IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 47 OF 2004 Sri Badrinath & Sri Kedarnath Temple Committee ………Plaintiff/Appellant. Versus Shwetambar Jain Temple …Defendant/Respondent. Mr. S.N. Babulkar, Senior Advocate, assisted by Mr. Anil K. Bisht, Advocate for Plaintiff/Appellant. Mr. R.P. Nautiyal, Advocate for Defendant/Respondent. 2nd September, 2009 Hon’ble Sudhanshu Dhulia, J. This is plaintiff’s second appeal. Plaintiff/appellant is a Committee constituted under a statute known as Sri Badrinath & Kedarnath Temples Act, 1939 (from hereinafter referred to as the Act). It is aggrieved by the construction of what plaintiff calls a “Jain Temple”, about 800 metres away from the main Badrinath Temple, in district Chamoli, Uttarakhand. As per the plaint averments, the plaintiff has been entrusted with certain powers and duties under the Act, which are enumerated under Section 23 of this Act. It is the plaintiff’s case that the construction of a “Jain Temple” in Shri Badrinath Temple area would hurt the “Hindu religious sentiments” and would also make it difficulty for the plaintiff to perform its statutory duties under the Act. On the other hand, the defendant / respondent claims that it is not constructing a temple but a “Prarthna Sabha”, and this construction is being done on land of the society known as “Adinath Nirman Kalyan Trust Ahmadabad”, for which it has also obtained a permission from the “authority” 2 under the relevant law. The title and the ownership of the land and that there is a permission with the defendant to make the ‘disputed construction”, are all admitted facts. Apart from this what is more important is that the defendant claims its fundamental rights, primarily under Articles 25 and 26 of the Constitution of India and asserts that it has a fundamental right to profess, practice and propagate its religion which is Jain religion, and the construction of a “Prarthna Sabha” would be an act in pursuance of this fundamental right and any interference here by the plaintiff would amount to an invasion on this fundamental right of the defendant. In effect therefore both the plaintiff as well as the defendant are asserting their fundamental right i.e. the right to the freedom of religion. The suit of the plaintiff before the trial Court (being Civil Suit No. 30 of 2000 Sri Badrinath and Kedarnath Temple Committee Vs. Swetambar Jain Temple), was for permanent injunction. In the suit, the trial Court had framed two issues, which when translated into English would be as follows: “1. Whether the plaintiff has any right to stop the defendant from establishing a Jain temple and image of Vrishabh Dev in Badrinath Puri area? 2. Whether the plaintiff is entitled to any relief?” After appreciating the evidence and hearing the arguments of the contesting parties, the trial Court came to the conclusion that the plaintiff has no right to stop the construction of the “Prarthna Sabha” or even the 3 installation of image of “Jain Tirthankar Vrishabh Dev” in the Prarthna Sabha as the defendant is protected under Articles 25 and 26 of the Constitution of India and since they have a fundamental right to do what they are doing, there is an absolute justification in their activity and consequently, the suit of the plaintiff was dismissed on 7th April, 2003. Aggrieved, the plaintiff filed a First Appeal (being Civil Appeal No. 6 of 2003) before the District Judge, which has also been dismissed by the learned District Judge on 12th March, 2004. Now, the present second appeal has been filed, which was admitted by the learned Single Judge of this Court on following two substantial questions of law, which are as follows: “1. Whether, the courts below have erred in law in interpreting Article 25 of the Constitution of India in its proper perspective? 2. Whether, effort of defendant respondent to construct Jain temple in Badrinath Dham would interfere in the religious functioning of other community?” Now, since in sum and substance the above two substantial questions of law are primarily an interpretation of Article 25 and 26 of the Constitution of India in the light of other provisions of the Constitution of India, these two questions are being heard together. The counsel for the defendant/respondent would, however, argue that this Second Appeal has no substantial questions of law and should be dismissed. Heard learned counsel for the plaintiff / appellant as well as learned counsel for the defendant / respondent on the aforesaid questions of law. 4 The plaintiff / appellant has based his case on the fact that it is a creature of statute namely the Uttar Pradesh Shri Badrinath [and Shri Kedarnath] Temples Act, 1939. A perusal of the said Act shows that the said statute was enacted primarily with an object to manage the affairs of Shri Badrinath Temple and other related temples in public interest. Statement of objects and reasons of the Act reads as follows: “The Badrinath Temple which is one of the foremost sacred place of Hindu pilgrimage in India is situated in the Garhwal district on the heights of the Himalayas. Under the scheme of 1899 at present in force its management is in the hands of the Rawal, while the Tehri Durbar is invested with certain supervisory powers. The defective nature of the scheme has been the source of constant friction between the Rawal and the Tehri Durbar. As a result, supervisions of the temple has suffered, its income has been squandered and the convenience of the pilgrims has been neglected. The unsatisfactory condition of the temple which has existed for a long time was specially brought to the notice of Government by the Hindu Religious and Charitable Endowments Committee in 1928. Since then public agitation has been continually pressing for reform in its management. The Bill which is now introduced seeks to remove the chief defects of the present scheme. It restricts the Rawal to his priestly duties and places the secular of management of the temple in the hands of a small Committee which would be 5 partly nominated. It preserves at the same time the traditional control of the Tehri Durbar ; while adequate powers have been served for Government to guard against mis-management by the Committee. [vide Gazette, 1939, Part VII- A, p.17].” The committee has been constituted under Section 5 of the Act. Section 5 of the Act reads as follows: “[5. The Committee.—(1) The administration and the governance of Temple and the Temple fund shall vest in a committee which shall be comprised as follows: (a) [* * * *] (b) two persons to be elected by the Hindu members of the Uttar Pradesh Legislative Assembly and one person to be elected by the Hindu members of the Uttar Pradesh Legislative Council; (c) one person residing in the district of Garhwal to be elected by the Hindu members of the Zila Parishad of that district; (d) one person residing in the district of Tehri Garhwal to be elected by the Hindu members of the Zila Parishad of that district ; (e) one person residing in the district of Chamoli to be elected by the Hindu members of the Zila Parisahd of Chamoli and for so long as there is no Zila Parishad in Chamoli to be nominated by the Collector of that district; (f) one person residing in the district of Uttar Kashi to be elected by the Hindu members of the 6 Zila Parishad in Uttar Kashi to be nominated by the Collector of that district ; (g) the President of the Committee and [seven members’] to be nominated by the State Government. (2) The State Government may appoint any member of the Committee as Vice-President thereof. The Vice President shall exercise such powers as may, with the previous approval of the State Government, be delegated to him by the President; (3) The Constitution of the Committee shall be notified by the State Government in the official gazette; Provided that the State Government may notify the Constitution of the Committee at any time after the President and not less than eight members of the Committee have been elected or nominated, as the case may be, and the Committee so constituted shall be deemed to be a constituted Committee. (4) No person who is subject to any disqualification referred to in sub-section (1) of section 10 shall be eligible for membership or for the office of the President or Vice-President of the Committee.” The duties of this Committee are given under Section 23 of the Act, which reads as follows: “23. Duties of the Committee.—Subject to the provisions of this Act or of any rules made 7 thereunder, it shall be the duty of the Committee – (1) to arrange for the proper performance of worship at the Temple; (2) to provide facilities for the proper performance of worship by the pilgrims; (3) to make arrangements for the safe custody of the funds, valuable security and jewelleries and for the preservation of [the Temple fund] ; (4) to ensure that the funds of the endowment are spent according to the wishes, so far as may be known, of the donors ; (5) to undertake for the benefit of the worshippers and pilgrims— (a) the construction of buildings for their accommodation ; (b) the construction of sanitary works; and (c) the improvement of means of communication; (6) to make suitable arrangements for the imparting of religious instruction and general education ; (7) to make provision for medical relief of worshippers and pilgrims ; (8) to make provision for the payment of suitable emoluments to its salaried staff ; (9) to do all such things as may be incidental and conducive to the efficient [management, maintenance and administration of the Temple and Temple fund] and the convenience of the pilgrims.” 8 A bare reading of the above provisions show that the statute was enacted with an aim and purpose to remove certain defects which were prevailing at the said time in the management of Sri Badrinath temple and there was a dispute between the “Rawal” as priest of the temple and the “Tehri Durbar”, which resulted in mismanagement of the affairs of the temple and all this was also causing a lot of hardships to the pilgrims. The Act was therefore passed to remove these defects restricting the “Rawal” to his priestly functions and duties and thereafter to place the secular management of the temple in the hands of a Committee, which would be partly nominated by the Government. The Act also preserves the traditional control of Tehri Durbar, with adequate powers given to the Government to guard against any mismanagement by the Committee. Further Section 23 relates to the duties of the Committee, which also shows that these duties are related to a proper management of the temple affairs and to look after the pilgrims and to remove the difficulties, if any, which the pilgrims in Sri Badrinath Dham face, etc. In short, no powers have been given to the Committee to stop or prohibit the construction of any other temple or a building, which may be constructed by followers of a different religion, religious denomination or a different Hindu religious sect. It has further been shown before this Court, as well as before the courts below, that a permission to make construction has been obtained from the Prescribed Authority, under the law, by the defendant. Articles 25 and 26 of the Constitution of India which have an important bearing on the question of law here reads as follows: 9 “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, practice 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 institution of a pubic 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 (2), the reference to Hindus shall be construed as including a reference to person professing the Sikh, Jaina and 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 and shall have the right-- (a) to establish and maintain instituti9ons for religious and charitable purposes. (b) to manage its own affairs in matters of religion; 10 (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.” As per Article 25 of the Constitution of India, all persons are equally entitled to freedom of conscience and freedom to profess, practice and propagate their religion. This right, however, like most other fundamental rights is not an absolute right and is subject to public order, morality and health as well as to other provisions of Part III of the Constitution of India. Undoubtedly, the defendant/respondent, who practices Jain religion has a right to profess, practice and propagate its religion, and there cannot be any hindrance to it subject to the limitations contained in Article 25 i.e. subjects to public order, health, and morality and to other provisions of Part III of the Constitution. What has to be seen by this Court is as to whether the construction of “Prarthna Sabha” by the defendant/respondent which belongs to “Shwetambar Jains”, is in any way affecting public order, morality and health or is it affecting any provisions of Part-III of the Constitution of India. Learned counsel for the plaintiff/appellant has fairly conceded that as far as morality, health and provisions of Part-III of the Constitution of India are concerned, it is not affecting. However, the contention of the learned counsel for the appellant is that the disputed construction is going to affect the “public order” in the vicinity of Sri Badrinath Dham and elsewhere and the construction would also hurt the religious sentiments of “Veidic Sanatan Hindus”. It has also been stated in the plaint that a person belonging to Hindu religion has also 11 threatened self-immolation in case such a construction is allowed. Apart from this, learned counsel for the appellant/plaintiff has relied upon various provisions of Hindu religious scriptures primarily “Purans” where it is stated that Shri Badrinath Dham is not restricted to merely the temple premises, but according to the counsel for the appellant, the entire Badrinath Dham area is 48 miles from one side and 12 miles from another. Followers of Hindu religion have tremendous religious faith in the entire pilgrimage area and construction of a temple of any other religion particularly by Jains, who according to the plaintiff are not only not Hindus but their religion is against the basic tenets of Hinduism inasmuch as Jains do not believe in God or Vedas nor in the principle of re- birth. Therefore, the construction of temple would hurt the Hindu religious sentiments and would also create law and order problem in Shri Badrinath Dham. All the same, these arguments have not been convincing enough before both the Courts below nor are they convincing to this Court. Firstly, Shri Badrinath & Shri Kedar Nath Temple Committee has been constituted with a well defined duties under the Statute and it cannot claim powers more than what has been given to them by the Statute. By the same logic, the Committee cannot be a representative of all the Hindus or even “Vaidic Sanatan Hindus” even if it is assumed for the sake of arguments that Hindu religious sentiments are being hurt. These arguments, as it has already been observed by the lower Appellate Court, are merely based on sentiments and emotions and have no substance. Secondly, the religious sentiments of the follower of one religion or religious sect or denomination have to be balanced against the 12 fundamental right of the other, which is their right to profess, practice and propagate their religion. In the written statement, the defendant/respondent has stated that Jainism is in fact a part of Hindu religion and believes in Vedas and also has faith in Lord Vishnu etc, etc. Whether these averments find justification in Jain scriptures, this Court is not giving any finding on this aspect, nor this Court is getting into this debate as to whether Jainism is a part of Hindu religion or is a different religion altogether. This is not a subject matter of the present dispute. Assuming that Jainism and Hinduism are different religion, the question is whether the defendant is within its fundamental right to construct a “Prarthna Sabha” and falling from it whether the plaintiff has any right to stop this construction. This Court finds that it is a fundamental right of the defendant to profess, practice and propagate Jain religion and construction of a “Prarthna Sabha” is a part of it and plaintiff has absolutely no right to interfere in such a construction and any interference by the plaintiff on this fundamental right of the defendant would amount to an invasion on this fundamental right of the defendant primarily under Article 25 and 26 read with Articles 19(1)(a) and 14 of the Constitution of India. Learned counsel for the plaintiff/appellant has cited two judgments of the Apex Court i.e. Committee of Management, Kanya Junior High School Bal Vidya Mandir, Etah, U.P. v. Sachiv. U.P. Basic Shiksha Parishad, Allahabad & Ors. reported in AIR 2006 SC 2974 and Bal Patil and another Vs. Union of India and others reported in AIR 2005 SC 3172. In short, the plaintiff has relied upon the said Apex Court’s judgment in order to strengthen the argument Jainism is different 13 religion than Hinduism and since it has now been held that Jains are different from Hindus, according to the plaintiff / appellant Jains, therefore, cannot be allowed to construct the temple or a “Prarthna Sabha” in Sri Badrinath Dham as only temples belonging to Vaidic Sanatan Hindus can be allowed to be constructed in Sri Badrinath Dham area. Firstly in these two judgments cited by the plaintiff/appellants it has nowhere been categorically stated that Jains are different from Hindu and that debate may still be open and in fact in Bal Patil and another Vs. Union of India and others reported in AIR 2005 SC 3172, the Hon’ble Apex Court has observed to the contrary as thus: “30. Thus, ‘Hinduism’ can be called a general religion and common faith of India whereas ‘Jainism’ is a special religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence (‘Ahimsa’) and compassion (‘Karuna’). Their only difference from Hindus is that Jains do not believe in any creator like God but worship only the perfect human-being whom they called Tirthankar. Lord Mahavir was one in the generation of Tirthankars. The Tirthankars are embodiments of perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis, Aryasamajis and Lingayats. The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah. [See:-1] Encyclopedia of Religion and Ethics, Vol 7 pg. 465; 2) History of Jains by A.K. 14 Roy, pgs. 5 to 23; and Vinoba Sahitya, Vol. 7 pg. 271 to 284.” Be that as it may, this Court has no intention to go into this theistic, religious or metaphysical debate. Whether Hinduism and Jainism are different, similar or same religious is not an issue here. But more of it later. According to the plaintiff/appellant in the entire Badrinath Dham area no other religious activity save that of Lord Vishnu or that relating to Hindus can be established. Plaintiff also asserts that in Shri Badrinath temple Lord Vishnu is worshipped daily as per the rituals and ceremonies pertaining to the temple and there is daily chanting of Vedic Hymns. On the other hand, Jainism does not have any faith in Vedas, in fact they are against it and from religious point of view, there is no purpose for establishing a Jain Temple in the Badrinath Dham area. He further asserts that the Badrinath Dham area is an area specific to those who believe in Vedic Hindu Religion. Appellant/plaintiff also states that Hinduism and Jainsm are two different religions, who have got their different rituals and ceremonies, and since these two religions are separate, by establishment of a Jain Temple in Badrinath area will give rise to tension between the followers of these two religions, which will affect the law and order as well as public order in the area. In its written statement, however, the defendant has sated that he is not constructing a ‘temple’ but only a ‘Prarthna Sabha’ for which a valid permission has been taken from the concerned authorities and the plaintiff have no business to stop this construction. Moreover this construction is taking place over the private land of the 15 defendant, which is not the land of the plaintiff. “Curiously” the defendant in their written statement have stated that it is not separate or distinct from Hindu religion, but it is a part and parcel of Hindu religion. It has also been stated that it has faith and devotion in Lord Badrinath and the entire Jain community in the past as well as today worship Lord Badrinath i.e. Lord Vishnu at Badrinath Temple. Not only this, the defendant has also stated that Jain Community gives their donations to Badrinath Temple as they have faith and devotion in the deity. The defendant has also asserted that they have full faith in Vedas as against the plaintiff’s allegations to the contrary. Although this stand taken by the defendant is not in line with the stand the Jain Community has taken before the courts from time to time, as it is evident from the case laws on the subject where they have asserted a different religious identity. All the same, no relevant purpose is going to be solved in getting into this debate. Moreover, this Court feels that this aspect is also not relevant to the present controversy. The relevant issue is whether any restrictions can be placed on the construction of a “Prarthna Sabha” of the Jain Community, inspite of a valid permission for the same under the law and moreover whether the defendant is protected under Article 25 and 26 of the Constitution of India. This Court after perusal of both the orders of the courts below finds that both the courts below have rightly given a finding in favour of the defendant and have correctly decided that the plaintiff has no right whatsoever to stop the construction being made by the defendant/respondent. Therefore, on both the substantial question of laws, which has been formulated by this Court, a finding has 16 to be given in the negative. The courts below have not erred in law in their interpretation of Article 25 of the Constitution of India. The effort of the defendant/respondent to construct Jain temple in Badrinath Dham also does not amount to any interference in the religious functioning of other communities. The substantial questions of law are hence decided accordingly, against the plaintiff/appellant and in favour of the defendant/respondent. However, in this Second Appeal there is much more than a mere substantial question of law! This case in fact touches a core aspect of the Constitution of India on which an observation is required to be made by this Court. This aspect is of secularism. Secularism is a basic feature of the Constitution as held in the Fundamental Right case (His Holiness Kesavanand Bharti Sripadagalvaru and others Vs. State of Kerala and another AIR 1973 SC 1461) and later reiterated by the Apex Court in other