justice MN Venkatachaliah Commission), 2002
National Commission for Religious and Linguistic Minorities – NCRLM: (Ranganath Misra Commission), 2007
The National Commissions for Scheduled Castes, 2004 (chairperson: Suraj Bhan), 2007 (chairperson: Buta Singh); 2010 (chairperson: P. L. Punia); 2013 (chairperson: P. L. Punia).
Justice Ranganath Misra Commission, 2007 recommended, inter alia, as under:
“Para 3 of the Constitution (Scheduled Castes) Order 1950:
16.3.4: We recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely delink Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.”
The National Commission for Scheduled Castes, on 22nd April 2010, had endorsed the recommendation of the NCRLM concerning the deletion of Paragraph 3 of the Constitution (Scheduled Castes ) Order 1950 for extending the Scheduled Castes status to Christians and Muslims of Scheduled Castes Origin.
National Commission to Review the Working of the Constitution (NCRWC), 2002, stated as under:
“In view of the fact that in some parts of the country particularly in the south converts to Christianity from specific SCs are subjected to crimes and atrocities as their exact Hindu counterparts are (difference of religion making no difference in this regard) and the fact that trials in such cases get bogged down on the issue whether this is an atrocity since they are not SC on account of conversion. Clause (c) of section 2 of the Act should be amended by adding the following words at the end of it and converts to Christianity from Scheduled Castes.”
L. ElayaPerumal Commission Report (“All Scheduled Castes who convert to religions other than Hinduism should be given all concessions available to Scheduled Castes”), Kaka Kalelkar Report, and Mandal Commission Report, emphatically recommended that the Dalit Muslims and Dalit Christians should be included as the Scheduled Caste.
4. Supreme Court Decisions – One continues to be SC even after conversion
1. In Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, it was observed as under:
“Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.” (Referred to in: The State of Punjab vs Davinder Singh, 27 August, 2020: Arun Mishra)
2. In Puneet Rai v. Dinesh Chaudhary, (2003) 8 SCC 204, S.B. Sinha, J. pointed out as under:
“30. In Caste and the Law in India by Justice S.B. Wad at p. 30 under the heading “Sociological Implications”, it is stated:
“Traditionally, a person belongs to a caste in which he is born. The caste of the parents determines his caste but in case of reconversion a person has the liberty to renounce his casteless status and voluntarily accept his original caste. His caste status at birth is not immutable. Change of religion does not necessarily mean loss of caste. If the original caste does not positively disapprove, the acceptance of the caste can be presumed. Such acceptance can also be presumed if he is elected by a majority to a reserved seat. Although it appears that some dent is made in the classical concept of caste, it may be noticed that the principle that caste is created by birth is not dethroned. There is also a judicial recognition of caste autonomy including the right to outcaste a person.”
31. If he is considered to be a member of the Scheduled Caste, he has to be accepted by the community. (See C.M. Arumugam v. S. Rajagopal, [1976] 1 SCC 863 and Principal, Guntur Medical College v. Y. Mohan Rao, [1976] 3 SCC 411).
32. A Christian by birth when converted to Hinduism and married a member of the Scheduled Caste was held to be belonging to her husband’s caste on the evidence that she had not only been accepted but also welcomed by the important members, including the President and Vice-President of the community (See Kailash Sonkar v. Maya Devi, [1984] 2 SCC 91).”
3. State of Kerala v. Chandra-mohanan, (2004) 3 SCC 429, AIR 2004 SC 1672, in a matter arose under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it is held as under:
“We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in accordance with law.”
4. In E.V. Chinnaiah vs State of Andhra Pradesh, (2005) 1 SCC 394, it is observed that the Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes (State can also make subclassification); they are not merely backward but the backwardmost; and that a person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion. [This decision is now stood referred to 9 judge bench (on the question: whether State can also make subclassification) by virtue of the 5 judge bench decision in The State of Punjab v. Davinder Singh, 2020-8 SCC 1.]
5. In The State of Punjab v. Davinder Singh, 2020-8 SCC 1, also it is accepted that a person does not cease to be a member of the Scheduled Caste, automatically, on his conversion to another religion. (The bench relied on Punit Raj v. Dinesh Dhaudhary and State of Kerala v. Chandra-mohanan).
6. National Council of Dalit Christians v. Unionof India is the latest case (2019), that is admitted in the Supreme Court, challenging the The Constitution (Scheduled Castes) Order, 1950. It is pending, with the Order: “Tag with Writ Petition (Civil) No. 180 of 2004, Diary No.832 of 2020, and connected matters, if any”.
5. SC/ST Election Cases – Christian is one who ‘Profess’ Christianity
M Chandra Vs. M Thangamuthu, AIR 2011 SC 146
The Supreme Court held in this case that ‘the burden of proof lay squarely on the Election petitioner to show that the appellant indeed practiced and professed Christianity’ and that ‘the Election petitioner has not been able to prove conclusively that the appellant professes Christianity’. With respect to the meaning of ‘profess‘ in Clause (3) of the Constitution (Scheduled Castes) Order , 1950 the Court referred the following decisions:
Karwade v. Shambhakar, AIR 1958 Bom 296, to enter publicly into a religious state and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient.
Punjabrao v. D.P. Meshram, [(1965) 1 SCR 849], followed Karwade v. Shambhakar, above.
Perumal Nadar Vs. Ponnuswamy, (1970) 1 SCC 605: A bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.
Ganpat v. Returning Officer, (1975) 1 SCC 589: Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. Hinduism is so tolerant and Hindu religious practices so varied and clectic that one would find it difficult to say whether one is practising or professing Hindu religion or not.
Kothapalli Narasayya vs. Jammana Jogi AIR 1976 SC 937: C.M. Arumugam vs. S. Rajgopal, (1976) 1 SCC 863: Consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member.
S. Anbalagan vs. B. Devarajan, AIR 1984 SC 411: (1984) 2 SCC 112: No particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. He regains his caste unless the community does not accept him. He never lost his caste in the first instance when he embraced another religion. The mark of caste does not seem to really disappear even after some generations after conversion.
Kailash Sonkar vs. Smt. Maya Devi,(1984) 2 SCC 91 : A member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism. In such a case, revival of the caste is not depended on theviews of the members of the community of the caste concerned, although the views of the members of the community would be an important factor. It would automatically revive on her reconversion. If too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Christian parents had baptised her at a time when she was still a minor and knew nothing about the religion. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
Kodikunnil Suresh @ J. Monian vs N.S. Saji Kumar, (2011) 6 SCC 430
The Supreme Court found that the High Court was right in coming to the conclusion that the appellant was born to Christian parents has not been seriously disputed by the appellant. But, it was held that the appellant had been elected four times from the Adoor Parliamentary Constituency reserved for the Scheduled Caste was a very strong circumstance to establish that he had been acceptedby the membersof his caste after his reconversion to Hinduism. On this finding it was held that his nomination was validly accepted by the Returning Officer. The Court referred, among other, the following decisions:
Kailash Sonkar v. Smt. Maya Devi, [(1984) 2 SCC 91]: A member of the Scheduled Caste, who is converted into Christianity and after she attains the age of discretion, can decide of her own volition to re-embrace Hinduism.
S. Anbalagan v. B. Devarajan, AIR 1984 SC 411: [(1984) 2 SCC 112] The precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for re-conversion to Hinduism of a person who had earlier embraced another religion and unless the practice of the caste makes it necessary, no expiatory rites need be performed.
Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605]: A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism but a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion and no formal ceremony of purification or expiation is necessary to effectuate conversion.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, (1954 SCR 817): Vivian Bose, J. : What is to be determined is the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.
S. Rajagopal v. C.M. Armugam, [1969 (1) SCR 254]: The law relating to acceptance of a person by members of caste to which the appellant originally belonged after his reconversion to Hinduism has been laid down.
Under Section 11 of Indian Contract Act, 1872, for executing a valid contract, the parties to the same should be of sound mind. Section 11 and 12 of the Contract Act reads as under:
“Sec. 11. Who are competent to contract:-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
Sec. 12. What is a sound mind for the purposes of contracting.—A person is said to be of sound mind for the purposes of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.”
Contract by a person of Unsound Mind is Void as that of a Minor’s contract
In RD Somasundaram Pillai, by next friend S. Bhuaneswar v. S. Janaki Ammal, 1955-1 MLJ 310, it was observed that a contract by a person of unsound mind is void as that of a minor’s contract. Both are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to establish their right to other reliefs consequent on the transaction being void. (Also see: J. Kasthuri v. Seth Ghanshamdas Vonsimal Deva Bank, 1979-2 MLJ 11; Muhammad Khalilur Rahman Khan v. Mohammad Muzammilullah Khan, AIR 1933 All. 468)
Onus to Prove Unsound Mind
In a matrimonial case alleging schizophrenia, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, it was observed that the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714: 2013-99 All LR 351, pointed out that the onus to prove that a person is of unsound mind would be upon the party who alleges it.
In Subrah-manya Sastry v. Lakshmi-narasamma, AIR 1958 AP 22, held as under:
“A lunatic is not a person who is continuously in a state of unsoundness of mind and once it has been established that a person is a lunatic, the burden of proof is on the party who alleges that a document he relies on as having been executed by the alleged lunatic was executed by him during a lucid interval“.
Sound-mind: Criterion is Capability to understand, rationally
In R. Kameswara Rao v. B. Suryaprakasa Rao, AIR 1962 AP 178, it was observed, in the context of Section 59 of Succession Act, 1925, that the words ‘sound mind’ does not mean that the testator should have his mental faculties in their fullest vigour, but he should have the capacity to understand nature of his property, the memory to remember the relations and persons normally having claims on his bounty and also a judgment of his own in making the dispositions. In Sudama Vs Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was opined that this proposition can be applied to a case of contract also with appropriate modification.
In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187 it was laid down as under:
“….. the test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest, . There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)
In Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449, It is held as under:
“Not being in a position to understand or to determine rationally whether it was likely to operate to his benefit by reassn of his mental condition, the lease must be held to be void and unenforceable.” (Quoted in: Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491.)
In Indar Singh v. Parmeshwar-dhari Singh, AIR 1957 Pat 491, it was observed that the party contracting must have the capacity to arrive at a reasoned judgment as to the consequences of the contract he is entering into; and it was pointed out that it did not necessarily, mean that a man must be suffering from lunacy to disable him from entering into a contract. It held further as under:
“A person may to all appearances, behave in a normal fashion, but, at the same time, he may be incapableof forming a judgment of his own, as to whether the act he is about to do is to his interest or not, and to the contracts of such a person the law gives protection.”
Capability to understand rationally, whether a transaction undergoing is likely to operate to his benefit or otherwise is the criterion to determine the ‘soundness’ of his mind.
See: Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449.
Ramesh Chandra Das v. Lakhan Chandra Das, AIR 1961 Cal. 518,
Gordhandas Nathalal v. Bai Suraj, AIR 1921 Bom 193,
Rajkumar Sen Chowdhury v. Ram Sundar Shaha, AIR 1931 PC 69.
Not mean – incumbent must be of a very intelligent mind set
In AEG Carapiet v. AY Derderian, AIR 1961 Cal 359, PB Mukharji, J., observed that, sound mind did not mean that incumbent must be of a very intelligent mind set; that the test of a sound mind could not be stretched to an absurdity; and it was not the test of a perfectly healthy and perfect mind. It was pointed out that the test of a sound disposing mind was, in law, a workable test, which meant, in plain language, an appreciation of fact that the man was making a will, an appreciation of the contents of that will and an appreciation of the nature of disposition that he was making having regard to the claim of affection and family relationship and claims of the society or community to which he belonged to. It was held that it was neither a hypothetical nor an impracticable test, as it was not the test of a psychologist or a psycho-analyst or a psychiatrist who in the modern age is prone to consider all human mind to be inherently unsound by nature and abnormal; nor was it the too Scientific test which would satisfy the highest technical medical examinations.
Limitation
In view of Section 12 of the Indian Contract Act, the act of disposition or contract will be void for want of competency to contract, due to the un-soundness of mind, from its very inception. In Musammat Amina Bibi v. Saiyid Yusuf .70 Ind Cas 968: ILR (1922) 44 All 748, it was held that no question of limitation arises in such a matter because it was void from its very inception.
Presumption in favour of Sanity
In Mahomed Yakub v. Abdul Quddus, AIR 1923 Pat 187, it was held as under:
“….. The test of soundness of mind is that he is capable of understanding the business and of forming a rational judgment as to its effect upon his interest. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test …..Mere weakness of mind is not sufficient…..” (This decision is followed in Indar Singh v. Parmeshwardhari Singh, AIR 1957 Pat 491.)
‘Schizophrenia’, and Unsound mind
InSudama v. Rakshpal Singh, 2013-6 ADJ 714; 2013-99 All LR 351, it was observed that even if it was assumed that a person suffered ‘schizophrenia’, that itself would not justify an inference that he was a person of ‘unsound mind’ so as to render him incapable of understanding the things as are perceived by a person of ordinary prudence and understanding. The High Court relied on Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 226. The Apex Court decision was followed in BN Panduranga Shet v. SN Vijayalaxmi, AIR 2003 Kant 357, Vinita Saxena v. Pankaj Pandit, AIR 2005 Delhi 243.
In Clara Auroro de Brangenca v. Sylvia Angela Alvares, AIR 1985 Bom 372, it was observed that the acts done by a person who was suffering ‘schizophrenia’ of violent nature to the extent that he was admitted in Mental Hospital and was released on Parole, it could not be said that act, his transaction would be valid under Section 12 of the Contract Act, 1872.
Presumption on a Registered Document
As per Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed.
Section 32 of the Registration Act states as to who shall present a document for registration. Section 34(3) states that the Registering Officer shall thereupon:
“(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document.”
Section 35 provides that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, “examine the person present before him in his office.” The Act further lays down that if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Section 36 confers the registering officer the power to enforce the appearance of executant and the powers of the civil court in that regard. The endorsement under Section 58 is made by the Registrar after satisfying with the statutory requirements.
Registered Documents: Presumption – Genuineness
In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:
“The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”
Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:
the date, hour and place of presentation of the document for registration :
the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].
In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.
Is there Presumption as to Truth on Registered Will
On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.
The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 as under:
“The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …
The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:
“If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”
Registered deed: Presumption – Validly Executed
It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:
“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”
In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under:
“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “
Registration Certificate is a mode of proof under Section 67 Evidence Act
In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:
“The Privy Council said in Gangamoy Debi v. Troilukhya Nath (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC) – ‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “… It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”
In Thithumma v. Rukhiya Umma, 2012-2 KLT(SN) 111 it is observed that normally a person is presumed to be sane and capable of understanding the things and the acts he does and to judge its consequences; such a normal man will not sign or execute a document unless he understands the effect and impact of that document upon his interest and the consequences thereof; and that this is the common course of human conduct or common course of public or private business. So, ‘if a person wants to abrogate this natural course of public or private business or conduct on the basis of any unusual or extra ordinary circumstance’, he must allege and prove that circumstance. It is further pointed out in this decision that in view of Section 114(e) of the Indian Evidence Act and Sections 32 to 36 of the Registration Act if a document is registered, it could be legally presumed that the registering officer had registered the document after satisfying that the executant was not a lunatic ie. the executant, was capable of understanding the document and forming a rational judgment as to its effect upon his interest; unless the above presumption is rebutted or abrogated by cogent and convincing evidence so as to hold otherwise.
Non-Examination of Registrar
No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.
No Detailed Enquiry under Order XXXII Rule 15 CPC
Judicial enquiry in court is sine qua non to determine, whether the alleged person of unsound mind is incapable of protecting his interest, by reason of any mental infirmity, before the return of the plaint filed against a person of unsound mind, under Order XXXII Rule 15 of the Code of Civil Procedure. The court shall examine the person, allegedly of unsound mind, by asking questions and an opportunity can be given to the party, who applies for appointing guardian also to put questions, if the party wants to do so, to test whether he is incapable to protect his interest when suing or being sued. The court has no power to return the plaint or interlocutory application seeking appointment of guardian, without numbering it, for want of medical records to prove the unsoundness of mind (Sijo Varghese Vs. Dona B. Daisy, 2019-4 Ker HC 806).
Following Marci Celine D-Souza v. Renie Fernandez, 1998-1 Ker LT 888, and referring to Pankajaksha Kurup v. Fathima, 1998-1 Ker LT 668, it is observed in Krishnankutty v. Veena MG, AIR 2012 Ker 166, that there is no necessity for conducting a detailed enquiry under Order XXXII Rule 15. It is pointed out that the position is not the same if such a person figures as the defendant in a suit and a decree is obtained against him without a guardian appointed for him; and that it is well settled that a decree against a lunatic without a guardian being appointed to represent such lunatic, is a nullity and it is not even necessary to set aside such decree and a prayer for declaration that such decree is null and void will be sufficient.
See also: Koshalya v. Rama Devi, 2011 1 Him. LR 227;
Lakshmi v. Ajay Kumar, 2006 AIR P&H 77
Harjinder Singh v. Nachhattar Kaur, 1991 PLJ 565.
Syed Hassan Baffakki Thangal v. Kalliath Thazha Chirutha, AIR 1988 Ker 160;
Godawari Devi v. Smt. Radha Pyari Devi, AIR 1985 Pat 366;
Samalla Krishnamurthy v. Samala Sasila, AIR 1983 AP 174;
Asha Rani v. Amrat Lal, AIR 1977 P&H 28;
Ram Chandra v. Man Singh, AIR 1968 SC 954,
S. Chattanatha Karayalar v. Vaikuntarama Karayalar, AIR 1968 Mad 346;
Nanak Chand v. Banarsi Das, AIR 1930 Lah 425.
Validity of Mental Condition – when one enters into the contract
When the validity of a contract arises for consideration, the crucial thing is whether at the relevant time the delinquent was capable of understanding it and forming a rational view as to its effects upon his interest. From Section 12, as held in Nilima Ghosh v. Harjeet Kaur, AIR 2011 Del 104, the soundness of mind of a person has to be seen at the time when he enters into a contract and it matters not if such a person is usually of unsound mind but occasionally of sound mind or, is usually of sound mind but occasionally of unsound mind.
‘Unsound mind’ in Marriage Laws
In Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77, it is observed that merely on proof that a person long ago at one stage of his life suffered from schizophrenia would not result into an inference that he was a person of unsound mind. Rajinder Kaur V/s. Mangal Singh, 1987 (1) PLR 444, was referred to in this decision wherein it was observed that even if a man was suffering from schizophrenia, in the absence of a positive statement made by a doctor that he was treating a person of unsound mind, it cannot be treated that such a person was lunatic. It is pointed out in this decision that in the Ram Narain Gupta’s case (AIR 1988 SC 2260) it was held that unsoundness of mind as used in Section 13(1)(iii) of the Hindu Marriage Act, 1955, require the assessment of the degree of the mental disorder and all mental abnormalities are not recognized as ground for grant of a decree of divorce, and that the Supreme Court also shared the concern of the medical word against too readily reducing a human being into a functional non-entity and as a negative unit in family or society by observing that it is the concern of law as well which has been recognized by section 13(1)(iii).
Sec. 5(ii) of the Hindu Marriage Act lays down the conditions for a Hindu Marriage. One of the same is that neither party must be incapable of giving valid consent in consequence of unsoundness of mind or has been suffering from mental disorder.
Sec. 13(1), clause (iii) and Explanations (a) and (b) read as follows:
“S.13, Divorce:– (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party …….
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder or such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.- In this clause,
(a) the expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression ‘psychopathic disorder’ means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or …”
Assessment of the degree of the ‘mental-disorder’
The Supreme Court, in Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260, held that the wife, who was suffering from Schizophrenia, could not be held to be lunatic. It was observed that the petitioner was reasonably expected to live with the respondent. after quoting Sec. 13 Hindu Marriage Act, it is held in Ram Narain Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260, as under:
“10. The context in which the ideas of unsoundness of ‘mind’ and ‘mental-disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental-dis-order. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of Decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.”
The court laid down further as under:
“25. Schizophrenia , it is true, is said to be difficult mental affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterised by the shallowness of emotions and is marked by a detachment from reality. In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
26. Schizophrenia is described thus : A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterised by prominent delusion; and catatonic, with marked motor disturbances (see catatonia). Schizophrenia commonly – but not inevitably – runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness.
27. But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees. Not all schizophrenics are characterised by the same intensity of the disease. F.C. Redlich and Daniel X. Freedman in “The Theory and Practice of Psychiatry” (1966 edn.) say : Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient, others may not interfere too seriously with many aspects of everyday living….. (p. 252) Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both ? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity…..” (Quoted in Lakshmi v. Dr. Ajay Kumar, AIR 2006 P & H 77).
In Lissy v. Jaison, ILR 2000-2 Ker 37, it is observed as under:
“Term ‘unsound mind‘ is more comprehensive. Idiocy and lunacy are species of unsoundness of mind. Mental defectiveness falls chiefly under three grades known as idiocy, imbecility and feeble mindedness. Any state of mind which falls short of lunacy or idiocy cannot be a ground for annulment of marriage. Persons differ from one another in the degree of intelligence possessed by them; it would be a dire calamity if it could be said as a matter of law that a marriage entered into by a person who is neither a lunatic nor an idiot in a serious stage, because he or she lacks intelligence, although otherwise capable of understanding the nature of the bonds of matrimony into which he or she is entering or has entered. ‘Unsound mind’ or insane memories, which all persons must understand to be a depravity of reason, or want of it. (Per Hardwicke in C. Barnsley’s case: 2 Eq. Co. Ab 580).
‘There is an important difference between, ‘unsoundness of mind’ and ‘dullness of intellect’. Unsoundness of mind may arise from perversion of the mental power and may exhibit itself by means of delusion or strong antipathies, which is called ‘Mania’, or it may arise from what may termed a defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment, which is ‘idiocy’ or where a mind, originally strong, has become weakened by illness or age though producing no such insanity as to amount to mania. ‘Idiocy’ in general is very easily proved. It is manifested in a variety of ways by impropriety or indecency of conduct, dirtiness in the habits or by vacancy of aspect, though this last test can only be appreciated by those who have seen the party. Another testis by means of numbers, ie., by showing that the party cannot understand the commonest rules of arithmetic.’ (Per Wood V.C. in Harrod v. Harrow, 23 LTOS 243).”
9. … In order to appreciate meaning of the expression ‘incurably of unsound mind‘ and the test applicable in any such case, it has to be noticed that the state of mind envisaged is a degree of unsoundness, or incapacity of mind properly called insanity. The question is to be determined not upon wiredrawn speculations but upon tangible and established facts. It is important to notice that to bring a case within the ambit of clause (iii) of sub-s.(1) of S.13, mental disorder should be of such a kind and to such an extent that the applicant cannot reasonably be expected to live with the respondent.”
Medical evidence
In Kanhaiyalal v. Harsing Laxman Wanjari, AIR 1944 Nag 232, it was held as under:
“For the purposes of Section 12, Contract Act, the test of unsoundness of mind is whether the person is incapable of understanding the business concerned and its implications, and mere weakness of mind is not sufficient. In the absence of any medical evidence, it seems to me doubtful whether it can be held that Mahipati was by reason of unsoundness of mind incapable of entering into a contract on 27th July 1937.”
Court to form its own judgment; Medical testimony, only assistance and guidance
It is further held in Lissy v. Jaison, ILR 2000-2 Ker 37, as under:
“The gravity and importance of the issue requires that the Court ought to form its ownindependent judgment on the point. Medical testimony can be of considerably assistance and even guidance but the question is one for the Court and not for the experts and evidence of experts does not relieve the Court from the obligation of satisfying itself on the point beyond reasonable doubt. There should be strict enquiry into the matter. Court’s duty in this regard is very sensitive. The institution of marriage is of vital importance to society.”
End Notes
Appreciation of Evidence
Hospital Certificate and Circumstance (land sold at low price)
In Chacko v. Mahadevan, AIR 2007 SC 2967, the incumbent was found to be a person of unsound mind on the basis of a certificate of Mental Hospital, Trichur where he had been under treatment. There the land involved was sold for a very lower price by him. The Court took note of this circumstance, applied the maxim ‘res ipsa loquitur’ (the matter speaks for itself) and observed that this sale at a lower price itself showed that no person of sound mind and in his senses would have acted in such a manner.
Absence of continuous medical records
In a departmental action of dismissal of a constable, it is held in M. Dhanachandra Singh Vs. Union of India, 2020-2 Gau LT(MN) 65, the High Court at Manipur hesitated to act upon a medical certificate observing as under:
“Further, nothing has been produced to show that he was treated as inpatient in the said hospital. The absence of continuous medical records for the aforesaid period except for the certificate issued by the Doctor does not inspire confidence of the Court to accept the plea of the petitioner that he was indeed suffering from mental disorder during the aforesaid period.”
Declaration of unsound mind – requires a higher standard of proof
In Lalta Prasad (Deceased) v. Bhagwan Deen, 2020-1 All LJ 82, the High Court held that the issue regarding the declaration of a person as of unsound mind is a serious issue which required a higher standard of proof. The court evaluated the certificate issued by a doctor (a lecturer in Psychology in a Medical University) wherein it had been certified that the delinquent was suffering from Moderate Grade of Mental Retardation (Idiot) and that he could neither give nor recognise coins and upon the performance of tests of his mental age and intelligence quotient (IQ) was in the range of 42-45. It had been certified that he was incapable of managing his property. It had also been certified that the mental retardation could not have been cured by medicines. In cross-examination he indicated the following:
(i) That in order to ascertain the mental condition of the patient, an X-ray was taken. However, he could not recall whether he had advised to get an X-ray done or not.
(ii) He further stated that when delinquent was brought before him no other medical record was brought. He could not remember when he examined the delinquent and at that time how many other patients were available.
(iii) He tried to differentirate between a person being insane and being an idiot. He stated that he had given the certificate to the effect that the delinquent was an idiot and not insane.
(iv) He further submitted that there was a proforma for giving a certificate. However, the certificate issued was not on its usual proforma.
(v) He admitted that along with his certificate there were other prescriptions and tests which were conducted which were part of it. However, those documents upon and upon the basis of which he came to the conclusion that the delinquent was an idiot have not been filed on the record by the plaintiff-respondents.
(vi) He further stated that if he is given time he can bring the documents by which he had conducted the tests and had come to his conclusion. Though he was granted time but later he refused that he did not have those documents and, therefore, he could not bring the same on record.
(vii) He further stated that he himself had given advise to the brother of the delinquent that since the delinquent was an idiot, his property should be protected and keeping the same in mind he had incorporated this advise in the certificate.
(viii) He also clarified that in view of the tests so conducted, it was apparent that the delinquent was not able to count the coins nor he could recognise the coins and, therefore, this prompted the doctor to incorporate in his statement that he had the mental capacity of a 7 years old boy.
(ix) In his cross-examination, he admitted that the delinquent was also examined by a clinical Psychologist and he had also given his report, but he further noted that the report of the Psychologist was also not available on the record nor the certificate nor the details or the conclusions given by Psychologist were either filed nor such details were noted in the certificate issued.
Thereafter the High Court observed the following:
If the delinquent was a person of unsound mind by birth and that his brother had been taking care of him right from his younger age then something which strike at the face of it is that there is not a single medical prescription relating to him which indicates that he has been suffering from any mental ailment or that he had suffered from mental retardation from his childhood.
There is no explanation as to, while he was growing up and if he was not responding as a normal child then whether any medical advice was sought or he was treated and that during his childhood who was the doctor who had advised the sibling that his brother was mentally retarded.
There has been no evidence on record to the effect that he had been treated for any ancillary complication which required treatment.
The certificate is the sole document which has been brought on record and it will be relevant to point out that this certificate has been obtained from the said doctor after the institution of the suit.
Thus before instituting the suit, there was no material available which could be brought on record to indicate the illness or the ailment.
At the time of the institution of the suit, no material was brought on record to indicate that he was of unsound mind but the suit has been instituted casually without first seeking the permission of the Court to institute the suit, through the next friend.
The doctor could not explain why he had advised and incorporated in the certificate that it was being issued only for the purposes of protection of the property of the delinquent, that too after the institution of the suit.
Though there is a mention in the plaint that during the consolidation proceedings, he was declared as a person of unsound mind. There is no evidence on record.
Once the delinquent was present in the Court and the defendants deliberately sought an adjournment and the case was adjourned; the Court had made these observations which also corroborates the fact that the delinquent was not a person of sound mind as he was not able to answer or rather did not answer any question posed by the Court.
The fact remains that despite the same, no effort was made by either of the parties to produce the delinquent in Court on the subsequent dates.
Merely because the delinquent did not answer any question in Court does not reflect his mental condition to be determinative of the fact that the person was of unsound mind.
There can be various textures and shades of mental ailments but all of them arenot to that extent which can hold a person to be of unsound mind so as to make him absolutely incapable of taking care of his own property and person.
If the sibling would have been taking care of the delinquent from his childhood as a person of an unsound mind, then from time to time there would have been prescriptions by doctors specialising in mental ailment.
Though it may be true that his mental retardation could not be cured by medicines, but the fact remains that medication is given to persons of such mental retardation in order to keep them calm and in control so that a person does not become aggressive and offensive towards others. There is no evidence to the effect that any such medication was given.
However, it is an admitted fact that the delinquent was not aggressive and not offensive to others.
It has also not been explained that if the delinquent was of that category who could not recognise the coins/currency nor could he be able to understand his good or bad then how did he explain that the defendants had abducted him and kept him in isolation and took his thumb impressions on stamp paper and plain paper to get the sale-deed executed.
The statement given in the plaint that the defendants misguided the delinquent on the pretext that they wanted to get his name incorporated in the property records and it is with the aforesaid allurement that they had abducted him also appears to be false. Since the name of the delinquent was already incorporated in the khatauni this allurement for such a person is absolutely farcical.
It would have been another things to say that a person whose mental age/capacity is that of 6-7 years and the defendants had tried to allurehim with certain materialistic allurements such sweets, food, toys, clothes etc., perhaps it could have appealed more, but to specifically state in the plaint that the purpose of allurement was to get the name of the delinquent recorded in the property , for a person whose mental capacity is of 7 years and that such a person could not recognise the currency nor could count coins gives and makes a statement that he was abducted on the aforesaid pretext and that his thumb impressions were taken on stamp paper and plaint paper becomes difficult to believe.
Moreover, the plaintiffs had also stated that they had reported the abduction of the delinquent to the police and that it was also published in certain sections of the press also becomes doubtful. Since the copies of the newspaper reports which have been brought on record reports that one youth has been missing from last 15 days and it is apprehended that he has been abducted and might have been murdered. It further reports that the elder brother had reported the matter to the police wherein it was indicated that his ‘mental condition is not alright’. This terminology used apparently does not suggest that the delinquent was a person of unsound mind.
Even in the application which is the first reaction of the brother of the delinquent, it only indicates that the report has been made that the land of the delinquent is sought to be taken by the defendants but in the entire report made to thepolice there is not a whisper of the fact that the delinquent is a person of unsound mind and that his land is being sought to be usurped by the persons named.
On record, there is a Khasara which is also in the name of the delinquent. However, there is no mention of the fact that he is a person of unsound mind.
The record indicates that except for that one particular Khatauni which makes a mention that there is some orders of the consolidation officer by which the name of Vasudev was scored of and the name of the delinquent and his brother was incorporated and it was further mentioned that the delinquent is under the guardianship of his brother and he is a person of unsound mind, is the one solitary document.
There are other documents indicating the revenue entries in his name. In none of those revenue entries, there is any whisper regarding his mental incapacity. Similarly Khatauni is also in the name of the delinquent and in all the Khatauni entry, the name of the delinquent have been shown but it has not been mentioned that he is a person of unsound mind.
It is in this backdrop, if it is seen that one Khatauni wherein there is a mention of the fact that the delinquent is a person of unsound mind, then in all the subsequent Khataunies, the aforesaid endorsement in the entry should have been incorporated. This continuity which ought to have been present and natural, is missing. It is not corroborated by similar entry in the subsequent years.
However, in order to buttress the same, the plaintiff could not bring on record the order itself by which it was stated thatthe delinquent was declared as a person of unsound mind.
If the plaintiff got himself declared as the guardian of the delinquent in the consolidation proceedings, then that order at best could have been ordered declaring guardian ad litum. There is no other document which could indicate that one was ever declared as the next friend of the delinquent by a competent court as provided under the Indian Lunacy Act.
Since the delinquent had inherited the rights of his father in his personal capacity having a separate and identifiable share, and under the revenue laws his brother otherwise is not the natural guardian but the fact remains that in order to deal with the property of a person of unsound mind the brother ought to have sought his declaration in terms of the Indian Lunacy Act as it was prevalent at the relevant time when the litigation started in the year 1989 for which the district court has been granted power to make an acquisition in respect of a person alleged to be a lunatic for which Chapter-V and more particularly Sections 62, 63 and 65 of the Indian Lunacy Act are relevant.
From the record, it would indicate that the trial court while entertaining the plaint in the first instance did not look into the fact that the suit which was being instituted though next friend. There was no evidence worth its name at the time when the plaint was instituted to substantiate that the delinquent was a person of unsound mind.
The submission of the learned counsel for the respondent that since it examined the witnesses including the medical expert, this itself discharges the burden of the plaintiff and the entire onus rested with the respondent does not impress the court for the reason that where both parties had led evidence the burden of proof pales into insignificance. In the present case, this issue regarding burden of proof was not in controversy before either the trial court or the first appellate court. Both the courts had made independent assessment of the evidence and have come to different conclusion.
As already indicated above, the evidence led by the plaintiff who was primarily responsible to actually prove that the delinquent was a person of unsound mind has not been able to discharge its burden by bringing on record cogent evidence to establish the fact.
As already discussed above the report of the medical expert is mired with certain inherent lacuna which does not inspire confidence.
The report of the doctor certified the delinquent to be an idiot. In the plaint, the plaintiff had used different word (vernacular) and have also used the word insane. All these terminologies indicate different facets has an altogether different connotation.
Appreciation of Medical Evidence (in a case where Medical Record was discarded)
In Thithumma v. Rukhiya Umma, 2012-2 Ker LT(SN) 111, the Kerala High Court refrained from acting upon the O.P. register marked as Ext.X1 citing, inter alia, the following:
PW4, the doctor said that the entries in Ext.X1 were usually made by members of staff and he had no personal knowledge.
He was unable to identify the handwriting.
He did not know the doctor, who treated or admitted the patient .
The patient was seen admitted on 29.5.1980 at 5 p.m and discharged on the next day.
No document was available in the hospital except Ext.X1.
The case sheet, the most important document, was not available in the hospital.
PW4 had never seen the case sheet.
Though the signature or thumb impression of the patient could have been affixed in the record, it does not find a place.
Though the case history and date of discharge are recorded in report book, it was not produced.
In Ext.X1, the name of the delinquent alone was shown without his age or address.
PW4 had not seen the doctor nor did he make any personal enquiry.
He had not seen delinquent while he was allegedly in the hospital.
At the most, what can be inferred from Ext.X1 was that one Abdutty whose details are not known was admitted in Mental Hospital, Trichur on 29.5.1980 and discharged on 30.5.1980.
Ext.X1 was not at all sufficient to prove that delinquent was treated for unsoundness of mind at that time or that he was non compos mentis on the date on which Ext.B1 gift deed was executed.
The time immemorial custom prevailing at Sabarimala Temple prohibits women, between the age group of 10 to 50 years, to enter this temple. The Kerala High Court, in 1991, upholding the prevailing custom, ruled in S. Mahendran Vs. The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42) that the exclusion of women in their ‘menstruating years’, from Sabarimala Temple, was not violative of Art. 15, 25 and 26 of the Constitution of India.
Sabarimala Case & Constitutional Morality
On September 28, 2018, the Constitution Bench, headed by the Chief Justice allowed, in 4:1 majority (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1), the petition filed under Article 32 of the Constitution, holding that the exclusion of women from Sabarimala Temple violated the fundamental rights and that the custom of exclusion of women was unconstitutional. The Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 [framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965].
Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years. It was argued that this provision would play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex.
The Supreme Court held that the devotees of Lord Ayyappa do not constitute a separate religious denomination; and therefore they cannot claim the benefit of Article 26 of the Constitution of India.
The CJI, speaking also on behalf of Khanwilkar, J., allowed the Writ Petition and observed, inter alia, as under:
(i) Devotees, not constitute ‘denomination’. In view of the law laid down by the Supreme Court, in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005: AIR 1954 SC 282] and SP Mittal Vs. Union of India [AIR 1983 SC 1] the devotees of Lord Ayyappa do not constitute a separate religious denomination and, therefore, they cannot claim the benefits of Article 26 of the Constitution of India.;
(ii) Physiological factors of women cannot be raised. The right guaranteed under Article 25(1) of the Constitution has nothing to do with gender. For that matter, physiological factors specifically attributable to women cannot be raised;
(iii) Violation of fundamental rights. Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, was a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter;
(iv) Morality in Art. 25(1) is Constitutional Morality. the term ‘morality’ occurring in Article 25(1) of the Constitution has to be understood as being synonymous with constitutional morality; and
(v) Not be an essential religious practice. The exclusion of women between ages 10-50 by the Sabarimala Temple could not be an essential religious practice.
Justice Rohinton Nariman concurred the views of CJI, in his separate judgment. He further observed that the exclusion of women from the temple would render their rights under Article 25 meaningless. He stated that there was no deficiency of evidence to conclude that the exclusion of women from Sabarimala violated Article 25(1) of the Constitution.
Justice DY Chandrachud also concurred the views of CJI. He also pointed out that the exclusionary practices of women between age of 10-50 years from the Sabarimala Temple were contrary to constitutional morality. Even if a claim for the exclusion of women from religious worship could be founded in religious texts, it would be subordinate to the constitutional values of liberty, dignity and equality. In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.
Justice Indu Malhotra handed down a dissenting Judgment holding, inter alia, the following:
(i) Article 14 would not override Article 25.The equality doctrine enshrined under Article 14 would not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
(ii) The Constitutional Morality implies harmonisation. The Constitutional Morality in a secular polity in a pluralistic society would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(iii) The Ayyappans constitute a religious denomination. The Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26 by which it can manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. The court must respect such rights.
(iv) A working formula to be adopted to decide religious denomination. In the matters as to religious denomination there is no straight jacket formula; but a working formula to be adopted to decide if it is a religious denomination.
(v) Notions of Court should not be the criterion. It is not for the court to see if such are rational or irrational.
(vi) Supreme Court must be a balancing wheel. Supreme Court is not just a guardian of fundamental rights but also a balancing wheel between rights and social control.
(vii) Article 25(2)(b) contemplates a State made law. What is permitted by Article 25(2)(b) is a State made law and not judicial Intervention.
(viii) The proper forum is civil court. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. The proper forum to ascertain whether a sect constitutes a religious denomination or not would be more appropriately be decided by a civil court through leading evidences.
(ix) Rules are not ultra vires of its parent Act. Rule 3(b) of the 1965 Rules would not be ultra vires Section 3 of its parent Act, the Kerala Hindu Places of Public Worship Act, 1965, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.
(x) Not fall within the purview of Article 17. The limited restriction on the entry of women during the notified age group would not fall within the purview of Article 17 of the Constitution. It was pointed out that Article 17 pertains to untouchability, refers to caste; and it does not extend to discrimination on the basis of gender.
Justice Indu Malhotra, in light of the discussions and analysis in her judgment, directed that the Writ Petition could not be entertained.
SABARIMALA REVIEW
More than 50 review petitions were filed challenging the ‘Sbarimala verdict’. On November 13, 2018, the Constitution Bench headed by Chief Justice began hearing the review petitions (Kantaru Rajeevaru v. Indian Young Lawyers’ Association) in open court. It was argued that several questions including the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution were yet to be resolved by a larger bench of not less than seven Judges. According to them, the determination of the questions of law referred to a larger bench would have a bearing on the pending writ petitions relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.
The matters involved in this case now stand referred to a higher bench of nine judges. According to the reference, the conflict of opinion between the Seven-judge-decision in Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954 SCR 1005: AIR 1954 SC 282] and Five-judge-decision in Durgah Committee, Ajmer v. Syed Hussain Ali [1962-1 SCR 383: AIR 1961 SC 1402] pertaining to the scope and extent of judicial review with regard to a religious practice, had also to be resolved.
Seven issues were framed for consideration by the larger Bench. It is tagged to the matters relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.
Important Constitutional Questions Yet to be Resolved – Hence Review
There are differences of opinion, between the following two important decisions of the Supreme Court of India, as to the extent of protection ensured under Articles 25 and 26, and as to the restrictions.
The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282); and
Durgah Committee, Ajmer Vs. Syed Hussain Ali (AIR 196 1SC 1402).
The difference is whether the following words in Article 25 and 26 confer ‘wider’ rights?
(i) Subject to public order, morality and healthall persons are entitled to the right freely to practise religion (Article 25).
(ii) Subject to public order, morality and health every religious denomination or anysection thereofhave the right to manage its own affairs in matters of religion. (Article 26).
The divergences are on the following:
Whether protection islimited to practices that are Essential and INTEGRAL part of religion (and no other)?
Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect ‘Acts Done in pursuance of a religion?
Who determines –what constitutes the essential part of a religion? Is it the COURT?
Is it left to be determined by the Denomination or Section and no outside authority has any jurisdiction to interfere with their decision in such matters?
Whether the Protection is limited to Essential and INTEGRAL part of ‘RELIGION’ in a strict sense (and no other)?
Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc.? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to‘manage its own affairs‘ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).
In the Sabarimala reference (to higher Bench) Judgment [on review petition in Indian Young Lawyers Association Vs. State of Kerala: 2018] it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case as to the following:
Whether the determination on essential religious practices was a matter left to the denomination?
Whether the court has jurisdiction to determine it applying its own conscience?
The scope or extent of judicial review on ‘religious practice’ is the Crux of the review-matter.
In the Review Judgment it is shown-
Shirur Mutt case [1954 SCR 1005: AIR 1954 SC 282 – Seven judges] held that the essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
But Durgah Committee [1962-1 SCR 383: AIR 1961 SC 1402 – Five judges] carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Another difference is also seen. It is, as to the extent-of-protection of religious practices given under these decisions.
The Shirur Mutt case had stated that the extent of protection of essential religious practices extends to essential‘religious practices’.
But, the Durgah Committee decision said that the protection must be confined to such ‘religious’ practices as ‘are essential and integral part’ of the ‘RELIGION’ (rather than a sect or faction).
In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers’ Association, the court said as under:
“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essentialreligious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what thecourts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”
The questions that arise for consideration in these cases, on Article 25 and 26, can be summarised as under:
1. Extent of Protection – ALL ACTS or acts INTEGRAL to religion
Whether limited to the essential and INTEGRAL part of religion, and no other? Or, whether protection to ALL ACTS DONE in pursuance of a religion?
2. Who determines: COURT or DENOMINATION?
Whether the COURT determines? Whether a religious DENOMINATION or ORGANISATION enjoys complete autonomy to decide what is essential, and no outside authority has any jurisdiction?
3. Extent: RELIGION in the strict sense or WIDER
Whether limited to the essential and integral part of RELIGION in the strict sense? Whether a religious denomination or organisation enjoy complete autonomy?
4. Criterion: Confined to public order, health and morality or NOT
Court determines on the basis – whether essential to RELIGION; Need NOT BE CONFINED TO acts opposed to public order, health and morality. Whether freedom of religion is guaranteed to all practices except when they run counter to public order, health and morality?
These matters are laid down in the Shirur Mutt Case and Durgah Committee case as under:
Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)
Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. Limited to the essential and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION, their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an Essential and an integral part of it and no other.” (Wider application of religious practices is not recognised.)
The right ‘to manage its own affairs in matters of religion’and the freedom to ‘practice of religion’ protect the Acts Domain (outward religious practices, as opposed to private belief) in the practice of a religion. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “Our Constitution not only protects the freedom of religious opinion, but it protects also acts done in pursuance of a religion, and this is made clear by the use of the expression ‘practice of religion‘ ”.
2. COURTdetermines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is, the COURTdeterminesand ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.)
The right of a Religion to ‘manage its own affairs‘ is a fundamental right which no legislature can take away. The denomination or organisation enjoys complete autonomy. No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold, and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away.“
3. Religious practices of ‘RELIGION’ in a strict sense. “Unless such practices are found to constitute an essential and integral part of a RELIGION, their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and Unessential accretions to RELIGION’ the State was free to enact laws on such matters.“
Extends to religious denominationor a section thereof, and includes ‘Organization‘, ‘Sects,Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organisation enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….”
4. Court determines. It need not be confined to public order, health and morality. “Unless such practices are foundto constitute an Essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”
(That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious role of the COURT.)
Freedom of religion is guaranteed to practices except when they run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
Observations in Sabarimala reference (to higher Bench) Judgment as to Durgah Committee Decision Courts determine – what religious practices are protected and what religious practices are to be excluded as “secular practices or superstitious beliefs”
Observations in Sabarimala reference (to higher Bench) Judgment as to Shirur Mutt Decision “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself“
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770.
It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, 1983-4 SCC 522), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case the majority rendered the decision following Durgah Committee, Ajmer vs. Syed Hussain Ali where it is held that the protection must be confined to such religious practices as are an essential and integral part of it and no other.
In the minority view rendered by AR Lakshmanan, J. it is laid down as under:
“This observation of this Court, in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
“We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
….If 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…”
In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swamietc. vs. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru & Ors. Vs. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”
The Nine-judge Bench Re-framed the Issues
The nine-judge Bench headed by Chief Justice has been constituted to hear the Reference. The Bench re-framed the issues referred, as under:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression ‘Sections of Hindus’ occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Analysis and Conclusion
The nine-judge bench is considering the following four matters collectively.
(i) right of entry of women into Sabarimala Temple
(ii) the right of entry of Muslim women into dargahs and mosques;
(iii) the right of entry of Parsi women, married to non-Parsis, into the holy fire temple (Agyari); and
(iv) the challenge to the practice of female genital mutilation in the Dawoodi Bohra Community.
The outcome of the combined inquisitive analysis of all the aforesaid cases and all the issues involved therein, viewed within the constitutional ethos, by the nine-judge bench, may be supportive of the so-called ‘progressive view in favour of women’. However, if the effect of the answers in each distinct case and on each separate issue is anatomically explored in isolation and then cumulatively assessed, the outcome may be diametrically opposite. The nine-judge bench will therefore have to analyse the matters from both perspectives.
It is definite – apart from examining the cumulative effect of all the matters together, the nine-judge bench will pronounce judgment on each matter, independently, applying the relevant principles to the merits of each case.
END NOTES
Article 25 and 26of the Constitution of India
Article 25 reads as under:
25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
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 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.
Article 26 reads:
26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious 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.
It is the unique characteristic of Indian Constitution that the Government in India protects all religions and the religious practices. Unlike other secular countries like United States, which follow the principle of ‘non-interference in the matters of religion’, the secular Government in India is destined to deal with all religions equally and in a neutral manner. Yet, the Government in India will never be openly or virtually religious.
The framers of the Constitution of India positioned the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India.
Article 25 and 26 of the Constitution of India
Article 25 reads as under:
“25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
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 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.”
Article 26 reads:
“26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right–
(a) to establish and maintain institutions for religious 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.”
Art. 25 and 26 Allows Enactment of Laws Relating to ‘Secular’ Matters
Article 25 speaks about making law on ‘secular activity which may be associated with religious practice‘. Article 26 says as to ‘administer such property in accordance with law‘.
Article 26 proclaims, inter alia, about freedom to manage religious affairs. The principles underlying these provisions come for consideration when legislature makes law as regards the property that has been acquired, possessed or owned by religious bodies.
Doctrine of Essential Religious Practice
It is clear from the words in clause (d) of Article 26 (‘administer such property in accordance with law’) that the legislature is empowered to enact laws relating to ‘secular’ matters related to the administration of property owned by religious denominations. Laws made as above had been questioned in Shirur Mutt case and Durgah Committee case as detailed below. The doctrine of Essential Religious Practice is emerged from the analysis and synthesis of the Articles 26 and 26.
Shirur Mutt and Durgah Committee – Two important Decisions on Art. 25 and 26
Several enactments passed in India, pertaining to the administration of property owned by predominant religious bodies, were challenged in courts alleging that they violated the fundamental rights guaranteed in Article 25 and 26 of the Constitution.
Following are the two important decisions of our Apex Court that articulated and verbalized the law on Article 25 and 26 of the Constitution of India:
(i) The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) – Seven Judge Bench – MC Mahajan, CJ, BK Mukherjea, , SR Das, Vivian Bose, Ghulam Hasan, NH Bhagwati, TL Venkatarama Aiyyar.
(ii)Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402). Five Judge Bench – Gajendragadkar, CJ., Sarkar, Das Gupta, Rajagopala Ayyangar, KN Wanchoo.
Shirur Mutt Case
In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) the Constitutional validity of the Madras Hindu Religious and Charitable Endowments Act, 1951 passed by the Madras Legislature was challenged. It was alleged that the Act interfered with the management of the Math and its affairs by the Mathadhipati, and it conflicted with the provisions fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations. It was held by our Apex Court, inter alia, as under
(1) Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
(2) ‘Organizations’, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
(3)(a) “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (Therefore the provisions of the concerned legislation was held to be bad.)
(3)(b) It is also held: Under Article 26(b), “a religious DENOMINATION or organization enjoys complete autonomyin the matter of deciding as to what RITES and CEREMONIESare essential according to the tenets of the religionthey hold and no outside authority has any jurisdiction to interfere with their decision in such matters”. (Therefore the provisions of the concerned legislation was held to be bad.)
Edict of the Shirur Mutt Case
Thus, Shirur Mutt brings-to-bear that when it is necessary to make a pronouncement as to what constitutes the ESSENTIAL PART OF A RELIGION or what RITES and CEREMONIESare essential according to the tenets of the religion, the same has to be ascertained–
(i) with reference to the Doctrines of that religion itself
AND
(ii) what the DENOMINATION HELD as essential, as to the RITES and CEREMONIES, according to the Tenets of their religion.
Shirur Mutt – Not a Case from Dispute Within the Community
It is noteworthy that in this case it was not required to record a finding – what would be the stand of the court when a dispute came within the community or denomination as to the rites and ceremonies.
Durgah Committee Case
The tomb Khwaja Moinuddin Chisti at Ajmeer, known as Durgah Khwaja Saheb, gained high reputation. In 1955 the Parliament of India enacted the Durgah Khwaja Saheb Act, 1955, with regard to the administration of the tomb. Alleging violation of the fundamental rights, a Writ Petition under Art. 226 of the Constitution was filed. In Durgah Committee, Ajmer v. Syed Hussain Ali (1961) it was held by the Apex Court, inter alia, as under
The ‘essential practices‘ of RELIGIONalone is considered.
The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion‘ may have to be carefully scrutinised by theCOURT.
Edict of the Durgah Committee Decision
Durgah Committee brought forward application of consciousness of the Court in ‘essential religious practice’ of the RELIGION (without regard to what had been HELD by the DENOMINATION/COMMUNITY).
Durgah Committee paved a broad way, that gave wide discretion to court, when it propounded-
the court has to ‘scrutinise‘ whether religious practices are ‘sprung from merely superstitious beliefs’ or it is an ‘unessential accretions to religion’.
As indicated in Sabarimala case (stated below), the result of Durgah Committee decision is that the courts determine what are the secular practices or superstitious beliefs.
SeervaiTells –Observation in Dargah Committee Case, only an Obiter
From Dargah Committee decision, it may appear that the matters discussed in the decision – such as, what were the secular practices or what were superstitious beliefs – dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)
The observation in Dargah Committee case as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter as it was “wholly unnecessary to do so”. Seervai also pointed out that ‘the above obiter runs directly counter to the judgment of Mukherjea, J. in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion’.
“The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of any particular religious observance. The obiter of Gajendragadkar J. in the Durgah Committee case is also inconsistent with the observations of Mukherjea J. in Ratilal Gandhi Case,** that the decision in Jamshedji v. Soonabai afforded an indication of the measure of protection given by Article 26(b).” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
**Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388.
It is noteworthy that in this case also, as in Shirur Mutt case, disputes that arose for consideration were not that arose within the community or denomination as regards the ‘rites and ceremonies’. It was a case that challenged an enactment passed by the Parliament of India.
All five Judges in Durgah Committee Changed their Views
All the five Judges in Durgah Committee (1961) changed their views, by two subsequent decisions, as to the ‘role of the court‘ in determining the essential religious practice; and observed that what was REGARDED by the COMMUNITY on essential religious practice was important.
In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, it was held by a Constitution Bench (Sinha, C. J. dissenting) of five Judges (consisted of three Judges in Dargah Committee Case – A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, JJ.)
that the protection is extend to acts done in pursuance of religion and it contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion; and
that what constitutes an essential part of a religion or religious practice has to be decided by the courtswith reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITYas a part of its religion.
In the Constitution Bench decision in Tilkayat Shri Govindlalji Maharaj v. St. of Rajasthan, 1963 AIR SC 1638, Justice Gajendragadkar himself (who authored Dargah Committee Case) and two other Judges in Dargah Committee Case, K.N. Wanchoo and K.C. Das Gupta, JJ. explained, as to the enquiry on integral part of religion held as under:
“In Shri Venkataramana Devara v. The State of Mysore, 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 isregarded 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 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).”
Reflections of Justice Gajendragadkar in his Autobiography
It is interesting to note what was the reflection of Justice Gajendragadkar in his Autobiography, “To the Best of My Memory” as to the ‘role of the court‘ in determining the essential religious practice.
Justice Gajendragadkar pointed out that the finding was needed when disputes came as to religious practices and other matters, and said that ‘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’.
Justice Gajendragadkar speaks as under:
“Similarly under Article 26, one of the questions which agitated public opinion was in respect of the meaning of the expression “matters of religion” under Article 26 (b) and “religious practices” under Article 25(2)(a).
The earlier trend of the Supreme Court judgments was that religious practices and matters of religion have to be decided in the light of the opinion of the communityand not by the court.
This view meant that, in case a controversy arose between the parties in regard to the meaning of these two expressions, in deciding “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 view however was dissented from by the court in two decisions**in both of which I spoke for the unanimous court. We held that where a dispute arises as to what is the religious practice or what are matters of religion, the question will always have to be decided by the court. In doing so, the court may have to enquire whether the practice in question is religious in character and, if it is, can it be regarded as an integral and essential part of the religion?
The finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the communityand the tenets of its religion.”
(ii) Tilkayat Shri Govindlalji Maharaj v, The State of Rajasthan, (1964) SCR 561,620,623.
Seervai criticised Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan also as under:
“In Tilkayat Shri Govindlalji v. Rajasthan Gajendragadkar J. again adverted to the rights under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a Court would be justified in rejecting its claim to be a religious practise, as based on irrational considerations. It is submitted that the real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a denomination’s religion. The actual decision in the case, that the right to manage the property was a secular matter, is correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when contrasted with Art. 26(c) and (d) shows that matters of religious belief and practises are distinct and separate from the management of property of a religious denomination. The distinction between religious belief and practises which cannot be controlled, and the management of the property of a religious denomination which can be controlled to a limited extent, is recognised by the Article itself and must be enforced. But this distinction is not relevant to the question whether a religious practise is itself irrational or secular.” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
Sabarimala Case Pointed out – Apparent Conflict is on Role of the Court
In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is pointed out that there is apparent conflict between the Shirur Mutt Case and Durgah Committee Case, on the ‘Role of the Court’.
It is observed –
Seven Judges bench of the Apex Court, in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt), held that what were essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
The subsequent Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Both these decisions ‘seem to be in apparent conflict‘.
It requires consideration by a larger Bench.
PART – II
What is Secularism in Indian Perceptive?
It is separation of the State from religious institutions.
It does not mean separation of religion from State.
It does not mean State either anti-god or pro-god.
It just ensures that no one is differentiated on religion.
It provides equal status to all religions.
It does not favour or discriminate any one on religion.
Secularism is the policy of separation of the State from religious institutions.
Though the word ‘secular’ was added to the preamble of the Constitution of India only in 1976 by the 42nd Constitutional amendment, the independent Indian Republic has been secular, from its inception; and religion has been open to one and all as an unquestionable matter of personal choice.
In Indian panorama, secularism does not mean separation of religion from State.
Instead, the Constitution offers, as fundamental rights, freedom of conscience and free profession; practice and propagation of religion; and freedom to religion and ‘religious practices’. But, these rights are subject to the restrictions, which the Constitution itself has laid down.
While dealing with ‘secularism’, in Ahmedabad St. Xavier’s College v. State of Gujarat (1974)[1] it was observed by our Apex Court that ‘secularism’ didn’t mean either anti-god or pro-god; it just ensured that no one is differentiated on the basis of religion.
In S R Bommai v. Union of India(1994)[2] the Supreme Court explained that, under the Constitution of India, secularism did not mean that India was an atheist society, but it was a heterogeneous society providing equal status to all religions without favouring or discriminating against any one.
PART – III
Essential Religious Practice
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. Under Article 25(2)(a) State can regulate or restrict any economic, financial, political and other secular activities. ‘Other secular activities’ does not affect essential religious practice or activities.
Though the legislature is empowered to enact laws relating to ‘secular’ matters by virtue of clause (d) of Article 26, those secular activities that are ‘essentially’ associated with religion are not amenable to State regulations.
In certain cases a question may arise whether the State regulation is bad for it is ‘essentially associated with religion’. In such cases it becomes the duty of the court to decide whether a practice is an essential practice or not.
Under Article 26(b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
What constitutes ‘essential’ part of religion has to be ascertained by the courts looking into the doctrines of that religion.[3] It is always depended upon the tenets of the religion, its historical background, change in evolved process, the evidence placed before the courts as to the conscience of the community, etc.[4] Essential practice means the practice that is fundamental to the religion and its belief; without which the religion will be no religion.[5] In other words it is the practice connected to the core beliefs upon which the religion is founded.
In AS Narayana Deekshitulu Vs. State of AP[6] it is held by our Apex Court as under:
“What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence — factual or legislative or historic — presented in that context is required to be considered and a decision reached.”[7]
Possible Restrictions that can be Imposed by State
From the Shirur Mutt Judgment it can be found that the following would be the Possible Restrictions that could be imposed by State under Articles 25 and 26:
Restrictions by the State are permitted upon free exercise of religion, both under Articles 25 and 26 of the Constitution on grounds of public order, morality and health.
The State has a right to interfere when the freedom guaranteed by Article 25 and 26 run counter to public order, health and morality. (But it does not contemplate regulation of religious practices, as such, by the State.)
Guarantee given to ‘religious denomination’ or ‘a section thereof’ is to administer its propertyis ‘in accordance with law’ (Clause [d] of Article 26); and thereby the State can ‘regulate it by laws’. (But the right to manage affairs of religion itself is a Fundamental Right which no legislature can take away.)
Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice.
Though the scale of expenses to be incurred in connection with religious observances would be a matter of administration of property belonging to the religious denomination, it can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the intention, of any religion to destroy its institution and its endowments by incurring wasteful expenditure on rites and ceremonies; and nobody can make a grievance if he is directed to obey orders issued in pursuance of valid legal authority.
A further right is given to the State by Clause (2)(b) of Article 25 under which the State can legislate 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 even though by so doing it might interfere with religious practices.
PART – IV
Nature of Protecting ‘Religious Practices’ in India
As pointed out above, unlike other secular countries the Constitution of India protects all religions, and the religious practices. It is held by our Apex Court in Shirur Mutt case (AIR 1954 SC 282), that our Constitution (Article 25) protects those practices which are ‘integral parts’ of a religion, and that no outside authority has any jurisdiction to interfere with their decision in such matters.
“… Freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions, which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”
Essential Religious PracticeRecognised by Courts
Various decisions lad down by our Courts show that following religious practices are ‘essential’ part of religion:
Right to elect members to a committee for the administration of a Gurudwara property amongst Sikhs.[12]
Mosque is not an essential practice of Islam and a Muslim can offer namaz (prayer) anywhere even in the open.[13]
Hijab (headscarf) is not an ‘essential religious practice’ in Islamic faith: Karnataka High Court (March 15, 2022) in Resham v. State of Karnataka.
Following decisions are also important in these matters.
A Hindu male marrying a second wife after conversion while first spouse living is illegal.[14]
Taking of photographs of a woman, for electoral purposes, cannot be prohibited.[15]
Hijab (Headscarf)& Essential Religious Practice
Karnataka High Court recently (March 15, 2022), in Resham v. State of Karnataka, held that Hijab (headscarf) is not an ‘essential religious practice’ in Islamic faith. The decision has come in a case in which the Govt. Order that banned Hijab in classrooms was challenged. It is held that the Govt. Order is not unconstitutional. The High Court began is judgment as under:
“This judgment, we desire to begin with what Sara Slininger from Centralia, Illinois concluded her well researched article ‘VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013’:
‘The hijab’s history…is a complex one, influenced by the intersection of religion and culture over time. While some women no doubt veil themselves because of pressure put on them by society, others do so by choice for many reasons. The veil appears on the surface to be a simple thing. That simplicity is deceiving, as the hijab represents the beliefs and practices of those who wear it or choose not to, and the understandings and misunderstandings of those who observe it being worn. Its complexity lies behind the veil.’ “
The material point is answered by the three-judge-bench as under:
“…. we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”
Hijab – Split Verdict in Supreme Court
Divergent views were expressed by the Two Judge Bench of the Supreme Court of India (Hemant Gupta and Sudhanshu Dhulia, JJ.) when this case was placed before them (Aishat Shifa v. State of Karnataka, 2023-2 SCC 1). Therefore, this matter has been placed before the Chief Justice of India for constitution of an ‘appropriate Bench’.
Justice Hemant Gupta dismissed the appeals holding as under:
“However, it is to be noted that none of the fundamental rights is absolute. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14.”
“Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”
It was observed that the Government Order only ensured that the uniform prescribed was adhered to by the students and it could not be said that State was restricting the access to education to the girl students through such an Order and that the Government Order could not be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution.
But, Justice Sudhanshu Dhulia allowed the appeals directing that ‘there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka’. Justice Dhulia observed as under:
“All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement. The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and-order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences.”
Justice Dhulia pointed out that fraternity, which was our Constitutional value, would therefore require us to be tolerant. Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education. By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.
PART – V
Religious Denomination in Article 26
Article 26 confers ‘every religious denomination or any section thereof’ the freedom to manage religious affairs. Our Apex Court, in Commr., Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[16] held as follows:
“…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’. …After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name – in many cases it is the name of the founder – and has a common faith and common Spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious, denomination; and so do the followers of Madhwacharya and other religious teachers. … As Art. 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article.”
The Constitution of India does not define religious denomination. In SP Mittal v. Union of India[17], our Apex Court laid down three conditions (pointed out in Shirur Mutt case) to qualify ‘religious denomination’. They are:
1. Collection of individuals having a common faith.
2. A common organization.
3. Designation by a distinctive name.
There may be no scope for disputing ever so may established religious denominations. But challenges may arise with respect to several sects or subsects. Following sects or collections of individuals are held to be ‘religious denomination’:
Spiritual fraternity represented by a math: (Sri Shirur Mutt case[18])
Ananda Marg: (Acharya Jagdishwaranand v. Commissioner of Police, Calcutta[20])
Jehovah’s Witnesses (Christians): (Bijoe Emmanuel Vs. State of Kerala[21])
Ramakrishna Math or Ramakrishna Mission (Hindus): (Bholanath Mukherjee Vs. R.K. Mission V. Centenary College[22])
Shia, Hanafi and Chishti (Muslims).
Knanaya Samudayam: a Christian community that had zealous concern throughout to maintain and retain their separate ethnic identity and beliefs. (Most. Rev. PMA Metropolitan v. Moran Mar Marthoma Mathews, AIR 1995 SC 2001).
Following collection of individuals is held to be not ‘religious denomination’:
1. Aurobindo Society (Hindus): (SP Mittal Vs. Union of India[23]).
2. Followers of Ayyappa (Hindus): (Indian Young Lawyers Association Vs. Union of India[24]).
In Most. Rev. PMA Metropolitan Vs. Moran Mar Marthoma Mathews, AIR 1995 SC 2001, it is held as under:
“The modification is called for for the reason that when a particular people say that theybelieve in the spiritual superiority of the Patriarch and that it is an article of faith with them, the Court cannot say ‘no; your spiritual superior is the Catholicos’.”
Restrictions to Freedom under Article 25 and 26
The fundamental right to ‘freedom of religion’ is guaranteed under Article 25 and ‘freedom to manage religious affairs’ is guaranteed under Article 26 of the Constitution. Both Article 25 and 26 are subject to public order, morality and health. They are also subject to the restrictions that are laid down in Article 25(2) and Article 26(d). Article 25(2) permits the State to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.Article 26(d) empowers the State to enact laws relating to the field of administration of property of religious denominations. In the matters of religious trusts, argument often raised is that the court has no jurisdiction to interfere in the administration of such trusts or institutions inasmuch as the people connected to those trusts have a right to follow their own faith under Article 25 of the Constitution of India read with the Preamble to the Constitution of India that guarantees the liberty of thought, expression, belief, faith, and worship.
Rights conferred under both Articles 25 and 26 are circumscribed in itself by ‘public order, morality and health’. Articles 25 refers to individual right. Articles 25 refers to collective right. Conflict between religious rights of individuals (Art. 25) and that of religious denominations are (Art. 26) surfaced in several cases, such as Sabarimala Case,[25]Entry of Muslim Women in Mosque Case,[26] Parsi Women’s Case,[27] Dawoodi Bohra Community case[28]etc.
Apart from the measures, ‘public order, morality and health’,our Courts have applied various general theories, doctrines and principles to solve the issues that arise from ‘interplay’ of these rights. They include the following:
1. India is a secular and democratic country. It beholds and respect pluralistic cultures of various denominations.
2. If conflicts in various fundamental rights, they are to be solved by harmonisation of various Rights.
3. The court and government must respect the faith and belief exercised in accordance with the tenets of the religion, irrespective of whether the practise is rational or logical.
4. The court and government must respect essential religious practices and secular activities which are related to an ‘essential part of religion’.
5. The ‘Morality’ to be applied by the Courts and government should be the Constitutional-Morality in a secular polity advantageous to a pluralistic society.
Law Which Takes Away Right of Administration is Unconstitutional
It has been held in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[29] that a law which took away the right of administration from the religious denomination and vested it in any other secular authority[30] would be violative of the right under Article 26(d).
State Actions must be for the Benefit of the Trust
Taking over of the management of trusts by the State[31] cannot be for the purpose of burying the objects of the trust.[32] It can only be for promoting them.
The case, A. Poornachandrarao Vs. Government of AP,[33] before the AP High Court, was arisen out of the management disputes between the trustees of ‘Tapovanam’. A departmental Executive Officer had been appointed under the AP Charitable and Hindu Religious Institutions and Endowments Act, 1966 to manage the properties of the trust. The Endowment authorities proposed to hand over a portion of the building of the Tapovanam to the Government Ayurvedic College.
The High Court held that the Tapovanam being a charitable institution, the proposal to hand over the buildings of Tapovanam for the purpose of their being used by the Government Ayurvedic College, could not be sustained as that would amount to using the trust property for purposes other than those which were mentioned in the trust deed. The taking over of a charitable trust by the State would not enable the State to subvert the purposes of the founder of the trust. The bringing in of a charitable institution under the provisions of the aforesaid Act was not and could not be for the purpose of destroying the very object of the trust. It was held that taking over of the management of the trust by the State could not be for the purpose of burying the objects of the trust, it could only be for promoting them.
Competency of Legislature to Enact Law as to a Religious Institution
Bombay High Court, in Jamsheed Kanga Vs. Parsi Panchayat Funds and Property (2011),[34] while dealing with Towers of Silence, the last resting place of the Parsis, it is held that though the performance of religious service, according to the tenets of the faith is an integral part of religious faith and belief, the service of the Priest is a secular act; and that the administration of a religious institution or an endowment made for religious purposes is a secular activity. Hence, it has been held that the Legislature was competent to enact a law regulating the administration and governance of a religious or charitable institution or endowment.[35]
PART – VI
The Law Handed Down by the Supreme Court of India, on Article 25 and 26
The law handed down by the Supreme Court of India, on Article 25 and 26 in two important rulings are divergent in material parts. They are: the Commr. Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954);[36] and Durgah Committee, Ajmer Vs. Syed Hussain Ali (1961)[37]. The difference can be summarised as under:
The law handed down by the Supreme Court in these two rulings are divergent, mainly, in three material parts. They are:
1. Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (as held in Durgah)?
Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect (all) ‘Acts Done in pursuance of a religion (as held in Shirur Mutt)?
2. When it is necessary to make a pronouncement as to what constitutes the essential part of a RELIGION, can it be scrutinised by the COURT so as to eschew what are sprung from merely superstitious beliefs’ or ‘unessential accretions to religion’ (as held in Durgah)?
Is it to be ascertained with reference to the doctrines of that religion itself. If it is necessary to to make a pronouncement as to what RITES and CEREMONIESare essential to a DENOMINATION, is it to be left to be determined with reference to the decisions (and practices) of that denomination itself (as held in Shirur Mutt)?
3. Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (as held in Durgah)?
Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc. (as held in Shirur Mutt)? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to‘manage its own affairs’ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).
Service of the Priest in a Religious Institution is a Secular Part
Following the finding in Durgah Committee, Ajmer Vs. Syed Hussain Ali[38] that the protection under Article 26 as to ‘religious affairs’ and ‘religious purposes’ was limited to the performance of religious practices, and that too, which were essential and integral part of the religion concerned, it is observed in AS Narayana Deekshitulu Vs. State of AP[39] that the service of the priest in a religious institution is a secular part.
‘SHIRUR MUTT CASE’ (BK Mukherjea, J)
The constitutional principles embraced in Article 26 of the Constitution of India are deeply explored and explained in the Seven-Judge-Bench Decision in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954),[40] the trailblazing decision in this subject. This decision specifically dealt with the extent of freedom granted to the ‘religious denomination or section thereof’ under Article 26 of the Constitution of India. It is observed that a religious denomination enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of their religion and that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
Shirur Matt is one of the eight Maths founded by Shri Madhwacharya, the well-known exponent of dualistic theism in Hinduism.It is situated at Udipi in the district of South Kanara, Tamil Nadu.
The petitioner, the Mathadhipati of the Shirur Mutt, claimed in the Writ Petition filed before the High Court of Madras that the Madras Hindu Religion Endowments Act (Act II of 1927) interfered with his right to manage the religious affairs of the monastery(a spiritual community), and therefore violated Article 26(b) of the Constitution. While the petitions were pending, the Madras Hindu Religious and Charitable Endowments Act, 1951 was passed by the Madras Legislature. In view of the Earlier Act being replaced by the new one, leave was given to the petitioners to amend their petitions and challenge the validity of the new Act as well.
The Act practically made to vest administration of religious and charitable institutions in a department of the Government, the head of which was the Commissioner. The Act gave vast powers to the Commissioner. They included the power to enter the places of worship and to deal with the surplus funds and to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution and in default, to make the appointment by himself. Provisions were also made to take over the administration of the religious institutions. The Act empowered the statutory Commissioner also to frame a scheme if there had been reason to believe that the religious institution was mismanaging funds. Section 76 of the Act directed all religious institutions to pay annually to the Government 5 per cent of their income on account of the services rendered to them by the Government.
The High Court[41] held that the Matt was really an institution belonging to Sivalli Brahmins, who were a section of the followers of Madhwacharya and hence constituted a religious denomination within the meaning of article 26 of the Constitution. The High Court further held as under:
“Every religious sect therefore under the Article has the right to establish and to maintain institutions for religious and charitable purposes and to manage its affairs in the matter of religion. It is also permissible for such a sect to own and acquire movable and immovable property and to administer such property in accordance with law.”
“The notification seriously interferes with their right to manage the affairs in matters of religion to own and acquire movable and immoveable property, and even to administer such property in accordance with law. A law which substantially deprives the religious denomination of its right to administer the property of the denomination leaving only a scintilla of the right in the denomination cannot be justified and upheld as an exercise of the power to regulate the administration of the institution. Nor is it reasonable restriction within the meaning of the Article 19(5) of the Constitution.”
Several provisions of the Act were held to be invalid by the High Court on grounds of their being in conflict with the fundamental rights guaranteed under articles 19(1) (f), 25, 26 and 27.
The Commissioner has filed appeal before the Supreme Court on the strength of the certificate granted by the High Court under Article 132(1) of the Constitution. Seven judge Bench of our Apex Court considered in this case.
In Shirur Mutt case it was held that Section 76 which provided for the payment of annual contribution amounted to a ‘tax’ and so it was beyond the legislative competence of the Madras State Legislature. The Apex Court declared several Sections of the HR&CE unconstitutional.
Rights Declared in Shirur Matt Case – in Nutshell
Justice BK Mukherjea, writing for the Seven-Judge Bench, held the following, in a nutshell:
Spiritual community represented by the math falls under Art. 26(b) which contemplates ‘religious denomination’ or ‘asection thereof’.
Right to manage the affairs of religion is a fundamental right under Art. 26. It cannot be taken away by legislature.
Under Article 26(d), it is the fundamental right of a religious denomination or its representative to acquire and administer properties ‘in accordance with law’.
Freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well (subject to such restrictions which the Constitution itself has laid down). This is made clear by the use of the expression “practice of religion” in Article 25.
Under Article 26(b), a religious denomination or organization enjoys complete autonomy in deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
The right and guarantee given to administer property being ‘in accordance with law’, the law ‘must leave the right of administration(of property) to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.
A law which takes away the rightof administration from the hands of a religious denomination and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26.
SHIRUR MUTT Case: Findings
(i) SECTS and SECTIONS : Art. 26(b) contemplated Religious Denomination– i.e. sects or subsects. Because, Sec. 26 included not merely a religious denomination but also “a section thereof”.
It was observed as under:
“A Mahant’s duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents.”
“As regards Art. 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 organization and designated by a distinctive name’.
It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India as at present. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name– in many cases it is the name of the founder- and has a common faith and common spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnavas, undoubtedly constitute a religious denomination’ and so do the followers of Madhwacharya and other religious teacher. It is a fact well established by tradition that the Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the follower of Madhwacharya. As Art. 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article.”
This proposition is considered in following cases:
Indian Young Lawyers Assn. Vs. State of Kerala (2018):[42]
Subramanian Swamy Vs. State of Tamil Nadu (2015);[43]
Bramchari Sidheswar Shai Vs. State of WB (1995);[44]
(ii)MANAGEMENT: Art. 26(b) – Right of Religious Denominations to manage its own affairs in matters of religion is placed on a different footing from administration of properties.NoLegislature can take awaythis right. But, State can Regulate Administration of Propertiesby Laws.[46]
“It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of Article 26guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies.”
This proposition is considered in following cases:
Indian Young Lawyers Assn. Vs. State of Kerala (2018);[47]
KS Varghese Vs. St. Peters and St. Pauls Syrian Church (2017);[48]
Adi Saiva Sivachariyargal Nala Sangam Vs. Govt of TN (2016);[49]
State of Rajasthan Vs. Sajjanlal Panjawat (1975);[51]
Tilkayat Shri Govindlalji MaharajVs. St. of Rajasthan (1963).[52]
Sardar Sarup Singh Vs. State of Punjab (1959).[53]
(iii) PRACTICE: A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances. Our Constitution protects “practice of religion“in article 25.
“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.
“The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of religion”in article 25. Latham C. J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the “free exercise of any religion” made the following weighty observations:
“It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinion, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.”
These observations apply fully to the protection of religion as guaranteed by the Indian Constitution.”
This proposition is considered in following cases:
M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) (2020);[54]
Indian Young Lawyers Association Vs. State of Kerala (2018).[55]
Sardar Syedna Tahar Saheb Vs. The St. of Bombay (1962);[57]
(iv) RESTRICTIONS – PRINCIPLES
(a)Restrictionsby the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order, morality and health.
(b)Under Article 25(2)(a) State can regulate or restrict any economic, financial, political and other secular activities. The ‘OTHER secular activities’ does not affect ESSENTIAL religious practice or activities.
(c) What constitutes theessential part is primarily to be ascertained with reference to the doctrines of that religion itself.
“These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. 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 reserves 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 learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
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.
This propositions are considered in following cases:
M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) (2020);[58]
Indian Young Lawyers Association Vs. State of Kerala (2018).[59]
N Adithayan v. Travancore Devaswom Board (2002).[61]
Adi Visheshwara,Kashi Vishwanath Temple Vs. State of UP (1997).[62]
AS Narayana Deekshitulu Vs.State of AP (1996).[63]
Acharya Jagdishwaranand Avadhuta Vs. Commrof Police (1984)[64]
Shri Venkataramana DevaruVs. State of Mysore (1958)[65]
(v) REGULATIONS: What article 25(2)(a) contemplates is not regulation, by the State, of religious practices as such; but, only economic, commercial or political.
If 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 ablations 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). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.”
This proposition is considered in following cases:
M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) (2020);[66]
Indian Young Lawyers Association Vs. State of Kerala (2018).[67]
Acharya Jagdishwaranand Avadhuta Vs. Commrof Police (1984)[69]
Shri Venkataramana DevaruVs. State of Mysore (1958)[70]
(vi) Freedom in our Constitution is not confined to religious beliefs only; it extends to religious practices as well.
“Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down.”
This proposition is considered in following cases:
Indian Young Lawyers Assn. Vs. State of Kerala (2018);[71]
Sardar Syedna Tahar Saheb Vs. The St. of Bombay (1962);[73]
Sardar Sarup Singh Vs. State of Punjab (1959).[74]
Mahant Moti Das Mahant Shia Ram Das Vs. S P Sahi (1959)[75]
(vii)RELIGIOUS PRACTICES: Religious Denomination has Autonomy in Deciding Rites and Ceremonies; no outside authority has any jurisdiction.
“Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article 26. Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent.
The proposition as to complete autonomy to religious denomination or organization in the matter of deciding rites etc. is considered in following cases:
M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) (2019);[76]
Indian Young Lawyers Assn. Vs. State of Kerala (2018);[77]
KS Varghese Vs. St. Peters and St. Pauls Syrian Church (2017);[78]
Adi Saiva Sivachariyargal NalaSangam Vs.Govt of TN (2016);[79]
Subramanian SwamyVs. State of Tamil Nadu (2015);[80]
A. Ramaswamy Dikshitulu Vs. Govt. of AP (2004);[81]
Sardar Syedna Tahar Saheb Vs. The St. of Bombay (1962);[82]
Sardar Sarup Singh Vs. State of Punjab (1959).[83]
The proposition – Law cannot vest administration of properties in another authority- is considered in following cases:
Indian Young Lawyers Assn. Vs. State of Kerala (2018);[84]
KS Varghese Vs. St. Peters and St. Pauls Syrian Church (2017);[85]
Digyadarsan Rajendra Ramdassjivaru Vs. State of AP (1970).[87]
The proposition that the law must leave the right of administration (of property) to the religious denomination itself is considered in following cases:
Indian Young Lawyers Assn. Vs. State of Kerala (2018);[88]
KS Varghese Vs. St. Peters and St. Pauls Syrian Church (2017).[89]
Adi Saiva Sivachariyargal Nala Sangam Vs.Govt of TN; (2016)[90]
Pannalal Bansilal Patil Vs. State of Andhra Pradesh (1996);[91]
Kanyaka Parameswari Anna Satram Vs. Commr HR & CE (1962)[92]
Digyadarsan Rajendra Ramdassjivaru Vs.State of AP (1970).[94]
DURGAH COMMITTEE Case, 1961 (Gajendragadkar, J.)
The Constitution Bench of the Supreme Court held (Gajendragadkar, J.) in Durgah Committee, Ajmer Vs. Syed Hussain Ali (1961)[95]that the protection guaranteed under Art. 26 was confined to “essential religious practices” and not to any other “secular matter”.
This case arose upon the challenge on the Durgah Khwaja Saheb Act, 1955. A writ petition was filed before the High Court of Rajasthan under Art. 226 of the Constitution. The Act provided for the constitution of a Committee to manage a Muslim Durgah – the tomb of Khwaja Moinud-din Chishti of Ajmer. The Petitioners (Respondents in the Supreme Court) contended that the Act barred them from managing the Durgah and receiving offerings from pilgrims, and hence infringed upon their rights under Article 26.
Challenges were made on two grounds. Firstly, that certain provisions of the impugned Act were inconsistent with Article 26(b), (c) and (d) of the Constitution. Secondly, certain other provisions were ultra vires Article 19(1)(f) and (g). The petitioners substantially succeeded in the High Court it being made a declaration that the impugned provisions of the Act were ultra vires.
In appeal the Supreme Court found that the right to administer the property never vested in the respondents; but, the administration had been made through the Mutawallis who were appointed from time to time by the State. The Supreme Court made two significant observations.
First:
“Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe 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. 26.”
Second:
“Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
In the first part importance is given to the ‘the practices treated as a part of RELIGION‘. In the second part importance is given to the scrutiny of theCOURTas to ‘the essential and integral religious practices’.
The principle on ‘practices‘ ‘regarded by the said religion as its essential and integral part’ is considered in:
M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) (2020);[96]
Commr. of Police Vs. AcharyaJ agadishwar Avadhuta (2004).[97]
Indian Young Lawyers Association Vs. State of Kerala (2018).[98]
Sardar Syedna Taher Saifuddin Saheb Vs. State of Bombay[99](1962)
Tilkayat Shri Govindlalji MaharajVs. St. of Rajasthan (1963).[100]
Shri Venkataramana Devaru Vs. State of Mysore[101]
‘For the protection under Art. 26, the court may have to carefully scrutinize’ what constitutes an ‘essential and integral part of a religious practice’ and no other is considered in:
Commr. of Police Vs. Acharya Jagadishwar Avadhuta(2004)[102]
Indian Young Lawyers Association Vs. State of Kerala (2018).[103]
Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016):[104]
N Adithayan v. TravancoreDevaswom Board (2002).[105]
Adi Visheshwara, Kashi Vishwanath Temple Vs. State of UP (1997).[106]
Sardar Syedna Taher Saifuddin Saheb Vs.State of Bombay[107](1962)
Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963).[108]
AS Narayana Deekshitulu Vs. State of AP (1996).[109]
PART – VII
CONFLICT between SHIRUR MUTT CASE and DURGAH CASE
It is held in Dargah Committee case (Justice Gajendragadkar) as under:
“Unless such practices arefound to constitute an essential and integral part of a RELIGION, their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“
“If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
As noted above, the observation as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter.[110]
The Crux of Sabarimala-Review-matter
In the Sabarimala reference (to higher Bench) Judgment [on review petition in Indian Young Lawyers Association Vs. State of Kerala: 2018][111] it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case as to the following:
Whether the determination on essential religious practices was a matter left to the denomination?
Whether the court has jurisdiction to determine it applying its own conscience?
The scope or extent of judicial review on ‘religious practice’ is the Crux of the review-matteer.
In the Review Judgment it is shown-
Shirur Mutt case [1954 SCR 1005: AIR 1954 SC 282 – Seven judges] held that the essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
But Durgah Committee [1962-1 SCR 383: AIR 1961 SC 1402 – Five judges] carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Another difference is also seen. It is, as to the extent-of-protection of religious practices given under these decisions.
The Shirur Mutt case had stated that the extent of protection of essential religious practices extends to essential ‘religious practices’.
But, the Durgah Committee decision said that the protection must be confined to such ‘religious’ practices as ‘are essential and integral part’ of the ‘RELIGION’ (rather than a sect or faction).
In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers’ Association, the court said as under:
“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out a ROLE FOR THE COURT in this regard to exclude what thecourts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”
Shirur Mutt & Durgah Committee Cases
The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars.
They are:
Whether ‘religious Denomination or any section thereof‘ extends to religious ‘Organization’, ‘Sect, Sub-sect’, etc.? (Shirur)
Or, whether protections in Article 25 and 26 are limited to practices that are essential and integral part of RELIGION and, no other? (Durgah)
Who determines –what constitutes the essential part of a religion? Is it left to be determined by the Denomination or Section; and whether a religion or any section thereof holds the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoys complete autonomy (so that no outside authority has any jurisdiction); and whether it is primarily to be ascertained with reference to the doctrines of that religion itself? (Shirur)
Is it by the COURT, and no outside authority has any jurisdiction to interfere with their decision in such matters? (Durgah)
Whether the freedom to ‘practice religion’, protect ‘(all) acts done in pursuance of a religion; and whether freedom of religion is guaranteed to all religious practices, except that which run counter to public order, health and morality. (Shirur)
Or, whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of RELIGION and, no other? (Durgah)
The findings of the Apex Court, in these cases, on Article 25 and 26, are as follows:
Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)
Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. The rights protected are limited topractices of ‘RELIGION’ in a strict sense. “Unless such practices arefound to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
Extends to religious DENOMINATION or a SECTION THEREOF, and includes ‘Organization‘, ‘Sects,Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organization enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….” [In Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay, AIR 1962 SC 853, “Community” is considered.]
2. COURTdetermines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is, court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.) Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, authored by Gajendragadkar, J himself; (ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, Authored by BP Sinha.
It is found in this decision: “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself” (So observed in Sabarimala Reference decision). What rites and ceremonies are essential –No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organization enjoys COMPLETE AUTONOMYin the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. The rights protected are limited to such RELIGIOUS PRACTICES as are ESSENTIAL and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963 AIR SC 1638 [Held: 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];
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853 [Held: Include practices which are regarded by the COMMUNITY as a part of its religion].
The rights protected are extended to (ALL) ACTS DONE IN PURSUANCE OF A RELIGION. “Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion‘. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “If 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 ablations 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).”
4. Not refer to public order, health and morality “Unless such practices are foundto constitute an ESSENTIAL and INTEGRAL part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”
(That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious ROLE FOR THE COURT.)
Extends to (ALL) PRACTICES except when they do not run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs ofa religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
Did Gajendragadkar J. himself Changed his Views in Tilkayat
Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, in a subsequent decision, as to enquiry on integral part of religion in the Constitution Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963)[112] as under:
“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 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 partof 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.”
“Practices which are regarded by the COMMUNITY or DENOMINATION“
In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, it was observed (Sinha, C. J. dissenting) that ‘what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the COMMUNITY as a part of its religion’. In Sri Venkataramana Devaru Vs. The State of Mysore (1958),[113] (Venkatarama Aiyar, J.) observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the COMMUNITY as part of its religion. In Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016)[114] the Apex Court (Ranjan Gogoi & NV Ramana JJ) referred to the same as the ‘religious practice’ of a GROUPor DENOMINATION.
PART – VIII
Principles Further Developed Following ‘Shirur Mutt Case’and ‘Durgah Committee Case’
Following are some of the important cases that followed ‘Shirur Mutt Case’ and discuss rights of the State or other statutory body to interfere in the administration of trusts or institutions.
(i) Ratilal Panchand Gandhi Vs. State of Bombay (1954).[115]
State can regulate administration of trust properties by laws
Both, Shirur Mutt Case and this case, are authored by BK Mukherjea, J., two days apart. The constitutional validity (qua Articles 25 and 26) of some provisions of Bombay Public Trust Act, 1950 was considered by the Constitution Bench (5) of our Apex Court in this case. Challenges against certain provisions were upheld, and some were overruled. In this decision it is held that the right of management given to a religious body can be regulated by law. It is observed:
“The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such properly but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted.”
The Supreme Court repeated the observation in Shirur Mutt case that a law which takes away the right of administration altogether[116] from the religious denomination and vests it in any other authority can be taken to be violative of the right under Article 26(d). While emphasizing what is the protected part under Article 26, the court pointed out the following:
“Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot that said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of Jamshedji v. Soonabai, and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad Baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think, are quite appropriate for our present purpose.”
‘If this is the belief of the community’ thus observed the learned Judge, ‘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 judgment on that belief, he has no right to interfere with the conscience of a donor 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.’ These observations do, in our opinion, afford an indication of the measure of protection that is given by Article 26(b) of our Constitution.”
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay (1962 – B P Sinha, CJ., A.K Sarkar, Das Gupta, N. Rajagopala Ayyangar, Mudholkar, J.J.) [117] This decision is stand referred to a larger bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673.
Note: Sarkar, Das Gupta , Rajagopala Ayyangar were also judges in Durgah Committee, Ajmer Vs. Syed Hussain Ali.
The Bombay Prevention of Excommunication Act, 1949 was challenged in Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay. This Act made act of “ex-communication” illegal under Sec. 3, which reads as under:
“3. Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”
Sec. 4 made excommunication, a punishable offence. The Act was challenged by the head of the Dawoodi Bohras, as:
being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution.
It was contended that the right of the head of the Dawoodi Bohra community to ex-communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b).
The Supreme Court, by majority (4 : 1), accepted the argument and struck down the Act as violative of Article 26(b) of the Constitution. It is pointed out in this decision as under:
“The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in:
The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt[118];
Mahant Jagannath Ramanuj Das Vs. The State of Orissa;
Sri Venkatamana Devaru Vs. The State of Mysore[119];
Durgah Committee, Ajmer Vs. Syed Hussain Ali[120] and several other cases
and the main principles underlying these provisions have by these decisions been placed beyond controversy.
The first is that the protection of these articles is not limited to matters of doctrine or belief, they extendalso to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral partsof religion.
The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion andinclude practices which are regarded by the community as a part of its religion.” (This part is referred to in Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma, AIR 1995 SC 2001)
It is also held as under:
“It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”
In this decision the Constitution Bench of our Apex Court:
observed that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and
held that it was difficult to agree that court was not a forum for vindication of such right.
(iii) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963)[121]
In Tilkayat Shri Govindlalji MaharajVs. St. of Rajasthanthe Constitution Bench of the Supreme Court (Gajendragadkar J) considered the constitutional validity of the Rajasthan Nathdhwara Temple Act, 1959. It was pointed out that Article 26(b) related to affairs in matters of religion such as the performance of the religious rites or ceremonies, or the observance of religious festivals and the like; and that it did not refer to the administration of the property at all. It was found that Article 26(d) conferred competence to the legislature to make a law in regard to the administration of the property belonging to the denomination. The only safeguard pointed out by the Supreme Court was that the religious denomination’s right must not be extinguished or altogether destroyed. Justice Gajendragadkar who delivered the judgment observed as under:
“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 white 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 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.”
In SP Mittal Vs. Union of India the Constitution Bench of our Apex Court had to consider whether Auroville (Emergency Provisions) Act was violative of Article 26 of the Constitution. The majority ((Y.V. Chandrachud (CJ), P.N. Bhagwati, V. Balakrishna Eradi, R.B. Misra, JJ.) as wall as the minority (O. Chinnappa Reddy, J.) held that the Act was not violative of Articles 25 and 26 of the Constitution specifically pointing out that the questions arise for consideration were merely relating to administration of properties. The majority observed (referring Shirur Mutt) as under:
“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 organization; and
(3) designation by a distinctive name.”
However, the Majority did not go to the question whether Arobindo society or Auroville was a ‘religious denomination’. It stated as under:
“We have also pointed out that the administration of the property of a religious denomination is different from the right of the religious denomination to manage its own affairs in matters of religion and that laws may be made which regulate the right to administer the property of a religious denomination. Questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of Art. 26 applies.”
Then Misra, J. proceeded stating as under:
“Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Article 25 or 26 of the Constitution.”
Chinnappa Reddy, J. (minority) held as under:
“Definitions (given by Court) are not statutory definitions; they are mere explanations, every word of which is not to be weighed in golden scales. … Judicial definition is explanatory and not definitive.”
“… What is religion to some is pure dogma to others and what is religion to others is pure superstition to some others… But my views about religion, my prejudices and my predilections, if they be such, are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot. So also the views of the faithful, the devout, the acharya, the moulvi, the padre and the bhikhshu each of whom may claim his as the only true or revealed religion. For our purpose, we are concerned with what the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens freedom of conscience and the right to freely profess, practise and propagate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressions religion and religious denomination. We are concerned with what these expressions are designed to mean in Articles 25 and 26 of the Constitution. Any freedom or right involving the conscience must naturally receive a wide interpretation and the expression religion and religious denomination must therefore, be interpreted in no narrow, stifling sense but in a liberal, expansive way.”
“If the word ‘religion’ is once explained, though with some difficulty, the expression religious denomination may be defined with less difficulty. As we mentioned earlier Mukherjea, J., borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as 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.
The followers of Ramanuja,
the followers of Madhwacharya,
the followers of Vallabha,
the Chistia Soofies
have been found or assumed by the Court to be religious denominations. It will be noticed that these sects possess no distinctive names except that of their founder-teacher and had no special organisation except a vague, loose – unknit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features. … Religious denomination has not to owe allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may particularly be so in the case of small religious groups or ‘developing’ religions, that is, religions in the formative stage. So Aurobindoism can be termed as a religious denomination.”
Whether the judgment of Chinnappa Reddy, J. – ‘minority’ or ‘concurring’
As shown above, majority (Misra J.) did not make a definite finding on the point whether the Arabindo Society or the Auroville had acquired the character of a ‘ religious denomination’. But, a definite finding was recorded by Chinnappa Reddy, J. – that the Arabindo Society or the Auroville had acquired the character of a ‘ religious denomination’.
Indu Malhotra, J., in Sabarimala case, referred to the observations of Chinnappa Reddy, J. with the introduction that the judgment of Chinnappa Reddy is a ‘concurrent’ one. But, Nariman, J. observed in Sabarimala case that the SP Mittal Judgment was a dissenting judgment. It is interesting to note that Chinnappa Reddy, J. himself stated his judgment – “I have the good fortune of having before me the scholarly judgment of my brother Misra J., I agree with my brother Misra, J. that the Writ Petitions must fail. With much that he has said, also, I agree. But with a little, to my own lasting regret, I do not agree. It is, therefore, proper for me to explain the points of my disagreement.”
Even if the judgment of Chinnappa Reddy, J. is a ‘dissenting’ judgment, it has force of law, as, Nariman, J. observed, in Sabarimala case, as to the minority judgment in Saifuddin case as under:
“Though the learned Chief Justice’s judgment is a dissenting judgment, some of the principles laid down by the learned Chief Justice, not dissented from by the majority judgment, are apposite.”
(v) AS Narayana Deekshitulu Vs. State of AP (1996).[123](K Ramaswami, J.)
Appointment & Service of Priest is a Secular Matter.
In AS Narayana Deekshitulu Vs. State of AP (1996)[124] (K Ramaswami and BL Hansaria JJ.)of the Supreme Court held that the appointment and service of a priest is a secular matter.
By virtue of some Sections of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 the hereditary rights of archaka, mirasidars, gamekars and other office holders were abolished. The court considered whether hereditary archaka was an essential and integral part of Hindu religion and whether the abolition of hereditary right to appointment, under Section 34, was violative of Articles 25(1) or 26(b) of the Constitution.
It was observed:
“There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest (archaka) is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (archaka). The hereditary right as such is not integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad conduct, its abolition by sovereign legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession to the office of an archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is an holder of the office of priest (archaka) in the temple. So are the other office-holders or employees of the temple.”
The principle ‘Service of Priest is a Secular Part’ is reiterated in:
Adi Visheshwara of Kashi Vishwanath Temple, Varanasi Vs. State of UP (Rendered by K Ramaswami J. ) (1997).[125]
Bhuri Nath Sewa Committee Vs. State of Jammu And Kashmir (Rendered by K Ramaswami J. himself) (1997).[126]
KS Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church. (2017)[127]
Church of North India Vs. Lavajibhai Ratanjibhai (2005)[128]
It has been noticed by our Apex Court (BP Singh & SB Sinha JJ) in Church of North India Vs. Lavajibhai Ratanjibhai while considering the question whether unification of churches is a religious decision under Articles 25 and 26 of the Constitution over which the courts have no jurisdiction, that it was a well accepted principle that a body created by a statute must conform to the provisions of the regulating statute. It was observed that the FDCB was a religious Society registered under the Societies Registration Act and its property vested with a Trust regulated by the BPT Act. It was found that as per the BPTA a public trust might also be a Society under the Societies Registration Act. It was held that the procedure for dissolution had not been conformed to the requirements set out in Section 13 of the SR Act and the procedure as laid down in the BPT Act.
(vi) Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770. It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, (1983) 4 SCC 522), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case the Majority view is rendered by S. Rajendra Babu, J. on behalf of G. P. Mathur, J. also. It was observed as under:
“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 partof religion has to be determined with referenceto its doctrines, practices, tenets, historical background, etc. of the given religion. 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 that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the 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 which are protected by the Constitution. Nobody can say that an essential part or practice of ones religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core”of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.”
But, in the momentous minority view (AR Lakshmanan, J.) it is laid down as under:
“Countering the argument, learned senior counsel for the appellants, submitted that the concept of Tandava dance was not a part of religion but a secular activity and relied upon the decision of this Court in the case of Durga Committee, Ajmer & Anr. vs. Syed Hussain Ali & Ors. reported in (supra). The particular passage relied on by learned counsel for the appellant is as follows:
“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 surely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religions form and may make a claim for being treated as religions practices within the meaning of Art. 26. Similarly even practices though religions may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art.26 may have to be carefully scrutinised, in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.”
This observation of this Court, in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
“We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
….If 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…”
In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. vs. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru& Ors. Vs. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”
Our Apex Court (SB Sinha & Dalveer Bhandari JJ) in I Nelson Vs. Kallayam Pastorate[130] while dealing with the affairs of the Indian Evangelical Lutheran Church, a large congregation registered themselves under the Societies Registration Act, 1860 which also carried on secular activities of running a large number of schools and hospitals, it is held as follows:
“Keeping in view the interest of the general public, we see no reason as to why in a case of mismanagement of such charitable organizations, although run by minorities, the Court cannot oversee its functions. The Courts, indisputably, act as guardian of such societies. [See Guruvayoor Devaswom Managing Committee Vs. CK Rajan: AIR 2004 SC 561: (2003) 7 SCC 546.] Even otherwise, rights under Articles 25 and 26 of the Constitution are not absolute and unfettered. The right to manage, it goes without saying, does not carry with it a right to mismanage.”
The protection is not at all extended to the ‘service of a priest’ as such which is invariably held to be a secular act.[131] Therefore, the courts are not incompetent to decide upon the validity of such religious-appointments. The court can decide whether a particular service of rites or ceremonies is an essential or integral part of the religion concerned.
(viii) Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016):[132]
Constitutional Necessity May Arise To Determine “Essential Religious Practices”
The question of appointment of Archakas came up for consideration in this case. The Apex Court (Ranjan Gogoi & NV Ramana JJ) held that Archakas can be appointed in terms of Agama for the temples but such Agamas have to qualify the test of Article 14 which should not be contrary to the constitutional mandate. The Court held as under:
“43.That the freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also would hardly require reiteration. Right of belief and practice is guaranteed by Article 25 subject to public order, morality and health and other provisions of Part III of the Constitution. Clause (2) is an exception and makes the right guaranteed by clause (1) subject to any existing law or to such law as may be enacted to, inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. Article 26(b) on the other hand guarantees to every religious denomination or section full freedom to manage its own affairs insofar as matters of religion are concerned, subject, once again, to public order, morality and health and as held by this Court subject to such laws as may be made under Article 25(2)(b). The rights guaranteed by Articles 25 and 26, therefore, are circumscribed and are to be enjoyed within constitutionally permissible parameters. Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the constitutional court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity. Without such a determination there can be no effective adjudication whether the claimed right is in conformity with public order, morality and health and in accord with the indisputable and unquestionable notions of social welfare and reforms. A just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained.
49. The difficulty lies not in understanding or restating the constitutional values. There is not an iota of doubt on what they are. But to determine whether a claim of State action in furtherance thereof overrides the constitutional guarantees under Articles 25 and 26 may often involve what has already been referred to as a delicate and unenviable task of identifying essential religious beliefs and practices, sans which the religion itself does not survive. It is in the performance of this task that the absence of any exclusive ecclesiastical jurisdiction of this Court, if not other shortcomings and adequacies, that can be felt. Moreover, there is some amount of uncertainty with regard to the prescription contained in the Agamas. Coupled with the above is the lack of easy availability of established works and the declining numbers of acknowledged and undisputed scholars on the subject. In such a situation one is reminded of the observations, if not the caution note struck by Mukherjea, J. in Shirur Mutt[133] with regard to complete autonomy of a denomination to decide as to what constitutes an essential religious practice, a view that has also been subsequently echoed by this Court though as a “minority view”. But we must hasten to clarify that no such view of the Court can be understood to be an indication of any bar to judicial determination of the issue as and when it arises. Any contrary opinion would give rise to large-scale conflicts of claims and usages as to what is an essential religious practice with no acceptable or adequate forum for resolution. That apart the “complete autonomy” contemplated in Shirur Mutt and the meaning of “outside authority” must not be torn out of the context in which the views, already extracted, came to be recorded (p. 1028). The exclusion of all “outside authorities” from deciding what is an essential religious practice must be viewed in the context of the limited role of the State in matters relating to religious freedom as envisaged by Articles 25 and 26 itself and not of the courts as the arbiter of constitutional rights and principles.”
The principles in this case have been considered in:
KS Varghese Vs. St. Peters & St. Pauls Syrian Orthodox Church. (2017)[134]
(ix) KS Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church (2017)[135]
In KS Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church, the plaintiffs sought for reliefs with respect to the appointment of priests in the suit Church. The defendants, among other matters, contended that the reliefs were not allowable for they were violative of Articles 25 and 26 of the Constitution. It was argued by the defendants that the Preamble to the Constitution of India guaranteed liberty of thought, expression, belief, faith, and worship. The defendants also claimed that it was open to any parishioner to have faith in the spiritual superiority of the Patriarch of Antioch; and therefore, the suit reliefs could not be allowed.
It was held that the protection or guarantee under Articles 25 and 26 of the Constitution of India did not extend to the appointment of priests, deacons etc. (though there was protection or guarantee under Articles 25 and 26 as to observance of rituals, ceremonies and modes of worships, which are integral parts of religion).Article 25 assurances to all persons, the freedom of conscience and to profess, practice and propagate religion. Article 26 guarantees to all religious denominations the freedom to manage its own affairs in matters of religion. On that basis, the Apex Court, referring AS Narayana Deekshitulu Vs. State of Andhra Pradesh[136]explored what were the essentials of religious belief or practice. The Court also relied on Commissioner of Police Vs. Acharya Jagadishwar-ananda Avadhuta[137] where it was held:
“9. ….What is meant by ‘an essential part or practices of a religion’ is now the matter of elucidation. Essential part of religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief.”
Finally, the Supreme Court held that the appointment of priests was a secular matter[138]and that it can be dealt with by secular authorities. The Apex Court further found that the parties to the suit were bound by the 1934Constitution of the Church which contained the provisions for the appointment of priests by the authorities and the qualifications for the appointment of priests. Thus the claims raised by the defendants to appoint priests of their choice, on spiritual ground, were rejected.
It was further observed in this case that it was a settled proposition of law that when a mode was prescribed for doing a thing, it could be done only in that manner and not otherwise.
PART – IX
Art. 30(1): Cases Connected to ‘Minority Institutions’
Following are some of the important cases connected to ‘minority institutions’:
(i) State of Madhya Pradesh Vs. Mother Superior, Convent School (1958: MP). [139]
Law made contrary to canon would be inroad upon religious faith and practices
It was contended before the MP High Court that the any law made contrary to the canon law would in effect be an inroad upon the religious faith and practices of the Roman Catholics.[140] It was urged that the canon law was a part of their religion, being in the nature of a mandate by the Pontiff, which the Roman Catholics have to obey and put into effect, whether they be the plain members of the community or spiritual leaders or officers administering the church. M. Hidayatullah CJ. observed as under:
“In matters of property there is always a secular angle which is supplied by the law of the country, and that no religious denomination can make a law about its own property and thus nullify the law of the land. The property of the Christian religious institutions therefore, is as much subject to law as any other property privately held in our country.
Of course, if matters of religion be involved in the disposal or use of the property, then to that extent laws cannot be made. But there is nothing to prevent the legislatures to enact laws for regulating property, be it private or belonging to religious institutions. I do not think that on this ground alone the State Legislature was incompetent to make laws with regard to property possessed by religious institutions.”
(ii) Molly Joseph Alias Nish Vs. George Sebastian (1997: SC)[141]
Canon Law no ‘legal impact’ upon Divorce Act.
It is held by the Apex Court that the personal law (Canon Law) ‘cannot have any legal impact’ in view of the enacted law – Divorce Act.[142]
(iii) State of Kerala Vs. Very Rev. Mother Provincial (1970: SC).[143]
No right to supersede Mg. Committee of minority institution and appoint another.
The Court declared ultra vires Section 63(1) of the Kerala University Act, 1969 which conferred power on the Government to take over the management of a minority institution on its default in carrying out the directions of the State Government, on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving managing committee or by appointing ad hoc committees in place thereof.
(iv) Bihar State Madarasa Education Board, Patna Vs. Madarasa Hanfia Arabic College, Jamalia (1990: SC).[144]
State has power to regulate administration of educational institutions and discipline
While considering the correctness of the decision of the Education Board to dissolve the managing committee of a minority educational institution the Supreme Court held as under:
“This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to mal-administer and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but that would not violate Art. 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions.”
Secy., Malankara Syrian Catholic College Vs. T. Jose (2007)[145]
Minority educational institutions have freedom to appoint teachers/Lecturers
The validity of Section 57(3) of the Kerala University Act, 1974, which prescribes seniority cum fitness alone as the criteria for promotion to the post of Principal in a college, was challenged as being violative of Article 30(1) of the Constitution insofar as its application to minority institutions is concerned. The Kerala High Court upheld the validity of Section 57(3). But the said decision was reversed by the Supreme Court. The first question that the Supreme Court took up for consideration was as to what extent the State can regulate the right of the minorities to administer their own educational institutions when such institutions receive aid from the State. The second question was as to whether the right to choose a Principal was part of the right of minorities under Article 30(1) and whether such a right could be trammelled by Section 57(3) of the Act. The Supreme Court summarised the general principles relating to the establishment and administration of the educational institutions by the minorities as under:
“19.The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
a) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
b) To appoint teaching staff (Teachers/Lecturers and Head-masters/Principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;
c) To admit eligible students of their choice and to set up a reasonable fee structure;
d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).”
Conflicts Between Rights of Individuals and Denominations
Conflict between religious rights of individuals (Art. 14&25)and that of religious denominations are (Art. 26)surfaced in Courts, one after the other. Following are the important recent cases:
Because of the complicated nature of the issues involved in these matters, apparent culmination of each case arose more questions than what settled.
PART – X
SABARIMALA CASE & Constitutional Morality:
Indian Young Lawyers Association Vs. State of Kerala (2018).[150]
The Constitution Bench, headed by the Chief Justice, Dipak Misra,held in 4:1 majority that the exclusion of women from Sabarimala Temple violated the fundamental rights and that the custom of exclusion of a section of women was unconstitutional. The Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules. The Supreme Court also held that the devotees of Lord Ayyappa do not constitute a separate religious denomination and therefore cannot claim the benefit of Article 26 of the Constitution of India.
The CJI, speaking also on behalf of Khanwilkar J., allowed the Writ Petition and observed, inter alia, as under:
(i) Devotees, not constitute ‘denomination’. In view of the law laid down by the Supreme Court, in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[151] and SP Mittal Vs. Union of India[152]the devotees of Lord Ayyappa do not constitute a separate religious denomination and, therefore, they cannot claim the benefits of Article 26 of the Constitution of India.;
(ii) Physiological factors of women cannot be raised. The right guaranteed under Article 25(1) of the Constitution has nothing to do with gender. For that matter, physiological factors specifically attributable to women cannot be raised;
(iii) Violation of fundamental rights. Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, was a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter;
(iv)Morality in Art. 25(1) is Constitutional Morality. the term ‘morality’ occurring in Article 25(1) of the Constitution has to be understood as being synonymous with constitutional morality; and
(v) Not be an essential religious practice. The exclusion of women between ages 10-50 by the Sabarimala Temple could not be an essential religious practice.
Justice Rohinton Nariman and Justice DY Chandrachud concurred with the views of Chief Justice.
Justice Rohinton Nariman further observed that the exclusion of women from the temple would render their rights under Article 25 meaningless. He stated that there was no deficiency of evidence to conclude that the exclusion of women from Sabarimala violated Article 25(1) of the Constitution.
Justice DY Chandrachud also pointed out that the exclusionary practices of women between age of 10-50 years from the Sabarimala Temple were contrary to constitutional morality. Even if a claim for the exclusion of women from religious worship could be founded in religious texts, it would be subordinate to the constitutional values of liberty, dignity and equality. In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatise individuals, have no place in a constitutional order.
Justice Indu Malhotra handed down a dissenting Judgment holding, inter alia, the following:
(i) Article 14 would not override Article 25.The equality doctrine enshrined under Article 14 would not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
(ii) The Constitutional Morality implies harmonisation. The Constitutional Morality in a secular polity in a pluralistic society would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(iii) The Ayyappans constitute a religious denomination. The Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26 by which it can manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations.
The court must respect such rights.
(iv) A working formula to be adopted to decide religious denomination. In the matters as to religious denomination there is no straight jacket formula; but a working formula to be adopted to decide if it is a religious denomination.
(v) Notions of Court should not be the criterion. It is not for the court to see if such are rational or irrational.
(vi) Supreme Court must be a balancing wheel. Supreme Court is not just a guardian of fundamental rights but also a balancing wheel between rights and social control.
(vii) Article 25(2)(b) contemplates a State made law. What is permitted by Article 25(2)(b) is a State made law and not judicial Intervention.
(viii) The proper forum is civil court. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. The proper forum to ascertain whether a sect constitutes a religious denomination or not would be more appropriately be decided by a civil court through leading evidences.
(ix) Rules are not ultra vires of its parent Act. Rule 3(b) of the 1965 Rules would not be ultra vires Section 3 of its parent Act, the Kerala Hindu Places of Public Worship Act, 1965, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.
(x) Not fall within the purview of Article 17.The limited restriction on the entry of women during the notified age group would not fall within the purview of Article 17 of the Constitution. It was pointed out that Article 17 pertains to untouchability, refers to caste; and it does not extend to discrimination on the basis of gender.
Justice Indu Malhotra, in light of the discussions and analysis in her judgment, directed that the Writ Petition could not be entertained.
Review Petitions & Reference to 9-Judge Bench
The matters involved in this case now stand referred to a higher bench, in the Review Petitions filed. According to the reference, the conflict of opinion between the Seven-judge-decision in Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954][153] and Five-judge-decision in Durgah Committee, Ajmer v. Syed Hussain Ali and Ors. [1962],[154] pertaining to the scope and extent of judicial review with regard to a religious practice, had also to be resolved. Seven issues were framed for consideration by the larger Bench.It is tagged to the matters relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.
Important Constitutional Question Yet to be Resolved
As mentioned above, the crux of difference between the two decisions (Shirur Mutt case and Durgah Committee case) lies in the extent of protection of ‘religious practices’. The Shirur Mutt case says that it extends to all ‘religious practices’. But, the Durgah Committee decision says that the protection must be confined to such ‘religious’ practices as are ‘essential and integral parts’ of the ‘RELIGION’ (rather than a sect or faction). In Durgah Committee case it is observed as under:
“The protection of Art. 26 of the Constitution can extend only to such religious practices as were essential and integral parts of the RELIGION and to no others.”
Re-framed the issues, by the Nine-judge Bench
The nine-judge Bench headed by Chief Justice has re-framed the issues referred, as under:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression ‘Sections of Hindus’ occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Interplay between the Rights under Article 25 and Article 26
Art. 25 refers to rights of persons freely to profess, practiceand propagate religion. Art, 26 says as to the rights of every religious denomination or any section thereof to manage its own affairs in matters of religion.
From the above, the following questions emerge:
Do religious denomination or any section thereof have a right to freely to profess, practiceand propagate religion
Do persons have a right to manage his own affairs in matters of religion.
Pointing out the directives of the Supreme Court in Sabarimala Case, the petitioners in Yasmeen Zuber Ahmad Peerzade Vs. Union of India, filed the Writ Petition under Article 32 of the Constitution of India before the Supreme Court by way of a Public Interest Litigation, on March 26, 2019 seeking declaration that the practices of prohibition of entry of Muslim Women in Mosque in India is illegal and unconstitutional for being violative of the fundamental rights to equality, life and liberty and freedom of religion proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution and also to pass such further orders to provide a life of dignity to Muslim women. The petitioners argue that there is ‘nothing in the Quran and the Hadith that requires gender segregation’. It was also contended that the customs that prohibit women from entering mosques stand in conflict with Article 44 of the Constitution of India, which requires the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. The petitioners also relied on the Constitution Bench verdict in the Sabarimala case. It is also submitted that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular.
The contentions of the contesting respondents, as revealed from the counter affidavit filed by the All India Muslim Personal Law Board, would be, mainly, the following:
The issues involved in this case are not the issues pertaining to any statute.
Friday Namaz in congregation is not obligatory for women, though it is so on Muslim men. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home.
The matters involved are religious practices based upon beliefs of the religion; and not matters ‘merely concern’ the management of a religious place.
The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
They are not the activities ‘only concern’ regulating the activities connected with religious practice, also.
It is not appropriate for the Court to enter into or interpret the religious principles/beliefs and tenets, invoking Articles 14, 15, 21, 25 and 29 of Constitution of India.
It is not appropriate for the Court to attempt to answer issues that are matters of faith alone, when there is no ‘threat to life and liberty’.
It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religionprotected under Article 26.
In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process. It should be left to be resolved through the processes of social transformation within the religious denomination itself.
During the pendency of the present petition, a five Judge Bench judgment in Kantaru Rajeevaru Vs. Indian Young Lawyers Association[155] has referred matters involving Articles 14, 25 and 26 to larger bench. They are much relevant in this case also.
This case is tagged with Sabarimala Revision-Reference matter and pending consideration before a 9 Judge Bench.
2. Excommunication of Parsy Women if Marry Outside
A Parsi woman will miss her religious identity if she marries a Non-Parsi. Unlike a woman, a Parsi man will not lose his religion on marrying a Non-Parsi. Can this anomaly be saved as an ‘essential religious practice’? Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion?
Goolrokh Gupta filed a Writ Petition before the Gujarat High Court paying to allow her to perform funeral ceremonies of her parents in the event of their death. The petitioner contended that no tenet of Zorastrianism denied a born Parsi woman rights to her religious identity on marriage to a non-Parsi. But, the Parsi Trust takes such a discriminatory stance. The said custom did not apply to Parsi males. It is violative of the right to equality under Articles 14 of the Constitution of India. It was pointed out that this excommunication was a matter of social and constitutional concern. In Sardar Saifuddin v. State of Bombay[156] the Bombay Prevention of Excommunication Act, 1949 was struck down as unconstitutional by a Constitutional bench of the Supreme Court. It was argued that excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights. The matter involved issues of the right to individual’s right to faith and practice religion under Article 25. Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, it was argued that the fundamental rights being primarily concerned with rights of individuals and protect individuality and choices, due importance should be given to the same.
The Parsi Trust opposed the petition and contended that denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion and that under Article 26, the Parsi Trust was entitled to regulate entry. The Respondents heavily relied upon an interpretation of Zorastrianism which directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage.
The Gujarat High Court dismissed the writ petition of Ms. Gupta by 2:1 majority in Goolrokh Gupta v. Burjor Pardiwala[157] on the main ground that a Parsi woman, upon marriage with a non-Parsi under the Special Marriage Act, ceases to be a Parsi. The High Court did not address the fundamental question of whether Ms. Gupta could be denied entry into Parsi institutions as an essential religious practice.
The majority pointed out that the English common law doctrine is that, in the absence of a specific statutory protection, the personality, known by religion, of a woman would merge into that of her husband. Although such a principle of merger was not recognised by any of the religions in India, it had found that a married woman is identified by her husband’s family name superseding that of her father’s. The Court observed that it is of ‘general acceptance throughout the world’. The majority was of the opinion that the merger was essential to determine the religion of children born out of the marriage. To obtain reliefs from courts, countering this presumption, the bench observed that there should be a judicial declaration pursuant to a fact-finding inquiry. Since no such inquiry was conducted in the present case, the petitioner was deemed to have acquired the religious status of her Hindu husband.
J. Akil Kureshi, minority, found that there was no automatic conversion on marriage. Special Marriage Act, 1954 speaks of a special form of marriage in which both parties can retain their birth-religion insofar as the other conditions under Section 4 of the Act of 1954 were satisfied. Kureshi, J. noted that it highlights legislative commitment toward a secular state. He ruled that the petitioner retained her Parsi identity by solemnisation of her marriage under the Special Marriage Act.
Ms. Gupta filed a Special Leave Petition before the Supreme Court. The petition stands referred to a Constitutional Bench.
It is pointed out that Goolrokh Gupta had not converted to the Hindu religion and the marriage was not taken place under the Hindu Marriage Act. The Special Marriage Act under which the marriage was solemnised, on the other hand, allowed the retention of religious identity. It was also pointed out that the matter was not one of acceptance by the religious or social community. Therefore, it was contended that the presumption was that Ms Gupta continued as a Parsi.
The Constitution Bench observed at the hearing that the marriage under the Sp. Marriage Act would prima facie defeat the doctrine of merger.
The respondents, at the time of arguments before the Supreme Court, pointed out that the edicts of Zoroastrianism were very complex. Zoroastrianism is patrilineal and all the texts/edicts dictate that one was to marry within the fold of the religion itself. If one chose to marry outside the religion, they would not suffer excommunication but would end up in losing the privileges conferred on them by the religion. They claimed that denial of entry to non-Parsis into the Parsi institutions was an essential practice of the religion under Article 26, and that the Trust was entitled to regulate such entry. The Appeal is pending consideration.
Religious Rights and Civil Remedies under Sec. 9 CPC
Courts in India are not barred from adjudicating and pronouncing upon religious matters. It was the practice from time immemorial. The Religion did not overpower the administrators any time. Kings or secular courts heard all disputes including those related to religious matters. It continued during the Mugal/Muslim administration period also. Ecclesiastical Courts did not exist any time.
From the beginning of the established court hegemony in India, disputes concerning the religious matters were dealt with by the courts.
It is observed in Queen Empress v. Ramzan. (1885) 7 ILR All – 461 as under:
“I am unable to accept this view, because, if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does depend) upon the interpretation of the Muhammadan Ecclesiastical Law, it is to my mind the duty of this Court, and of all Courts subordinate to it, to take judicial notice of such law”. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)
In Chariar v. Sri Kristna Tata Chariar, (1888) I.L.R. 11 M. 450 it is held as under:
“The claim is for a specific pecuniary benefit to which plaintiffs declare themselves entitled on condition of reciting certain hymns.
There can exist no doubt that the right to such benefits is a question which the Courts are bound to entertain, and cannot cease to be such a question, because claimed on account of some service connected with religion. If, to determine the right to such pecuniary benefit, it becomes necessary to determine incidentally the right to perform certain religious services, we know of no principle which would exonerate the Court from considering and deciding the point”. Approved in Krishname v. Krishnasamy, (1879) ILR 2 Mad. 62. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)
In Nafar Chandra Chatterjee v. Kailash Chandra Mondal, AIR 1921 Cal – 328 it was held by Sir Ashutosh Mookerjee as under:
“Where there were no Ecclesiastical Courts, there was nothing to prevent civil courts from holding that Pujari has been removed from his office on valid grounds.”
“There is manifestly nothing wrong in principle that the holder of a spiritual office should be subject to discipline and should be liable to deprivation for what may be called misconduct from an ecclesiastical point of view or for flagrant and continued neglect of duty….. It is plain that although so far as Hindus are concerned, there is now no State Church and no ecclesiastical court, there is nothing to prevent civil courts from determining questions such as those raised in the present litigation and from holding that the Pujari has been removed from his office on valid grounds.”(Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)
In U.W. Baya vs. U. Zaw Ta. AIR 1914 Lower Burma 178 (1) where a question arose as to which was the forum where an action for violation of religious rights could be brought, it was held as under,
“there are, therefore, no ecclessiastical authorities in Lower Burma. Section 9, Civil P.C. enacts that the courts shall subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which the cognizance is either expressly or impliedly barred. This is a suit of a civil nature. It is a claim of certain lands and manuscripts.
The civil courts, in our opinion, clearly have jurisdiction to decide the suit and should do so”. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)
In Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, (1962) 2 SCR 509 our Apex Court observed as under:
“Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies.”
Article 25 of the Constitution of India Guarantees the Freedom of Religion
Apart from Section 9 of the CPC, Article 25 of the Constitution of India guarantees the freedom of conscience and the right freely to profess, practice and propagate religion to every person.
Article 25 reads as under:
“25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
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 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.”
In S.P. Mittal v. Union of India, AIR 1983 SC 1, it was held that Art. 25 would receive a wide interpretation.
In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed that not only because it is claim to an office but also because there is no other forum where such dispute can be resolved. If a dispute arises whether a particular religious shrine has ceased to be so due to its anti-religion activities then the followers of that religion or belief and faith cannot be denied the right to approach the court. It is pointed out that Explanation I in Sec. 9 CPC is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the courts to entertain suits where dispute about religious office is involved. The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Episcopal.
Court may refrain from adjudicating upon Purely Religious Matters
In Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is cautioned that the court may refrain from adjudicating upon purely religious matters as it might be handicapped to enter into the hazardous, hemisphere of religion. It held further as under:
“Maintainability of the suit should not be confused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation I could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the expression ‘is contested’ used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognisable under Section 9.”
It is held further as under:
“’Religion is the belief which binds spiritual nature of men to super-natural being’. It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is the right of a person believing in a particular faith to practice it, preach it and profess it. It is civil in nature. The dispute about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence. Civil wrong is explained by Salmond as a private wrong. He has extracted Blackstone who has described private wrongs as, ‘infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries’. Any infringement with a right as a member of any religious order is violative of civil wrong. This is the letter and spirit of Explanation I to Section 9.”
Conclusion
The (i) right of entry of women in Sabarimala (ii) right of entry of Muslim women in durgahs/mosques, (iii) right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and (v) the challenge to the practice of female genital mutilation in Dawoodi Bohra Community are placed before the nine-judge-bench of the Supreme Court.
The result of the combined inquisitive analysis of all the aforesaid cases and all the issues involved therein, in the constitutional ethos, by the nine-judge-bench may be in supportive of the so called ‘progressive view in favour of women’. If the effect of answers of each segregated case and each separated issue is anatomically explored and blended together, especially in the light of the torch-flash of Shirur Mutt, the outcome may be diametrically opposite. The nine-judge-bench will have to analyse the matter, both ways.
Foot Notes:
Relevant parts of Shirur Mutt Case:
“We now come to article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word “persons” here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. it is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practise or propagate religion; it can be done only by individual persons and whether these person propagate their personal views or the tenets for which the institution stands is really immaterial for purposes. of article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting. 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. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name,-in many cases it is the name of the founder,-and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.
The other thing that remains to be considered in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management “of its own affairs in matters of religion ?” The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause(b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. 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 [Vide Davie v. Benson 133 U.S 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.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ” practice of religion ” in article 25. Latham C. J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the “free exercise of any religion” made the following weighty observations(1) : ” It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinion&, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts. done in pursuance of religious belief as part of religion.” These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. 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 reserves 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 (1) Vide Adelaide Company V. The Commonwealth 67 C.L.R. 116, 127 legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
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 tothe doctrines of that religion itself. If 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 ablations 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). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehova’s Witnesses.” This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme Authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other Constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of ” Jehova’s Witnesses ” incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations [Vide Adelaide Company v. The Commonwealth, 67 C.L.R., 116, 127].
These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.
The courts of America were at one time greatly agitated over the question of legality of a State regulation which required the pupils in public schools on pain of compulsion to participate in a daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District, Board of Education, etc. v. Gobitis, 310 U.S. 586. In that case two small children, Lillian and William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with “Jehova’s Witnesses” and had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments ? The court held by a majority that it did not and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of. national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education v. Barnette 319 U.S. 624. There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. 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 or 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. As regards commercial activities, which are prompted by religious beliefs, we can cite the case of Murdock v. Pennsylvania 319 U.S. 105. Here also the petitioners were “Jehova’s Witnesses” and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech, press and religion; and it was held further that upon the facts of the case it could not be said that “Jehova’s Witnesses” were engaged in a commercial rather than in a religious venture. Here again, it may be pointed out that a contrary view was taken only a few years before in the case of Jones v. Opelika, 316 U.S. 584 and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a religious Organisation who was engaged in selling the printed propaganda, pamphlets without having complied with the provisions of the ordinance.
It is to be noted that both in the American as well as in the Australian Constitutions the. right to freedom of religion has been declared in unrestricted terms with. out any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved. Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article 26. Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent.”
Relevant Parts of Dargah Case
“We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizens right to freedom of religion. Under Art. 25(1), subject to public order, morality and health and to the other provisions of Part 111, all persons are equally entitled to freedom of conscience and their right freely to profess, practise and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that subject to public order, morality and health every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious 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.
The four clauses of this Article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to own and acquire movable and immovable property and to administer such property in accordance with law. What the “expression “religious denomination” means has been considered by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] S.C.R. 1005, 1023, 1024. Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word “denomination” which says that a – “denomination” is 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”. The learned Judge has added that Art. 26 contemplates not merely a religious denomination but also a section thereof Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word “religion” has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it is not 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. Dealing with the same topic, though in another context, in Sri Venkataramana Devaru v. The State of Mysore [1958] S.C.R. 895, Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion, and in support of this statement the learned Judge referred to the observations of Mukherjea, J. which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must beregarded 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. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other. In the present appeal we are concerned with the freedoms guaranteed under Art. 26(c) and (d) in particular. The respondents contend that the appointment of the Committee contemplated by ss. 4 and 5 has effectively deprived the section of the denomination represented by them of its right to own the endowment properties and to them. We have already stated that we propose to deal with this appeal on the assumption that the respondents have filed the present writ petition not only for the Khadims but also for and oil behalf of the Chishtis and chat the Chishtis constitute a section of a religious denomination. Considered on this basis the contention of the respondents is directed against the powers conferred on the Committee for the purpose of administering the property of the Durgah and in substance it amounts to a challenge to the validity of the whole Act, because according to them it is for the section of the denomination to administer this property and the Legislature cannot interfere with the said right.
In dealing with this argument it is necessary to recall the fact that the challenge to the vires of s. 5 has been made by the respondents in their petition on a very narrow ground. They had urged that since the committee constituted under the Act was likely to include Hanafi muslims who may not be Chishtis muslims the provision authorising the appointment of the Committee was ultra vires, and in fact the decision of the, High Court is also based on this narrow ground. Now, it is clear that the vires of s. 5 cannot be effectively challenged on any such narrow ground. If the right of the denomination or a section of such denomination is adversely affected by the statute the relevant provision of the statute must be struck down as a whole and in its entirety or not at all. If respondents could properly invoke Art. 26(d) it would not be open to the statute to constitute by nomination a Committee for the management and administration of the property of the denomination at all. In others words, the infirmity or the vice in the statute cannot be cured by confining the members of the proposed Committee to the denomination itself. This no doubt is a serious weakness in the basis on which they levelled their attack against the validity of s. 5 in the court below.”
Sabarimala Review (Majority) Judgment
Kantaru Rajeevaru vs Indian Young Lawyers Association
1. Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court.
2. The endeavour of the petitioners is to resuscitate the debate about – what is essentially religious, essential to religion and integral part of the religion. They would urge that ‘Religion’ is a means to express ones ‘Faith’. In the Indian context, given the plurality of religions, languages, cultures and traditions, what is perceived as faith and essential practices of the religion for a particular deity by a section of the religious group, may not be so perceived (as an integral part of the religion) by another section of the same religious group for the same deity in a temple at another location. Both sections of the same religious group have a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25 of the Constitution of India. It matters not that they do not constitute a separate religious denomination. Further, as long as the practice (ostensibly restriction) associated with the religious belief is not opposed to public order, morality and health or the other provisions of Part III of the Constitution of India, the section of the religious group is free to profess, practise and propagate the same as being integral part of their religion. The individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion. This is broadly what has been contended.
3. Concededly, the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending for consideration in this Court regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community.
4. It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution – which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Be it noted that this stipulation came when the strength of the Supreme Court Judges in 1950 was only seven Judges. The purpose underlying was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity.
5. It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred tolarger bench cannot be ruled out. The said issues could be:
(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.
(iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
(vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination
6. In a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously. This is time honoured principle and practice.
7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.
8. While deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.
9. The subject review petitions as well as the writ petitions may,accordingly, remain pending until determination of the questions indicated above by a Larger Bench as may be constituted by the Hon’ble the Chief Justice of India.
Saji Koduvath Associates 