A. Ramaswamy
Dikshitulu & Ors Vs. Government of Andhra Pradesh & Ors [2004] Insc 356
(5 May 2004)
Cji
& P. Venkatarama Reddi.
[WITH
Review Petition (C) 2375/1997 in T.C. (C) No. 170/1988 and Review Petition (C)
No. D18695/1997 in W.P. (C) No. 696/1997] IN TRANSFER CASE (CIVIL) NO. 168 OF
1988 RAJENDRA BABU, CJI. :
The
State of Andhra Pradesh enacted the Andhra Pradesh Charitable & Hindu
Religious Institutions & Endowments Act, 1987 [hereinafter referred to as
'the Act'] providing for abolition of all rights whether hereditary,
contractual or otherwise of any person who is an Archaka or a Mirasidar or a Mathadhipati
or any other office holder of office in any religious institution. The
provisions of the Act were challenged in the writ petitions filed before the
Andhra Pradesh High Court and under Article 32 of the Constitution before this
Court on several grounds, including that the said provisions are violative of
Articles 25 and 26 of the Constitution as interfering with the Right to Freedom
of Religion. Some of the writ petitions filed before the High Court were
transferred to this Court. On 19.3.1996 this Court disposed of these matters by
upholding the validity of the Act. Apart from rejecting the challenge to the
enactment, this Court gave certain directions to the State Government to frame
a scheme pursuant to which further orders were passed by this Court.
The
basic point raised in these review petitions is that this Court has in several
decisions explained the scope of the said provisions and it has been held
therein that religious practices or performances of acts in pursuance of the
religious belief are as much a part of religion as faith or belief in a
particular doctrine; that thus, if the tenets of a particular religion requires
performance of certain rites and ceremonies to be performed at certain times
and in a particular manner, these cannot be treated as secular activities; that
the protection under Articles 25 and 26 is not confined to matters of doctrine
or belief but they extend to acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances, ceremonies and modes of
worship which are an integral part of religion; that what constitutes an
essential part of a religion has to be decided by the court with reference to
the doctrine of a particular religion and includes practices which are regarded
by the community as a part of its religion; that a religious denomination
enjoys complete autonomy in the matter of deciding as to what rites and
ceremonies are essential according to the tenets of the religion they hold and
no outside authority has any jurisdiction to interfere with their decision in
such matters; that the protection is only permissible where the practices is a
religious one or the affairs are affairs in matters of religion; that to
determine whether a particular practice is a matter of religion may be a
difficult task because religious and secular practices are intricately mixed
up; that the task of disengaging the secular from the religious may not be easy
but it must nevertheless be attempted in dealing with claims of protection
under Articles 25 and 26 and the proper test to be applied to determine whether
a particular practice is an integral part of the religion, is to ascertain
whether it is regarded as such by the community following the religion or not;
that this Court has been cautious to observe that certain practices will be
treated as part of religion only if they are regarded by the said religion as
its essential and integral part and otherwise, even purely secular practices
which are not essential or integral to the religion will be clothed a religious
form to claim protection under these provisions.
The
contentions raised by the petitioners are based on the decisions of this Court
in Commissioner, HRE v. L.T. Swamiar, AIR 1954 SC 282; Venkatramana Devaru v.
State of Mysore, AIR 1958 SC 255, and Tilkayat Shri Gonvindlalji Maharaj v.
State of Rajasthan, AIR 1963 SC 1638; and the decision of the Privy Council in Thiruvenkata
Ramanuja Pedda Jiyyangarlu Valu vs. Prathivathi Bhayankaram Venkatacharlu &
Ors., AIR 1947 Privy Council 53. The learned Senior counsel for the petitioners
strenuously contended that the decision sought to be reviewed goes counter to
the principles of religious freedom and practices expanded in the said cases.
The ratio in Seshammal vs. Tamilnadu, ILR 35 Mad 631, case has been
misunderstood by this Court, according to the learned counsel.
It is
also urged that some of the observations in the judgment under review are self
contradictory and that the whole approach is influenced by the basic assumption
that religion should be equated to 'Dharma', while this Court enunciated the
principles as to what is protected under Articles 25 and 26 of the
Constitution.
We
have given our anxious consideration to the various contentions put forth
before us.
Considering
the nature of the contentions urged, the scope and extent of the same, we
think, these are fit cases for consideration by a larger Bench and we refer
accordingly.
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