Case BriefsHigh Courts

“People can be religious;

Men may be communal;

Whether roads could be communal?

This is the question raised in these appeals.”

Madras High Court: In a very important judgment on secularism, the bench of N.Kirubakaran and P.Velmurugan, JJ has held that any procession including religious procession cannot be prohibited or curtailed merely because another religious group is residing or doing business in the area predominantly.

The Court noticed,

“… there cannot be any order prohibiting the religious festivals and Temple’s processions through all the streets and roads of the village/town, when the same is being conducted for years together. If at all, there can be some regulations and there cannot be any prohibition.”

Background

V.Kalathur Village consists of both Muslims and Hindus population. On the Eastern side of the village Muslims are residing and on the Western side of the village, Hindus are residing. Right from the year 1951 onwards there is a dispute between the two religious groups regarding the usage of 96 cents of Government Poramboke land. Muslims wanted the land to be used as common place whereas the Hindus claim long use of Poramboke land and objected to common usage. Many clashes have also taken place between the two religious groups with regard to the said site pursuant to which many cases have also been filed against both the groups.

The petitioner approached the authorities seeking to perform Oorani Pongal Vizha for 3 days and was granted permission imposing certain conditions by an order dated 23.09.2018 including conditions with regard to the conduct of procession.

The said permission was challenged on the ground that the petitioner’s intention to take out the procession in those Muslim dominated areas is only to create the law and order problem.

Analysis

After perusing the records, the Court noticed that the major community residing in the village are Hindus and Muslims and that there was no problem till the year 2011 for conduct of festivals in the four major temples.

Further, the counter affidavit filed by the police authorities in this case as well as the previous orders passed showed that temple festivals as well as processions are being conducted years together. Therefore, the conduct of temple’s processions through the roads/streets cannot be prohibited. Rightly the police authorities in the year 2012 had only imposed conditions and that was also approved by this Court.

The Court noticed that before the year 2012, Temple’s processions were conducted through all the streets in the village and there was no problem. Even from the year 2012 to 2015, processions were conducted through all the streets and roads. Therefore, it is evident that taking out Temple’s processions through all the streets and roads in V.Kalathur village have been the custom and practice of the Hindus for the past many decades. It seems from the year 2012 onwards, when the Muslims started objecting, the problem seems to have started.

“All along there had been religious tolerance and the religious festivals were conducted very smoothly and religious procession were conducted without any problem through all the streets and roads of the village. If religious intolerance is going to be allowed, it is not good for a secular country. Intolerance in any form by any religious group has to be curtailed and prohibited. In this case, intolerance of a particular religious group is exhibited by objecting for the festivals which have been conducted for decades together and the procession through the streets and roads of the village are sought to be prohibited stating that the area is dominated by Muslims and therefore, there cannot be any Hindu festival or procession through the locality.”

It is also pertinent to note that Section 180-A of the District Municipalities Act 1920, states as follows: “All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed.”

Hence, merely because one religious group is dominating in a particular locality, it cannot be a ground to prohibit from celebrating religious festivals or taking processions of other religious groups through those roads.

“If it is to be accepted, then a day will come when a particular religious group which is predominantly occupying the area, will not allow the people belonging to other religious groups even to use the roads even for movement, transportation or the normal access. Even the marriage processions and funeral processions would be prohibited/prevented which is not good for our society.”

The Court noticed that t temples are there for decades together. Merely because a religious group got settled in a locality and has become vociferous, they cannot object to the custom of taking Temple’s procession through all the streets in the Village and consequent upon their objections, the customary and traditional practices cannot be prevented or prohibited.

“If the contention of the private respondent is to be accepted then it would create a situation in which minority people cannot conduct any festival or procession in most of the areas in India. If resistance is being exhibited by one religious group and it is reciprocated by the other religious groups, there would be chaos, riots, religious fights causing loss of lives and destruction of properties. Consequently, the secular character of our country will be destroyed or damaged.”

CONCLUSION

1.Once it has been declared by the authorities as roads or streets as per Section 180-A of the District Municipalities Act, the roads and streets which are “secular”, should be used as roads by all the people irrespective of their religion, caste or creed.

2.Any procession including religious procession shall be conducted through all the roads and streets without any restriction.

3.Any procession including religious procession cannot be prohibited or curtailed merely because another religious group is residing or doing business in the area predominantly.

4.There cannot be a prohibition for any procession including religious processions through roads by the District administration or police authorities and there can be only regulation by the police or other Government authorities to see that no untoward incident occurs or any law and order problem arises.

5.Every religious group has got fundamental right to take out religious procession through all the roads without insulting the other religious sentiments and without raising any slogans against other religious groups, affecting their sentiments, public law and order.

6.Merely because there is one place of worship belonging to other religious group, the same cannot be a ground to decline/deny permission to conduct procession including religious procession of other religions to go through those roads or streets.

7.The presence of religious structures/places of worship cannot take away the right of other religious groups who have been enjoying all the rights including the conduct of religious procession for the past many years.

8.The criminal cases filed against both the parties are directed to be withdrawn.

[Ramasamy Udayar v. District Collector, Perambalur District, 2021 SCC OnLine Mad 1779, decided on 30.04.2021]

For Appellant : S.Doraisamy

For Respondent : G.Karthikeyan (for R1) and Pothiraj (for R2 to R4)

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J., dismissed a petition filed by a private unaided school, imparting elementary education, challenging the State’s order of closure of the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society.

The instant case at hand, poses an issue of seminal importance, wherein the question that arises is,

“Do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?”

It has been alleged that the above-mentioned school is functioning without Government recognition or CBSE affiliation and all the students that have been admitted are adherents to Islam.

State Government on noting that the admission in the above school was being provided to only one community and therefore, the order for closure of the school was issued after an inspection. During the inspection it was observed that the syllabus was in accordance to the curriculum prescribed by Millet Foundation Education Research and Development, the presentation on the website of the said foundation clearly states that,

“apart from achieving excellence in temporal education, an attempt is made to promote the individual identity of the pupil based on Islamic Shariah which would necessarily be possible only by imparting religious instruction in institutions.”

High Court’s Analysis

Under Article 28(1) of the Constitution of India, there is a complete embargo on educational institutions wholly made out of State funds, imparting religious instruction. However, our Constitution allows educational institutions having State recognition or funds from the State to give religious instruction with the consent of the guardian.

In accordance with the above, educational institutions are enabled to give religious instruction to minor students with the consent of the guardian. This enabling clause existed in the constitution at a time when elementary education was not declared as a fundamental right. The said clause does not enable schools to give religious instruction of one religion to the exclusion of other religions.

Supreme Court’s Judgment in Aruna Roy v. Union of India, (2002) 7 SCC 368, the Apex Court did not negate religious education based on religious pluralism but it cautioned against religious education based on religious exclusivism.

There is no embargo on educational institutions imparting religious study in the Constitution. Exclusivism in religious study, if promoted by educational institutions will, therefore, have to be tested against the backdrop of the secularist ideal of Constitution.

Further, the Court noted that,

Secularism is part of the wheel that has to drive political democracy in India. Justice Dr D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, “spoke about the transformative character of Constitution as guiding factor of constitutional morality.”

Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve.”

 “Secularism has value in the Constitution as an acknowledgment of the past and as a guide to future generation.”

 Secularism is against the very idea of exclusivism of one religion over others.

Court further noted that, in a multi-religious and multi-cultural society, the students need an educational system that equips them to acknowledge and accept diversity in society. Multi cultural education must reflect upon coexistence for mutual benefit and the nation’s benefit. It must focus on the reduction of prejudices, bias and promotion of democratic values.

Multi cultural education in practice focuses on equity pedagogy by structuring school syllabus, accepting diversity of all in equal measure.

In a secular democratic State, no institution can survive unless the institution follows the virtues of constitutional morality. The idea of secularism in the Constitution is the result of the acceptance of the character of a pluralist society composed by people having diverse interests.

Recognition that is required from the State Government under the RTE Act is for imparting secular education.

Adding to the above, the Court stated that the Constitution does not allow the mixing of secular activities with religious activities.

Referring to the Supreme Court Case, S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein it was held that,

“…mixing up of religion with secular activities, is only based on the broad policy of equal treatment of all religion and maintaining neutrality of public functionaries.”

In regard to the liberty given to parents to choose the value and type p education to be imparted to their child, Court stated that, though the Constitution protects the said liberty, the State has not lost its power to regulate the curriculum of education to ensure guidance in the making of true citizens on the foundation of ideals of Constitution.

Supreme Court in Santosh Singh v. Union of India, (2016) 8 SCC 253, referred to education as an important instrument towards the development of the individual as well as an instrument in nation-building. It is further opined that the acceptance of plurality and diversity of ideas, images, and faith is a result of education.

Exclusivism or preference of one religion over others by State or public functionaries or private bodies, while discharging public functions, strikes at the very root of the fundamental values of our Constitution, namely, secularism.

High Court stated that, Private Schools that are required to have recognition from State must not promote one religion over others.

“In a pluralist society like India, which accepts secularism as the basic norm in governing secular activities including education, there cannot be any difficulty in imparting religious instruction or study based on religious pluralism. What is prohibited is exclusivism.”

Court stated the following with respect to the minority institutions,

“minority institutions cannot shrug off their role as State Functionaries and protect sectarian education under the garb of Articles 29 and 30.”

“If minority institutions are given free hand to promote religion, it would result in denial of admission to such schools based on religion.”

What the Court held?

High Court does not denounce value education moulded on the basis of religious instruction or study. Religious instruction or study is capable of moulding value-based education.

No elementary schools imparting secular education can promote one religion over others.

Thus, it would be open to any private unaided educational institution to approach the Government for permission to impart religious education or instruction based on religious pluralism.

In the present case, the petitioner is imparting religious instruction exclusively following the Islamic religion which cannot be permitted. It offends the fabric of secular society; hence the order of closure of the school is justified. [Trustee, Hidaya Educational & Charitable Trust v. State of Kerala, 2020 SCC OnLine Ker 312, decided on 24-01-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Dipak Misra, CJ and PC Pant, J set aside the Gujarat High Court order directing the Gujarat Government to give compensation in favour of the persons in charge of all the religious places including those of worship, which were damaged during the communal riot of the year 2002 for restoration to the original position, as those existed on the date of destruction.

The Court, however, accepted the scheme framed by the State Government where the Government has fixed the maximum amount under the caption of ex gratia assistance and also conferred the power on the District Collector of the Districts where religious places are situated to determine about the ownership or administration rights of religious places concerned. Noticing that the terms and conditions of the said scheme were reasonable, the Court directed that the claimants who fulfil the conditions of the scheme shall approach the authorities therein within eight weeks and the said authorities shall determine the same within three months from the receipt of the claims. Further, if any party is aggrieved by the denial of the benefit, he can take appropriate steps in accordance with law.

Additional Solicitor General Tushar Mehta, appearing for the State, had argued that the State fund which consist payment of various taxes by citizens cannot be directed by the High Court to be spent for restoration/construction of any religious places by issuing a writ under Article 226 of the Constitution of India, inasmuch as under the scheme of Articles 25, 26, 27 and 28 under the heading “Right to Freedom of Religion”, the Constitution protects certain rights while prohibiting certain actions.

The Court, relied upon the rulings in Prafull Goradia v. Union of India, (2011) 2 SCC 568, where the two-Judge Bench has opined:

“the object of Article 27 is to maintain secularism and the said Article would be violated if the substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. However, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution.”

The Court also took note of the ruling in Archbishop Raphael Cheenath S.V.D. v. State of Orissa, (2009) 17 SCC 90, where the Court had emphasized on the creation of atmosphere where there shall be complete harmony between the groups of people and the duty of the State to have discussions with the various groups to bring about peace and give possible help to the victims and had directed the Government to formulate a scheme regarding the religious places.

The Court noticed that while fixing the maximum limit on ex gratia assistance in it’s scheme, the Government has equated the same with houses which have been given the assistance. It was hence, held that when the individual’s grievances pertaining to property has been conferred the similar assistance, the assistance rendered for repairing/restoration of public places of worship will come within the guidelines of the aforementioned cases. [State of Gujarat v. IRCG, 2017 SCC OnLine SC 1011, decided on 29.08.2017]

Case BriefsSupreme Court

Supreme Court: In a PIL seeking guidelines to be set down to curb acts of discrimination against persons from the north-eastern states, the 3-judge bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswararao, JJ said that in order to enhance a sense of security and inclusion, the Union Government in the Ministry of Home Affairs should take proactive steps to monitor the redressal of issues pertaining to racial discrimination faced by citizens of the nation drawn from the north-east.

The Court said that a regular exercise of monitoring and redressal should be carried out by a Committee consisting of a Joint Secretary (North-east), Ministry of Home Affairs and 2 other members to be nominated by the Union Government (one of whom should be a public figure). It was further said that the work of the Committee should be widely publicised in the electronic and print media, including in the north eastern states. The Committee should be accessible to grievances, suggestions and complaints. The Committee should meet periodically and preferably at monthly intervals to monitor the redressal of all such grievances including the implementation of the recommendations of the Bezbaruah Committee, to the extent to which they have been accepted by the Union Government.

The Committee shall carry out the following functions:

  • to monitor, oversee, pursue and review the implementation of the MP Bezbaruah Committee Report
  • to monitor the initiatives taken by the Government to curb and deal with the incidents of racial discrimination/racial atrocities/racial violence;
  • to monitor action in respect of incidents of racial discrimination/racial atrocities/racial violence, suggest measures and ensure strict action;
  • to receive, consider and entertain complaints from individuals and groups of individuals who claim to be victims of racial abuse/racial atrocities/racial violence/racial discrimination and forward the same to the National Human Rights Commission and/or the State Human Rights Commissions and/or to the jurisdictional Police Station as the case may be for enquiry and necessary action;
  • to issue necessary directions including calling for reports on incidents of racial discrimination/racial atrocities/racial violence from the State Governments/Union Territories.

Various instances of murder, molestation racial discrimination and other offences against the people of North-eastern states have been reported. [Karma Dorjee v. Union of India, 2016 SCC OnLine SC 1469, decided on 14.12.2016]