Justice must not only seen to be done but must be done

(By Anoop Bhaskar, Advocate, Thiruvananthapuram)

“Your honour, the case has not been called today.”

“Counsel, that matter is posted for orders. So it won’t be called. Orders shall be passed.”

These court room exchanges have become quite common in subordinate courts of original civil jurisdiction. At times, by the end of the day the counsels will get to know the order/judgement in brief, when the e-courts or A-diary gets updated. On other occasions, when the order is not ready, the case will stand adjourned to a later day. Hardly in trial courts, the matter will stand reserved for orders without adjourning it to another date, unlike those in High Courts. Apart from these familiar circumstances, a new practice was noticed when the e-courts showed, “I.A. disposed off. Call on (date after a month)” and the next day when the counsel went to the concerned section to read the order, he was informed that the order was not ready and the case bundle was in the chamber.

Some aspects to be deliberated in the wake of these situations are:

i.     Does the practice of‘pronouncing’ orders/judgements in chambers without calling the cases in open court suffers from any illegality?

ii.   Does the application for issuance of carbon copy be necessarily in writing?

iii.   Whether the practice of withholding the orders/judgements in chambers in the name of verification/corrections, without making it available for lawyers to read, justifiable?

iv.  Is it proper to update the daily proceedings as “disposed off” without adverting to the nature of order/judgement?

It has now become a common practice that the matters posted for orders on a specified date are not called in open courts during the roll call. It is not very difficult to comprehend the reason behind this. We all know about the hefty work load on our courts and so it is quite relatable if the order is not ready on that particular day or at the time of roll call. But why should the courts be reluctant from calling these matters in open court during roll call and either adjourn it to another day or pass it over to a later point in the day for pronouncing the verdict? This is where the problem lies and needs to be corrected.

On the civil side just like in criminal courts¹, there is a duty vested on the courts to pronounce the judgment in the open court under O.XX of C.P.C.

O.XX R.1.Judgement when pronounced: (1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders.

More or less as a corollary, the parties are conferred with a substantive right to receive the copy of the judgement immediately after its pronouncement and this can be seen in
O. XX R. 6B.

O. XX R. 6B. Copies of judgments when to be made available: Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.

Our High Court, through Rule 239(3) of Civil Rules of Practice has preserved these ideals and ensured that the parties and their counsels are vested with a right to obtain a carbon copy of the order/judgement immediately on the pronouncement of the verdict.

R. 239(3): Any party to the proceeding may, immediately after the judgement or order is pronounced, apply orally to court for a carbon copy or photostat copy thereof, and, if the court so directs, a carbon copy or photostat copy duly certified shall be issued to the party on his making an application for an urgent copy under Rule 246 (Rule 136) accompanied by the copying charges required by Rule 248 (Rule 138).

Though peripherally the intent of this law appears to enable a party aggrieved by the verdict to assail it before the competent court, this procedure encompasses a much larger significance in the process of administration of justice. The duty to pronounce the verdict in open court, the right to obtain its carbon copy and the duty to furnish it immediately is intended to keep a lot of factors in the process of administration of justice under check. Any deviance from these obligations, will invariably result inloss of transparency, deterrence to speedy justice and provide room for administrative or even judicial malfeasance. In short, this simple yet robust provision of law in our statute book ensures a meaningful culmination to the trial.

Furthermore, the pronouncement of an order in open court is also intended to convey its operative part to both the sides. A relief claimed can either be allowed, partly allowed or dismissed. Sometimes the court may step-in to mould the reliefs as it may deem just and fit. So when the court pronounces the verdict or updates its daily proceedings by just stating, “disposed off, it is literally forgetting its duty and foreclosing the right of a party to know the operative portion of the judgement which is enshrined under O. XX R.1(2).

O.XX R.1(2): Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment.

Needless to say, the counsels also have a right to be appraised of the result of their hard work and during these uncanny“disposed off” situations, this right not only gets infringed but will cast aspersions on their credibility when they cannot update their clients as to the nature of the order.

This unbecoming and rising practice among a very few courts, where the matters posted for orders are not called on that particular date and the daily proceedings just show that it has been disposed, is nothing but a futile attempt to meet the time limit orders of their higher courts and bid time to write the order/judgement. This is nothing but an illusion created by those who actually haven’t completed writing the order but wants to take the undue credit of having discharged their duty. Equally alarming is when the Courts pass verdicts which gets communicated through their daily proceedings and these verdicts stay within the chambers for corrections for many days without being made available to the counsels for reading. When this happens one may even think whether the courts are only concerned to increase their number of disposals every month without making available the copies of verdicts. The provision for carbon copy thus remains a dead letter. In fact, the essence of a carbon copy is widely being misconceived. There is a misconception that the carbon copy of a verdict should be free from errors and should resonate its final version. Our High Court in Muhammed v. Munsiff Tirur ² discussed the intent behind carbon copies and made it clear that a carbon copy is the copy of the order/judgement as pronounced on the date of order/judgement. It need not be a copy free from typographical or grammatical errors or even be a fair copy prepared after furnishing the memo of costs. In short, it should be the exact copy of the paper/s that is before the judicial officer when the verdict is pronounced and the parties or their counsels have the right to access it without any undue delay. Unfortunately, most of us for some reason believe that a carbon copy is an expedited version of the fair copy. Almost all carbon copies these days resonate the fair copies. Furthermore, it has become a practice to apply for carbon copies through a written application accompanied by an urgent copy application subsequent to the date of order.

This practice was evolved due to the non-pronouncement of verdicts in open courts as the counsels were robbed off their rights to orally apply for carbon copies. It will be appropriate to remind ourselves that law contemplates carbon copy applications to be made orally in open court followed by a subsequent application for urgent copy in writing.

Let these alien practices be deprecated as they seriously hamper the institution of administration of justice, despite it appear to be trivial and harmless. Lest one forget that the duties and rights discussed above have an inseparable nexus with the pristine idea of fair trail and any exercise to whittle it down will only invite injustice. We have been constantly reminded through the words of Lord Hewart that, “justice must not only be done but must also seen to be done” ³. Now I doubt, a very few have been carried away by this tenet and they give too much weightage to its latter portion and forget the former. Which makes me to say, “justice must not only seen to be done but must be done”.

Foot Note:

1. See Section 353 of The Code of Criminal Procedure, 1973.

2. 1997 (2) KLT 412.

3. See Rex v. Sussex Justices (1924) 1 KB 256.

Commemorating ‘MKD’

(By Justice C.K. Abdul Rehim, Chairman, Kerala Administrative Tribunal)

(Inaugural Speech of Justice C.K.Abdul Rehim, Chairman, Kerala Administrative Tribunal delivered at Thalassery in the Professional Development Programme for Advocates, organized by NUALS and the Kerala Bar Council on 20.08.2022)

 It is with much pride and privilege that I am participating in this programme as a guest to inaugurate the second in series of the ‘Professional Development Programme for Advocates’ organized at Thalassery under joint auspicious of “Senior Advocate M.K. Damodaran International Centre for Excellence in Law” established at NUALS and the Bar Council of Kerala.

2. It is a moment of mixed emotions for me to commemorate upon “Senior Advocate Late Sri. M.K. Damodaran at this historically acclaimed land of Thalassery, which is one of the oldest court centres in Kerala and which had completed more than two centuries in its functioning and contributed a lot to development of the judicial system in this State.

3. Born in the year 1937, to a gifted father, who lived only as a Peon at the Brennan College, Thalassery, Sri.Muthalarath Kurungodan Damodaran, popularly known among the legal fraternity as ‘MKD’ and as ‘Damuvettan’ for those who are in the close personal circle, is a man who created histories and benchmarks not only in the profession of law, but also in the social fabric of this State.

4. Having completed graduation from Brennan College, Thalassery, he pursued studies in law at the Government Law College, Ernakulam. Enrolled as a Lawyer in the year 1964, he started practice at Thalassery Bar under the able guidance of a veteran lawyer of the time, Adv. A.V.K. Nair. Mr. Damodaran gained confidence to start independent practice within a short span of time and concentrated in trials of criminal cases, especially in murder cases, spreaded over various Sessions Courts at Thalassery, Vadakara, Kozhikode, Kasaragod etc. Consecutive acquittals secured in various notorious cases like, Thalassery – Pulpally naxalite murder cases and in many other sensational cases, made Sri. M.K. Damodaran famous in the field of trial in murder cases.

5. Social and political life of Adv. M.K.Damodaran began from his school age. While he was studying at the Brennan College, he became President of the District Committee of Kerala Students Federation. Later he became a State leader of that organization. Close acquaintance which Sri.M.K. Damodaran had with many historic leaders of the Communist Party of India, moulded his social outlook and personal character to a man with utmost integrity and unblemished life styles. His readiness to accept and respect others without any inhibitions and the empathy which he bestowed upon the fellow beings, especially to those who are in the lower strata of the society, made him more humane and commended respect of people. But the political allegiance and activism of Sri.Damodaran created trouble, that during emergency declared in the Nation he was arrested and put to prison under preventive detention. After about 8 months’ life in prison, when got released, he shifted practice to the High Court of Kerala, in the year 1977.

6. For about four decades, from 1977 till his heavenly abode on 26th August 2017, MKD could make remarkable contributions to the legal fraternity as well as to the judicial system in the State. He became immortal among the fraternity, but not the least was his contributions to the Society. He became the Advocate General of Kerala in the year 1996, when Sri. E.K.Nayanar was the Chief Minister of the State. In the corridors of the High Court, name of Sri. M.K.Damodaran was known as a sure helping hand for anybody who is in acute crisis, whether the matter be professional or personal.

7. Contributions of Sri.M.K.Damodaran as Advocate General of the State and as a respectable Senior Advocate in the High Court, in the establishment of the National University for Advanced Legal Studies (NUALS) as well as in the construction of the ‘Chamber Complex’ for lawyers, was remarkable and will be remembered for ever.

Sri. M.K.Damodaran had conducted many celebrated cases in the meanwhile, in which his clientele included various celebrated leaders of the State; from the present Chief Minister in the SNC - Lavalin case, Late Sri. M.K.Mani in the Bar bribery case, Sri.P.K.Kunhalikutty in the “Ice Cream Parlour’ case etc. Panoor Soman murder case was an illustrious example of his professional acumen. He had also defended Sri. M.V.Jayarajan in the suo motu contempt case in the High Court.

8. Late Sri. M.K. Damodaran lived an unparalleled social life with a well defined social agenda. He used to remark; ‘Karnan’ in ‘Mahabharata’ was his role model in the matter of guiding and helping others with total selflessness and magnanimity. Anybody who dedicate their life for social causes can safely follow the path led by Sri. M.K.Damodaran, with total commitment and awareness to causes in the society.

9. The message to the society which life of Senior Advocate Sri. M.K.Damodaran left back, assumes much significance in the contemporary social scenario, where divisions among the citizenry of this country is increasing at an alarmingly high rate. Propagation of ideologies based on communalism is increasing at a sky rocketing pace. Attempts to ruin the harmonious social fabric knitted on the patriotism of this great country, is causing loss to the great values upon which the nation was founded and built up. The legal system of this country owes duty to undertake a pro-active role in curbing these evils and in protecting the great objectives upon which our country was constituted. As enshrined in the preamble of the Constitution of this great nation, which is even now supposed to be the finest model of democratic governance, it is “we, the people of India”, who alone can be the saver and protector of the nation. It is a cardinal obligation bestowed upon “we, the people of India” to shoulder tireless and unending efforts in securing Justice, Equality, Liberty and Fraternity to all the citizens of this country, irrespective of any divisions and differences. Who will lead such attempts and who will sacrifies for achieving the goals, becomes a great question now pointed upon the face of the nation. The judiciary and the legal system upon which the people of this country still repose confidence and hopes, alone can lead the torch and motivate ‘we the people of India’ to strive to sustain all the values, rights and morals, which are at real stakes in the present situation. It is time for those who are part of the legal system to rededicate ourself to the noble cause of rendering service to the society for promoting remedial measures to protect our great nation, which survived and developed through the last 75 years. It is we, who has to be the motivators and simulators in providing all the technics and tools for the struggle against all the evils, which are destroying the values prevalent in this country. In all such efforts, let the life of Sri.M.K. Damodaran be our hope, inspiration and guidance.

10. The ‘Professional Development Programme” undertaken by the organizers herein will definitely contribute for betterment of the efforts described henceforth. It is an apposite cause which now shouldered by the NUALS and the Bar Council. I take this opportunity to congratulate the organizing partners and all the stake holders in arranging as well as attempting this excellent venture. I wish there will be fruitful and meaningful interactions during the course of the day. The noble cause of commemorating Senior Advocate Late Sri. M.K. Damodaran through such a meaningful effort need be continued in future as well. Thanking the organizers for being invited me to became part of this occasion, I declare the programme officially inaugurated. With all warm wishes to each one present here, I conclude.

Thank you,

                                                                                          Jai Hind.

Legal Heirs and Legal Representatives in Rent Control Proceedings

(By P.B. Menon, Advocate, Palakkad)

The question posed for consideration before legal minds is this.

Has a legal representative any part to play and as such could be impleaded on the death of a tenant in eviction applications or appeals or review.

Is there not a conflict between the two Sections in Act 2/65 – Sections 2(6) and 22.

Section 2(6) speaks of legal heirs of the deceased tenant who are the statutory tenants for the purpose of rent control proceedings.

But Section 22 says the provision of S.146 and O.XXII of the Code of Civil Procedure 1908, shall as far as possible be applicable to the proceedings under this Act.

The expression legal representative as defined in C.P.C. is of wider import which expression takes in not only legal heirs but others who intermeddles with the estate of the deceased. There a legatee under a Will is included as a legal heir but for the purpose of Rent Control proceedings he is excluded as he is a testamentary heir and that the words legal heir are used in S.2(6) not in a popular sense. See 2004 (2) KLT 575 a judgment with lucid exposition of law by Justice K.S.Radhakrishnan as he then was.

Thus the S.22 in Act 2/65 is not properly drafted is evident and the words as far as possible therein do not improve the situation. Naturally Judges may have to interpret the words ‘legal representatives’ in S.22 the Act 2/65 as “legal heirs.”

Prohibition of Child Marriage (Amendment) Bill, 2021 –

A Milestone Towards Social Uniformity

(By Devi  A.R., Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)

In a welfare State the primary and ultimate goal of a statutory law is to control the human conduct in such a way to maintain social order.Unity in diversity is such an ideal concept to keep the different societal group under an umbrella but when it comes to its practical operation some kind of uniformity should be there to keep those unities flourishing.

Coming straight off to the new proposal of the Union Ministry to raise the minimum age of marriage of women to 21¹. Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to prohibit solemnisation of child marriage in our society and to bring the women in par with men in terms of marriageable age. The bill is supposed to make uniformity in different groups of the society by making the marriageable age uniform to every one irrespective of their religion and also to make uniformity in marriageable age of men and women.

Prohibition of Child Marriage (Amendment) Bill, 2021

The Prohibition of Child Marriage (Amendment) Bill, 2021 is proposed to seek achieve the following object:- (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; (ii) bring women at par with men in terms of marriageable age; (iii) prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; (iv) declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; (v) make consequential amendments to the other laws relating to marriage; and (vi) make the amendments effective, in relation to marriageable age, two years from the date the Bill receives assent of the President, so as to provide sufficient opportunity to one and all in our collective efforts and inclusive growth, and to make effective other provisions immediately.

Law Commission report on minimum marriageable age

The 18th Law Commission as per its 205th report² submitted proposal to amend the Prohibition of Child Marriage Act, 2006 & other allied Laws suggested as follows:“The age of marriage for both boys and girls should be 18 years as there is no scientific reason why this should be different. Consequently the present Section 2(a) of the PCMA should be deleted and replaced by the following Section 2(a):- “(a) ‘child’ means a person who has not completed 18 years of age.”

If the women at 18 can select the Government why not the partner

“If the women at 18 can select the Government why not the partner?”is the query raised by the various societal groups but this mistrust has no scope for discussion in the present bill because the capability of a person to make choices is not challenged in the bill. Every law is made for its own explicit purpose.This bill seeks to prohibit the child marriage in the society and for that particular purpose the marriageable age of women is raised. It is also a constitutional mandate to maintain equality in case of marriageable age as the protective discrimination for women is not attracted here.

Amendment in Child Marriage Act- is it move towards UCC?

As per the bill, the new minimum marriageable age of women shall prevail over all the personal laws therefore, the legal age of marriage will be raised for all females regardless of their religion.It seeks to amend seven personal laws – Hindu Marriage Act, Hindu Minority and Guardianship Act and the Foreign Marriage Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat) Application Act and the Special Marriage Act. It is implicit from the above provision in the bill, apart from the main goal of social uniformity and welfare it may be a stepping stone towards the conitutional mandate under the directive principles of State policy to secure uniform civil code to its people.

Conclusion:The purpose to be achieved by the Prohibition of Child Marriage (Amendment) Bill, 2021 is clear from the statement and objectives of the bill. It is intended    to prohibit solemnisation of child marriage and to secure the constitutional mandate of gender equality in marriageable age among men and women. The social welfare and uniformity intended by the legislature cannot be ignored only for the cause that it may be explored as a stepping stone towards uniform civil code. The new amendment should definitely be viewed as the   milestone towards social uniformity and welfare.

Foot Note:

1. https://prsindia.org/files/bills_acts/bills_parliament/2021

2. https://lawcommissionofindia.nic.in/reports/report205.pdf

Sabarimala Review and Conflict in Findings between
Shirur Mutt Case& Durgah Committee Case

(By Saji Koduvath, Advocate, Kottayam)

Introduction

Sabarimalacase (pertaining to right of entry of women in Sabarimala Temple) is
placed before a nine-Judge-bench of the Supreme Court of India for considering the Review-Reference. Following matters are also pending before the nine-Judge-bench:

i.    Right of entry of Muslim Women in Durgahs/Mosques,

ii.   Right of entry of Parsi Women, married to non-Parsis, into the holy fire place of Agyari and

iii.   The challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

Important Constitutional issues arise for consideration in these cases will be the following:

1.   Do the words, “right freely to practice religion” in Article 25 of the Indian Constitution protects (all)’acts done in pursuance of a religion’;

2.   Do the words “religious denomination or any section thereof” in Article 26 take-in ‘Organizations, Sects, Sub-sects, etc.;

3.   Do all religious practices that do not run counter to “public order, health and morality”, be honoured under the freedom of religion guaranteed by the Constitution; and

4.   Do the words “every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion” in Article 26 give a fundamental right to the denomination or any section thereof to (i) ‘manage its own affairs’ which no legislature can take away and (ii) enjoy complete autonomy so that ‘no outside authority has any jurisdiction’.

5.   Article 25(2) allows the “State to make any law regulating or restricting any other secular activity which may be associated with (essential) religious practices”. Should such essential religious practices (subject to public order, health and morality) be ‘left to be determined by the denomination or any section thereof itself’?

6.   Or, whether all the afore-stated rights and protections (given in paras 1 to 5 above) are confined to such practices as are an essential and an integral part of RELIGION and NO OTHER; and

7.   Whether the determination of essential religious practices (given in para 6 above) remains in the field of COURTS?

Articles 25 & 26 of the Constitution is the Heart and Soul of Religious Freedom

The framers of the Constitution placed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India. They are the Fundamental Rights relating to the Freedom of Religion.

Article 25 and 26 read as under:

25. Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs –Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a)  to establish and maintain institutions for religious and charitable purposes;

(b)to manage its own affairs in matters of religion;

(c)  to own and acquire movable and immovable property; and

(d)to administer such property in accordance with law.

Cardinal Question before the Nine-Judge-Bench

Do the following words in Article 25 and 26 give ‘wider rights’ is the cardinal question that requires answer from the nine-Judge-bench:

(i)  Subject to public order, morality and health all persons are entitled to the right freely to practise religion (Article 25).

(ii)Subject to public order, morality and health every religious denomination or any section thereof have the right to manage its own affairs in matters of religion (Article 26).

Two Important Decisions that Verbalized the Law on Article 26

The following are the two important decisions of the Constitution Bench of our Apex Court that articulated and verbalized the law on Article 26:

1.   The Commr., Hindu Religious Endowments v. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282); and

2.   Durgah Committee, Ajmer v. Syed Hussain Ali(AIR 1961 SC 1402).

Following important findings are rendered in the first decision, Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt:

(i).  Right to manage the affairs of religion is a fundamental right which cannot be taken away by legislature.

(ii).The right and guarantee given to administer property being ‘in accordance with law’, the law, ‘must leave the right of administration to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.

Following important finding is rendered in the second decision, Durgah Committee, Ajmer v. Syed Hussain Ali:

“Unless such practices are found to constitute an essential and integral part of a RELIGIONtheir claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”

Conflict in Shirur Mutt and Durgah Committee

The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars. They are:

1.   Whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of religion and, no other? (Durgah).

      °Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice religion’ protect (all) ‘acts done in pursuance of a religion? (Shirur).

2.   Who determines -what constitutes the essential part of a religion? Is it the COURT? (Durgah)

      °Is it left to be determined by the Denomination or Section, and no outside authority has any jurisdiction to interfere with their decision in such matters? (Shirur).

3.   Whether the Protection is limited to ESSENTIAL and INTEGRAL part of
‘RELIGION’ in a strict sense, and no other? (Durgah).

      °Whether ‘religious Denomination/Section’ extends to religious ‘Organization’,
  ‘Sect, Sub-sect’, etc.? (Shirur).

      °Whether freedom of religion is guaranteed to all practices, except that which
   run counter to public order, health and morality? (Shirur).

      °A religion or any section thereof holds the fundamental right to’manage its
  own   affairs’ (which no legislature can take away) and enjoys complete autono
   my (so that no outside authority has any jurisdiction). (Shirur).

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004)

It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaran and Avadhuta v. Commissioner of Police (1984 KLT SN 3 (C.No.7) SC= AIR 1984 SC 51),the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case, Commissioner of Police v. Acharya Jagadish warananda Avadhuta (2004 (2) KLT SN 36 (C.No.41) SC = AIR2004 SC 2984), the majority rendered its verdict following Durgah Committee, Ajmer v. Syed Hussain Ali, which observed that ‘the protection must be confined to such religious practices as are an essential and integral part of it and no other’.

The minority view in this decision is rendered by AR Lakshmanan, J. It is laid down as under:

“This observation of this Court (in Durgah Committee, Ajmer v. Syed Hussain Ali), in our view,runs counter to the observation of Mukherjee, J. In The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are -

“We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others....

....If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion...”

In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu (AIR 1972 SC 1586), this Court has held that-

‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’

The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in (1986 KLT 1037 (SC) = AIR 1987 SC 748) and SriVenkataramana Devaru & Ors. v. State of Mysore & Ors. (1958 KLT SN 29 (C.No.51) SC = AIR 1958 SC 255) held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”

The Crux of Sabarimala-Review-Matter

In the Sabarimala review-reference (to Higher Bench) Judgment,Kantaru Rajeevaru v. Indian Young Lawyers Association (2019 (4) KLT OnLine 3029 = (2020) 2 SCC 1), it is observed that there is conflict between the Shirur Mutt case and Durgah Committee case. In the aforesaid review-reference-judgment the Court said as under:

“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindraTirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out arole for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

The issues placed before the nine-Judge-bench are reframed in Kantaru Rajeevaru v. Indian Young Lawyers Association (2020 (1) KLT OnLine 1209 (SC) = (2020) 3 SCC 52), as under:

1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?

2. What is the inter-play between the rights of persons under Article 25 of the
Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?

3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?

4.   What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?

5.   What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?

6.   What is the meaning of expression “Sections of Hindus” occurring in Article 25(2)(b)
of the Constitution of India?

7.   Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Conclusion

The jurisprudential importance of the ensuing nine-Judge-bench decision is not limited as to whether the decision in Shirur Mutt case will prevail over the decision in Durgah Committee case; because, the enquiries of the Court will not end there; but, it has to go beyond and record findings on the newly framed issues. The issues are couched in a manner that they definitely embrace, whether the decision in Shirur Mutt requires reconsideration, mainly on two points:

·    First, whether the ‘religious denomination or any section thereof’ stated in
Article 26 shall be liberally construed (or, whether the constitutional protection must be confined to ‘such religious practices as are an essential and an integral part of RELIGION and no other’.)?

· Second, whether the ‘essential religious practices’ are matters that are left to be determined by the ‘denomination’ (or whether it should remain in the realm of Court)?

One thing is definite: the march of law in this topic has reached a breaking point, whereby the answers of the Apex Court will be from a ‘juridical’ vantage; rather than in an ‘ideological’ perspective.