Madras High Court
P.Naveen Kumar vs Indian Young Lawyers Association And ... on 17 May, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
WP(MD)No.10496 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.04.2024
Pronounced on : 17.05.2024
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)No.10496 of 2024
P.Naveen Kumar ... Petitioner
v.
1.The District Collector,
District Collector Office,
Karur District.
2.The Revenue Divisional Officer,
Revenue Divisional Office,
Karur District.
3.The Tahsildar,
Taluk Office, Manmangalam Taluk,
Karur District.
4.Nerur Sathguru Sathasiva
Brammediral Sabha,
Rep.by its President,
S.Ramesh S/o.D.Sundaresan,
Agraharam, Nerur, Manmangalam Taluk,
Karur District – 639 004.
5.The Superintendent of Police,
Karur District.
6.The Inspector of Police,
Vangal Police Station,
Karur District. ... Respondents
(R5 and R6 suo motu impleaded vide order dated 30.04.2024)
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1/39
WP(MD)No.10496 of 2024
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus to direct the
respondents 1 to 3 to consider the petitioner's representation dated
22.04.2024 and grant permission to conduct “Annathanam” and
“Angapradakshinam” ie., rolling over the plantain leaves left by the
devotees after the “Annathanam” on 18.05.2024 ie., on the eve of
Jeeva Samathi Day of Sri Sadasiva Brahmendral situated at Nerur
Village, Manmangalam Taluk, Karur District.
For Petitioner : Mr.G.Thalaimutharasu
For Respondents : Mr.T.Vilavankothai,
Additional Government Pleader
for R1 to R3
Mr.C.Christopher for R4
Mr.A.Albert James,
Government Advocate (crl.side)
for R5 and R6
ORDER
Heard both sides.
2.The writ petitioner is a resident of Karur District. He is a
devotee of Sri Sadasiva Brahmendral, one of the most well known
saints of Tamil Nadu. His final resting place is at Nerur Village.
His Jeeva Samadhi Day is marked by performance of “Annadhanam”
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(Sacred offering of food) and other religious rituals. One of the
main events used to be the rolling over (Angapradakshinam) the
banana leaves in which other devotees had partaken their food.
The petitioner has taken vow to perform the said religious service
this year. The Jeeva Samadhi Day falls on 18th of May. The
petitioner formally wrote to the authorities seeking permission
since the performance of the ritual which is 120 years old was
stopped in the year 2015. The representation dated 22.04.2024 did
not elicit any response. Hence, the present writ petition came to be
filed.
3.The learned counsel appearing for the petitioner contended
that the issue involves the petitioner's fundamental rights
guaranteed under the Constitution of India. He called upon this
Court to grant relief as prayed for. The petitioner's stand was fully
endorsed by the learned counsel appearing for the fourth
respondent which organises the function.
4.The learned Additional Government Pleader appearing for
the District Administration and the learned Government Advocate
(crl.side) appearing for the police authorities submitted that their
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hands are tied in view of the order dated 28.04.2015 made in
WP(MD)No.7068 of 2015.
5.I carefully considered the rival contentions and went through
the materials on record. Two issues arise for consideration. One is
the scope and ambit of the petitioner's right. The other is whether
the order cited as an impediment by the respondents is nullity in
law.
6.Part III of the Constitution of India enumerates the
fundamental rights. Article 25(1) of the Constitution declares that
all persons are equally entitled to freedom of conscience and the
right to freely profess and practise religion. However, this right is
not absolute. It is subject to public order, morality and health and
the other provisions of Part III. Clause 2 of Article 25 clarifies that
nothing in that article shall affect the operation of any existing law
or 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 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.
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7.Article 25 has been considered in a number of cases. The
foremost among them is the decision by a 7 Judges Bench of the
Hon'ble Supreme Court in The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt , AIR 1954 SC 282. It was held that what has
been guaranteed was freedom not only to entertain such religious
belief as may be approved of by one's judgment and conscience but
also to exhibit his belief in such outward acts as he thinks proper.
Religion is a matter of faith with individuals or communities. It has
its basis in a system of beliefs or doctrines which are regarded by
those who profess their religion as conducive to their spiritual well
being but it would not be correct to say that religion is nothing else
but a doctrine or belief. It may not only lay down a code of ethical
rules for its followers to accept, but also prescribe rituals and
observances, ceremonies and modes of worship which are regarded
as integral parts of religion. These forms and observances might
extend even to matters of food and dress. What constitutes the
essential part of religion is primarily to be ascertained with
reference to the doctrines of that religion itself. 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, or that periodical
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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. The constitutional guarantee also protects acts done in
pursuance of religion and this is made clear by the use of the
expression “practice of religion” in Article 25. Restrictions by the
State upon free exercise of religion are permitted on grounds of
public order, morality and health. In Ratilal Panachand Gandhi
v. State of Bombay (AIR 1954 SC 388) (Five Judges Bench), it
was reiterated that every person has the fundamental right to
exhibit his belief and ideas in such overt acts as are enjoined or
sanctioned by his religion.
8.Subsequently, a Five Judges Bench in Durgah Committee,
Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402) struck a note of
caution and observed that the constitutional protection must be
confined to such religious practices as are an essential and an
integral part of a religion and no other. This is because practices
though religious may have sprung from merely superstitious beliefs
and be extraneous and unessential accretions to religion itself.
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9.Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay (AIR 1962 SC 853) is also a Five Judges Bench decision.
The majority reiterated the Shirur Mutt view and held that what
constitutes an essential part of religion or religious practice has to
be decided by the courts with reference to the doctrine of a
particular religion and include practices which are regarded by the
community as a part of its religion. This was followed by another
Five Judges Bench of the Hon'ble Supreme Court in the decision
reported in AIR 1972 SC 1586 (E.R.J Swami v. State of Tamil
Nadu).
10.Justice P.B.Gajendragadkar who authored the judgment in
Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC
1402) held in Tilkayat Sri Govindalalji Maharaj v. State of
Rajasthan (AIR 1963 SC 1638) as follows :
“58.In deciding the question as to whether a given
religious practice is an integral part of the religion or
not, the test always would be whether it is regarded as
such by the community following the religion or not.
This formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food
or dress. If in a given proceeding, one section of the
community claims that while performing certain rites
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while dress is an integral part of the religion itself,
whereas another section contends that yellow dress and
not the white dress is the essential part of the religion,
how is the Court going to decide the question ? Similar
disputes may arise in regard to food. In cases where
conflicting evidence is produced in respect of rival
contentions as to competing religious practices the
Court may not be able to resolve the dispute by a blind
application of the formula that the community decides
which practice is an integral part of its religion, because
the community may speak with more than one voice and
the formula would, therefore, break down. This question
will always have to be decided by the Court and in doing
so, the Court may have to enquire whether the practice
in question is religious in character and if it is, whether
it can be regarded as an integral or essential part of the
religion, and the finding of the Court on such an issue
will always depend upon the evidence adduced before it
as to the conscience of the community and the tenets of
its religion......”
In this decision, there is no reference to the earlier decision
rendered in Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay (AIR 1962 SC 853). Though the observation of Latham,
C.J in Adelaide Company of Jehovah's Witnesses Inc v.
Commonwealth (1943-67 Com-WLR 116) that “what is religion
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to one is superstition to another” was brushed aside of no relevance
to the case on hand, it was clarified that if the practice was claimed
as religious and protection was sought on that basis, the scope of
enquiry will have to be whether the practice was actually religious
or secular. If it was secular, protection will not be available. If the
practice is a religious practice, the right guaranteed by Article 25(1)
cannot be contravened.
11.In Shastri Yagnapurushdasji and Ors. v. Muldas
Bhundardas Vaishya and Anr [AIR 1966 SC 1119, it was
observed as follows :
“(29) When we think of the Hindu religion, we find
it difficult, if not impossible, to define Hindu religion or
even adequately describe it. Unlike other religions in
the world, the Hindu religion does not claim any one
prophet; it does not worship any one God; it does not
subscribe to any one dogma; it does not believe in any
one philosophic concept; it does not follow any one set
of religious rites or performances; in fact, it does not
appear to satisfy the narrow traditional features of any
religion or creed. It may broadly be described as a way
of life and nothing more.”
12.In Rev.Stainislaus v. State of M.P (AIR 1977 SC 908),
while holding that the right under Article 25 is not absolute and is
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subject to public order, it was clarified that public order signifies
state of tranquility which prevails among the members of a political
society as a result of internal regulations enforced by the
government. If a thing disturbs the current of the life of the
community and does not merely affect an individual, it would
amount to disturbance of the public order.
13.In S.P Mittal v. UOI (AIR 1983 SC 1), the term “religion”
was dealt with as follows :
“76.In order to appreciate the contentions of the
parties, it is necessary to know the implication of the
words 'religion' and 'religious denomination'. The
word 'religion' has not been define' in the
Constitution and indeed it is a term which is hardly
susceptible of any rigid definition. In reply to a
question on Dharma by Yaksha, Dharmaraja
Yudhisthira said thus:
Mahabharat – Aranyakaparvan 313.117.
(Formal logic is vacillating. Srutis are contradictory,
There is no single rishi whose opinion is final. The
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principle of Dharma is hidden in a cave. The path of
the virtuous persons is the only proper course,)
The expression 'Religion' has, however, been sought
to be defined in the 'Words and Phrases', Permanent
Edn. 36A, p. 461 onwards, as given below:
Religion is morality, with a sanction drawn from a
future state of rewards and punishments.
"The term 'religion' and 'religious' in ordinary usage
are not rigid concepts.
'Religion' has reference to one's views of his relations
to his Creator and to the obligations they impose of
reverence for his being and character and of
obedience to his will.
"The word 'religion' in its primary sense (from
'religare,' to rebind-bind back), imports, as applied to
moral questions, only a recognition of a conscious
duty to obey restraining principles of conduct. In such
sense we suppose there is no one who will admit that
he without religion.
"'Religion' is bond uniting man to God, and virtue
whose purpose is to render God worship due him as
source of all being and principle of all government of
things.
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"'Religion' has reference to man's relation to divinity;
to the moral obligation of reverence and worship.
Obedience, and submission. It is the recognition of
God as an object of worship, love and obedience; right
feeling towards God. as highly apprehended.
"'Religion' means the service and adoration of God or
a God as expressed in forms of worship; an
apprehension, awareness, or conviction of the
existence of a Supreme Being; any system of faith,
doctrine and worship, as the Christian religion, the
religions of the Orient; a particular system of faith or
worship.
"The term 'religion' as used in tax exemption law,
simply includes: (1) a belief, not necessarily referring
to supernatural powers; (2) a cult, involving a
gregarious association openly expressing the belief;
(3) a system of moral practice directly resulting from
an adherence to the belief; and (4) an organization
within the cult designed to observe the tenets or
belief, the content of such belief being of no moment.
"While 'religion' in its broadest sense includes all
forms of belief in the existence of superior beings
capable of exercising power over the human race, as
commonly accepted it means the formal recognition
of God, as members of societies and associations, and
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the term, 'a religious purpose', as used in the
constitutional provision exempting from taxation
property used for religious purposes, means the use
of property by a religious society or body of persons
as a place for public worship.
"'Religion' is squaring human life with superhuman
life. Belief in a superhuman power and such an
adjustment of human activities to the requirements of
that power as may enable the individual believer to
exist more happily is common to all 'religions'. The
term 'religion' has reference to one's views on his
relations to his Creator, and to the obligations they
impose of reverence for His being and character and
obedience to his will.
"The term 'religion' has reference to one's views of his
relations to his Creator, and to the obligations they
impose of reverence for his being and character, and
of obedience to his will. With man's relations to his
Maker and the obligations he may think they impose,
and the manner in which an expression shall be made
by him of has belief on those subjects, no interference
can be permitted, provided always the laws of society,
designed to secure its peace and prosperity, and the
morals of its people, are not interfered with.”
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14.In Jagdishwaranand v. Police Commissioner, Calcutta
(AIR 1984 SC 51), it was held that courts have the power to
determine whether a particular right or observance is regarded as
essential by the tenets of a particular religion. In that case, it was
held that performance of Thandava dance in a procession or at
public places was not an essential religious right to be performed by
every Ananda Margi. The learned Judges arrived at such a
conclusion because the Ananda Marga order itself was established
in 1955 and Thandava dance was introduced only in 1966.
15.In Gedela Satchidananda Murthy v. Dy.Commr.
Endowments Deptt, A.P (2007) 5 SCC 677, it was
acknowledged that religious practices vary from State to State,
region to region, place to place and sect to sect. When questions
arise for enquiry, they must be decided with reference to the view of
the class of people who take part in the worship. If they believe in
its religious efficacy, in the sense that by such worship, they are
making themselves the object of the bounty of some superhuman
power, it must be regarded “as religious worship”.
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16.Of course, in Sabarimala case (2019) 11 SCC 1, it was
held that Article 25(1) is subject to constitutional morality.
Exclusionary practices were denied the status of essential practices.
Considerable emphasis was placed on Article 17 of the Constitution
which outlaws untouchability to hold that exclusion of women
between the age group of ten and fifty, based on their menstrual
status, from entering the temple in Sabarimala can have no place in
a constitutional order founded on liberty and dignity.
17.Review Petitions were filed in the wake of the aforesaid judgment. While
Justice R.F.Nariman took the view that there is no merit in the Review Petitions, the
majority view was otherwise. The order reported in (2020) 2 SCC 1 (Kantaru
Rajeevaru Vs. Indian Young Lawyers Association and Ors) is as follows :
“5. It is our considered view that the issues arising in the pending
cases regarding entry of Muslim women in durgah/mosque [being
Writ Petition (Civil) No. 472 of 2019] [Ed. : See the latest order in
this case dated 5-11-2019 : Yasmeen Zuber Ahmad
Peerzade v. Union of India, (2020) 2 SCC 50 (1)] ; of Parsi
women married to a non-Parsi in the Agyari [being Special Leave
Petition (Civil) No. 18889 of 2012] [Ed. : Reference may be made
to two of the orders in these proceedings, the first order below
referring the matter to a Constitution Bench : Goolrokh M.
Gupta v. Burjor Pardiwala, (2020) 2 SCC 50 (2); and Goolrokh
M. Gupta v. Burjor Pardiwala, (2020) 2 SCC 705] and including
the practice of female genital mutilation in Dawoodi Bohra
community [being Writ Petition (Civil) No. 286 of 2017] [Ed. :
Reference may be made to the order referring the matter to a
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Constitution Bench in these proceedings : Sunita Tiwari v. Union
of India, (2019) 18 SCC 719 : 2018 SCC OnLine SC 2667] may be
overlapping and covered by the judgment [Indian Young Lawyers
Assn. (Sabarimala Temple-5 J.) v. State of Kerala, (2019) 11 SCC
1] under review. The prospect of the issues arising in those cases
being referred to the larger Bench cannot be ruled out. The said
issues could be:
5.1.(i) Regarding the interplay between the freedom of religion
under Articles 25 and 26 of the Constitution and other provisions
in Part III, particularly Article 14.
5.2.(ii) What is the sweep of expression “public order, morality
and health” occurring in Article 25(1) of the Constitution.
5.3.(iii) The expression “morality” or “constitutional morality” has
not been defined in the Constitution. Is it overarching morality in
reference to Preamble or limited to religious beliefs or faith. There
is need to delineate the contours of that expression, lest it becomes
subjective.
5.4.(iv) The extent to which the court can enquire into the issue of
a particular practice is an integral part of the religion or religious
practice of a particular religious denomination or should that be
left exclusively to be determined by the head of the section of the
religious group.
5.5.(v) What is the meaning of the expression “sections of Hindus”
appearing in Article 25(2)(b) of the Constitution.
5.6.(vi) Whether the “essential religious practices” of a religious
denomination, or even a section thereof are afforded constitutional
protection under Article 26.
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5.7.(vii) What would be the permissible extent of judicial
recognition to PILs in matters calling into question religious
practices of a denomination or a section thereof at the instance of
persons who do not belong to such religious denomination?
7. In this context, the decision of the seven-Judge Bench of this
Court in Commr., Hindu Religious Endowments v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (Shirur
Mutt) [Commr., Hindu Religious Endowments v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt (Shirur Mutt), 1954 SCR 1005
: AIR 1954 SC 282] 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-Judge Bench in Durgah Committee, Ajmer v. Syed Hussain
Ali [Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR
383 : AIR 1961 SC 1402] carving out a role 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.'”
18.Applying the principles laid down above, I do not have an
iota of doubt that the petitioner has a guaranteed fundamental right
under Article 25(1) of the Constitution of India to carry out the
religious vow undertaken by him. The petitioner is a Hindu. The
Samadhi of Sri Sadasiva Brahmendral at Nerur is thronged by
devotees throughout the year. It is an object of veneration. Sri
Sadavisa Brahmendral was a Siddha purusha. He is believed to be a
realised soul. He was an avadhoota ie., one who did not wear
clothes (if I may borrow from the title of Arundhathi Subramaniam's
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book, he wore only himself). On the Jeeva Samadhi Day, there was
the customary practice of doing Angapradakshanam on the banana
leaves on which the devotees had partaken food. It is the genuine
belief of the devotees that such an act would confer on them
spiritual benefit.
19.In my considered view, such a right is traceable not only to
Article 25(1) but also to the other fundamental rights catalogued in
Part III. Right to privacy has been recognised as a fundamental
right by a Bench of Nine Judges of the Hon'ble Supreme Court in
Justice K.S.Puttaswamy (Retd) v. UOI (AIR 2017 SC 4161). It
has been held to include preservation of personal intimacies,
sanctity of family life, marriage, procreation, home and sexual
orientation. It connotes the right to be left alone. It safeguards
individual autonomy and recognises the ability of individual to
control vital aspects of his or her life. Personal choices governing
way of life are intrinsic to privacy. It protects heterogeneity and
recognizes plurality and diversity of our culture. Privacy is not
lost or surrendered merely because individual is in public
place. Privacy attaches to person since it is an essential facet of
dignity of human being.
20.In NLSA v. UOI (2014) 5 SCC 438, it was held that
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Article 19(1)(a) of the Constitution which deals with the right to
freedom of speech and expression includes one's right to expression
of his self-identified gender. The self-identified gender can be
expressed through dress, words, action or behavior or any other
form. No restriction can be placed on one's personal appearance or
choice of dressing, subject to the restrictions contained in Article
19(2) of the Constitution.
21.If the right to privacy includes sexual and gender
orientation, it certainly includes one's spiritual orientation also. It
is open to a person to express this orientation in the manner he
deems fit. Of course, it should not affect the rights and freedoms
belonging to others. So long as this rubicon is not crossed, it is not
open to the State or the Courts to impinge on one's action. I take
judicial notice of the fact that many a devotee of Lord Muruga
exhibits his piety by piercing small hooks on his tongue, lip or on
the skin of one's back in fulfilment of vow. Likewise, devotees of
Amman undertake fire-walk, carrying of pot of burning coal etc.,
These are inseparable features of Tamil religious culture.
22.Article 19(1)(d) states that all citizens shall have the right
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to move freely throughout the territory of India. This right is
subject only to the reasonable restrictions envisaged under Article
19(5). Right to move cannot be confined to walking or vehicular
transportation. It would include Angapradakshinam also.
23.I take judicial notice of the fact that angapradakshinam
(rolling on ground) is an established religious practice resorted to
by the devotees. Appar one of the Nayanmars (a collective noun
referring to the 63 saiva saints) completed the last leg of his journey
to Kailash by rolling on ground. The question that arises in this case
is whether a devotee can do angapradakshinam on leftovers on
banana leaves after the devotees had eaten. It is a fact that such
angapradakshinam is done by Ayyappa devotees. If it is done on the
banks of river Pamba, it is called as Pamba Sadhi. Therefore,
preventing the devotees of Sri Sadasiva Brahmendral from engaging
in similar act of devotion would be a gross violation of the right to
equality guaranteed under Article 14 of the Constitution of India.
24.It is not open to the court to challenge the belief
entertained by the petitioner as regards the spiritual efficacy of the
practice. One is familiar with the anecdote of golden mongoose in
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Mahabharata. After the great war was over, the pandavas performed
Ashwamedha Yagna. King Yudhistira was being feted by everyone
that he had done a great charity. A mongoose with a half-golden
body arrived and announced that the yagna was nothing compared
to what it had once witnessed. It narrated the story of a very poor
brahmin's family. It was a time of terrible famine. Once a guest who
was very hungry entered their hut when they were about to have
their meal. The brahmin gave away his 1/4th share. The guest was
not satisfied. The wife parted with her share. The guest was still
hungry. The son then gave his 1/4th share. Still, the guest wanted
more. The young daughter-in-law also willingly relinquished her
portion. Even though they were emaciated and starving and had
nothing else to eat, they willingly gave away their everything to
their guest. The guest was none other than Dharma who had come
there to test the Brahmin. He then blessed the family and sent
them to heaven in a golden chariot. The mongoose that witnessed
all this rolled on the ground where there were leftover granules of
flour. The grains represented great sacrifice and hence half of the
mongoose’s body turned golden. Since then, the mongoose would
visit every yagna and roll on the ground to turn its other half into
gold. The mongoose’s body did not turn golden anywhere, and it
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declared that the sacrifice by Yudhishthira was not equivalent to
that of the Brahmin. From this, I am tempted to infer that even
during the days of Mahabharata, the practice of rolling over the
leftover food was considered as conferring spiritual benefit.
25.Annadhanam has been eulogized as a noble act in
Taittriyopanishad of Krishna Yajur Veda, Bhavishyapurana and in
the Ashwamedha Parva of Sri Mahabharata. It is nothing but yagna
or sacrifice. Performing angapradakshinam on banana leaves after
the guests have eaten is an act of high religious worship by Sri
Sadasiva Brahmendral's devotees. This right is protected by Part III
of the Constitution of India [Articles 14, 19(1)(a), 19(1)(d), 21 and
Article 25(1)].
26.The next question that requires consideration is whether
the earlier order rendered in WP(MD)No.7068 of 2015 on
28.04.2015 would come in the way. The order in its entirety is
extracted below :
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“ORDER
(Order of this Court was made by S.MANIKUMAR, J.)
Probono litigant seeks for issuance of a Writ of
Mandamus, directing the respondents to protect “right to
dignified life”, by stopping the inhuman practise of rolling over
on used plantain leaves left by Brahmins, after their meals.
2.In the supporting affidavit, it is submitted that Nerur
Sathasiva Brammendiral Temple, managed by Nerur Sathguru
Sathasiva Brammediral Seva Trust, is celebrating its 101st
Annual Function. According to the petitioner, one of the events
in the Temple festival is that after the Brahmins take their meal,
on the left over plantain leaves, members belonging to Dalit
community and non Brahmins should roll over. It is also the
case of the petitioner that the said event amounts to race and
caste discrimination, which is opposed to the Constitution of
India.
3.Attention of this Court was invited to a decision of the
Hon'ble Apex Court in State of Karnataka and others Vs.
Adivasi Budakattu Hitarakshana Vedike Karnataka and
others in Special Leave Petition (C) No.33137 of 2014, dated
12.12.2014, wherein the Hon'ble Apex Court has stayed a 500
years old ritual of “urulu seve” and “made snana”, being
performed at Kukke Subramanaya Temple in Sullia Taluk of
Dakshina Kannada District.
4.According to the petitioner, though representations
have been sent to the respondents to stop such an inhuman
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practice of rolling over on plaintain leaves left by upper caste
people, no action has been taken.
5.Inviting the attention of this Court to the News Item
published in Dhinamalar, Trichy Edition, dated 19.04.2015,
and, on instructions from the District Collector, Karur, the
learned Special Government Pleader appearing for the
respondents submitted that in the event “free
meals” (Annathanam), members belonging to all communities
participate and that there is no discrimination. He further
submitted that after the meal taken, on the left over plantain
leaves, devotees, on their own, roll over. He rebutted the
contention of the learned counsel for the petitioner that it is
only the members belonging to Dalit community and other non
Brahmins participate in the said event. It is also submitted by
the learned Special Government Pleader that even Brahmins
also participate in the said event, is rolling over on plantain
leaves.
6.Learned counsel for the petitioner disputed the
contention that the Brahmins also roll over on the left over
plantain leaves.
7.From the submissions of the learned counsel for the
parties and the News Items published, and also the averments
made in the supporting affidavit, it comes to light that Nerur
Sathasiva Brammendiral temple festival is being conducted for
nearly many years. One such event is “free
meals” (Annathanam). From the submission of both the learned
counsel, it could be deduced that rolling over, on the left over
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plantain leaves, either by the devotees belonging to all the
sections of the society or selected communities, is admitted.
8.The Hon'ble Apex Court in State of Karnataka and
others Vs. Adivasi Budakattu Hitarakshana Vedike
Karnataka and others in Special Leave Petition (C)No.
33137 of 2014 has taken note of that “urulu seve” and “made
snana” being performed at Kukke Subramanaya Temple in
Sullia Taluk of Dakshina Kannada District, have been
performed for five centuries. From the news item, it could be
deduced that in the abovesaid ritual performance, people roll
over on plantain leaves, left by Brahmins, after the meal, during
the annual jatra of the Temple.
9.According to the learned Special Government Pleader,
there is a difference between a case of untouchability being
practised as noticed by the Hon'ble Supreme Court in the above
said case and the own volition of sections of the society.
10.We are conscious of the fact that in so far as religious
practices and custom, Court has got its own limitations. But,
such religious practice and custom should affect the dignity of
life, which is guaranteed under Article 21 of the Constitution of
India. It is the heart and soul of the Constitution. No human
being can be allowed to be degraded, by following any practice
or custom in the name of religion, which may infringe Articles
14 and 21 of the Constitution of India. Right to live, with
dignity, is the paramount object of the Constitution.
11.Looking from that angle, though it is contended by the
learned Special Government Pleader that irrespective of
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community, caste, etc, devotees, for fulfilment of their prayers,
decide on their own volition, to roll over on the left over
plantain leaves. Such religious practice or custom should be
inconsonance with Articles 14 and 21 of the Constitution of
India. Even if there is any slightest infringement to the said
rights, Court owes a duty to enforce the constitutional values
and the same should not be allowed to continue. Event of
rolling over, as per the instruction of the Collector in
Na.Ka.E2/101/2015, dated 28.04.2015 is as follows:
“,f;Nfhapypy; Rkhh; 100 tUlq;fSf;F Nkyhf
eilngw;W tUk; jpUtpohtpd; ,Wjp epfo;r;rpahf gf;jh;fs;
jq;fs; Ntz;LjYf;fhf NfhapYf;F jhprdj;jpw;F te;Js;s
gf;jh;fs; midtUk; czT cz;l gpd;G rhg;gpl;l vr;rpy;
,iyapy; cUz;L mq;fgpujl;rzk; nra;J jq;fs;
Ntz;Ljiy epiwNtw;WtJ tof;fk;. ,e;epfo;r;rpapy;
vt;tpjkhd rhjp rka kw;Wk; tFg;G NtWghLfSk;
filgpbf;fg;gLtjpy;iy. tpoh Kbe;j gpd;dh; tpohtpw;F
Vw;ghL nra;j mf;u`huj;ijr; Nrh;e;j ngz;fs;
jhq;fshfNt Kd;te;J ,iyapid mfw;wp mUfpYs;s
tha;f;fhypy; Nghl;LtpLfpd;wdh;.
,e;epfo;r;rpapy; czT rikg;gJ kw;Wk;
rhg;gpl;l ,iyapid mfw;WtJ kl;LNk gpuhkz tFg;gpdh;
Mth;. ve;j tFg;gpdh; Ntz;LkhdhYk; Ntz;Ljy; nra;J
nfhz;L jq;fs; Ntz;Ljiy epiwNtw;w ,t;thW rhg;gpl;l
,iyapy; cUSk; tof;fk; cs;sJ.”
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12.In the light of the above discussion and having regard
to the decision of the Hon'ble Apex Court in State of
Karnataka and others Vs. Adivasi Budakattu Hitarakshana
Vedike Karnataka and others in Special Leave Petition
(C)No.33137 of 2014, we hereby direct the respondents not to
allow anyone to roll over on the plantain leaves left, after the
meal is taken.
13.Since, the above said event is stated to be conducted
today (27.04.2015), learned Special Government Pleader is
directed to communicate the order passed by this Court in this
Writ petition, through e-mail or phone, to the respondents.
14.The Writ petition is disposed of.”
27.The writ petition was filed by one Dalit Pandian. Who were
the respondents in the writ petition?. The officials and police.
Nerur Adhishtanam represented by its trustees was not arrayed as
one of the respondents. The devotees were not impleaded in a
representative capacity. When the fundamental right of the devotees
of Sri Sadasiva Brahmendral was involved, it did not occur to the
petitioner to implead them. The writ petition suffered from the fatal
vice of non-joinder of necessary parties. Direction to the authorities
not to allow anyone to roll over on the plantain leaves left after the
partaking of the meals was issued behind the back of the devotees
and the trustees. They were not put on notice. They were not
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heard. No opportunity was afforded to them to place their case
before the Court. In short, there was an egregious breach of the
principles of natural justice.
28.The Constitution Bench of the Supreme Court in the
decision reported in Udit Narain Singh Malpaharia v.
Additional Member, Board of Revenue, AIR 1963 SC 786 held
that any person whose interest is affected will be a necessary party
and that any order made without hearing the affected parties would
be void. In State of Orissa v. Binapani Dei AIR 1967 SC 1269, it was
held that a decision which contravenes the rules of natural justice is
a nullity. Following the said decisions, a Full Bench of the Madras
High Court in R.S.Kalyanasundaram v. The Commissioner,
HR&CE, Chennai [2022 (5) CTC 145 etc., held that a judicial
order passed in violation of the principles of natural justice is
nullity. A Division Bench of the Madurai Bench of the Madras High
Court had passed an order adverse to the interests of a class of
people known as Thirisuthanthirars working in Arulmighu
Subramaniya Swamy Temple, Thiruchendur. The directions were set
aside by the Full Bench on the ground mentioned above. An order
passed in a public interest litigation operates in rem and therefore,
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it is imperative that without hearing the stakeholders, orders
prejudicial to their interest should not be passed. The affected
parties should be impleaded at least in a representative capacity
and failure to do so would go to the root of the matter.
29.In the decision reported in (2009) 4 SCC 299 (Rajasthan
SRTC v. Bal Mukund Bairwa), it was held as follows :
“35.Any order passed in violation of the
principles of natural justice save and except certain
contingencies of cases, would be a nullity. In A.R.
Antulay (1988) 2 SCC 602, this Court held:
'55.....No prejudice need be proved for
enforcing the fundamental rights. Violation of a
fundamental right itself renders the impugned
action void. So also the violation of the principles of
natural justice renders the act a nullity.'”
30.The ratio that can be culled out from the aforesaid
decisions is that even a judicial order can be held as nullity if the
principles of natural justice have not been complied with. If an
order is nullity, it has no legal consequence. It cannot be enforced.
The defense of nullity can be set up whenever such decree sought to
be enforced. Since the defect is incurable, waiver or laches cannot
be put against the party raising the plea of nullity. It can be
challenged at any stage, even at the stage of execution or collateral
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proceedings (2004) 8 SCC 706. The order dated 28.04.2015 made
in WP(MD)No.7068 of 2015 would fall under such a category.
31.The order dated 28.04.2015 made in WP(MD)No.7068 of
2015 proceeds on the premise that the order dated 12.12.2014 in
SLP (C) No.33137 of 2014 would apply to the subject religious
practice. I must make one remark at this stage. No order of the
Hon'ble Supreme Court was produced. The bench went by a news
item. This is evident from paragraph 8 of the said order. The facts
are also not comparable. In the case before the Supreme Court, the
practice was that after the Brahmins had taken their meals, on the
left over plantain leaves, persons belonging to other communities
would roll over. The prayer in WP(MD)No.7068 of 2015 was for
directing the respondents to protect the right to dignified life by
stopping the inhuman practice of rolling over on used plantain
leaves left by brahmins after their meal, all over the State of Tamil
Nadu. In this case, even according to the District Administration,
the devotees irrespective of their community background partake
the meals and devotees of all communities including the brahmins
would perform Angapradakshinam. This was a case where Article
17 of the Constitution was not at all applicable. In fact, the custom
on hand points to communal amity and social integration.
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32.The petitioner wants to perform Angapradakshinam on
18.05.2024. The learned counsel for the petitioner states that
there are may other devotees like the petitioner wanting to perform
the service. The event is going to be held in a remote village and
that too in a specified street.
33.The petitioner was justified in filing this writ petition before
me. He seeks enforcement of his fundamental right. Article 226 of
the Constitution of India empowers the High Court to issue
appropriate writs for the enforcement of one's fundamental rights.
He could not have gone before the Division Bench because of the
non-allocation of roster. The petitioner cannot also be denied relief
merely on the ground of laches. The petitioner had taken the
religious vow for fulfilment only this year. The Hon'ble Supreme
Court in Basheshar Nath v. CIT (AIR 1959 SC 149) held that
fundamental right cannot be waived. The same principle will apply
in the case of laches also. The petitioner of course had the remedy
of filing a review petition. It was a choice which he has not
exercised. He was not obliged to do so. There is a distinction
between an erroneous order and an order which is nullity. An
erroneous order has to be challenged before a higher forum or by
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filing a review. If the order itself is nullity, it can be ignored and the
defense can be set up at the stage of execution.
34.There is merit in the contention of the learned Additional
Government Pleader that individuals and officials cannot on their
own assume that a judicial order is nullity and can be ignored. It is
true that the Hon'ble Supreme Court in the decision reported in
(2022) 1 SCC 209 (Amazon.com NV Investment v. Future
Retail Limited) reiterated the well known proposition that no
order bears the stamp of invalidity on its forehead and that it has to
be set aside in regular court proceedings as being illegal. In this
case, the petitioner has filed petition under Article 226 of the
Constitution of India and it is in these proceedings the order dated
28.04.2015 made in WP(MD)No.7068 of 2015 has been declared as
nullity. Just an executing court can declare the decree sought to be
executed as nullity, I also have the jurisdiction to declare the order
dated 28.04.2015 made in WP(MD)No.7068 of 2015 as nullity.
35.It is pertinent to note that a Single Bench is not a court
subordinate to Division Bench. His Lordship Mr.Justice
M.Nagaprasanna of the High Court of Karnataka vide order dated
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20.12.2023 in WP No.47144 of 2018 took exception to the remand
order made by the Hon'ble Division Bench. The learned Judge cited
the observation of the Hon'ble Supreme Court made in Roma
Sonker v. M.P.S.P.S.C (2018) 17 SCC 106 which was to the effect
that both the learned Single Judge as well as the Division Bench
exercise the same jurisdiction under Article 226 of the Constitution
of India. Only to avoid inconvenience to the litigants, another tier of
screening by the Division Bench is provided in terms of the power of
the High Court but that does not mean that a single Judge is
subordinate to the Division Bench. Being a writ proceeding, the
Division Bench is called upon in the intra-court appeal primarily and
mostly to consider the correctness or otherwise of the view taken by
the single Judge. The Division Bench must consider the appeal on
merits by deciding on the correctness of the judgment of the single
Judge instead of remitting the matter to the single Judge. Justice
M.Nagaprasanna also quotes at length the judgment of the Full
Bench of the Karnataka High Court rendered in Town House
Building Co-operative Society Limited v. Special Deputy
Commissioner, 1988 (2) KLJ 510. The Hon'ble Full Bench in turn
relied on an earlier Full Bench decision in State of Karnataka v.
H.Krishnappa (ILR 1975 (Kar) 1015). It was held that the writ
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appeal jurisdiction cannot be compared and is not akin to an
appellate jurisdiction as ordinarily understood which presupposes
the existence of a superior court and an inferior court. No such
relationship exists between a single judge and a Division Bench as
both exercise the jurisdiction vested in the High Court. There is no
difference between a writ petition referred to a Division Bench or a
writ petition which comes up before a Division Bench through a
Writ Appeal in the matter of exercise of the jurisdiction and powers
of the Court under Article 226 of the Constitution. I am therefore
convinced that I am not guilty of judicial indiscipline. This is more
so because I have only examined the character of an earlier judicial
order passed in exercise of the jurisdiction under Article 226.
36.The importance of adhering to the principles of natural
justice hardly requires to be stressed. It is now a settled principle
of law that in matters involving rights, the administrative and
judicial authorities have to follow the principles of natural justice.
The leading cases are A.K.Kraipak and ors. Vs. Union of India (UOI)
and Ors (AIR 1970 SC 150) and Maneka Gandhi Vs. Union of India
(UOI) and Ors (AIR 1978 SC 597). The underlying reason justifying
the extension of principles of natural justice was that the authorities
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were acting judicially in such cases. In other words, what was sine
quo non for judicial proceedings was extended to administrative law
in U.K and India during the last century. If an administrative order
or a quasi judicial order can be ignored as nullity on the ground of
violation of principles of natural justice, the sequitur is that judicial
order will also meet the same fate.
37.The next question is whether the practice has any
implication on public order, health or morality and if it contravenes
any provision of Part III of the Constitution. It is relevant to note
that the State never thought it necessary to intervene on the
grounds mentioned above. It was judicial intervention that led to
the stoppage of practice. The judiciary could have intervened only
if there was violation of constitutional morality or an aggrieved
individual was before it. The Hon'ble Supreme Court in (2020) 2
SCC 1 (Kantaru Rajeevaru Vs. Indian Young Lawyers
Association and Ors) (per majority) while passing orders in the
review petitions observed as follows :
“6.In a legal framework where the courts do not
have any epistolary jurisdiction and issues pertaining to
religion including religious practices are decided in
exercise of jurisdiction under Section 9 of the Civil
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Procedure Code or Articles 226/32 of the Constitution
the courts should tread cautiously. This is time
honoured principle and practice.”
38.There was simply no evidence before the Bench which
decided WP(MD)No.7068 of 2015 that there was violation of Article
17 of the Constitution or the right to human dignity. On the other
hand, the materials placed before the court clearly indicated that
there was absolutely no caste discrimination. Article 17 was clearly
out of picture. As regards the question of human dignity, I can only
remark that in religious matters it is not open to third parties except
in exceptional circumstances to make peremptory declaration as to
what is dignified and what is not. There can be no a priori
assumption. The standards set for determining whether a given
ritual / practice is in consonance with the principles of
constitutional morality are more rigorous than the standard set for
determining whether such practice violates any of the individual
provisions of Part III of the Constitution. The person making the
assertion that the religious practice violates constitutional morality
must discharge the burden. Without undertaking any exercise as
contemplated above, WP(MD)No.7068 of 2015 was allowed and that
is why, I characterise the said order as null and void. I have already
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held that the right claimed by the petitioner is a part of his privacy
right. If sexual orientation is a private matter, so is one's spiritual
orientation.
39.The prayer made by the petitioner is unnecessary. For
conducting the customary religious events in villages, one does not
require permission from the authorities. Only if the festival
organisers want to install sound amplifiers, permission will have to
be sought. Therefore, the question of the respondents granting
permission does not arise at all. This issue has already been settled
vide order dated 16.08.2022 in WP(MD)No.18554 of 2022. The
organisers (R4) are at liberty to organise the events as traditionally
done. The petitioner can very well exercise his fundamental right of
performing Angapradakshinam on the banana leaves after the
guests have partaken the meals. No authority let alone the
respondents can interfere with the same. The Hon'ble Supreme
Court in Kaushal Kishore v. State of U.P (2023) 4 SCC 1 had
held that certain fundamental rights can be invoked even against
private individuals. Thus, no private individual can prevent the
petitioner or any devotee from exercising his fundamental right. If
there is any such obstruction, it is the duty of the police to aid the
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petitioner to exercise his fundamental right and remove the
obstructors from the scene.
40.This writ petition is allowed by restraining the respondents
1 to 3 and 5 & 6 (official respondents) from interfering with the
conduct of the petition-mentioned event. No costs.
17.05.2024
skm
To
1.The District Collector,
District Collector Office,
Karur District.
2.The Revenue Divisional Officer,
Revenue Divisional Office,
Karur District.
3.The Tahsildar,
Taluk Office, Manmangalam Taluk,
Karur District.
4.The Superintendent of Police,
Karur District.
5.The Inspector of Police,
Vangal Police Station,
Karur District.
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G.R.SWAMINATHAN, J.
skm
17.05.2024
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