S.P. MITTAL ETC. ETC. v. UNION. OF INDIA AND OTHERS . November 8, 1982

129 A S.P. MITTAL ETC. ETC.

UNION. OF INDIA AND OTHERS B . November 8, 1982 . (Y.V. CHANDRACHUD, C.J.,.p N. BHAGWATI, 0. CHINNAPPA REDDY, ii. V. BALAKRISHNA ERADI AND R.B. MISRA, JJ;) c Right to freedom of religion and to manage religious affairs-Constitution of India, 1950 Articles 25 and 26-Shri Aurobindo's rtachings cannot ht said to be of a religious nature-Aurobindo Society and the Auroville township do not fall within the meaning of religious denomination so as to be violative of Articles 25 and 26 of the Constitution. >, . . Words & Phrases-' Religion' and 'Religious denomination' explained. D

Aurovill• (Emergeucy Provisions) Act, 1980 (Act L1X of 1980) p,.ambl11- Par/iamentary competency to enact the Act--.Wh~ther inconsistent and in conflict with the provisions of the West.Belfga/ Societies Registration Act, 1961 (Act XXVI of 1961) Sections 22 & 23 containing in built self-contained proviSions for dealing with the management of the rtgistered societies-Constitution of India 1950 Article 245, Schedule Vil, List I Entry 32-Functions of the Lists, Explained.

Auroville (Emergency Provisions) Act. 1980 providing for taking over the management only of Aurovi/le toWnship and its activities for a limitid period is not violative either of Article 14, Articles 25 and 26 or Articles 29 and 30 ofthtt ConstiJution .

. Sri Aurobindo, one of the Indian sages and philosphers, after a brilliant academic and administrative career engaged himself for sometime in political aciivities and revolutionary literary efforts, but later on gave them uo to concen- trate himself with the life of medition and integral yoga at Pondicberry, in G Tamil Nadu. Madam M. Alfassa a French Lady, wb~ came to be known as the Mother became a disciple of Sri Aurobindo. Very· soon more and ~o.re . · dis~iples came to join him from various parts of India·- and abr~ad and tlius the Aurobindo Ashram came into being. The. disciples and devoted followers- of Sri Aurobindo and the Mothe"r, with a view to propagate and practise the ideals and beliCfs of Sri Aurobindo formed a Society called Sri Aurobindo H Society in the year 1960, ~hich at all material times w·as 'and is still a society duly registered under the provisions of tb.e West Bea~al Societies Re~istratioq

730 SUPRBMB COURT REPORTS [!983] I S.C.R.

A Act, 1961. This Society is completely distinct from Aurobindo Ashram in Pondicberry. The Society was established and registered for the purpose of carrying out in and out side India the several objects stated· in the memoran<lum of the Society. '

The management of the Society vested in its Executive Committe~. Rulerand regulations have been duly framed for the management. of the Society B and also for·safe cu~tody and protection of its assets, properties and funds.

Sri Aurobindo Society preaches arid propagates the ideals and teachings 1

of Sri Aurobind 0, inter alia, through its numerous centres scattered throughout India by way of weekly meetings of its me~bers.

The Mother as the founder-president also coi;iceived of a project of c setting up a cultural township known as 'Auroville' where people of different countries are expected to engage in cultural, educational and scientific and o1her pursuits aiming at human unity. The Society has been a channel of funds for setting up the cultural township known as Auroville.

[) At the initiative of the Government of India, .the United. Nations '. Educational, Scientific and Cultural Organisation being of the opinion that the Auroville project would contribut~ to international understanding and . promotion of peace sponsored the project by proposing a resolution to this effect at its General Conference in 1966. This resolution was unanimously ador•ted Rt this conference.' By a fllrther resoIUtion passed in 1968 the UNESCO invited its member States and intern"ational non-governmen_tal organisations to p3.rtici- E pate in the development of Aur.oville as an international cultural township to bring together the values of different cultures and civilisations in harmonious environment with integrated living standards, which corresponds to man's physical and spiritual needs. In 1970 UNESCO had directed its Director·Genera1 to take such steps as may be feasible, wilhin the budgetary provisions to promote the development of Auroville as an important· international cultural program1ne. Sri Aurobindo Society received l~rge funds in the shape of grants from diffetent organist:tions in India atJd abroad for development or that towDsbip. The assistance included contributions from the State Go~·ernments of the valuf1 of Rs. 66.50 lakhs and the Central Government of the value of Rs. 26.14 lakhs.

After the death of the Mother on 17th of November, 1973 a number of problems of varying nature affecting the smooth running of the project" cropped· • · ~P· The Government of India on receiving complaints about mismanagement of the project and misuse of funds by Sri Aurobindo Society set up a cornmiltee under the chainnanship of the Governor of Pondicherry with representatives of the Government of Tamil Nadu anli of the Ministry of Home Affairs in ·the 'Central Government to look into the matter. The Committee made a detailed scrutiny of the accounts of Sri Aurobindo Society relating to Aurovilte and

H found instances of serious irregularities in the management of the Society, misutilisation of its funds and their diversion to other purposes. Further, xarious . other serious difficulties had arisen plaguing the Management of Auroville ~µd rcnderin~ thereby any_ .furth~r _growth of the township almost ir:ppossible.

S.P. MITIAL V. UNION 731 ' In the circumstances the taking over of the management of Auroville became A imperative to ensure growth of tbe township in tu~e with its objectives.

Keeping in view the international character of the project and considering the government's involvement in actively sponsoring the project through UNESCO, the. growth and management of the project had become the primary responsibility of the ·oovernment of Illdia. The ideals: of the project.f9rmed India's highest aspirations, which could not be allowed to be defeated or . IB frustrated. Sri Aurobindo society had lost complete control over the situatiOn and the members of the l\uroville approaCbed the Government of India to give prOtection against oppression and victimisatioil at the hands of the said Soci~ty. There were internal quarrels between the various factions of Sri Aurobirido Society. There have also been instances of law· and ordet situation. Financial management of the projects has not been sound and several instances of mis- manauement, diversion of funds have been revealed. A large sum of monCy G was given by Sri Aurobindo Society to AURO construction-an agency whoso· 'status is not at all defined, whose functions and capabilities for taking up large construction works alsO had not .been made known. The Government in the circum~tances could not be a silent spectator to the mismanagement of t~c project and internecine quilrrels amongst its meaibers, which if not checked ., could Iea:d to the destruction of the project so nobly conceived. The Govern- "'"· ment, therefore, <;tecided to issue a Presidential Ordinance, After the -filing of D the writ, ·petition the ordinance ·has now been replaced by' the AuroVille (Emergency Provisions) Act, 1980.

' The constitutional validity of. the Act has "been cha11enged on four grounds : (i) Parliament has. no legislative competence to enact the impugned statute; (ii) The impugned Act infringes Articles 25~ 26, 29 and -30 of the E Constitution; (iii) The impugned Act is violative of Article 14 of the Constitu~ tion; and (iv) The Act was ma/a fide.

Dismissing the petitions, the Court

(Per Misr_a, J.) F 1:1. The Parliament had the legislative competence to enact the Auroville (Emergency Provisiofl') Act, 1980 (Act LIX) of 1980. [770 DJ

• 1:2. The subject. matter of the impugned Act is not covered by Entry 32 of List II of the Seventh Schedule. Even if the subject matter of the impugned ACt is not covered by any specific entry of List I or III of the Seventh Schedule of the Constitution it would in any case be covered by the resi~uary entry 97 · ·• of List I. [770 C-D] ,., 1:3. The function of the Lists in. the Seventh Sc~edule to the Constitution ' is not to confer powers. They merely demarcate the legislative fields. Tho H Entries in the three Lists are only legislative l\~a<!s or fields of le~islation a~d th~

732 SUPREME COURT REPORTS [1983) l S.C.ll,

A power to l~gislate is given to appropriate legislature by Articles 245 to 248 of f~e Constitution. [766 H, 767 A]

1:4. The Auroville Act even incidentaly does not trench upon flle field covered by the West Bengal Societies Registration At:t, 1961 as it is in no way related to Constitution, regulation and winding up of the Society .. [770 BJ

B- R.C. Cooptr v. Union of India [1970] 3 SCR 530@ 563, applied.

Attorney General for Ontario v. Attorney General for the Dominion [1895] AC 348 @ 366-67; Union of India v. H.S. Dhillon [1972] 2 SCR 33 @ 45; Board of Trustees, Ayurvedic and Unani Tibia College v. The State of Delhi at.id Others [1962] 1 Suf)p. SCR 156; Katra Education Society v. State of Uttfu a.. Pradesh and Others [1966] 3 SCR 328, referred to. c 2:1. The words "religious denomination" in· Article 26 of the Constit:J.- tion must take thefr colour from tbe word 'religion' and if this be so, the expression "religious denomination:• mµst also satisfy three conditions:

(i) It must be a collection of individuals who has a system of beliefs or doctrine which they regard as conducive to their spiritual weH- being, that is, a common faith; • (ii) Common organ~.sation: and

(iii) Designation by a distinctive name. [774 B-D]

2:2. The term 'religion• has been judicialJ.;i....considered in the Commission 1 ~r E of Hindu Religious Endownments, Madras v. Sri Lakshmindra Thirtha Swamiyor of Sri Shriur Mult [1954) SCR 1005 and the following propositions of law laid down therein haVe been consistently followed in later cases including TJ1t Durgah .Committee, Ajmer and Another v. Syed Hussain Ali & Others [1962] I SCR 383@410-11 :

F (1) Religion means "a system of beliefs or do.:trines which are reSar.. ded bY. those who profess that religion as conducive to their spiritual well being";

(2) A <tligion iS not merely an op1n1on, doctrine or belief. It has its outward expression in acts as welt;

G (3) Religion need not be theistic;

(4) "Religious denominationu means a religious sect or body having a common faith and organisation and designated by a distinctive name;

~5) A law which takCs away the rights of administration from the ~~~i:ids 9f !!- reli~io~s denomin~ti9n altoeethcr and vests in anothe.:

p. 733 Copy page pinpoint

authority Would amount to violation of the right guar<iriteed-under · A clause (d) of Article 26." (773 E·H, 774A]

Per Majority [Misra, J for himself. Y. V. Chandrachud, C.J., P. N. "hagwati and V. Balakrishna Eradi, JJ. and Chinnappa Reddy, J. dissenting.]

2:3. On the basis _of the materials the Memorandum of Association of B the Society. the several applications made by the Society claiming exemption ~ under s. 35 and s. 80 of the Income-tax Act, _the repeated ut~rings of Sri Auro- bindo and the Mother that the society and Auroville were not religious institu- tions and host of other documents there is no,room for doubt that neither the :' Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion. [793 D-E] .}-- Numerous Utterings by Sri Aurobindo or .the Mother .unmistakably show • that the Ashram or Societ'y or Auroville is not a religious inst.itution. There can be no better proof than what Sri Aurobindo and the Mother themselves ' thought of their teachings and their institutions to find out· whether the teachings . , of Sri Aurobindo and his Integral Yoga constitute a religion of a philosophy . _, The Utterings made from time to time by Sri Aurobindo and the Mother hardly D leave any doubt about the nature of the Institution. It was on the basis that it was not a religious institution, that the Society collected funds from the Central Government, the Governments _of Sta~es, other non-Governmental agencies. and from abroad. (792 B·D, 793 A]

Even assuming but not holding that the Society or the Auroville were a E religious denomination, the in1pugned enactment is not hit t·y Articles 25 and'26 of the Constitution. The impugned enactmeilt does not curtail the freedom of .., . conscience and the "right freely to profess, practise and prop8gate religio.n . Therefore, there is no question Of the enactment being hit by Article 25. [793 E-F]

2:4. The impugned enactment does not stand in the way of the Society establishing and maintaining institutions for religious and charitable purposes, It also does not stand in the way of the Society io ·manage its affairs in matters of religion. [794- A-Bl

2:5. Even assuming that the society or Auroville was a religious denomi.. nation, clauSe {b) of Art. 26 guarantees to a religious denomination a right to manage its oWn affairs in matters of religion. Besides t~he right to manage its own aff~irs in matters of religion, which ·is given by clause (b), the next two clauses of Art. 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 the .matt~Ts of religion. The latter is_,@ fundamental right which no legislature can take away, wbeiyas the former can be regulated ~Y laws which the legislature can take away,

734 SUPREME COOllt RBPOllTS [1983) I S.C.F·'"

A whereas the former can be regulated by laws which the legislature can validily impose. Jt i:s clear, therefore, that question merely relating to a religions group or institution are not matters of religion to which clause o.f article applies. ~ '- (800 H, 801 A·B)

2:6. The impugned Act had not taken away the right of management in B matters of religion or a religious denomination. if the Society or Auroville is a religious denomination at all, rather it has taken away the right of management of the property of Auroville. Thus the impugned Act neither violates Article 25, nor Article 26 of the Constitution. [801 C·Dl

The Commissioner of . H. R. & C. E. Madras v. Lakshmlndra Tirtha c Swamljar of Sri Slrur Mutt [1954] S.C.R. 1005; Th• Durgah Committ.. Ajmer and Another v. Syed Hussain Ali [1962] 1 S.C.R, 383; Tilkyat Shri Govlnd/alji Maharaj v. Stale of Ra}a~than & Oth•rs [1964) 1 S.C.R. 561; Sastri Yagnapurushadrl & Others v. Muldas Bhudardas Vysya & Another [1966] 3 S.C.R. 242; Divyadassan Rajendra Ramdassjl &_ Another v. Stal• of Andhra Pradesh [1970] 1 S.C.R. 103; Na/aw RaN1alingayya v. The Commi81ioner of Charitable and Hindu &/igious 0 · Institutions and Endownments Hyderabad A.I,R. 1971 (AP) 320; T. Krlthnan v. G.D.M. Committee A.I.R, 1978 Kerala 681 applied.

3. On an analysis of Articles 29 and 30 and the decided cases it is eviderit that the Auroville Act does not seek to curtail the right of any section of citizen to conserve its own language, script or culture conferred by Article 29. The benefit of Art. 30(1) can be claimed by the community only on proving E that it is a religious or linguistic minority and that the institution was established by It. Since Auroville or the Societ;v. is not a religious denomination, Articles 29 and 30 would not be attached and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of the Constitution. (805 A·C]

In re : The Kera/a Education Bill [1959] SCR 9951 Reverend Sltl~aibhal F Serbhai and Others v. State of Bombay and Another. [1963] 3 SCR 837 @ 856; Stat< of Kuala v. Mother Provincial [1971] 1 SCR 734; applied.

4. The Auroville Take over Act cannot be said to be violative of Article J4 of the Constitution, which action was taken after full consideration of various aspects of the problem, for the reasons namely~ (i) it has not been pointed out which were 1he other institutions where similar situations were prevailing; and G (ii) there is a uniqueness with this institution inasmuch as the Government is also involved. Even a s.ingle institution may be taken as a class. The situation prevailing in the Auroville had converted the dream of the Mother into a night· mare. There had arisen acute law and .order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Auroville had been diverted towards other purposes and the ·atmosphere was H getting out of hand. In the circumstances the Government intervened and promul. gated the'Ordinance and later on substituted it by the impugned enactment. (814 B-DJ

p. 735 Copy page pinpoint

Budhan Choudhary v: The State of Bihar [1955] I SCR "1045: Shri " A. Rama~rishna Daf!nia v. Sri iust!ce S.~ Tandolka;. and Others [1959] SCR 279; Raja B/rakishore v" The Sate ofOrlssa [1964] 7 SCR 32, followed.

Ram Prasad Narayan Sahi and Another v. Stale of Bihar and Others [1953] SCR 1129; distioguished.

5:1. Whether the remedies provided under the Societies Registration Act B \.11'.Cre sufficient to meet the exigencies of the situation is not for ihe Court to deC:ide' but it is for the Government and if the Government thought that the con- ditions prevailing in the AurovHle and the Society can be amelJora!ed not by resorting to the provisiOns of the SocietieS Registration Act but by· a special en"actnlerit, that is an area of the GOvemoie.nt and not .of the Court. [818 E-F]

' . . . 5:2.. It is not correct to say that the facts stated in the preamble of the c Act were non est. Obviou'Sly there were serious irregularities in the m.anagement of the said society: There has beon misutilisation of Junds and iheir ·diversion t? other purposes. This is evident from the audit report. There was no ·material change in the situation -on the date of the impugned ordinance or the Act, rathCr the situation had grown fronl bad. to worse and. the-· Sordid situation pfevailing. in the Auroville so poini'Cd Out by . the pafties fully justified the 'promutgation of the ordinance~ and the passing ·Of the ·enactment. D Of course, each party tried to apportion the blame on the other. Who so ever be· responsible, the fact remains that the prevailing sittiation -in the Auroville was far from satisfactory. The amount donated for the COnstfuction of the cultural township Aufovil1e and other institutions was to the tune of. Rs. 3 crores. It was the responsibility of the Government to see that the amount was not mis· utilised and the management was _properly carried out. On a perusal of the audit report, which is a voluminous one, all that can be said is 1hat on th~ facts found by the audit committee, the repor1 is rather a mild one. There seems to ·be serious irregularities in the accounts. A substantial amount received by way. of donations had not been properly spent, there being mis·utilisation and diversion of the funds. [819 B-FJ '

5:3. Even assuming that the facts brought to the notice of the legisla· F ture were wrong, it will not be open to the Court to hold that Act to be bad on . that account. _The Court would not do so even in case of a litigation which has become final on the ground that the facts or the evidence produced in the case were not correct. The Parliament had tO apply its mind on the facts before it. • [819 F-H]

We can normally assume th~t the 'Government would certainly appoint G a· re'Sponsible person as an administraior especially when there 'is a heavy stake • in which the 'oovemmenl of India is also involved in as much as at the instance of the GoVernment the UNESCO gave financial support to the institution. [820 F-0]

6. The contention that the report of th!! ~ommittee was tainted as Shri H Kulkarni the Cbair'man and Secretary were parties, .is Without any foundation. TliC allegation of the impugne Act being· malafide is £equally devoid Or force. ·

736 SUPREME COURT REPORTS · [1983 i i s.c.il. A Kiriti Joshi cannot be said to have bis own axe to grind in the matter or was instrumental in getting tbe impugned Ordinance and the Act passed. Allegations about mala fides are more easily made than made out. Merely because he made a complaint ab.Jut tho situation prevailing in the management of Auroville · and the Society, it cannot be said that the impugned enactment was passed at his behest. [820 H, 821 B-C]

B PerjChinnappa Reddy, J. (Dissenting)

1:1. Shri _Aurobindo )ruly ~was a religious teacher and taught and was understood to have taught new religious doctrine and practice. Therefore, Aurobindoism, can certainly be classified if not as a new religion, as a new sect of Hinduism and the followers of Sri Aurobindo can be termed a religious denomination. Sri Aurobindo of course, disclaimed tbat be was founding c a religion. No great religious teacher ever claimed that be was founding a new religion or a new school of religious thought. The question is not whether Sri Aurobindo refused to claim or- denied that he was founding a new religion or ·a new school of religious thought but ~whether his discipes and the community thought so. There is no doubt that they did not only his disciples and followers, but religious leaders all the world over and of all faiths. Therefore, Aurobindo D Society is a sect of a religious determination within the meaning of the expression in Article 26 of the Constitution. [754 G-H, 755 A-B, F·G]

1:2. The word 'religion' does not occur in the Preamble to the constitution, but the Preamble does ·promise to secure to its citizens "Liberty of thought, expression, beJief faith and worship". The freedom of con- E science and the Right to profess, propagate and practise religion guaranteed ·in Article 25 flow out of the idCa so expressed in Preamble. Freedom of conscience is not to be separated frtm the Right to pi'ofess, pr8.ctise and propogate religion. They go together and together they form part of the Right to Freedom of Reli- gion. It is clear from Article 25 that secul~r activity may be associated with Reli- gion. though the guarantee of the article does not extend to such activity, Article 26 guarantees that every reiigious denomination or any section thereof shall have the right, subject to public order, mora1ity and health, to establish and maintain institutions for religious and charitable purposes, to manage its own .affairs in matters of religion, to own and acquire movable and immovable pr6perty and to administer such property in accordance with law. Several provisions of the constitution where the expression 'religion' and 'religious denomination' are used are either those which are concerned with equality and equal opportu'nity or "· th0se which are concerned with freedom -of religion. [742 D, F, G-H, 743 A, CJ G 1:3. Reading Art. 25 in the background of the proclamation regarding Liberty in the Preamble to the constitution, it is clear that (I) the constitution views religion as comprising thought, expression, belief, faith or worship, as ' involving 1he consci'ence and as something which may be ptof~ssed, practised and propagated and which is any man's attribute in the same manner as race, sex, language, residence etc: (ii) 'economic, financial, political or other secular_ activity may be associated with religious practice though such activity is not covered bY the gu_arantee of freedom of conscience and the right freely t~

S.P. MITTAL V. UNION 737

profess, practise arid propagate,.religion; and so Religion is a matter of thought, A expression; belief, faith and worship, a ·matter involving_ the conscience and a matter which may be.professed, practised and propagated by anyone and which may even have some secular activity associated with it. (7.44 F-H, 745 A]

' B 1:4. Religion undefined by the constitution, is incapable of precise judicia definition either: In the Oackground of the provisions of the constitution and the ught shed by judicial precedent, it can at best be said that religion is a matter of faith. It is a matter of belief ·and doctrine. · It concerns the conscience i.e. the spirit of man. It must be capable of overt expressions in work and ~eed, such as worship or ritual. So religion is a matter of belief arid doctrine con- cernii:ig the human spirit expressed overtly in the form of ritual and worship. Some religions are easily identifiable as religious; ·some are easily identifiable c as not religious. There are many in the· penumbfal re8:ion which instinctively appear to~some as religion ani::I to others as·not religions. There is no formula. of general application. There is no knife-edge test. Primarily, it is a question of the consciousness of the community, how does the fraternity, or sodality (if it is permissible to use the Word without confining it to Roman Catholic Groups) regard itself, how do others regard the fraternity or sodality. A host of other circumstances may have to be considered; such as, the ·origin and the history of the community. the rituals observed by the .community, what the founder, if any, taught, what the founder was understood by his followers to have taught, etc. In origin, the founder may not have intended to found any religion at· all. He may have merely protested· against some rituals and observances, he may have disagreed with the interpretation of so~e earlier reli8ious tCnCts. . What he said, what he preached and what he taught. his protest, his distent, his disagree-- meat might have developed "into a religion in the course of time, even during his life-time. He may be again~t religion itself, Yet, history and the perception of the community may make a religion out of what was not intended to be a religion and he may be hailed as the founder of a new religion. (750 B~_G]

And, whatever the ordinary features of a religious denomination may be considered to be, all are not of equal im-pOrtance and surely the common faith .of the religious body is more important than the other fe;tures. (751 CJ . F The CommisSioire· of 1IR and C.E.,_ Madras v. Lakshmindra Tirtha · Swamiyar of Sri Shirur Mutt .[1954] S..C.R. 1005; Ratildl Panachand Gandhi v. The State of Bombay [1954] S.C.R. 1055; Durgah Committee of A/mer v. Sayed ~· Hussain Ali & B'ors. [1962] 1 S.C.R. 383; Ti/kayat-Sh'ri Govind/alji Maharaj v. The State of Raja"sthan and Others [t964J 1 S.C.R. 561; Raja Virakishore v. State of Orissa [1964] 7 S.C.R. 32; Sasti Yagnapurushadji and Others v. Muldas Bhudardas G Yaisnya and Another [1966) 3 S.C.R. 242; referred to.

l:S. Judidial definitions are- not statutory definitions; they are mere exp1anations, every word of which is not to .be weighed in golden scales. Law bas a tendency to harden with the passage of time and judicial pronouncements are made to assume the form of statutory pronouocemen_ts: So soon as a word or expression occuring in the statute is judicially defined, the tendency is to rry to e interpret the language employed by the judges in the judicial definition. That is wrong. Always words and expressions to be interpreted are those employed in

738 SUPREME COURT REPORTS (19831 1 s.c.a. A the statute and not those used by judges for felicitous explanation, Judici.al definition is explanatory and not definitive. [751 C·B]

1:6. Religious denomination has not to .owe allegiance to any parent religion. The entire foilowing of a religion may be no more than the religious denomination. This may particularly be so in the case of small religious groups I B or 'developing• religions, that is, religions in the formative stage. So Aura· bindoism can be termed as a religious denomination. The world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religion. [751 B-G]

2:1. Aui'oville (EmergenCy Provisions) Act. 1980 did not take away or c purport to take away the manag_ement of the Shri Aurobindo Society. ~ Parlia- ment concerned itself with the management of Auroville only and with no other activity. of the Shri Aurobindo Society, including 'it$ affairs in matters of religion'. In fact, section 4(2) makes it explicit that, except for matters re18.ting to the management of Aurovple, the provisions of the West Bengal Societies Regisiration Act, 1961, under which the Society was registered, shall continue ' to apply to the Society in the same manner as before. (755 G·H, 757 C-D] D 2:2. The · n_ianagernent of the International, cultural township of AuI'oville cannot be said to be a matter of religion. Auroville is a township, and not a place of the worship. It is a toW11ship dedicated, not to tho practice and the propagation of any religious doctrine but to promote international utiderstanding and world peace, surely, a secular and not a religious activity. The highest that can be sakl' in favour of AUroville being a religious institution or its management being a religious matter, is that it was conceived by the Mother and shaped and sculpted by Sbri Aurobindo's disciples and followers in the pursuit of one of the ideas. and ideals of Sbri Aurobindo, a great religious teacher. On tbe Other hand, the ideal itself, that is, the promotion of iDter~ national understanding and world peace is by no means a religious ideal and it was because of the nature of the ideal that the Government of India an.d the UNESCO adopted the project. Shri Aurobindo himself was not a mere religious teacher~ He was a visionary, a humanist and·a nationalist ;who bad blossomed into an internationalist. Theiefore; Auroville, 'thoUgh the child of the Mother' and though nurtured by the devotees of Shri Aurobindo, ·_has an individuality, distinctly secular of its own. Hence, Auroville (Emergency Provisions) Act which p·rovides for the taking over the management of Aurovillc for a limited period does not offend the rights guaranteed by Articles 25 and 26 ~f the Constitution. [757 B·B, 758 C]

2:3. The rights guaranteed by Articies 29 and 30 cannot be said to have been infringed by the Auroville Emergency provisions Act. No section of citizens having a culture and no religious minority has been denied the right to establish and administer an educational institution of its choice. [758 DwE]

S.P. MITTAL •• UNION (Chinnappa k.eddy, J.) 739

. , ORIGINAL JURISDICTION : Writ Petition No. 5879 of 1980. _A (Under Article 32 of the Constitution of India)

AND

Writ Petition No. 587'7 of 1980. B /

(Under Ar_ticle 32 of the Constitution of India)

. AND

Transfered Cas¢ No. 29 of 1981.

(Calcutta High Court Writ Petition No. 11508 of 1981) c With

Civil Appeal No. 2819of1980.

(Appeal by special leave from the judgn'ient and order dated D 21st November, 1980 of the Division Bench of the High Court of Calcutta in F.M.A.T. No. 3408 of 1980)

So/i J. Sorabji, K.K. Venugopa/, S. Rangarajan, S. Bdlakrishnan, M.K.D. Namboodiry, P. Radhakdshnan, N.A. Subrahmaniam, C.S. E Vaidyanathan, M.N. Krishna Mani and Vinnet. Ku111ar for the Peti- tioners and Appellant.

/ L.N. Sinha, Attorney General, K. Parasaran, Solicitor General, M.K. Banerji, Additional Solicitor General, Govind Swaminadh'ln, for R. 3, N. Nettar and Miss A. Subhashini for Respondents Nos. 1 to 4.

T.S. Krishnamoorthy Iyer and Raju Ramchandran for Respon- dent No. 5.

F.S. Nariinan, Anil B. Divan, P.H. Parekh, Mrs. Vineeta G Sengupta, Gautam Philip and Sanjeev · Agarwal for Respondent Nos. 6 to 240 in WPs. & CA.

P.P. Rao, P.C. Kapur and R. Venkataramani for interveners 1-88. H

740 SUPREME COURT R~PORTS (1983] I s.C.R A FOR APPLICANT/INTERVENERS _ ' A.B. Patel.; R.B! Datar I Indra Sen: N.M. Kshatriya,

8 B.R.l Aggarwala, I Catholic Bishop Con- P.A. 1Francis, J. 8. Dadachanji and ference of India : , D.N. Mishra '

c The following Judgments were delivered

1 CHINNAPPA REDDY, J. 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 ~etitions 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 ine to explain the points of my disagreement.

Quite a considerable part of the hearing of the petitions was devoted to a debate on the question, what is Religion ? Religion : 1

Everyone has a religion, or at least,' a view or a window on religion, be he a bigot or .simple believer, philosopher or pedes- trian, atheist or agnostic. Religion, like 'democracy' and 'equality' is an elusive expression, which everyone uhderstands according to his p~e-conceptions. What is religion to sbme is pure dogma to others and what is religion to others is pure superstition to some others. Karl Marx in .bis contribution to !he Critique of Hegel's F Philosophy of Law described religion as the '•Opium of the people'. He said further "Basically religion is a very convenient sanctuary ~ for bourgeois thought to flee to in times of s1ress. Bertrand Russell, in his essay 'Why I am not Christian', saidl "Religion is based, I think, primarily and mainly upon fear." It is partly the terror of the unknown and partly, as I have said, the wishi to feel· that _you have a G. kind of elder brother, who will stand by yoti in all your troubles· and disputes. Fear is the basis ·of the whole thing-fear of the mysterious, fear of defeat, fear of death. Eear is the parent of cruelty, and, therefore, it is no wonder if' cruelty and religion have gone .hand in hand. As a worshipper at the alter of peace, I· find it difficult to reconcile myself to religion, ,which throughout the ages, bas justified war calling it a Dbarma Uddha, a Jehad or a

S.P. MITTAL v. UNION (Chinnappa Reddy, J.) 741

Crusade. I believe that by getting mixed up with religion, ethics has A lost 'much of its point, much of its purpose and a .major portion of its spontaneity'. I apprehend I share the views of those who· have neither faith nor belief in religion and who consider religion as entirely unscientific and irrational. Chanting of prayer appears to me · to be mere jingoism ·and observance of ritual, plain superstition. But my views about religion. my prejudices and my predilections, if 8 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, tile Padre and the Bhikshu each of whom may claim his as the only true or revealed religion. For our present purpose, we are concerned with what the people of the Socialist, Secular, Democratic Republic of India, c who have given each of its citizens Freedom of conscience and the' right to freely profess, practise. and propogate 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 Arts. 25 and 26 of the Constitution. Any D 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 is a liberal, expansive way.

Etymology is of no avail. Religion is derived from 'religare' E which means "to bind''. Etymologically, therefore, every bond betw,een two people is a religion, but that is not true. To say so is only to indulge in etymological de'ception. ·Quite obviously' , religion is· much more than a mere-bond uniting people.

Quite obviously, again, religion is not to be confined to the F tr~ditional, established, well-known or popular religions like Hinduism, · Mahomedan_ism, Buddhism and Christianity. There may be and, indeed, there are, in this vast country, several religions, less known or even unknown except in the remote corners or in the small pockets of the land where they may be practised. A religio.n may . not_ be ~wide-spread. It may have little following. It G may not have even a _ .name, as indeed . most tribal reli- gions do not have. We inay only describe them by adding the suffix 'ism' to the name of the founder-teacher, the tribe, the area or the deity. The nomenclature is not of the essence. Again, a band of persons, large or small, may not by said to be H

742 SUPRPME COURT REPORTS (1983) I S.C.R.

A adherents of a religion merely because they share some common beliefs and common interests and practise common rites and cere- '--,, moni~s; nor can pietistic recitation and solemn 1 ritual combine to produce religion, on that account only. Secret societies dedicated to secular tasks and indulging in queer oaths and observances, guilds and groups of persons who meet but to dine and wine but B who subject their members to extravagant initiation cer.emonies, village and tribal sorcerers and coven of witches who chant, rant and dance in the most weird way possible are all far removed from religion. They appear to lack the, 'spiritual connection'. But, all this is unsatisfactory. We are not arriving at any definition of religion. We are only making periphereal journeys and not getting any nearer to the core of the problem presented to us. ·

Let us ·examine the relevant provisions of the Constitution for such light as they may throw on the meaning of the expressions 'religion' and ·religious denominat.ion'. They are not defined. The D word 'religion' does not occur in the Preamble to the Constitution, but the Preamble ·does promise to secure to its citizens "Liberty of thought, expression, belief, falth and worship". The Freedom of conscience and the Right to profess, propagate and practice religion, flow out of the idea so expressed in the Preamble, In Part-III of the Constitution, under the bead "Right to Freedom of Religion", E there are four Artiqles. Art. 25(i) guarantees to all persons, sµbject to public order,.morality and health and to the other provisions of Part-III of the Constitution, freedom of conscience and the right freely to profess, practise and propagate religion. Freedom of con- science is not to be separated from the Right to profess, practice and propagate religion. They go together and together they form part of'the Right to Freedom of Religion. Clause ( 1) of Art. 25, however, stipulates that the freedom and the right guaranteed by . cl. (I) shall not prevent the State from making any law regulating or restricting, any economic, financial, political or other secular · activity which may be associated with religious practice. or to pro- vide for social welfare and reform or to throw open ·Hindu religious institutions o(a public character to all classes and sections of Hindus. So, the Article makes it clear that secular activity may be associated with Religion, though the guarantee o.f the article does not extend to such activity, Art. 26 guarantees that every religious denomioa- tion or any section thereof shall have the right, subject to public . prder, morality and health, •to establish and maintain institutions for

• s.P. MITTAL v. UNION (Chinnappa Reddy, J.) 743

A religious and charitable purposes,. to manage its own affairs in ' matters of religion, to own and acquire movable , and immovable property anci to administer ·such property in accordance with law. Art. 27 prohibits compulsion for payment of taxes for promotion of any particular, religion. Art. 28 bars religious instruction in any institution wholly maintained out of State funds and prevents com· B p11lsion to attend any. religious instruction or religious worship in educational institutions tecognised by the State or receiving aid out · of State funds.

j Apart from Articles 25 t<) 28, the word 'religion' occurs in Arts .. 15(1), 15(2), 16(2), 16(5), 23(2), 29(2) and 30 of the Constitu· ti on.

Art. 15(1) prescribes that the State shall n\)t ~iscrlminate . against any ,citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Art. I 5(2) provides, ill particular, that no citizen shall, on ground only of re/iglo~, race, caste, sex, place of birth or any of them, be subject to any disability, liability restriction or condition with regard to access to shops, ·public restaurants, hotels and places of public entertainment; or the . use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or ·dedicated to the use of the general public.

Art. 16(2) guarantees that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible'for, or discriminated against in respect of, any· F employment .or office under the State. Art. 16(5) exempts from the .•'-- right guaranteed under Art. 16 the operation of any law which '· provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shalf be a .person professing a · particular religion or belonging to a particular denomination. G

Art. 23(2), while enabling the. State to impose compulsory service for public purposes, prohibits the State from making any ;'"\ discrimination on grounds only of religion, race, caste or class or any of them.

744 SUPREME COURT REPORTS [1983) I S.C.R.

A Art. 29(2) provides that no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any of them.

Art. 30(1) guarantees to all minorities, whether based on religion or language the right to establish and administer educational institutions of their choice. Art. 30(2) further provides that the State shall not, in granting aid to educational institutions, discri· minate against any educational institutions on the ground that it is under the management of a minority, whether based on religion or lan,guage. •' c It is readily seen that the several provisions of the Constitution where the expressions 'religion' and 'religious denomination' are used are either those which are concerned with equality and equal opportunity or those which are concerned with freedom of religion, Art. 15(1), Art. 16(2), Art. 23(2), Art. 29(2) are the several equality D and equal opportunity clauses of the Constitution which bar discrimination on the ground of religion, and they place religion in equation with race, caste, sex, place of birth, residence and language for the purposes o! the various aspe.cts of equality dealt with by them. Art. 30 recognises the existence of minority groups based on religion along with minority groups based on language. E Arts. 25 to 28 deal with the Right to Freedom· of Religion which, as we said earli~r is traceable to the idea . of "Liberty of Thought, Expression, Belief, Faith and Worship" in the Pream.ble to the Constitution.· ·Art. 25 guarantees freedom of conscience and the right freely to profess, practise and propagate religion, but saves ·laws regulating or restricting any economic, financial, political or other secular activity which may be a'8ociated with religious practice. Reading Art. 25 in the background of the proclamation regarding Liberty in the Preamble to the Constitution, we may safely conclude that the Constitution views religion, as comprising thought, expression, belief, faith or worship, as invol.ving the conscience and as something which may be professed, practised and propagated and which is any man's attribute in the sarne ma:nner a!) race, sex language, resideQce etc. We also see that economic, financial, political or other secular activity may be. associated with religious practice though such activity is not covered by the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion. So, the Constitution considers Religion as a J11atter of thought, expression, belief, faith and worship, a matter

S.P. MITTAL v. UNION (Chinnuppa Reddy, J.) 745 involving the conscience and a matter which may be professed, A · practised and propagaied by anyone and which m_ay even have some . secular activity associated .with it.' We 1 have already s'aid that any Freed~m or Right involving the conscience must' naturally receive a wide interpretation and the expressions 'Religion' and 'Religious Denomination' must, therefore, be interpreted in nci narrow, stifling sense but in a liberal, expansive way. ' · B

How has the Court looked at the expression 'religion and · 'religious denominatio11' and how has the Court attempted to define them.? We begin with the ·well-known' Shirzir Mutt case where Mukherjea J., speaking for himself and six of his colleagues, examin- c ed the question in some detail and, of course, with great erudition. We must first notice that the Court, there, was considering the question of the vires of the Madras Hindu Religious and Charitable Endowments Act 1951 which was sought to be -made applicable to the institution, known as Shirur Mutt, one of the eight Mutts situated at Udipi and reputed to have been founded by Shri Madhwa D Charya, the renowned exponent of 'dualistic thesim' in the Hindu Religion. The trustees and the beneficiaries of the Mutt, it was claim· and established, were the follo_wers of Shri Madhwa Charya. The question arose whether the spiritual fraternity constituted by the followers of Shri Madhwa Charya could be said to be a 'religious E denomination' within the meaning of Art. 26, entitling them to manage tbei~own affairs in 'matters of reiigion'. The Court noticed · that while cl. (bl of Art. 26'guaranteed to a religious de'nomination the ·right to manage its own affairs in matters. of religion, other clauses of the Article dealt with the right of a religious denomination to acquire and own property and to administer such property in accordance with law. The administration of its properly by a religious denominatia'n having thus been 1>laced on. a different footing ' from the right to manage its :own affairs in matters of religion, the Court said:

"The latter is a Fundamental Right whicli no legis- lature can take away, whereas, the fJrmer can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to adminis- tration ·or properties belo'nging to a religious group or ff institution are not matters of religioq \q w.hi~h ~lause (b) o( the Article applies." '

746 ~tJPREMil COURT REPORTS (1983] I S.C.P.

A Mukberjea, J., then proceeded to consider what ·were matters of religion "? H.e noticed that 'religfon' was a term which was hardly susceptible of any rigid definition. He rejected the definition given in Davis v. Benson as neither precise nor adequate and went on to say,

B "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 ha' its basis.in a system of beliefs or doctrines which are regarded c by those who profess that religion as COl)ducive 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 obser- vances, 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:"

Mukherjea, J., accepted the following observations of Latham, CJ in Vide Adelaide Company .v. The Commonwealth('), as fully applicable to the protection of religion as guaranteed by the Indian Constitution-: ·

"It' is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Govern· ., men! should not interfere with religious opinions,. it never- F theless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the princi- ple of freedom of religion. It appears to me to be difficult to mainta\n 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 G 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 purs.uance of religious belief as part of religion." H , (I) 67 CLR 116, 127.

S.P. MITTAL v. UNION (Chinnappa Reddy, J.) 747

Mukherjea, J., thereafter, pointed out that freedom of religion under the India~ Constitution also- was not confined to' religious beliefs only, it extended to religious practices as well subject to the restric·.. tions which the Constitution itself had laid down. Under Art. 26(b) he said, a religious denomiobtion or organisation enjoyed complete autonomy in the matter of deciding as to what rites and cere, monies were. essential according· to the tenets of their religion they held and no _ouiside authority had any jurisdiction to interfere with their decision in such matters. But, he said, the scale of expenses to be incurred. in connection with the religious observances would be a matter of administration of property belonging to the religious .denomination and to be ~ontrolled by secular authorities in accordance with any law laid down_ by a compet_ent legislature. c He added,

"It should be noticed, however, that under Art. 26 (d), it is the Fundamental Right of a religious denomination or its representative to administer its properties in accordance · with the 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 fhe right guaranteed under cl. D of Art. 26".

Mukherjea, J also considered the question whether the followers of Madhwacharya could be considered a _religious denomination and whether Sivalli Brahm ins constituted a section of that religious deno- mination. The meaning of the word denomination »"as- culled out from the Oxford Dictionary where it has been defined 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". Reference was then made to "a galaxy of religious teachers and philosophers who founded/ the different sects and sub-sects of the Hindu religion that we find in G India at th~ present day"_. lt was emphatically stated that each one of such se:ts or sub,sects could certainly be called a religious deno- mination as it was designated by a distinctive name-in many· cases it was the name of the founde,.::__and had a· common faith·and common spiritual organisation. It was observed," the followers of H Ramanuja, who are known by the name of Shri Vaishnobas, un· douhtedly constitute a religious i;!eqo01iq~tion ; and SCI do th~

748 SUPRJ)MB COURT REPORTS [1983} J s.c:..

A followers of Madhwacharya and oth.er[religious teachers. It is a fact well-estabiished by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the bene- ficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of Sivalli Brahmins who constitute a section of the followers of ·B 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.".

· . So, iu the Shi~ur Mutt case, Mukherjea J expressed difficulty in c defining the term 'religion' with exactitude, but explained it as some- thing founded upon beliefs or doctrines, regarded by those professing the religion as conductive to their spiritual well-being and attended by oractices and observances viewed by the religious ·community as integral to the religion. Mukherjea J, however, found less difficulty in defining 'religious denomination· in the same terms as in the Oxford Dictionary.

Ratilal Panachand Gandhi v. The Stale of Bombay and 'Ors.(') was decided by five of the Learned Judges who constituted the Bench which decided the Shirur Mutt case. What was said in the Shirur Mutt was reiterated and it was. again emphasised that religion was not merely an opinion, doctrine or belief and that it bad its outward expression in acts as well. The following observations of Davar J, in Jamshedjee v. Sunnaba/(2) were approver\: "If this is the belief of the community, and it is proved undoubtedly to be the belief of the Zoroastrian community, -a secular judge is bound.to aecept that belief-it is not for.him to sit in judgment on that. belief, be is not F right to interfere with the conscience of a donor who makes a gift in. favour of what he believes to be tbe advancement of his religio~ and. the welfare of bis community or mankind". I have stated almost at the outset :bat judges' faith or lack of faith in religion is irrelevant in deciding what .are matters of religion. - •

In the Durgah Committee Ajmer v. Syed Hussain Ali & others(') the Court reiterated the position that the freedom guaranteed by Art: 25(1) was not oply the right to entertain such religious beliefs as

(I) (I 954] SCR 1055. °<2) ILR 33 Bombay 122. m [1962) 1 s:c.R. 383.

s.t>. MiITAL v. uNION (Chinnappa Reddy, J.i 749 my appeal to .his conscience but also afforded him the right to exhibit. his belief in his conduct by such outward acts. as may appear to him proper in order io spread his ideas for the benefit of others. A note of caution was, however, struck and it was said that practices in order to qualify as matters of religion should be regarded . oy the said religion as its essential and integral par!. Otherwise; it. was pointed out, even purely secular practices which were not an essential or an integral part of religion were apt to be clothed. with a religious . form and stake a claim for treatment as religious practices• ., Mukherjea J's definition of 'religious denomination' in the Shirur Mutt case was also accepted and·the case was permitted to be argued on the broad and general groui;id that the Chishtia Soofies constituted either a religious denomination or a section of a religious denomi- c nation.

In Tilkayat Shri Govindla/ji Maharaj v: The State of Rajasthan and prs.(1) the question .was whether the famous Nath Dwara Tempje was a public temple? It was held'that it was a public temple. It was a.ssumed that the followers of Vallabha constituted a religio.us D denomination.

Jn Raja Virakishore v. State of Orissa('}-one of the arguments sought to be advanced before the Supreme Cour_t was that the wor· shippers of Lord Jagan J':lath constituted a religious denomination · and that the Shri Jagan Nath Temple Act, which took away the right of management from the denomination, contravened the Fundamen- ·tal Right guaranteed by Art. 26(d) of the Constitution. The answer of the State was that the temple did .not pertain to any particular sect, cult or creed of Hindus, but was a public temple above all sects; . cults and creeds and, therefore, it was not the temple of any parti· F cular denomination. The Court however, did not permit the worship, pers to raise. the argument as the state cif pleadings were found to be defective. In Sasti Yagnapurushad ji and Ors. v . .Muldas Bhudardas Vaishya and Anr.(') the question ·arose whether the Swa·minarayan G sect followed a religion distinct and separate from the Hindu religion and whether, consequently, the temple belonging to the. sei:t was out· side the ambit of Bombay Hindu Places of Public Worships . (Entry

(J) [1964] l S.C.R. 561. H <2l [196411 s.c:R. 32. (3) [1966] 3 SCR 242.

750 $UPIUlME CO!Jllt RliPOR'l'S [19831 I s.C.R.

A 'Ai1tborisation) Act? · Gajendragadkar, · CJ, on an exhaustive consi- 'deration of various Hindu Texts and th~ texts and history of the Swaminarayan sect, came to the conclusion that the Swaminarayan ·sect was not a religion, distinct and separate from the 'Hindu 'Religion.

B It is obvious that religion, undefined by the Constitution, is ·incapable of precise judicial definition either. In the background of the provisions of the Constitution and the lig~t shed by judicial precedent, we may say religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience i.e. the spirit of man. It must be capable of overt expression in word and deed, such as, worship ·or ritual. So, religion is a matter of belief and doctrine, concerning the human spirit, expressed overtly in the form of ritual and worship. Some religions are easily identifiable as religions, some are easily identifiable as not religions. There are many in the penumbra! region which instinctively appear to some as religion and .io others as not religicins. There is no formula of general D ap.plication. There 'is no knife-edge test. Primarily, it is a question of the consciousness of the community, how does the fraternity or sodality (if.it is permissible to use .the word without confining it to Roman ·Catholic groups) regard itself, how do others regard the fraternity or sodality. A host of other circumstances may have to be considered, such as, the origin and E .the history of the community, the beliefs and the doctrines pro· ·f~ssed by the community, the rituals observed by the community, what the founder, if any, taught, what the founder was , understood by-his followers to have taught, etc. In origin, the founder ~ay not have intended to found any religion at all. He may have merely protested against some rituals and observances; he may have dis- F ,. agreed with the interpretation of some earlier religious tenets. What ·r he said, what he preached and what he taught, his protest, his dis· sent, bis disagreement might have developed into a religion in the course of time, even during his life-time. He may be against religion iiself, yet, history and the perception of the community may make a religion out of what was not intended to be a religion and he may be G hailed .as the founder of a new religion. There are the obvious examples of Buddhism and Jainism and for that matter Christianity itself. Neither Buddha nor Mahavira, nor Christ ever thought of founding a new religion, yet three gr~at religions bear their names. 'H Jf the word 'religion' is once explained, though with some difficulty, the expression 'religious. denomination' may be defined

S.I'. MittAL v, UNION (Chinnappa Reddy, J.) '/Si with less·difficulty. As we mentioned earlier Mukherjea J, borrowed A . 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 cir body having a common faith and ·organisation and designated by a distinctive name". The followers. of Ramanilja, . the followers of · Madhwacharya, the followers of Vallabba, the Cbisbtia Soofies have B been found -or assumed by the Court to be religious denominations. It will be noticed that these sects possessed no distinctive name except that of their founder-teacher and had no special organisatibn except a vague, loose-un·knit 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 C . the ordinary features of a religious denomination may be considered to be, all are not of equal importance and s'urely the common faith of the religious body is more imporiant than the other featu~es. It is, perhaps, necessary to say that judicial definitions are not statutory definitions, they are mere expla.nations, every word of which is not to be weighed in golden scales. Law has a tendency to harden with the D passage of time and judicial pronouncements are made to assume the form of statutory pronouncements.·, So soon as a word or expression occur in the statute is judicially, defined, the tendency is to try .to interpret the language employed by the judges in the judicial .deli-·- . nition as if it bas been transformed into a statutory definition. That .is 'wrong; Always, words and ~expressions to be· interprete·d. are Ill those employed in,tbe statute and .no.I those used by judges for . fel,icitous ,explanation,. Judicial definition, we repeat, is explanatory and not .definitive. One re.mark req~lres to be added here. _Religious ,·denomination.has not to '?we allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may particularly b~ so in the case of 'small F · religious groups or .'developing' religions, that is, religions in the formative· stage.

We may now consider whether Aurobindoism-:if one may be excused for using the w<>rd 'Aurobindoism' to describe what Shri Aurobindo taught and practised arid-what he was understood\ by his G .followers to have·taught and practised-was a religion and whether the followers of Shri Aurobindo could be cailed a religious denomi- nation. H Sbri Aurobindo was a poet, a savant, a -philosopher and a mystic. Was he or was be not a religious teacher ?

'752 SUPREME cotJilt REPORTS [i983i I S.C.k.

A The Encyclopaedia Brittanica (1978 Edition) describes him as "seer, poet and Indian nationalist who originated the philosophy of cosmic salvation through spiritual evolution, a divine existence that will appear through the development of the "agnostic man" to usher in a transcendant spiritual age in which man and the universe are destined to become divine". The Encyclopaedia goes on to say, "he B devoted himself for the rest of his life solely to the development,of his unique philosophy. There (at Pondicherry) he founded an ashrama (retreat) as an international culturai centre for spiritual development, attracting students from all over the world. · The only requirement for entrance was a sincere ·wish to develop spiri- tually."

"According to Aurobindo's theory of cosmic salvation, the paths to. union with Brahman are two-way stree!s, or channels, Enlightment comes to man from above, while. the spirital mind (supermind) of man strives through yogic il!umination to reach up· D ward from below. When these two forces blend in an individual, agnostic man is created. This yogic illumination transcends both reason and intuition and eventually leads to the freeing of the indivi· dual from the bonds of individuality and, by extension all mankind will eventually .achiev~ mukti (liberation)". E "Thus, Aurobindo created a dialectic mode of salvation ·,not only for the individual but for all mankind. Energy of sacbidananda C'existence, thought, joy") comes down from Brahman (thesis) to meet energy frnm the supermind of man striving upward toward spirituality (antithesis) and melds in man to create a new spiritual . F superman (synthesis).. From these evolved divine beings, a dMne universe also evolved." ·' Under the bead 'History of Hinduism'. Encyclopaedia Brittanica again refers to Au~obindo and says :

G "Another modern teacher whose doctrines have had some influence outside India was Sri Aurobindo, who began his career as a revolutionary. He withdrew from politics, however, and settled in Pondicherry, then a French possession. There he established an ashrama (a retreat) and achieved a high reputation as a sage. His followers looked on him as the first incarnate manifestation of super· Ji . beings whose evolution he prophesied, and apprently he did not discourage this belief. After his death, the leadership of the Aurobindo Ashram was taken over by "the Mother", Mme Mira

S.l•. MITTAL.v. UNION (Chinnappa Reddy, J.) 753

Richard, a F.rench-woman who ~ad ,beet; one of his leading dis- A ciples."

The Encyclopaedia Brittanica refers to Aurobindo again under the head 'Idealism' and says :

"Aurobindo, reinterpreting the Indian Idealistic heritage in the B light of his own Western education, rejected the maya doctrine of illusion, replacing it with the concept of evolution, · aguring that the, . "illumination of individuals will lead to the emergence of a divine community", Aurobindo founded the influential Pondicherry Ashram, a religious and philosophical community, and headed it until his death." c The Encyclopaedia of Philosophy (1972 Edition) says,

"Shri Aurobindo was an India!! metaphysician and founder of new religious movement with head-quarters at ... Pondicherry-The religious movement associated with him D has increased its following in India, and has made some converts in the West. ...... ·.. God muft 'descent' into human experience. , This illumination or-individual . will ·1ead to the emergence of a divinised community .......... · ... Aurobindo produced a synthesis between , older Indian religious ideas and the world affirming attitudes.of Christian theism,"· _ E The Dictionary of Comparative . . Religion says of Aurol:>indo :

"According to Aurobindo, there is a progr~ssive evolu- tion of the divine being through matter to higher spiritual forms, and the Aurobindo movement is l!eld to represent F vanguard of this evolutionary process in our own times. Aurobindo practised and taught an 'integral yoga' in which meditative and spiritual exercises are integrated.., with physi- cal, cultural'and intellectual pursuits."

Frederic Spiegelberg, in his book 'Living Religions of the World' G refers to Shri Aurobindo : ·

"We pass beyond specific religions to a synthetic vision of the religious impulse itself, a vision ,designed to embrace all previous and future history all H previous and future paths. · Sb.ri Aurobindo is a ma!1 worshipped by hundreds of thousands arid . respected . by

'?54 SiJPl!.aME COURt REMRTS [1983] I S.C.k.

A millions ............ Jn his retreat at Pondicberry he is less the philosopher of Hinduism than the philosopher of religion in general, the voice of that which comparative religion leaves undisputed."

B On the topic Religion, the Gazetteer of India, published by the Govt. of India, has this to say :

"Sbri Aurobindo gave new interpretations of the vedas

··~ and The Vedanta, and in his Essays on the Gita, he expoun- c ded what be called "the integral view of life". His great work, the Life Divine, is a summing up of his philosophy of "the Descent of the Divine into Matter,:•. The importance of Sri Aurobindo's mission lies in his attempt to explain the true methods of Yoga." D ' It is clear from these extracts that the world and India treated and respected Shri Aurobindo as a religious teacher and the founder of a new religious movement whose principal thesis was the evolution or transformation of humanity into di_vinity through the practice of Integral Yoga. One may or may not accept Sbri Aurobindo's thesis or teaching, but, without doubt, it was unique ; without do.obi, it was novel ; without doubt, it bad never been so taught before. Shri Aurobindo first conceived the iheory of Ascent and Descent, invo- lution and evolution. He was the first expositor of the Integral Yoga. He expressly professed to depart from the Yoga of the _Gita and dissented from the Maya Vada. Pedestrian minds like ours may not understand the niceties of the metaphysical exercises involved. ~! we' do not desire to enter into any polemics over Shri Aurobindo's teachings as it is not within the judicial province 10 do so except to the limited exteni of finding out whether his teachings have the necessary spiritual content. to qualify as religious doctrine. and how his , followers understood those. teach.ings. So, we refrain from quoting Shri Aurobindo. But this fact s_tands out prominently that whatever else he was, he truly was a religious teacher and taught and was understood to have taught new religious doctrine and practice. I fail to see why 'Aurobindoism' cannot be classified, if not as a new religion, as a new sect of Hinduism and why the followers of Shri Aurobindo cannot be termed a religious denomination.

s.p. MITTAL v. UNION (Chinnappa-Reddy, J.) 755

Sbri Aurobindo, of course, disclaimed that he was founding a · A religion. No great religious teacher ever claimed that he was founding a new religion or a new school of religious thought. The question is not whether Shri Aurobindo refused to claim or denied that be was founding a new religion or. a new school of religious thought but whetherlbis disciples and the community thought so. There is no doubt that they did, not only his disciples and followers, but B religious leaders all the world over and of all faiths.

~···· If the .followers of Shri Aurobindo constitute a 'religious denomination', as, to my mind, they undoubtedly do, the members of Shri Aurobindo Society are certainly a distinct and identifiable • C . section of the 'religious denomination'. The members of the society . are followers and disciples of Shri Aurobindo.· The society was formed to preach and propagate the beliefs and ideals of Shri Aurobindo. The primary object or'the society was ··:ro mak~ known to the members of the public in general the aims and ideals of Shri " Aurobind<i and the Moth.er,. their system of Integral Yoga and to work for its fulfilment in all possible ways and for the attainment of a spiritualised society as envisaged by' Sbri Aurobindo." It is nobody's case that this is not the principal. object of the society or that it is only a facade· for ·other activities. ·However, it was argued thai the Society had represented itself as, 'a non-political, non- religious organisation' and claimed exemption from income tax .on the ground that it was engaged in educational, cultural and scientific research: If the society consists of the disciples and followers of · Sri Aurobindo, if its primary object is to _profess, practise and propagat~ the sy.stem of Integral Yoga, and, if, therefore, it is a section of a religious denomination, the circumstance .that it is engaged in several secular activities and has represented itself to be a non: religious organisation for certail!. purposes cannot detract from the fact that it is a section of a religious denomination within the meaning of Art. 26 Therefore, we must bold, the Aurobindo __, Society is a section of a religious denomination within the meaning of the expression in Art. 26 of the .Constitution; G

But, the question is bas the Fundamental Right guaranteed by Art. 26 been infringed by the Aurovi!le (Emergency Provisions) . Act, 1980. We have to notice straight away that the Act did not take away or purport to take away the management of the Shri Aurobindo H Society. What ii did or purported to do was "to provide for the

756 SUPRBMB COURT REPORTS [l 983 l 1 s.c.i!..

A taking over, in the public interest, of the management of Auroville for a limited period and for matters connected therewiih or incidental thereto." The Imig preamble says,

· "Whereas Shri. Aurobindo Society; a non-governmental organisation had· been a channel offunds· for the setting up of a cultural township known as Auroville, where people of different countries arc expected to live together in · harmony in one community and are expected to engage in cultural, educational, scientific and other pursuits aiming at human unity."

c x x x "AND W:HEREAS Auroville was developed as a cultural township with the aid of funds received from different organisations in. and outside India as also from the substantial grants received from the Central and State Governments ; ll

AND WHEREAS pursuant to the complaints received with regard to the misuse of funds by Sri Aurobindo Society, a committee was set up under the chairmaoship \ of the Lieutenant-·Governor of Pondicherry with represen- tatives of the Government of Tamil Nadu and of the E Ministry of ·Home Affairs in the Central Government, and- the said committees had, after a detailed scrutiny, of the accounts of Shri Aurobindo Society, found instances of serious irregularities in the management of the said~ Society, misutilisation of its funds and their diversion to other purposes ; F AND WHEREAS in view of the serious difficulties . which have arisen with regard to the management of Auroville, it is necessary to take over, for a limited period, ., the management, thereof and any delay in taking over the management of Auroville would be highly detrimental to G the interests and objectives of Auroville;

The long preamble itself explains what , Auroville is. S. 3(c) of the . Act defines Auroville' as meaning "so much of the under- takings as form part of, or are relatablc to, the township which is known as Auroville and the charter of which proclaimed by the 'Mother' on the 23rd day of February, 1968".

S.P. MITTAL v. UNION (Chinnappa Reddy, J.) 757

Now, the 'idea of Auroville was conceived by Madame M. A Alfasse, affectionately and ·respectfully known to the dis.ciples and followers of Shri Aurobindo as the Mother. The idea of a cultural township which would promote internatipnal understanding .. and world peace had great appeal to the Government of India and-the United Nations Educational, Scientific and Cultural Organisation · and they extended their support to the projecJ. But, things ·turned B out to be not so smooth-sailing after all. There was dissension among the membess of the Shri Aurobindo' Society. Things came to such a pass that the impugned Act was necessitated. Misra J. has narrated t_he facts leading to the intervention of parliament. Parliament concerned itself with the managemeni of Auroville only ·and with no other activity of the Shrf Aurovindo Society, including c 'its affairs in matters of religion'. In fact, section 4(2) makes.it. explicit that, except for matters. relating to the management ·of Auroville, the provisions. of the West Bengal Societies Registration , Act, J.961, under which the Society was registered, shall continue to apply to the Society in the same manner as before. Since the only activity of the Society which was touched by the Act was the management of Auroville, the ~question .arises whether Auroville is an institution established and maintaine,i for religious and charitable purposes. and whether its management of Aurovilie is 'a matter of religion'. Auroville is a township and not a place of worship. It is a township dedicated, not io _the practice and propagation of any religi- ous doctrine but to promote internatio~al understanding and world peace, surely, a secular and not ·a religious activity. The highest that can be.said in favour of Auroville being a religious institution or its management being a· religious matter, is that it was conceived ·by the Mother and shaped and sculpted by Shri Aurobindo's disciples and·followers in. the pursuit of one of the ideas and ideals of Shri Aurobindo, a great.religious teacher. On the other hand, the ideal itseif, that is, the promotion of internatfon~I undersianding and world peace is by no means a religious ideal and it was because • of the nature of the ideal that the Government of India and the UNESCO adopted the project. Shri Aurobindo himself was not a mere religious teacher. He was a visionary, a humanist and a nationali~t who bad blossomed into an internatfonalist. It appears, G . therefore, that Auroville, though the child of the Mother and though nurtured by the devotees of Shri Aurobindo, bas an indivi- ;, . duality, d1Stinctly secular, of its own. The ~anagement of the International, cultural township of A_uroville is not, in our opinion,. a maller of religion. We have mentioned earlier that laws regula- H ting or restricting any economic, financial,· political or other secular

758 SUPREME COURT REPORTS i1983] I s.c.R.

A . activity which may be assoCiated with religious practice are excluded from the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion. We have also pointed out that the administration of the property of a religious denomina- tion is different from the right of the religious denomination to manage its own affairs in matters of religion and that laws may be B 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. It has been so decided in the Shirur Mutt case as well as other cases following it. We are, therefore, of the view that the Auroville Emergency Provisions Act which provides for the taking over the c management of Auroville for a limited period does . not offend the rights guaranteed by Arts. 25 and 2§ of the Constitution.

A passing reference was also made in the .co:irse of argument ' • to Arts. 29 ond 30 of the Constitution, and ii' was said that the rights guaranteed by those Articles were also infringed. We are entirely at a loss to understand how the, rights guaranteed by Arts.' 29 and 30 can be said to have been infringed by the Auroville Emergency Provisions Act. No section of citizens having a culture of its owQ has been denied the right to conserve that culture and no religious minority has been denied the right to establish and to administer an educational institution of its choice.

On the several other questions ar,iued before us I accept the conclusion of Misra J. The Writ Petitions are accordingly dismi;sed but in the circumstances there will be no order regarding costs.

MISRA J. The first two petitions under Article 3 2 of the Cons- titution of India. filed in this Court and the third under Article 226 of the Constitution filed in the Calcutta High Court and later on transfeired to this Court, seek to challenge the vires of the Auroville G (Emergency Provisions) Or~inance, 1980 (Ordinance No. 19 of 1980); later on replaced by the Auroville (Emergency Provisions) Act, 1980 (Act No. 59 of 1980). The fourth is an appeal by special leave against the order of the Division Bench of the Calcutta High Court dated 21st of November, 1980 vacating the interim order passed by a H Single Judge in the writ peiition. All these cases raise common questions of constitutional importance and, therefore, they were posted before the Constitution Bench.

S.P. MiTTAL v. UNION (Misra, J.) 759

Man as a rational being, endo~ed with a sense of freedom and A responsibility, does not remain satisfied with bis materi.al existence. He wants to know and realise the meaning of his life. It is this perennial urge in man that inspires him to indulge in great creative activities. He creates great cultures and civilisations and tries to realise the meaning and value of life in and through them, 8 To the biologist life is indefinable. It cannot be defined in terms of any things. The biologists have, however, explained and illustra- ted characteristics of life. But no formulation of the nature and characteristics of life has won general acceptance. It!means that the insignia of life have not as yet been comprehended fully. Life has not been viewed in its proper perspective. It still seems to be a riddle, a mystery. c Life appears' to be a 'mystery- not only to the scientists but also to the philosophers. Philosophers may be said to be rather more conscious of the difficulties that the concept of life involves than the scientists. A philosopher is also aware of the fact that unless one is able to fathom the depths of life and has ·a full comprehension of it.s nature, one canno,t understand and determine the .nature of huinan personality·and its destiny.

Similar other deeper and ultimate problems of life have been agitating the mind of seers and philosophers viz., Where did the world come from ? Was i.t created or evolved? Is there any unity in i:liversity ? Each thinker tried to solve the ultimate problems in his own way. By and large they believed there is a real creative force behind the process of the world. Some called it as God, the . others as ultimate truth, the conscience. According to some the objects, if left to themselves, would remain motionless and for their initial movement they must have required some external agency wbicli might have set tbe·universal ball rolling.

In early ages when man knew little about ·the laws of nature, he attributed all changes in nature to certain agencies, which due partly to. bis egocentric way of viewing things and partly to his conscious or sub-conscious awareness of the supremacy of man in the whole hierarchy of things in nature, were conceived after the image of man. Later on, in view of the supremacy of kings in all walks of iife and ., their services to society, these unseen migqty agencies were fashi~ned · specifically after them. Since God was conceived to be the supreme among such agencies. He naturally was sought to be represented by B the supreme among kin{ls. Thus anthropomorphism, i.e. the idea of

760 SUPREME COURT REPORTS [1983 j 1 S.C.il.,

A God in terms of human figure is partly due to ignorance and partly due to the influence of uncommon persons in the society.

During 18th and 19th centuries the entire scientific thought sought to explain the universe mechanically and strived to do away with God completely. If it allowed anythiog like God to enter its B universe at all, it did so only after transforming Him into a mechani- cal principle.

Later on with the formulation of the theory of relativity this isolationist view of things has given way to one of mutual related· ness of each object to every one else. Recognition of the immense c potentiality of dynamism inherent in the mutual relatedness of objects in the universe has precluded the necessity of an extra-cosmic or metaphysical principle, such as the God of Aristotle who was supposed to have existed prior to the beginning of the world, and given it the first stroke of movement resulting in continuous motion ever since. D Thus, the idea of God has led to more or less its adjustment to fresh acquisition of knowledge in each epoch. A view of God which fails to do that tends to become discarded in favour of a new one. If it fails to keep pace with the expanding horizon of knowledge, it begins to lose its ground and shrink into a mere c'ult of only histori- E cal importance, it becomes fossilised and is liable to crumble at the vital touch of the present.

Our scriptures proclaimed from the very start that there is only one reality in the world which is described in different ways ; ·

F • ..J.. One of such Indian sages and philosophers was Sri Aurohindo. He was born on August 15, 1872 in Calcutta.. When he was barely seven years old he was taken to England for education. In view of his amazing ability in learning languages he was offered scholarship to join Kings College, Cambridge. There he distinguished himself by his extraordinary abi)ity to compose Greek and Latin verses. He is said to have won all the prizes for the year in Kings College_ for Greek and Lati11 verses. He sailed for lndia.i11 1893 and settled down'at Baroda., He se~ved in several capacities in Baroda State, sometimes as an administrator and at others as Professor of French, and Engli~h. During his stay there he learnt Sanskrit

S.P: MITT AL. v. UNION {Misra, J.) 761

The years from 1902 to 1910 w~re ~tormy ones for Sri A Aurobindo as he embarked on a course of accion to free India from British rule. ·As a result of his political activities and revolutionary literary efforts he was sent to jail in 1908. Two years -later he fled from British India to refuge in the French Mandate of Pondicherry (modern Pondicherry) in· South-East India. He took a decision to give up all polit.ical activities so as to concentrate himself with the B life of meditation and yoga at Pondicherry.

Madam M. Alfassa; a French Lady, who came to be known as

~· 'The Mother' became a disciple of Sri Aurobindo .. Very soon more and more disciples came to join him from various parts of India and .. abr.oad and thus 'the Ashram' came into being. The disciples and c devoted followers of Sri Aurobindo and the Mother with a view to propagate and practise the ideals and beliefs of Sri Aurobindo form- ed a Society called Sri Aurobindo Society in the year 1960. ·The petitioner Society at aJl material. times was and is still a Society duly registered under the provisions of the West Bengal Societies Regis- tration Act, 19.61. This Society is completely distinct from Aurobindo D Ashram in Pondicherry .. The Society was established and registered for the purpose of carrying out inter alia the following objects in and outside India : ·

(i) To make known to the members of the public in gene-

- ral the aims and ideals of Sri Aurobindo and the Mother, their systeiJ of integral yoga and to work for its fulfilment in · all possible ways and for the attain- E

ment of a spiritualised · society as envisaged by Sri Aurobindo;

(ii) To Train selected students and teachers from all over . F the world in the integral system or education i.e., spiri- tual, psychic, inental, vital and physical ;

(iii) To help in cash and/or kind by way of donations, gifts, subsidies and in also other ways in the all round G ~evelopment of Sri· Aurobindo International Centre of Education and to help.similar centres of education ; I .(iv) To establish study groups, libraries, Ashrams and other institutions, centres, branches and. societies for study H and practice of integral yoga of Sri Aurobilido a~d the. Mother and to help th~ ~l(i~tin~ ones·;

762 SlJPRBME COURT REPORTS (1983] I S.C.R •.

A (v) To establish cen)res of physical culture, sports ·and volunteer organisations for inculcating and promoting the spirit of discipline, co-operation and service to others and to undertake activities for promotion of health and bodily perfection :

8 (vi) To organise, encourage, promote and assist in the study, research and pursuit of science, literature and · fine arts ;

.····~ (vii) To' enquire, purchase, build, construct or take on lease or in exchange or .hire any movable or immovable pro- c perty, or gifts' or privileges ; and

(viii) Generally to do all other acts, deeds and things neces- sary, conductive, suitable or incidental to or for the attain.men! of the above objects or any of of them or· part of them. D The management of the Society vested in its Executive Com- mittee. Rules and regulations have been duly framed for the manageinent of the Society and .also for safe custody and protection of its assets, properties and funds.

Sri Autobindo Society (hereinafter referred to as 'the Society') E preaches and propagates the ideals and teachings of Sri Aurobindo inter alia through its numerous centres. scattered throughoui India by way of weekly meetings of its members.

The Mother as the founder-president also conceived of a pro- F ject of setting up a cultural township known as 'Auroville' where. people of different countries are expected to engage in cultural, educational and scientific and other pursuits aiming at human unity. The Society has been .a channel of funds for setting up the cultural township known as A.uroville.

At lhe initiative of the Government of India, the United· - Nations Educational, Scientific and Cultural Organisation being of the opinion that the Auroville project would contribute· to internatiqnal understanding and promotion of peace sponsored the .project by proposing a resolution to this effect at its General Conference in .. 1966. · This resolution was unanimously adopted ~at this Conference. !3y a further resolution passed 'in 1961 the UNESCO

·s.P. MITTAL v. UNION (Misra, J.). 763

invited it/m~mber S;ates and international non-governmental organi~ A sations to ·participate in the development of Auroville ·as an inter.- national cultural township to bring together the values of different cultures and civilisations in a harmonious environment with integ- rated living standards whiCh correspond to man's physical anJ spiritual needs. 1970 UNESCO had directed its Director-Geoeral to take such steps as may be feasible, within tile budgetary provisions to B promote the development ·of Auroville as an important international cultural programme. Sri Aurobindo Society received large funds in the shape of grants from different organisations in India and abroad for development of the township. The assistance included contribu- tions from the State Governments of the value of Rs 66.50 lakhs and the Central Government of the value of Rs. 26:14 lakhs.

After the death of the Mother: on 17th of. November 1973 a number of problems of varying nature affecting the smooth running of the project cropped up. 'The Government. of India on recdving complaints about mismanagement of the project and misuse of funds by Sri Aurobindo . Society set up a committee under the chairman· D ship of the Governor/ of Pondiche~ry with representatives· of the Government of Tamil •Nadu and of the Ministry of Home Affairs in the Central Government to look into the matter. The committee made ·a detailed scrutiny of the accounts of Sri Aurobindo Society relating to Auroville and found instances of serious irregularities in. the. manegement of the Society, misutilisation of _its funds and their E diversion to other purposes. Further, various other serious difficul- ·ties had arisen plaguing the management of Auroville and rendering . thereby any further growt_h of the township almost impossible in the circumstanc~s that taking over the management of Auroville became imperative to ensure growth of the township in tune with its objectives. F

'Keeping· in view the international character of the project arid considering. the government's .involvement in actively sponsoring the project through UNESCO, ·the growth and management of the pro- ject had become the primary responsibility of the Government of G India. The ideals of the project formed India's highest aspirations, which could not be allowed to be defeated or frustrated. Sri Aurobindo Society had lost complete control over the situation and the members of the Auroville ap·proached the Government of India to give protection against oppression and victimisation at tho hands H of the said Society. There were internal quarrels between the various factions of Sri Aurobindo Society. There have also been instances

764 SU.PREME COU.RT REPORTS (1983) I S.C.R.

A of law and order situation. Financial management til'tbe pro.iect bas not been sound arid several instances of mismanagement, diversion of funds have been revealed. A large sum of money was given by Sri Aurobindo Society to AURO Construction-an agency whose status is not at all defined, whose functions and capabilities for taking up large construction works also had not been made B known. The Government in the circumstances could not be a · silent spectator to the mismanagement of the project and interecine quarrels amongst its members, which if riot checked could lead to the destruction of the project so nobly -conceived. The Government, therefore, decided to issue a Presidential Ordinance. After the

··~ filing of the writ petition the ordinance has now been replaced by the Auroville ~Emergency Provisions) Act, 1980.· ' The constitutional validity of the Act has been challenged on four grounds :

I. Parliament has no legislative competence to enact the D impugned statute.

2Copy pinpoint2. The impugned Act infringes Articles 25, 26, 29 and 30 of the Constitution.

3Copy pinpoint3. The impugned Act is violative of Article 14 of the E Constitution ; and

4Copy pinpoint4. The Act was ma/a fide.

We take up the first ground first. According to Mr. Soli Sorabj.e, counsel for petitioners, the Auroville (Emergency Pro- F visions) Act, !980, hereinafter referred to as the impugned Act, is a law relating to. a ·matter in the State Legislative List and is; therefore, beyond the legislative competence of Parliament, hence, unconstitutional and void. The impugned Act, according to him, provides for taking over the management of Auroville for a limited period from the Society. The management of Aurovillc was prior G to the impugned Act vested in the Governing Body/Board of Trustees of the Society under the Provisions of the West Bengal Societies Registration Act and memorandum and rules and regula- tions of the Society, as is evident from section 5(5) of the impugned H Act itself. The society was registered under the Societies Registra- tion Act, 1860 but after the enforcement of the West Bengal Societies Registration Act, 1961 the Society was deemed to be

\ s.P. MITTAL v. UNION . (Misra, J.) 765. registered under that Act. The West Bengal Societies Registration A Act (for short 'the West Bengal Act') contains specific provisions to deal with' the Society adequately. Sections 22 and 23 of the West Bengal Act empower the Registrar of the Societies to call for an information or explanation relating to the management of the affairs of any society registered thereunder and also to investigate into the affairs of the society, if there were circumstances suggesting B that the so~iety was guilty of mismanagement of its affairs or of any unlawful·fact. The ·Registrar has also the power to prosecute and punish those persons found guilty of mismanagement. Under section 26 of the Act a society is also liable to be dissolved by the order of the Registrar on the ground inter. a/ia of mismanagement. Obviously, therefore, the West Bengal Act contains inbuilt self- c contained provisions for dealing with the mismanagement of the registered societies.

The' West Bengal Act is .a legislation exclusively relatable to Entry 32 of List II of Seventh Schedule. The provisions of the West Bengal Act apply to the Society as is eviderit from section 2(f)' D and (g) of the impugned Act. Section 4(2) of the impugned Act, however, excludes the application of certain provisions of the West Bengal Act to the Society and decl11;res that the provisions of the West Bengal Act will. continue to .apply to the Society subject -h?wever, to such exclusions. Section 8(2) provides that on relinquishment of management by the Central Government the management of the property of the Society forming part or relatable to Auroville shall vest. in· the o·overning Body of the Society and shall,be carried on in· accordance with the provisions 0fthe West Bengal Act. Section ·!I of the impugned Act gives over-riding . effect to the impugned ·Act over all other Acts (including the West Bengal Act) and instruments• thereunder. Therefore, the object and purpose of the impugned ·Act . is to take away the management of Auroville from the Society and to bring it ·under the management of the Central Government under the provisions of the impugned . Act. This process necessarily involves during the_ takeover .Period. the suspension of the provisions of the West Bengal Act and the memorandum and rules in · so· far ·as they are applicable to the management of the Auroville by the Society. Consequently, the impugned Act for a limited period abrogates, suspends or temporarily repeals certain provisions of the West Bengal Act or in other words the State Act is pro tanto overborne by the Central Act. Therefore, the question arises whether Parliament has legislative competence to repeal, permanently or temporarily, cany provisions of the West

SUPRllME COUllT REPORTS [1983 J I s.c.i!.

A Bengal Act which is a law made by the State Legislature in the exercise of its exclusive legislative competence under Entry 32 of the State Legislative List.

It was contended for the petitioners that the legislature has no authority to repeal statutes which it could not directly enact. The power to repeal or alter_ the statute is co-extensive with ·the power of direct legislation of a legislative body. In support of this contention reliance was placed on the Privy Council decision in Attorney General for 0!_llario v. Attorney General for the Dominion('). The Parliament has no competence to enact the West Bengal Act, and therefore it had no power to repeal the provisions of the West c Bengal Act by the impugned Act. Inasmuch as the Parliament has sought to repeal or override certain provisions of the West.Bengal Act which are referable to Entry 32 _in List II, and are exclusively within the competence of the State Legislature, the impugned Act by Parliament is without legislative competence and hence void.

D It was further contended for the petitioners that the proper . approach to the question is to see if the impugned legislation·is covered by any of the entries in list II of the Seventh Schedule. It is not at all necessary to probe into the question as to whether the impugned legislation can be covered by any of the entries of List I or List Ill of the Seventh Schedule. Reliance was placed on the Union of India v. H.S. Dhillon(') wherein the following propoaition E was laid down : .

"It seems to us that the best way of dealing with the question of the validity '!f tile impugned Act and with the contentions of (he parties is to ask ourselves two questions, first, is the imp~ned Act legislation with respect to entry F 49 List II ? and secondly, if it ,is not, it is ·beyond the legislative competence of Parliament ? The positive case of the petitioners is that the subject matter of the impugned Act is covered by entry 32, List II of the Seventh Scbed.ule. The Solicitor General for .the Union of India, however, G tried to bring the impugned Act within the four comers of item 44, List I of the Seventh Schedule of the Constitution. It may be pointed out at the· very outset that the function of the Lists is not to confer powers. They merely demarcate the H (!)[1896) I A.C. 348@ 366-67. (2l (1972] 2 SCR 33@45.

S.P. MI1TAL 1'. UNION (Misra, J.) 767

legislative fields. The entries in the three Lists are only'. legislative A heads or fields of legislation ana the power to legislate is. giv.en to aporopriate legislature ,by Articles 245 and 248 of the Constitution. It would be appropriate at this stage to read· entry 32, Lilt ·n and entry 44, List I of the Seventh Schedule: I .,. Entry 32, List II B \ "Incorporation, regulation and winding up of corpora~ lions, other than those specified ih List I, and universities ; \ unincorporated' trading, literary, scientific, religious and other socie.ties and associations ; co-operative societies."·

Entry 44, List I : •. "Incorporation, regulation and winding up . of corporations, whether ·trading or not, with objects not confined to one State, but not including universities." D For tne petitioners, however, it was urged that th~ registration of the Society under the West Bengal Act does not make· it a corporation. - Halsbury's Laws of England,· 3rd Edn., Vol. 9; p. <I, ·deals with corporations in.. the folio.wing term~ :

"A corporation aggregate has been defined as a collec- E . tion of individuals ·united into on·e body under a special denomination, having perpetual succession under an '. artificial form, and vested by the policy of the law with the capacity of acting in several respects . as an individual, particularly of taking and granting property, of contracting F obligations and of suing and being sued, of enjoying . privileges and immunities in common;. and of exercising a variety of political rights, more or less extensive, according to the design of the instituiion or the powers conferred upon it, either at the tim~ of the creation or at any subsequent period o( its existence." G A corporation has, therefore; only one capacity, namely, the corporate capacity~ On an analysis it would appear that the essential elements in the legal ·concept of a corporation are: (I) a_ continuous identity, i.e., the original member or members or his H or their successors are one, (2) the persons . to be incorporated, (3) the name by which the persons are incorporated, (4) a piace, and