1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPIL NO. 14 OF 2011 Date of Decision: 14th June, 2011 Court on its own motion Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Kurian Joseph,C.J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Nemo. For the respondents: Mr. R.K.Bawa, Advocate General, with Mr. J.K.Verma, Dy. Advocate General. Mr. T.S.Chauhan, Advocate, for respondent No.6. Justice Sanjay Karol, J. (Oral) We are living in the 21st century and have come a long way since the physical primitive of mankind. We are a free, sovereign, socialist, secular and democratic Republic. People of India have given to themselves the Constitution of India. They have resolved to secure, to all its citizens, justice, liberty and equality, yet certain members of our society are still shackled by the primitiveness of their mind. Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. Articles 17, 25 and 26 of the Constitution of India, which for ready reference are reproduced as under:- “17. Abolition of untouchability – ‘Untouchability’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.” “25. Freedom of conscience and free Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.” “26. Freedom to manage religious affairs. 3 Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- (a) To establish and maintain institutions for religious and charitable purposes; (b) To manage its own affairs in matters of religion; (c) To own and acquire movable and immovable property; and (d) To administer such property in accordance with law.” 3. Part-III of the Constitution of India provides for equality for all in every respect including practice of faith and religion. Article 17 specifically abolishes and prohibits untouchability and forbids its practice in any form. Continuance thereof is a punishable offence. Subject to certain restrictions, Articles 25 and 26 specifically provide right of equality to profess and propagate any religion. Freedom of religion is guaranteed to all persons of India. In view of constitutional mandate, Legislature has enacted the following laws to check and make punishable untouchability and inequality in any form:- The Protection of Civil Rights Act, 1955 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Protection of Human Rights Act, 1993 4 4. Untouchability and inequality in any form is thus unacceptable in any civil society. 5. However, in the 64th year of our Independence, to our shock and dismay, we are confronted with an incident, as brought to our notice by way of a letter dated 19.4.2011 written by Shri Karam Chand Bhatia, President, Sant Shri Ravi Dass Dharam Sabha, Shimla, whereby entry of Scheduled Castes is prohibited in a Shiv Mandir and that too in a State which is popularly known as “Abode of Gods”. The letter enclosed the news item dated 16.4.2011 published in Shimla Bhaskar, reporting that outside the Markanda temple in District Bilaspur a board is displayed indicating that entry of Scheduled Castes is prohibited. 6. The Apex Court in Sri Venkataramana Devaru and others vs. State of Mysore and others, AIR 1958 S.C. 255, while dealing with somewhat similar situation, held that right protected by Article 25(2)(b) is a right to enter into a temple for the purpose of worship and it should be construed liberally in favour of the public. However, this right is not absolute and unlimited in character. Clause (1) of Article 25 declares the right of all persons of freedom to conscience and right freely to profess practice and propagate religion. It is this right which is subject to the limitation provided in 5 Article 25(2). The right conferred under Article 25(2)(b) is a right conferred on all classes and categories of Hindus to enter into a public temple irrespective of the fact as to whether such right is exercised under Article 25(1) or in denomination of Article 25(2)(b). 7. The Apex Court while dealing with a case whereby, contrary to the custom and practice, a non- Brahmin was allowed by the State to perform Pooja in the temple, in N.Adithayan v. Travancore Devaswom Board and others, (2002) 8 SCC 106, held as under:- “In view of the categorical revelations made in the Gita and the dream of the father of the Nation Mahatma Gandhi that all distinctions based on castes and creed must be abolished and man must be known and recognized by his actions, irrespective of the caste to which he may on account of his birth belong, a positive step has been taken to achieve this in the Constitution and the message conveyed thereby got engrafted in the form of Articles 14 to 17 and 21 of the Constitution of India, and paved the way for the enactment of the Protection of Civil Rights Act, 1955.” “Article 25 of the Constitution of India secures to every person, subject of course to public order, health and morality and other provisions of Part-Ill, including Article 17 freedom to entertain and exhibit by outward Acts as well as propagate and disseminate such religious belief according 6 to his judgment and conscience for the edification of others. The right of the State to impose such restrictions as are desired or found necessary on grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2) (b) ensures the right of the State to make a law providing for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and any such rights of the State or of the communities or classes of society were also considered to need due regulation in the process of harmonizing the various rights. The vision of the founding fathers of Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really 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 or practices regarded as parts of religion.” 8. Respondent No.6 – Committee managing the temple in its reply has clarified that the board prohibiting entry of Scheduled Castes in Shiv Temple was in fact put up by one Baba Kewal Puri with whom 7 they have no connection. He is a habitual offender and it is not for the first time that such like board has been put up by this person. On an earlier occasion when he had affixed the board police took action and registered FIR No. 139 of 2004 dated 13.4.2004. Allegedly this person also intends to disturb the communal harmony. This time when the board in question was put up by Baba Kewal Puri, the matter was promptly brought to the notice of the Deputy Commissioner (respondents No.3) and the Superintendent of Police (respondent No.4) vide written communication Annexure R-6-C. 9. From the affidavit filed by respondent No.4, it is evident that the offending board now stands removed and FIR No. 78 of 2011 stands registered in relation to which investigation is complete and challan would be presented shortly before the competent Court. However, the accused stands released on bail. It is averred that in relation to the first FIR, matter is pending trial before the Special Judge (District & Sessions Judge), Bilaspur. 10. We are convinced that respondents have taken prompt action in removing the board put up on the wall of the temple. According to the respondents, Baba Kewal Puri is a habitual offender. It appears that he has got no respect for law. 8 However, police and prosecution are not helpless in dealing with such like situations. After all Baba Kewal Puri has been released on bail by the Court of competent jurisdiction. It is the duty of the prosecution to bring his repeated conduct to the notice of the concerned Court, seeking appropriate directions. 11. Since the matter is pending trial before the Court of competent jurisdiction, we refrain from making any further observation with regard to conduct of Baba Kewal Puri. However, in the attending circumstances, we direct the Special Judge (District & Sessions Judge), Bilaspur, to expedite the trial in relation to FIR No. 139 of 2004 dated 13.4.2004 and see that it is disposed of in three months. We further direct respondents No.3, 4 and 6 to ensure that in future no board of such like nature is displayed in the precincts of the temple. As regards the submission of respondent No.6 that even though Baba Kewal Puri has got no tangible right or interest in the management of the affairs of the Committee or the temple, there is continuous interference from his side in the smooth running and management of the temple, we make it clear that it shall be open for respondents No.4 and 5 to take appropriate and stern action in accordance with law. 9 12. With the aforesaid observations, we dispose of this writ petition with the profound hope and belief that such like instances shall not take place in future. A copy of this order be sent to the concerned Court. (Justice Kurian Jospeh) Chief Justice. 14th June, 2011 (Justice Sanjay Karol), (C) Judge.