Saji Koduvath, Advocate, Kottayam.

PART – I

Introduction

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 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”. (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 CEREMONIES are 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

1. The ‘essential practices‘ of RELIGION alone is considered.
2. The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion‘ may have to be carefully scrutinised by the COURT.

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.

Seervai Tells –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 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 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 is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which 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 community and 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 community and the tenets of its religion.”
  • *^{* (i) Durga Committee, Ajmer v. Syed Hussein Ali, (1962) SCR 353.}
  • ^{(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.

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:

1. 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.
2. 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.)
3. Guarantee given to ‘religious denomination’ or ‘a section thereof’ is to administer its property is ‘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.)
4. 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.
5. 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.
6. 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 Practice Recognised by Courts

Various decisions lad down by our Courts show that following religious practices are ‘essential’ part of religion:

• Worshipping of an image or idol in Hinduism. [8]
• Offering prayers at a public mosque.[9]

Following religious practices were held not ‘essential’ part of religion:

• Capturing and worshipping live cobras.[10]
• Sacrifice of cows in the Muslim religion.[11]
• 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’:

1. Spiritual fraternity represented by a math: (Sri Shirur Mutt case[18])
2. Vaishnava sect (Hindus): (Sri Shirur Mutt case[19])
3. Ananda Marg: (Acharya Jagdishwaranand v. Commissioner of Police, Calcutta[20])
4. Jehovah’s Witnesses (Christians): (Bijoe Emmanuel Vs. State of Kerala[21])
5. Ramakrishna Math or Ramakrishna Mission (Hindus): (Bholanath Mukherjee Vs. R.K. Mission V. Centenary College[22])
6. Shia, Hanafi and Chishti (Muslims).
7. 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 they believe 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 CEREMONIES are 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:

1. Spiritual community represented by the math falls under Art. 26(b) which contemplates ‘religious denomination’ or ‘a section thereof’.
2. Right to manage the affairs of religion is a fundamental right under Art. 26. It cannot be taken away by legislature.
3. 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’.
4. 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.
5. 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.
6. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
7. 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.
8. A law which takes away the right of 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]
• SP Mittal Vs. Union of India (1983).[45]

(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. No Legislature can take away this right. But, State can Regulate Administration of Properties by 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 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.” 

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]
• SP Mittal Vs. Union of India (1983);[50]
• 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]
• S P Mittal Vs. Union of India (1983)[56]
• Sardar Syedna Tahar Saheb Vs. The St. of Bombay (1962);[57]

• “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]
• Shayara Bano Vs. Union of India (2017)[60]
• 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]
• Shayara Bano Vs. Union of India (2017)[68]
• 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]
• S P Mittal Vs. Union of India (1983)[72]
• 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]
• SP Mittal Vs. Union of India (1983);[86]
• 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]
• SP Mittal Vs. Union of India (1983);[93]
• 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.

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 the COURT as 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 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.“

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:

1. Whether the determination on essential religious practices was a matter left to the denomination?
2. 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, 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 the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

(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 extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of 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 and include 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.”

(iv) SP Mittal Vs. Union of India  (1983)[122]

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 part of religion has to be determined with reference to 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.”

(vii) Nelson Vs. Kallayam Pastoratae (2007)[129]

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:

• Sabarimala Case,[146]
• Entry of Muslim Women in Mosque Case,[147]
• Parsi Women’s Case,[148]
• Dawoodi Bohra Community case.[149]

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, practice and 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, practice and propagate religion
• Do persons have a right to manage his own affairs in matters of religion.

See Blog: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes

PART – XI

RIGHTS OF WOMEN & Religious Institutions

1. Entry of Muslim Women in Mosque

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:

1. The issues involved in this case are not the issues pertaining to any statute.
2. 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.
3. The matters involved are religious practices based upon beliefs of the religion; and not matters ‘merely concern’ the management of a religious place.
4. The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
5. They are not the activities ‘only concern’ regulating the activities connected with religious practice, also.
6. 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.
7. 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’. 
8. 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.
9. 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.
10. 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.

See Blog: ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter

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.

See Blog: Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional

PART – XII

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 to the 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 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. 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.”

---

[1]AIR 1974 SC 1389

[2]AIR 1994 SC 1918

[3]The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt: AIR 1954 SC 282

[4]Sardar Sarup Singh Vs. State of Punjab: AIR 1959 SC 860;

Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1.

[5]Commr. of Police Vs. Acharya Jagadishwarananda Avadhuta:AIR 2004 SC 2984.

[6]AIR 1996 SC 1765

[7]Quoted in KS VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

[8]Mohd. Hanif Quareshi vs. State of Bihar: AIR 1958 SC 731

[9]Sarwar Husain vs. Addl. Judge: (LAWS (All)1982-7-16)

[10]Gramsabha of Village Battis Shirala Vs. Union Of India: LAWS(BOM) 2014-7-136

[11]Mohd. Hanif Quareshi vs. State of Bihar: AIR 1958 SC 731

[12]Sarup Singh Sardar vs. State of Punjab: AIR 1959 SC 860

[13]M. Ismail Faruqui vs. Union of India: AIR 1995 SC 605

[14]Lily Thomas vs. Union of India: (2000) 6 SCC 224

[15]Nirmal Kumar Sikdar vs. Chief Electroal Officer: AIR 1961 Cal 289

[16]AIR 1954 SC 282

[17]AIR 1983 SC 1

[18]AIR 1954 SC 282

[19]AIR 1954 SC 282

[20]AIR 1984 SC 51

[21]AIR 1987 SC748

[22](2011) 5 SCC 464

[23]AIR 1983 SC 1

[24]2019-1 SCC 1

[25]Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1.

[26]Yasmeen Zuber Ahmad Peerzade Vs. Union of India

[27]Goolrokh M. Gupta Vs. Burjor Pardiwala: AIR 2012 CC 3266

[28]Dawoodi Bohra Committee Vs. State of Maharashtra: AIR 2005 SC 752.

[29]    AIR 1954 SC 282.

[30]The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt: AIR 1954 SC 282;

Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1

KS  VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333;

VM Malaviya Vs. GY Dewaji: 2018-1 GLR 435

[31]    See: Raja Birakishor Deb Vs. State of Orissa:  AIR 1964 S C 1501;

SP Mittal Vs. Union of India:  AIR 1983 S C 1;                

Dharam Das Vs. State of Punjab  AIR 1975 SC 1069 ;

Sri LakshamanaYatendrulu Vs. State of AP : 1996-8 S CC 705;

Sri AdiVisheshwam of KashiVishivanath Temple Vs. State of U P :  1997- 4 SCC 606

[32]A Pooornachandra-rao Vs. Government of Andhra Pradesh: AIR 1982 AP 141.

[33] AIR 1982  AP 141

[34]    BCR-2011-3-655: 2011-3 All MR 171:  2011 (3) Mh LJ 966

[35]    Referred to: Raja Bira Kishore Deb Vs. The State of Orissa, AIR 1964 SC 1501;

PannalalBansilalPittiVs. State of Andhra Pradesh, (1996) 2 SCC 498

AS NarayanaDeekshituluVs.State of Andhra Pradesh, (1996) 9 SCC 548.

[36]AIR 1954 SC 282

[37]AIR 1961 SC 1402.

[38]Durgah Committee, Ajmer Vs. Syed Hussain Ali: AIR 1961 SC 1402.

[39]AS Narayana Deekshitulu   Vs. State of AP AIR 1996 SC 1765;

KS  VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

[40]    AIR 1954 SC 282.

[41]Sri Lakshmindra Theertha Swamiarvs The Commissioner: AIR 1952 Mad 613

[42]2019-1 SCC 1: 2018 -13 Scale 75; 2018 8 SCJ 609

[43]AIR 2015 SC 460

[44]AIR 1995  SC 2089

[45]AIR 1983 SC 1

[46]    Sri Jagannath Temple Puri Managt Comte Vs. Chintamani Khuntia: AIR 1997 SC 3839

[47]2019-1 SCC 1: 2018-13 Scale 75; 2018 8 SCJ 609

[48]2017-15 SCC 333

[49]AIR 2016  SC 209

[50]AIR 1983 SC 1

[51]AIR 1975  SC 706

[52]    1963AIR SC 1638:

[53]AIR 1959 SC 860

[54]2020-1 SCC 1

[55] 2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[56]AIR1983 SC 1

[57]1962 Supp. 2 SCR 496

[58]2020-1 SCC 1

[59] 2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[60]2017-9 SCALE 178

[61] (2002) 8 SCC 106

[62]1997-4 SCC 606

[63]AIR 1996 SC 1765

[64]AIR 1984 SC 51

[65] AIR 1958 SC 255

[66]2020-1 SCC 1

[67] 2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[68]2017-9 SCALE 178

[69]AIR1984 SC51

[70] AIR 1958 SC 255

[71]2019-1 SCC 1: 2018 13 Scale 75; 2018 8 SCJ 609

[72]AIR1983 SC 1

[73]1962 Supp. 2 SCR 496

[74]AIR 1959 SC 860

[75]AIR1959SC942

[76]2020-1 SCC 1

[77]2019-1 SCC 1: 2018 13 Scale 75; 2018 8 SCJ 609

[78]2017-15 SCC 333

[79]AIR 2016  SC 209

[80]AIR 2015 SC 460

[81]2004-4 SCC 661

[82]1962 Supp. 2 SCR 496

[83]AIR 1959 SC 860

[84]2019-1 SCC 1: 2018 13 Scale 75; 2018 8 SCJ 609

[85]2017-15 SCC 333

[86]AIR 1983 SC 1

[87]AIR 1970  SC 181

[88]2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[89]2017-15 SCC 333

[90](2016) 2 SCC 725

[91]AIR 1996 SC 1023

[92] AIR 1999 SC 3567

[93]AIR 1983 SC 1

[94]AIR 1970  SC 181

[95]    AIR 1961 SC 1402.

See also: Birakishore Vs. State of Orissa: AIR 1964  SC 1501

[96]2020-1 SCC 1

[97]AIR 2004 SC 2984.

[98] 2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[99] AIR 1962 SC 853

[100]  1963AIR SC 1638:

[101] AIR 1958 SC 255

[102](2004) 12 SCC 770:AIR 2004 SC 2984

[103] 2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[104](2016) 2 SCC 725

[105] (2002) 8 SCC 106

[106]1997-4 SCC 606

[107] AIR 1962 SC 853

[108]  1963AIR SC 1638:

[109]AIR 1996 SC 1765

[110]Commr. of  Police Vs. Acharya Jagadishwarananda Avadhuta: AIR 2004 SC 2984.

[111]2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[112]  1963 AIR SC 1638:

[113] [1958] SCR 895; AIR 1958 SC 255

[114] (2016) 2 SCC 725

[115]  1954 AIR SC 388.

[116]  Syedna Mohamed Burhanuddin :1992 (1) GLH 331;

VM Malaviya Vs. GY Dewaji: 2018-1 GLR 435

[117] AIR 1962 SC 853

[118]AIR 1954 SC 282.

[119] AIR 1958 SC 255

[120]AIR 1961 SC 1402.

[121]  1963AIR SC 1638:

[122]AIR 1983 SC 1

[123]AIR 1996 SC 1765

[124]AIR 1996 SC 1765

[125]1997-4 SCC 606

[126]AIR1997 SC 1711

[127](2017) 15 SCC 333.

[128]  AIR 2005 SC 2544: 2005 (10) SCC 760.

[129]  AIR 2007 SC 1337.

[130]  AIR 2007 SC 1337: 2006-11 SCC 624:  2007  AIR (SCW)  1512

[131]  Bhuri Nath Sewa Committee Vs. State of Jammu And Kashmir: AIR1997 SC 1711;

A S Narayana Deekshitulu Vs. State of Andhra Pradesh: AIR 1996 SC 1765;

Ramachandra Vs. Shivaram Narayana Bhat: AIR  2009Kar 595;

KS Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

[132](2016) 2 SCC 725

[133]AIR 1954 SC 282

[134](2017) 15 SCC 333.

[135](2017) 15 SCC 333

[136]AIR 1996 SC 1765

[137](2004) 12 SCC 770:AIR 2004 SC 2984

[138] Relied on The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt: AIR 1954 SC 282

Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan: 1963AIR SC 1638

SP Mittal Vs. Union of India:  AIR 1983 S C 1

PannalalBansilalPatil  v. State of Andhra Pradesh AIR 1996 SC 1023

A S Narayana Deekshitulu Vs. State of Andhra Pradesh: AIR 1996 SC 1765;

Bhuri Nath Sewa  Committee Vs. State of Jammu And Kashmir: AIR1997 SC 1711;

Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta: AIR 2004 SC 2984.

N. Adithayan Vs. Travancore Devaswom Board: AIR 2005 SC 3538

Adi Saiva Sivachariyargal Nala Sangam VsGovt of TN: AIR 2016  SC 209

[139]  AIR 1958 MP 362

[140]  See also: Rev. Fr. Farcisus Mascarenhas Vs. State of Bombay: 1960-62 Bom LR 790 (Mudholkar& VM Tharkunde, JJ.);

Gnanamuthu Udayar Vs. Anthoni: AIR  1960 Mad 430.

[141]  AIR  1997 SC 109

[142]  See also: Saly Joseph Vs. Baby Thomas: AIR 1999 Ker 66;

Varkey Vs. Thresia: AIR  1955 Ker 255

[143]  AIR 1970 SC 2079: 1971-1 SCR 734:

[144]  1990 1 SCC 428: AIR  1990 SC 695:

[145]2007 1 SCC 386

[146]Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1.

[147]Yasmeen Zuber Ahmad Peerzade Vs. Union of India

[148]Goolrokh M. Gupta Vs. Burjor Pardiwala: AIR 2012 CC 3266

[149]Dawoodi Bohra Committee Vs. State of Maharashtra: AIR 2005 SC 752.

[150]2019-1 SCC 1: 2018-13 Scale 75; 2018-8 SCJ 609

[151]AIR 1954 SC 282

[152]AIR 1983 SC 1

[153][1954] SCR 1005: AIR 1954 SC 282

[154][1962] 1 SCR 383: AIR 1961 SC 1402

[155]Review from 2019-1 SCC 1:

[156]AIR 1962 SC 853

[157]AIR 2012 CC 3266

---

---

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit

Title, ownership and Possession

• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Is Something Remains Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions