RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM & ORS.

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& ORS. [SHIVA KIRTI SINGH, J.]

26. Freedom to manage religious affairs - Subject to A public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; B (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law." . c

47Copy pinpoint47. It is the case of the petitioners thatthe custom relating to election of the Dolois to the extent it violates Article 14, must be treated as void and this Court should grant relief to the women members of Bordeories families and also to the 0 Deories by ordering for inclusion of their names in the electoral college.

48Copy pinpoint48. On the other hand, the respondents have taken a firm stand thatfor the purpose of part Ill of the Constitution Article E 12 defines the term "the State" to include the Government as well as Parliament of India as well as Government and legislature of the States but conspicuously it has left out the Judiciary and hence the Judiciary cannot be included and treated as 'the State' when it penorms strictly judicial functions in contradistinction to administrative powers. It is also the stand of the respondents that personal laws and religious practices are not covered by the sweep of Article 13(1 ). Lastly it was submitted on behalf of the respondents that Articles 25 and 26 guarantee freedom to practice and propagate religion of choice as well as to establish and maintain institutions for religious and charitable purposes with further rights to manage its own affairs.in matters of religion; to own and acquire all moveable and immoveable property and administer such property in accordance with law. Such rights being in part Ill of H

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A the Constitution itself, must be respected and read in harmony with each other and other provisions in Part Ill. With this stand the respondents have supported their plea that Article 13 will have no application in respect of personal laws based on Shastaras and Scriptures and also in respect of essential religious practices which are matters of faith based upon religious scriptures that are inviolable for the believers.

49Copy pinpoint49. Before referring to the various judgments by Mr. Shanti Bhushan, learned senior counsel for the petitioners and the judgments relied upon by Mr. Rajiv Dhawan and Mr. Jaideep Gupta, senior advocates for the respondents, the basic facts pleaded by the parties may be noted with a view to find out whether the factual foundation has been laid down and established for claiming equality with Bordeories Samaj which elects the Dolois as per customs. In the pleadings, petitioners have highlighted that in the several kinds of pujas the women Bordeories take active part and hence are equally aware of all the rituals and have the necessary qualification to be treated as equal of men Bordeories for the purpose of electing the E Dolois and also for being a candidate. The reply of the respondents in essence is a complete denial of aforesaid assertion with a counter plea that women participate only as worshippers and not as priests and they have no say in the matter of management of the temple so as to claim same knowledge and consequent equality with the male Bordeories. Such dispute of facts may be resolved only on basis of a detailed proper study of the customs and practices in the temple of Sri Sri Maa Kamakhya but there is no authoritative textual commentary or report which may help this Court in coming to a definite finding that women belonging to Bordeori families are equally adapt in religious or secular matters relating to that temple. The relevant scriptures have also not been disclosed to this Court which could have helped in ascertaining whether the basic religious tenets governing the Shakti

RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM · 653 &ORS. [SHIVAKIRTI SINGH, J.]

Peethas in the Kamakhya Temple would not stand violated by permitting female Bordeories to elect or to get elected as Dolois. Hence on facts we are not in a position to come to a definite finding on the issue of equality for the purpose at hand as claimed by the petitioners. The same logic is equally, if not more forcefully, applicable in the case of claim of the Dearies B that they are equ'ally situated as the Bordeories Samaj in the matter of election of Dolois. The petitioners have also not explained at all as to why equality be extended only to female Bordeories and Dearies and not to all and sundry. c

50Copy pinpoint50. In the aforesaid situation i.t is always with a heavy heart that a Writ Court has to deny relief. It may not always be safe for a Writ Court to decide issues and facts having great impact on the general public or a large part of it only on the basis of oath against oath. Where the right is admitted and well established, the Writ Court will not hesitate in implementing such a right especially a fundamental right. But enforcement of established rights is a different matter than the establishment of the right itself. When there is a serious dispute between two private parties as to the expertise, experience and qualification for a particular job, the prime task before the Court is first to analyse the facts for coming to a definite conclusion whether . ' the right stands established and only when the answer is in affirmative, the Court may have no difficulty in enforcing such an established right, whether statutory, fundamental or . constitutional. In the present case, as indicated above, it is indeed difficult for this Court to come to a definite conclusion that the petitioners claim to equality for the purpose at hand is well established. Hence we have no option but to deny relief to the p~titioners.

51Copy pinpoint51. Coming to the issues of law, on behalf of the petitioners Mr. Shanti Bhushan placei!l reliance upon judgment in case of Sant Ram versus Labh Singh, 1964 (7) SCR H

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A 756 in support of his submission that any law which includes customs, as per Article 13 must be declared void to the extent it is inconsistent with fundamental rights in part Ill of the Constitution. For the same purpose he also placed reliance upon the case of Bhau Ram vs. B. Baijnath Singh, 1962 B (Suppl.) 3 SCR 724 and Atam Prakash vs. State of Haryana & Ors., (1986) 2 sec 249.

52Copy pinpoint52. On the aforesaid issue Mr. Rajiv Dhavan has pointed out a categorical distinction that in all those three cases the concerned right was a right of pre-emption claimed by a land holder on account of vicinage and not any personal or religious right flowing out of religious scriptures and believes. In Shau Ram the pre-emption right arose out of a statute and it was found to be against Article 19(1 )(f). Only a reference was also made to Article 15. In the case of Atam Prakash also the right was based upon Punjab Pre-emption Act, 1913. In the case of Sant Ram on which strong reliance has been placed, the custom based right of pre-emption was found invalid on the ground of infringing Article 19(1 )(f). · E

53Copy pinpoint53. Mr. Dhavan has· referred to as many as 13 cases as per list given below:

1. Shirur Math (The Commissioner, Hindu Religious F Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.), 1954 SCR 1005

2. Tilkayat (Tilkayat Shri Govindlalji Maharaj vs. The State of Rajasthan & Ors.), 1964 1 SCR 561 ..

3. Raj Bira Kishore Deb vs. State of Orissa, 1964 7 G SCR32 4." Seshammal and Others etc. etc. vs. State of Tamil Nadu; 1972, 2 SCC 11

5. State of Rajasthan vs. Sajjanlal Panjawat, 1974 H (1) sec 500

RIJU PRASAD SARMA ETC. ETC. v. STAT~ OF ASSAM 655 & ORS. [SHIVA KIRTI SINGH, J.)

6. Pannalal Bansilal Pitti and Ors. vs. State of A Andhra Pradesh & Anr., 1996 (2) SCC 498

7. A.S. Narayana Deekshitulu vs. State of A.P. and Ors.; 1996 9 sec 548

8. Sri Adi Visheshwara of Kashi Vishwanath B Temple, Varanasi and Ors. vs. State of U.P. & Ors. 1997 (4) sec 606.

9. Bhuri Nath Vs. State of J & K, 1997 (2) SCC 745.

10. Sri Kanyaka Parameswari Anna Satram c Committee and Ors. vs. Commissioner, Hindu Religious & Charitable Endowments Deptt. and Ors; 1999 7 SCC 666 . 11. N. Adityam v. Travancore Devaswrom Board 0 (2002) 8 sec 106

12. M.P. Gopalkrishnan Nair v. State of Kera la, 2005 (11) sec 45

13. Durgah Committee v. Syed Hussain Ali, 1962. (1) SCR 383 E

54Copy pinpoint54. It is highlighted that in all these cases relating to religious endowment a~d institution, under challenge were changes in customs that had been brought about by Statutes enacted by the legislature. According to the respondents while granting right to profess, practice and propagate religion under Article 25(1), by sub-clause (ii) of the same Article the Constitution has saved the operation of any existing law and also vested power in the State to make laws for"@} regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and .{Ql providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." In contrast Article 26 does not envisage any restriction through a statute made by the state H

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A so far as freedom to manag8 relig,ous affair;; is conci3roed. But the right under Article 26 has also been made subservient to public order, morality and health, the same three factors that also control the right under Article 25(1) which has been made subject to the other provisions of Part Ill also. B

55Copy pinpoint55. There is no need to go into all the case laws in respect of Articles 25 and 26 because by now it is well settled that Article 25(2)(a) and Article 26(b) guaranteeing the right to. every religious denomination to manage its own affairs in matters of religion are subject to and can be controlled by a law contemplated under Article 25(2)(b) as both the articles are required to be read harmoniously. It is also well established that social reforms or the need for regulations cohtemplated by Article 25(2) cannot obliterate essential religious practices or their performances and what would constitute the essential part of a religion can be ascertained with reference to the doctrine of that religion itself. In support of the aforesaid established propositions, respondents have referred to and relied upon the judgment in the case of Shirur Math (The E Commissioner Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 and also upon Shri Venkataramana Devaru and Ors. Vs. State of Mysore and Ors. 1958 (SCR) 895.

56Copy pinpoint56. An interesting situation arose in the case of Bijoe Emmanuel & Ors. v. State of Kera/a & Ors., (1986) 3 SCC . 615. School children having faith in Jehovah's Witnesses Sect refused to sing national anthem in their school for which they were expelled on the basis of executive instructions contained in circulars which obliged singing of national anthem in schools. Such action against the children was challenged with the help of defence based upon Articles 25(1) and 19(1)(a). In the aforesaid judgment, this court upheld the defence of the children on both counts. In Paragraphs 19 and 20, A.rticle 25 was considered with a view to find out the duty and function of

RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM . 657 &ORS. [SHIVA KIRT! SINGH, J.)

the Court whenever the fundamental right to freedom of conscience and to profess, practice and propagate religion is invoked. The answer given in the judgment in a concise and succinct manner is as follows: " .... Therefore, whenever the Fundamental Right to 8 freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other c provisions of Part Ill of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associateJ with religious practise or to provide for social welfare and reform. It is the duty and function of D the court so to do. Here again as mentioned in connection with Article 19(2) to (6), it must be a law having the force of a statute and not a mere executive or a departmental instruction." E

57Copy pinpoint57. Respondents have also relied upon judgment of this Court in the case of Pannalal Bansilal Pitti & Ors. v. State of Andhra Pradesh & Anr., 1996 (2) SCC 498. The challenge in this case was to the constitutionality of certain provisions of anAndhra Pradesh Act bringing certain reforms in r.espect of F Hindu Religious Institutions. At the behest of adversely affected hereditary trustees of Hindu Religious and Charitable Institutions, this Court considered the argument that by confining the reforms only to Institutions maintained by Hindus, the provisions of the Act had violated Article 14. Paragraph 12, G made it clear that though ari uniform law may be highly desirable, in a democracy the legislature should have the freedom to bring about gradual progressive chnnges and the process may start where the need is most acute. This Court further held that it would be inexpedient and incorrect to think H

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A that all laws must be made uniformly applicable to all people in one go. In other words the legislature has to be trusted for bringing about necessary changes by way of reforms in matters relating to faith and religion which at times may include personal laws flowing from religious scriptures. In the case of B Seshammal & Ors. etc. etc. vs. State of Tamil Nadu, 1972 (2) sec 11, paragraphs 11 and 12 exhibit a detailed discussion relating to the Agamas which contain elaborate rules relating to construction of temple as well as consecration of the idol. It is the religious belief of Hindu worshippers that C once the image of the deity is consecrated, it is fit to be worshipped in accordance with the detailed rituals only by a competent and trained priest. The religious belief extends to protecting any defilement of the idol and if the ima!ie of the deity is defiled on account of violation of any of the rules relating 0 to worship, purificatory ceremonies must be performed for restoring the sanctity of the shrine. The worshipers value the rituals and ceremonies as a part of Hindu religious faith. In paragraph 12, the Court concluded that "any State action which E permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution". F

58Copy pinpoint58. In the aforesaid judgment it was also held that the matter of appointment of a competentArchaka i.e. the priest is a secular matter and therefore can be regulated by a State action. However, the situation may be different and more complicated if, like in the present case, the Bordouries are the trustees as well as the priest and the management of religious and secular activities have been entrusted by the Bordouries themselves to their elected representatives, the Dolois. The element of appointment stands substituted by the action of the trustees themselves performing the rn~cessary

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& ORS. [SHIVA KIRTI SINGH, J.]

rituals. This aspect need not be pursued any further because there is no statute framed by the State so far to regulate even the secular affairs of the temple. Only when such State action takes place, there may arise an occasion to examine the related issues as to whether interference with the custom governing appointment of Dolois would amount to regulating only the secular affairs of the temple or it shall obliterate the essential religious practices of the institution.

59Copy pinpoint59. On considering the rival submissions and the relevant case laws, we are inclined to agree with the submissions on behalf of the respondents that Article 13(1) applies only to such pre-constitution laws including customs which are inconsistent with the provisions of Part Ill of the Constitution and not to such religious customs and personal laws which are protected by the fundamental rights such as D Articles 25 and 26. In other words, religious believes, customs and practices based upon religious faith and scriptures cannot be treated to be void. Religious freedoms protected by Articles 25 and 26 can be curtailed only by law. made by a competent . legislature to the permissible extent. The Court can surely examine and strike down a State action or law on the grounds of Articles 14 and 15. But in a pluralist society as existing in India, the task of carrying out reforms affecting religious believes· has to be left in the hands of the State. This line of thinking is supported by Article 25(2) which is clearly reformist in nature. It also provides scope for the State to study and understand all the relevant issues. before undertaking the required changes and reforms in an area relating to religion which shall always be sensitive. While performing judicial functions stricto-sensu, the Judiciary cannot and should not be equated with other organs of state - the executive and the legislature. This also fits in harmony with the concept of separation of powers and spares the judiciary or the courts to dispassionately examine the constitutionality of State action H

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A allegedly curbing or curtailing the fundamental rights including those under Articles 25 and 26.

60Copy pinpoint60. On the related issue of the scope of Article 12 and whether for the purposes of issuance of writ, judicial decisions s by the judiciary can be included in State action, we. are in agreement with the submissions advanced by Mr. Raj iv Dhavan that definition of 'the State' under Article 12 is contextual depending upon all relevant facts including the concerned provisions in Part Ill of the Constitution. The definition is clearly C inclusive and not exhaustive. Hence omission of judiciary when the government and Parliament of India as well as government and legislature of each of the State has been included is conspicuous but not conclusive that judiciary must be excluded. Relevant case laws cited by Mr. Dhavan are:- D (i) Pradeep Kr. Biswas vs. Indian Institute of Chemical Biology & Ors., (2002) 5 SCC 111

(ii) Naresh Shridhar Mirajkar And Ors vs. State of E Maharashtra And Anr, (1966) 3 SCR 744

(iii) Triveniben vs. State of Gujarat, (1989) 1 SCC 678

(iv) Poonam vs. Sumit Tanwar, (2010) 4 SCC 460

61Copy pinpoint61. Hence, in accordance with such judgments holding that judgments of High Court and Supreme Court cannot be subjected to writ jurisdiction and for want of requisite governmental control, Judiciary cannot be a State under Article 12, we also hold that while acting on the judicial side the courts are not included in the definition ofthe State. Only when they deal with their employees or act in other matters purely in administrative capacity, the courts may fall within the definition of the State for attracting writ jurisdiction against their administrative actions only. In our view, such a contextual interpretation must be preferred because it shall promote

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&ORS. [SHIVA KIRTI SINGH, J.]

justice, especially through impartial adjudication in matters of A protection of fundamental rights governed by Part Ill of the Constitution.

62Copy pinpoint62. On the aforesaid issue Mr. Shanti Bhushan has placed reliance upon the judgment of this. Court in Harjinder B Singh vs. Punjab State Warehousing Corporation, 2010 (3) SCC 192 and Indira Nehru Gandhi vs. Raj Narain 1975 (Suppl.) SCC 1, The aforesaid judgments do not require us to change our view because the issues in both the cases were quite different. In the case of Harjinder Singh this Court while C considering the proper parameters for the exercise of writ jurisdiction, held that there was no justification in entertaining· a new plea raised by the employer for the first time before the High Court. The context in which some minority views that the judiciary is a State within the meaning of Article 12 of the D Constitution were noted in Paragraphs 40 and 41 of the judgment was quite different and such exercise was undertaken only to highlight that judiciary is essentially one of the three arms of the State and as such it must also be aware of its responsibilities flowing from the Preamble and Article 38 of the Constitution. At best, those observations are clearly an obiter.

63Copy pinpoint63. In order to fully appreciate the implication of including judiciary within 'the State' as defined under Article 12 it may be recapitulated that in catena of judgments it has been held that writ petitions will not be entertained against purely private· parties. Further, elaborate tests have been laid down for finding out when an authority can be treated to be the State for the purposes of Part Ill of the Constitution. · G

64Copy pinpoint64. If the submission of Mr. Shanti Bhushan is accepted that by simply hearing a writ petition the Court becomes a party with same duties and responsibilities as the State, then the rights which can be claimed only against the State can also be H

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A claimed against all private parties because judiciary has to hear and decide almost all cases. Such plea is required to be noticed only for rejection otherwise all disputes against private persons will have to be treated as a dispute against the State also, because it is primary responsibility of the judiciary to hear and adjudicate all disputes. The judicial forum will then loose its impartiality because petitioners, like in the present case, will make a demand that court itself should act as the State and deliver all reliefs in a dispute where the executive or the legislature is not at all involved as a party. For the aforesaid reasons we find no merii in the contention that while acting in judicial capacity the judiciary acts as the State and hence it must, as a corollary, entertain a writ petition against purely private parties only because the matter has been brought , D before the court.

65Copy pinpoint65. The writ petitions are, therefore, liable to be dismissed for want of merits. In some of the Writ Petitions, there is a prayer to accord a narrow scope to Section 2SA of the Act and powers of the Managing Committee contemplated thereunder. Since that relief has already been granted in the Appeals, the same does not require fresh consideration. With this clarification the writ petitions are dismissed.

66Copy pinpoint66. Since the Debutter Board is occupying some part of the premises in the temple of Sri Sri Maa Kamakhya tern pie on account of interim orders of this court, all those interim orders are now vacated. The District administration is directed to ensure that those premises are vacated by the members or representatives of the Deb utter Board at the earliest and in any case within four weeks. The premises and other properties of Sri Sri Maa Kamakhya Temple shall, if required, be placed back within the same time in possession of the Bordeories Samaj through the last elected Dolois against receipts which shall be retained in the office of Deputy Commissioner,

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& ORS. [SHIVA KIRTI SINGH, J.]

Guwahati. The parties representing the Debutter board are also directed to hand over the vacant and peaceful possession of the concerned premises and other properties of the temple, , if any, within four weeks. There shall be no order as to costs.

67Copy pinpoint67. Before parting with the order we would like to direct in the larger interest of Justice, that like in the past if there is any need of mediation or intervention of an authority for election of Dolois at five years interval etc. or for smooth functioning of affairs of the Sri Sri Maa Kamakhya Devalaya, the concerned affected parties can approach the District Judge, Kamrup, C Guwahati who shall try and settle such disputes as in the past, till a specific law is enacted for this purpose. In such matters the decisions of the District Judge shall be of course subject to supervisorywritjurisdiction of the High Court. D Nidhi Jain Appeals and Writ Petitions dismissed.